On the point of fact and law
On the point of fact and law, all states are sovereign, independent of each other and are foreign to each other. This is what has been taught in constitutional law to students of the law. The concept of sovereignty must be discussed.
It posits that every recognizable state is considered as equal, autonomous, independent and will function without any external interference within the ambit of international relations. See the Treaty of Westphalia for further reading about the principle of non-interference by states into another state’s internal affairs.
If there is honesty and an adoption of a sensible and rational approach towards all things constitutional, any nation would benefit from the guidance provided by its constitution. It is as much historical as it is a legislative construct.
The constitution in St.Vincent and the Grenadines is the Supreme law of the land.
Unless one doesn’t understand it sufficiently, a politician especially is prone to make serious blunders and create more havoc for nationals to whom they owe the greatest accountability.
The claim made by some is that a sovereign state within the Commonwealth grouping is NOT necessarily a foreign state. According to what I have researched, this is a fundamental statement of error. A distinction has to be made here between political personalities and constitutional provisions. There is no attack personally on anyone, but rather there is need for clarity.
This matter is about the principles enshrined within our constitution. If leaders or aspiring leaders do not understand these provisions, they must seek legal guidance. It cannot be that our nation is headed to another election and there is lack of clarity by some about fundamental principles, one of which is an understanding of what exactly is a “foreign state.”
If we continue to ignore the significance of this issue or at best refuse to see its relevance, then this is going to trigger another round of “constitutional arguments” and create a platform for useless and baseless arguments. No need. To begin with, we revisit this extract from the St Vincent and the Grenadines Constitution to give context:-
- (1) Disqualification for Representatives and Senators (hereinafter in this section referred to as a member) if he:-
(a) is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state …
I was led to believe that in this context of disqualification for representatives and senators, only an adult can or may by virtue of his own actions, acknowledge allegiance, or obedience or adherence to a foreign state or power. Not minors, so that if a child was born in any state, it is
only until he attains the age of 16 years [in St. Vincent and the Grenadines] will his signature be accepted. It may be so in other states. At that age, he will be issued with his passport. Incidental to the issuance of his passport, he would be deemed to have done so by virtue of his own act.
Further, he will be under any acknowledgement of allegiance, obedience or adherence to the state of St.Vincent and the Grenadines. If this reasoning is logical and in keeping with the laws of a nation outside of St.Vincent and the Grenadines, the same should apply if that child was born in a state foreign to St.Vincent and the Grenadines.
To those persons born outside of St.Vincent and the Grenadines to Vincentian parent/parents/grandparents and have a passport of that country in which they were born, they are eligible for dual citizenship and may apply here. Also such other qualifications may exist according to the Citizens Act. Note again, any recognizable state outside of St.Vincent and the Grenadines according to international relations is a foreign state. I will attempt to explain further.
Additionally a foreign state is a foreign state even if it is to be identified within and among a particular grouping of similar and other foreign states to which it belongs. Sounds like a mute point? It is not. Some argued that once a foreign, independent and sovereign state is within the Commonwealth grouping, that each state cannot be considered foreign to each other. But not so. Within international relations, such a state is held out as sovereign since it has its own independent structure of governance, a defined territory and is distinct and distinguishable from every other state.
While this should not descend into an academic pursuit, I share the following:-
“A useful defnition of a foreign sovereign state in international law is contained in the House of Lords case of The Arantzazu Mendi [1939] AC 256,
“By ‘exercising de facto administrative control’ or ‘exercising effective administrative control’, I understand exercising all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of inhabitants of the territory to one another and to the Government. It necessarily implies the ownership and control of property whether for military or civil purposes, including vessels whether warships or merchant ships. In those circumstances it seems to me that the recognition of a Government as possessing all those attributes in a territory while not subordinate to any other Government in that territory is to recognise it as sovereign, and for the purpose of international law as a foreign sovereign State.”
Additionally, please hear the legal reasoning on this same point by the learned judges: The Hon. Dame Janice M. Pereira, DBE Chief Justice; the Hon. Mde. Gertel Thom – Justice of Appeal; and the
Hon. Mr. Paul Webster – Justice of Appeal [Ag.] as they were in 2020 in the case: The Attorney General of Saint Chistopher and Nevis v Dr. Denzil Douglas.
Pereira, CJ gave judgment:
“Requirement (i) – A de jure allegiance to a foreign power or state,
“That the Commonwealth of Dominica is a foreign power or state is not in issue in this appeal, though the point was taken in the court below. It is clear, in any event, that Dominica is a foreign state for the purposes of the Constitution, notwithstanding the fact that Dominica is a member of the Organisation of Eastern Caribbean States, the Caribbean Community and the Commonwealth of Nations. As the learned judge found…“
Foreign States can be members of several groups
This point should not be missed. Like Dominica as discussed in the case already mentioned, St. Vincent and the Grenadines is a foreign state that can be a member of the Organisation of Eastern Caribbean States, the Caribbean Community and the Commonwealth of Nations. Therefore, a registered Vincentian may also be a Commonwealth citizen.
