Leader of the Opposition in St Kitts and Nevis to vacate his seat

DR DENZIL Douglas, leader of the Opposition in St Kitts and Nevis, is required to vacate his seat in the National Assembly after the Court of Appeal ruled that his acquisition and use of a diplomatic passport from Dominica was an unconstitutional acknowledgement of an allegiance to a foreign state.

Last Thursday, March 12, Chief Justice Dame Janice Pereira of the Eastern Caribbean Supreme Court (ECSC) delivered her judgment, on whether section 28(1) (a) of the Constitution of St Kitts and Nevis had been breached.

This section outlines that “A person shall not be qualified to be elected or appointed as a member if he or she: (a) is, by virtue of his or her own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state…”.

The constitution further outlines in section 33(3)(c) that a breach of the above section would mean that the individual would be required to vacate their seat in the National Assembly.

The appellant was the Attorney General of St Kitts and Nevis, whose claims are based on the fact that Douglas, on invitation from the Prime Minister of Dominica, applied for a Dominican diplomatic passport subsequent to his being elected to the Assembly.

The Government of Dominica issued Douglas with a diplomatic passport, valid between July 30, 2015, and July 29, 2020. The passport clearly says that Douglas, a former prime minister of St Kitts and Nevis, is a Dominican citizen.

Importantly, it contains the endorsement that “The President of the Commonwealth of Dominica requests and requires in the name of the Government of Dominica all those whom it may concern, to allow the bearer to pass freely without let or hindrance and afford the bearer such substance and protection as may be necessary.”

Since being in possession of the diplomatic passport, Douglas has used it to travel and gain entry to seven countries on 10 different occasions, for “convenience of travel and business purposes.”

According to section 28, the Chief Justice noted that the three distinct considerations for someone to be disqualified from the National Assembly are that there would have been a (i) a de jure allegiance owed to a foreign power or state; (ii) some voluntary act on the part of the allegedly disqualified person and (iii) the voluntary act by the allegedly disqualified person amounts to an acknowledgment of that allegiance.

In considering the first requirement, the court considered the application of a House of Lords case from the United Kingdom: Joyce v Director of Public Prosecutions.

In that case it is established that the issuance of an ordinary passport to a non citizen means that the individual is able to attain the same protection of a citizen of that country while in a foreign country, and that the country of issuance is assuming an “onerous burden” while the holder of the passport is acquiring “substantial privileges.”

In rebutting Douglas’ argument that a diplomatic passport would be different to an ordinary passport, the chief justice stated, “The fact that a diplomatic passport is revocable at the will of the state or does not require the holder to take an oath of allegiance, cannot, to my mind, distinguish the effect of a diplomatic passport from an ordinary passport.”

She said that the Joyce case determines that the pivotal consideration is whether the passport issued means “there is undertaken by a state an obligation of protection in respect of the passport holder such that would give rise to a corresponding obligation of fidelity or allegiance on the part of that person.”

Pereira stated, “By its issuance of a diplomatic passport upon the application of Dr. Douglas, endorsed in the manner that it was, the state of Dominica very clearly consented to the presentation and use by Dr. Douglas of the passport and to him praying in aid the state’s protection at his convenience.”

She added that the use of a diplomatic passport may give rise to an even larger duty of protection, and corresponding obligation of fidelity because the passport holder would travel as a diplomatic agent of Dominica. Therefore, they would be entitled to “the suite of extravagant protections and privileges” contained in the Vienna Convention of Diplomatic Relations between Dominica and the states to which Douglas travelled.

The voluntariness of the acts of Douglas have never been in dispute, thereby meeting the second consideration under section 28.

Lastly, there must be acknowledgment of allegiance.

Douglas had argued, among other things, that he always claimed himself to be a citizen of St Kitts and Nevis on the immigration forms he filled out, and that the passport was issued only as a professional courtesy.

However, the chief justice noted that by invoking the protection and privileges of the passport, Douglas knew “well that the passport represented him as a subject and citizen of Dominica and not Saint Christopher and Nevis.”

Further, the endorsement of the passport clearly represents him as a citizen.

“How then can it be argued that he did not, whether formally or informally, take account of his fidelity, loyalty or allegiance to Dominica?,” Pereira said.

Therefore, all things considered, the ruling was that Douglas’ actions fit “squarely” into the considerations of section 28 of the constitution.

Further, she came to the conclusion that “By virtue of his allegiance in law to the Commonwealth of Dominica, Dr Douglas is in fact not free to make decisions which are purely in the interests of Saint Christopher and Nevis, as there is good authority for the possibility of his legitimate prosecution for any acts done by him which are against the interests of Dominica.”

Pereira’s judgement set aside a February 20, 2019 ruling by a High Court judge that Douglas was not under an acknowledgement of an allegiance in accordance with Dominican law.

Denzil Douglas served as prime minister of St Kitts Nevis from 1995 to 2015.

In the wake of the ruling, the Attorney General said the Governor General of St Kitts Nevis will name a new Leader of the Opposition.