Jason Haynes responds to Dr. Linton Lewis

The fallacy of a constitutional crisis: why a constitutional claim against the election of dual citizens will likely fail By: Jason Haynes, PhD In his recently written piece, Dr Linton Lewis thoughtfully and with great vigour argued that the ULP has a very good chance of succeeding should it bring a claim challenging the election of Dr Friday and Mr. Bramble (should they win their seats at the November 27 General Elections). He concluded that “Canada, (notwithstanding its membership of The Commonwealth of Nations and despite the unique privilege that is accorded to Commonwealth citizens in the laws of St. Vincent and the Grenadines), is still a foreign state or power.”

While I found Dr Lewis’ piece to be well-researched and cogently written, I respectfully disagree with his conclusion in this regard. In this piece, I will endeavour to address each of the central claims Dr Lewis has raised:

1. I agree with Dr Lewis that “a citizen of St Vincent and the Grenadines is not treated any different to a citizen from a Commonwealth country in order to be qualified to contest the general elections. St Vincent and the Grenadines is a member of the Commonwealth of Nations, and its citizens are also referred to as Commonwealth citizens. Hence, once a Commonwealth citizen (including a Vincentian) is twenty-one years and older, is resident in St Vincent and the Grenadines for one year prior to the general elections, is not blind and can speak English Language satisfactorily, he/she will be eligible to contest as a candidate in the general elections of St Vincent and the Grenadines.

Any citizen of the 56  Commonwealth countries who satisfies the requirements prescribed in Section 25 of the Constitution is eligible to contest the general elections

in St Vincent and the Grenadines. Notwithstanding the inclusive nature of section 25 it is, nonetheless, qualified.”

2. I further agree with Dr Lewis that “this privilege of being a parliamentary representative is not extended to citizens of non-member states of the Commonwealth.”

His conclusion that “the term Commonwealth citizen is a misnomer [since] there is no such citizenship in existence since the Commonwealth of Nations is not a State but instead a grouping of 56 states” is a useful observation, but it should be noted that our (post)colonial constitutions are replete with examples of misnomers.

Indeed, as the Court of Appeal noted in Abraham Dabdoub v Daryl Vaz, Civil Appeal Nos. 45 & 47 of 2008 [para 35], although permitting Commonwealth citizens to run for office is an “oddity”, “that is the constitution.”

3. I also agree with Dr Lewis that “acquiring citizenship of a foreign state disqualifies a person from holding a seat in parliament”.

4. I disagree with Dr Lewis’ affirmative answer to the question of whether Canada can be considered to be a foreign power or state. He cites the Eastern Caribbean Supreme Court case of Baldwin Spencer v Guy Haywood (2003) to support his claim. In that case, Guy Yearwood, a senator, was ordered to vacate his seat in the Senate of Antigua and Barbuda with immediate effect because his appointment was in contravention of section 30(1)(a) of the Constitution of Antigua and Barbuda, which provides:

“30.-(1) No person shall be qualified to be appointed as a Senator who – (a) is, by virtue of his own act, under any acknowledgement or allegiance, obedience or adherence to a foreign power or state.”

The court in that case held that “from the day of its signing into law, assuming there was no earlier statute conferring Antigua and Barbuda citizenship, Englishmen, Canadians and all other Commonwealth citizens not meeting the citizenship provisions of Antigua and Barbuda’s law became foreigners. The words of the Constitution concerning qualification to sit in the Senate are clear and unambiguous. A person who by his own act is under any acknowledgment or allegiance to a foreign State is not qualified to be appointed as a Senator” (para 11). What distinguishes this case, however, from the situation in St Vincent and the Grenadines is the fact that section 29 of Antigua and Barbuda’s constitution expressly limits senatorial appointments to persons who are citizens of Antigua and Barbuda:

“29. Subject to the provisions of section 30 of this Constitution any person who at the date of his appointment-

(a) is a citizen of the age of twenty-one years or upwards;

(b) has resided in Antigua and Barbuda for a period of twelve months immediately preceding the date of his appointment; and

(c) is able to speak and, unless incapacitated by blindness or other physical cause, to read the English language with sufficient proficiency to enable him to take an active part in the proceedings of the Senate, shall be qualified to be appointed as a Senator.

