The views expressed herein are solely those of the writer.
Constitutional exceptions and / or limitations:
The National Liberation Movement (NLM) hastens to add though, there are exceptions and limitations specific to the said Constitution. Parliament may seek to alter the Constitution, but it still has to adhere to the written manner and form (two-third majority and so on).
Additionally, if there are public emergencies, the Constitution outlines in sections 14 – 17 and by the very nature of ‘emergencies’, it is Parliament that may derogate from certain fundamental rights such as declaring a public emergency once it is ‘reasonably justificable’ until the particular situation is handled properly or the emergency no longer exists.
Then, there are ‘saving laws’ so that, such laws that existed prior to independence (prior to the 1979 Constitution), coupled with those that were passed immediately after that time period, were protected from becoming immediately void and voidable. This is even if they were inconsistent with what we now know as new fundamental rights. This is known as a transitionary period and hence, transitional exceptions.
Also, there are limits that are known as ‘reasonably justifiable limits’ so that many of the rights are not absolute and therefore are subject to limitations, but these are permitted by the Constitution itself. However, they are only permitted explicitly, so once they are ‘reasonably justifiable’ within our society that is built on principles of democracy.
Structure of governance and section 26 (1) of the Constitution
We turn to the structure of governance and specifically to the intent of Section 26 (1) of the Constitution of Saint Vincent and the Grenadines. That is the issue, the fundamental issue to which we must address our minds. We must ask ourselves whether this substantive matter has to do with ‘narrowing of the seats’ of parliamentarians currently in the house of Parliament. To our minds, the issue MUST be this: from the time of internal / self governance through to a recognisable national independence then to the current constitutional “furor,” whether representatives and senators correctly interpreted the said provision (Sections 25 & 26 (1) of the Constitution (the Supreme law of the land) pre and post independence provisions specific to qualifications and disqualifications of Representatives and Senators. There were amendments to the 1969 Constitution so that in 1979, when the ‘umbilical chord’ was supposed to be cut from Great Britain, the following differences were:
An understanding of full political independence, that removed Great Britain as having control over our external affairs and our defense. A Governor – General was now established locally as head of state (a titular title), and the head of our government was now renamed Prime Minister instead of Premier.
We were no longer labelled “Associated State” but a full sovereign state effective 27 October 1979.
The composition of 13 elected representatives was brought over from 1969 through to 1979, but that constitution formally introduced 6 senators who were nominated. Four of them were nominated on the advice of the Prime Minister, and the other two were chosen by the Leader of the Opposition. We now have slight changes to the aforementioned with 15 elected representatives. Leadership has always been pivotal to good governance.
In 1979, the Judicial Committee of Her Majesty’s Privy Council was retained as the final court of appeal. Up to the current time, the Privy Council is still our final court of appeal even though we have the existence of the Caribbean Court of Justice. The Privy Council acts as the final appellate court for us since we have not yet “fully adopted the appellate jurisdiction of the Caribbean Court of Justice.”
When it comes to citizenship of our country, and more specifically dual citizenship, there is a blurred line according to some critics. They questioned whether the 1979 constitution did not confer or provide for citizenship upon independence, which allowed dual citizenship – a sort of pre-requisite for certain leaders to hold office. The question one must ask is to what extent this can be inferred given the specific disqualifications outlined in Section 26 (1). There was no ambiguity there as far as I am aware.
Leadership
Further, the intent of the crafters and framers of this British/Commonwealth legacy, our Constitution and specifically Section 26 (1) was to place a prohibition, to disqualify individuals from being elected or appointed to the positions of Representative and Senators (leaders) if, they are,
“by virtue of their own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”
Basically, those elected and selected members of Parliament owe their undivided loyalty, acknowledgement of allegiance, adherence, and obedience ONLY to one nation – Saint Vincent and the Grenadines. That’s it! The court MUST give us an interpretation if, as politicians and citizens alike, we are not sure of this aspect of the Constitution and the value we should, we MUST place on leadership and good governance.
Here’s the thing, voluntary allegiance is pivotal to all this argument and or misinterpretation and interpretation of the Section in question. One would normally take a voluntary action for instance, an oath of citizenship and this would not be accidental or involuntary to their allegiances. But Section 26 is by intent exclusionary. It is and was crafted in ways so as to set specific boundaries on an aspiring leader’s eligibility. There must come a question as to why and surely the answer has always been geared towards the protection of the sovereignty of the legislative branch of government.
Some argue about commonwealth citizenship exceptions but these are subject to what others cite as allegiance to “foreign state”. It boils down to facts and settled law that each commonwealth state is a foreign state to each other although they are within the same grouping labelled ‘Commonwealth’. Let the court decide whether there is any such ambiguity in the meaning of what constitutes “foreign state” and or “foreign power.” The NLM is mindful that Parliament by itself cannot ‘remove’ perceived or actual (if it exists) legal ambiguity that is centuries old and settled law. Its “legal maneuverings” are still subject to the constitution of this country.
To reiterate, St. Vincent and the Grenadines is a Constitutional democracy. Parliament is NOT supreme. It is the Constitution that is foundational to all branches of government: the judiciary, the executive, and the legislature. No way can Parliament unilaterally seek to remove any perceived ambiguity they think they may have found in a constitutional provision. Why now? Did this ambiguity exist in the 1979 Constitution? Can Parliament be allowed to do as it pleases? Have previous parliaments committed such acts? If so, why? Definitely, only the judiciary has that authority, that finality in its interpretation of the Constitution. This is done through a judicial review – Marbury v Madison (1803). This is indeed legal/constitutional history in the making here on our island.
By Doris Charles, PhD/law
National Liberation Movement
Saint Vincent and the Grenadines
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