If therefore someone was born in St. Vincent and the Grenadines, and has dual citizenship of another state within the Commonwealth that is legally accepted. If that person with dual citizenship (two passports) wishes to vote, he must be registered in SVG having lived here for 12 months and more. However these are not qualifications or prerequisites for him/her to be selected or elected to serve as a member of the House of Assembly. Again, one cannot say or write or insist that they are doubly qualified to be an area representative or serve this nation in the capacity as a minister or senator. It is a constitutional error or blunder. It is not permissible by the constitution or the Representation of the People Act nor should be allowable.
A member of the current government administration raised the issue repeatedly. This should have gone further. I am wondering whether there was some arrangement to have at one point six members of Parliament to “sit” unconstitutionally in this country.
The Constitution of Saint Vincent and the Grenadines declares that it is a sovereign democratic state. It is an independent Commonwealth realm due to its nature of having a parliamentary
democracy. The Head of State is King Charles III represented by our Governor General. For example, iin the case of Canada it is roughly the same save and except when it comes to its sovereignty, that Canada’s right to govern itself was clearly demonstrated by the patriation of its constitution in 1982. This gave Canada the constitutional right to sever the final legal ties with the United Kingdom.
Trinidad and Tobago is also a sovereign democratic state but the head of state is elected by its Parliament. So too are St. Kitts and Nevis and Dominica and many others that are all vested with independent, international legal personalities. They have separate and distinct laws relating to citizenship and its citizens owe different allegiances. Their respective exercise of sovereignty is completely independent of each other. They are all foreign states. They are foreign to each other.
Yes, I am trying to be as simple as possible without much use of the legal jargon on this occasion for the sake of further clarity. As far as I am aware, the Citizenship Act of St. Vincent and the Grenadines does not state explicitly that our country is regarded as a foreign state even within its own laws.
Nonetheless the Act stipulates who are foreign nationals and guides anyone seeking procedure on obtaining citizenship through naturalization, residency requirements, and the application of its laws to individuals who were not born in St Vincent and the Grenadines.
Another thing, there is sufficient legal clarity ( case law, settled law) on those elected officers who hold dual citizenship and were born outside of St.Vincent and the Grenadines. Only one serving member of Parliament (to my knowledge) complied with the constitutional provision under review in this article. Although he was born in a foreign state ( foreign to St.Vincent and the Grenadines), he demonstrated an understanding of section 26 (1) of the Constitution as mentioned earlier. He renounced citizenship in order to become compliant and to serve our country, his country.
There is sufficient legal guidance that he followed. It would appear that he understood by virtue of his own act, ( signing to receive his second passport incidental to dual citizenship), that he would have been under any acknowledgement of allegiance, obedience or adherence to a foreign power or state. That would have triggered his disqualification. He remains a qualified member to serve until he is duly removed by operation of general elections. I support his principled and correct stance that he took.
While I served as our country’s Minister Counsellor/Deputy to our High Commissioner, with delegated authority, very frequently I sat in the company of representatives of all the other Commonwealth states from 2010 to 2017. Therefore to suggest that any nation was doubly qualified to attend meetings is to demonstrate a basic lack of understanding as to the nature of a sovereign democratic state and the role of the Commonwealth nations individually and collectively.
The Commonwealth grouping comprises 56 independent nations stretched right across the world. Most of these nations held historical ties to the British Empire as it was referenced. It’s not a political union, but a network of countries with a common history. Some areas of focus: cooperation among member states, collaboration in democratic ideals/legacies given their historical emergence as such and consensus on human rights initiatives among others.
Conclusion
You see, leadership is key. There must be the legality of effectiveness and efficiency. Not a single iota of evidence nor constitutional provision exist (in my humble opinion) or point to a member of Parliament having double qualification to serve in the capacity of member of Parliament. Never! So, to all members of Parliament, if they hold dual citizenship and have been allowed to serve in the honourable House of Assembly they need to resign with immediate effect. As a result of knowingly sitting in the House and understanding the constitutional ramifications (they must know this), there are penalties.
The Constitution itself outlines these, one of which is that such members can be imprisoned and another is that they can be barred from future involvement as representation. We all have wasted enough time and taxpayers’ money to pay persons for jobs that are clearly held as unconstitutional. Let us take this to court if in doubt. Let us ask the People’s lawyer – the Attorney General for a legal opinion. I believe we must so as to stem the tide of unconstitutional errors in leadership of this blessed land. We must get it right, every time. This process of election to political office and service to our country is not trivia. Otherwise our own history will condemn us!