It would make sense, then, that the court considered that Canadian citizens, even though they are citizens of a Commonwealth country, are disqualified to sit as senators in Antigua and Barbuda as Canada is a “foreign power or state”. By contrast, St Vincent and the Grenadines’ constitution contains no such limitation on Commonwealth citizens running for office or holding senatorial positions. Our constitution provides:

“25. (1) Subject to the provisions of section 26 of this Constitution, a person shall be qualified to be elected as a representative if, and shall not be so qualified unless, he

a. is a Commonwealth citizen of the age of twenty-one years or upwards.”

It would be an absurdity for the constitution to allow a person to run for office by virtue of being a Commonwealth citizen while at the same time treating them as citizens of a “foreign power or state” and thus precluding them from running for office. This would be tantamount to giving with one hand and taking it away with the other.

5. I agree with Dr Lewis’ observation that “the word foreign was mentioned three times in the St Vincent and the Grenadines Constitution but no definition was given”. Where we diverge, however, is on the implication to be drawn from section 95. Section 95 (which appears in a different chapter from the provisions dealing with qualification to run for office) is useful in providing overall context, as courts not only look at the ordinary and natural meaning of words, but their context. That provision reads:

“95. (1) In this Chapter:

“alien means a person who is not a Commonwealth citizen, a British

protected person or a citizen of the Republic of Ireland.”

While Dr Lewis acknowledges that “section 95 of the Constitution excludes a Commonwealth citizen from the definition of an alien”, he nonetheless argues that “although alien can sometimes be confused with foreign, alien simply signifies who is not a citizen of a country.”

This is where we again diverge. In Sue v Hill [1999] HCA 30, the Australian High Court [at para 167] appear to treat “foreign” and “alien” as interchangeable within the context of the determination of a “foreign power”. Separately, the Cambridge English Dictionary also offers, as a

synonym for “alien”, the term “foreign”. It means then that, in all likelihood, the drafters of the Constitution, when referring to a candidate being disqualified for having allegiance to a “foreign power or state” contemplated allegiance to a non-Commonwealth country.

6. I agree with Dr Lewis’ view that “the government of St Vincent and the Grenadines is free at any time to amend or modify that section [that allows Commonwealth citizens to run for office] since it is not an entrenched provision of the constitution.”

Yet, as the government has not made such amendment, we must work with the constitution as it is currently drafted.

7. I disagree with Dr Lewis’ assessment of Attorney General v Douglas (2020). Dr Lewis observes “at para 32 of the judgment the court stated as follows; The fact that for the limited purposes of the Citizenship Act Dominica is not regarded as a foreign country does nothing to attenuate or negate its status as a sovereign, independent state and thus a foreign power or state within the meaning of section 28(1)(a). With that rationale being applied to a country that is a member of the OECS and CARICOM it seems crystal clear that a similar rationale will be applied to Canada.”

The problem here is that Dr Lewis’ analysis elides the clear differences between St Vincent and the Grenadines’ and St Christopher and Nevis’ constitutions. These differences are not merely banal or inconsequential; they are pertinent to the resolution of the matter at hand.

Sections 25 and 26 of St. Vincent and the Grenadines’ Constitution provide:

“25. (1) Subject to the provisions of section 26 of this Constitution, a person shall be qualified to be elected as a representative if, and shall not be so qualified unless, he

a. is a Commonwealth citizen of the age of twenty-one years or upwards.

26. (1) No person shall be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he a. is by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state.”

Compare these provisions to sections 27 and 28 of St. Christopher and Nevis’ Constitution, which provide:

“27. Qualifications for Representatives and Senators.

Subject to section 28, a person shall be qualified to be elected or appointed as a member of the National Assembly if, and shall not be so qualified unless, he or she is a citizen of the age of twenty-one years or upwards and he or she or one of his or her parents was born in Saint Christopher and Nevis and he or she is domiciled there at the date of his or her nomination for election or his or her appointment, as the case may be.”

“28. Disqualifications for Representatives and Senators.

(1) 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 acknowledgement of allegiance, obedience or adherence to a foreign power or state.

(…)”

The key difference between St. Vincent and the Grenadines’ and St. Christopher and Nevis’ constitutions lies in the fact that the latter restricts nominations of candidates to be elected to serve in the national assembly to citizens of St. Christopher and Nevis. It does not contemplate citizens from Commonwealth countries being nominated for election to the national assembly.

For all intents and purposes, non-Kittians and Nevisians, including Commonwealth citizens, are considered to be citizens of “foreign powers or states”. By contrast, St. Vincent and the Grenadines’ constitution explicitly extends the possibility of nomination not only to Vincentians, but also to Commonwealth citizens. It would be absurd for the constitution to allow Commonwealth citizens to run for office while in the same breath disqualifying them from running on the basis that they are Commonwealth citizens.

8. I agree with Dr Lewis’ assessment that St Vincent and the Grenadines and Canada have “the same King but separate and distinct oversight and polities. Canada and St Vincent and the Grenadines are two different jurisdictions under international law.” What I disagree with, however, is his further assessment, relying on Sue v Hill, that “even a member of the Commonwealth of Nations could be considered to be a foreign power for the purpose of constitutional eligibility.” In Sue v Hill (para 171-173), the Australian High Court noted the following:

“by amendment [of the Australian Citizenship Act] in 1984 (taking effect from 1 May 1987) all reference to the “status of British subject” was removed in favour of the status of Australian citizen. That process, both in this country and the United Kingdom, renders the constitutional references to “a subject of the Queen” of little or no significance in determining whether the United Kingdom is now a foreign power.

By other provisions of the Australia Acts, the States are authorised to legislate repugnantly to the laws of the United Kingdom and the responsibility of the United Kingdom government in relation to the States was terminated, as were appeals to the Privy Council.

At the very latest, the Commonwealth of Australia was transformed into a sovereign, independent nation with the enactment of the Australia Acts. The consequence of that transformation is that the United Kingdom is now a foreign power for the purposes of s 44(i) of the Constitution.”

In my view Sue v Hill is not entirely persuasive, at least in the Vincentian context, on the point that Canada is a “foreign power or state”. More pointedly, explicit changes were made to Australia’s Citizenship Act and the Australian constitution (by virtue of the Australian Acts of 1986) after the constitution came into operation in 1901 such that the United Kingdom’s [a Commonwealth country] relationship to Australia was transformed into the status of a “foreign power or state”. No such changes, as far as I know, have been made in respect of St Vincent and the Grenadines’ constitution (at least not with respect to sections 25 and 26). In any event, this is a decision from the Australian High Court, which has some, albeit very limited, persuasive authority in the Caribbean context.

9. Dr Lewis concludes that “Canada is a sovereign foreign power in the sense that it was described in the House of Lords case of Spain v Owners of the Arantzazu Mendi [1939] which enumerated the activities that amount to the functions of a sovereign foreign power”. In my view, this case is of limited import on the question of Canada as a “foreign power or state”, as the case dealt with and treated Spain, a non-Commonwealth country, as a “foreign power”.

10. Finally, Dr Lewis relies on a number of cases to buttress his argument that “becoming a citizen of Canada by virtue of the oath of citizenship and, without more, is offensive to section 26.” I disagree with this conclusion, and I shall use the same cases he mentions to show why I have taken that position. In the Jamaican Court of Appeal case of Abraham Dabdoub v Daryl Vaz, Civil Appeal Nos. 45 & 47 of 2008, the Court held that by renewing and travelling on his United States passport, Mr. Vaz was by his own act under an acknowledgement of allegiance to a foreign power.  He was accordingly disqualified from membership of the House by virtue of s. 40 of the Jamaican constitution. Interestingly, Jamaica’s constitution (sections 39 and 40) read the same as St Vincent and the Grenadines’ constitution. In that respect, the Court of Appeal’s sentiments [at para 35] are both emphatic and revealing:

“[35] The framers of the constitution clearly intended that Jamaicans who by their own act sought and received non-Commonwealth citizenship, or having not so sought it, nevertheless voluntarily acknowledged allegiance to such countries, should not sit in the House of Representatives. It does not matter that they were born in Jamaica. It is a notorious fact that over the years many Jamaicans have acquired foreign citizenship, and many others are constantly in the process of seeking such status. If they choose a distant autocratic, unfriendly Commonwealth country for citizenship status, they can still serve in the House of Representatives. If, however, they choose to acquire such status in the United States of America, their friendly and accommodating neighbour to the north, they are disqualified. That may seem an oddity given the fact that many Jamaicans seek United States citizenship and are more likely to be accommodated in that country compared with the level of  accommodation they would receive in many Commonwealth countries. However, that is the constitution.”

The court here, while treating the United States as a “foreign power or state”, did not so rule in connection with citizens of Commonwealth countries. In fact, the court rejected the appellant’s argument that a person who is a Commonwealth citizen and at the same time a foreign national is not qualified to be elected as a member of the House. It held [at para 55]:

“if a person is a commonwealth citizen the fact that he is also a citizen of a ‘foreign’ country does not by itself disqualify him. If he is of the age of twenty years or upwards and has been ordinarily resident in Jamaica for twelve months immediately preceding his nomination he should be qualified. This qualification is, of course, subject to section 40. As Mr. Braham contends if the framers of the Constitution had intended the interpretation canvassed by [the appellant] they would have used the word ‘only’ after the words ‘commonwealth citizen.’”

Dr Lewis also relies on the Dominican case of Ronald Green v Petter Saint Jean (2013) DOMHCVAP2012/0001. This case concerned allegations made during an election campaign that two candidates were citizens of France and held French passports. In that case, the Court found that the petitioner, having failed to produce evidence that Mr Petter Saint Jean and Rosevelt Skerrit applied for or obtained French passports, could not succeed in having the respondents disqualified. Although Dominica’s constitution reads similarly to St Vincent and the Grenadines’ in that Commonwealth citizens could run for office, the usefulness of the case is limited by the fact that the “foreign power” in issue in this case was not a Commonwealth country, but rather France, a non-Commonwealth country. The court made no pronouncement on the question of whether Commonwealth citizens belong to a foreign power or state and are therefore disqualified.

Finally, Dr Lewis also relies on Chaitan v Attorney General (2001) for the proposition that holding of dual citizenship is a basis for disqualification under the Trinidad

and Tobago constitution. However, it is to be noted that Trinidad and Tobago’s constitution, unlike St Vincent and the Grenadines’, makes it clear that only citizens of Trinidad and Tobago can run for office. In other words, citizens of countries “other than Trinidad and Tobago” are explicitly excluded from running for office.

“47. Subject to the provisions of section 48, a person shall be qualified to be elected as a member of the House of Representatives if, and shall not be qualified to be so elected unless, he—

(a) is a citizen of Trinidad and Tobago of the age of eighteen years or upwards; and

(b) has resided in Trinidad and Tobago for a period of two years immediately before the date of his nomination for election or is domiciled and resident in Trinidad and Tobago at that date.

48. (1) No person shall be qualified to be elected as a member of the House of Representatives who—

(a) is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country.”

Curiously, Trinidad and Tobago is among the few Caribbean constitutions (albeit in a separate chapter) that defines a “foreign country”:

“19(2) In this section –

‘foreign country’ means a country (other than the Republic of Ireland) that is not part of the Commonwealth.”

Given that Trinidad and Tobago’s constitution was drafted before St Vincent and the Grenadines’, it would appear that the drafters of their constitution did not have in mind “Commonwealth countries” when referring to “foreign countries” or “foreign powers or states”. Presumably, the drafters of St Vincent and the Grenadines’ constitution, when drafting our constitution a few years later, would likely have had a similar [though unstated] definition of “foreign powers or states” in mind – a country that is not part of the Commonwealth.

In the light of the above, my firm conclusion, unlike Dr Lewis’, is that, in the Vincentian context, a constitutional challenge against the election of dual citizens holding Canadian and Vincentian citizenship will likely fail. My central argument is that our constitution explicitly permits Commonwealth citizens to contest elections under section 25, making it absurd to simultaneously disqualify them as citizens of “foreign powers or states” under section 26. To do so would be tantamount to saying that Vincentians are permitted to run for office under section 25, but by virtue of their Vincentian citizenship are prohibited from running for office under section 26. In my view, “foreign” refers to non-Commonwealth countries. Unlike the constitutions of St. Christopher and Nevis, Trinidad and Tobago, or Antigua and Barbuda, which restrict candidacy to their own citizens only, St. Vincent and the Grenadines’ constitution deliberately and explicitly extends this right to all Commonwealth citizens, creating a constitutional framework that is fundamentally incompatible with treating Commonwealth countries as foreign powers. Without explicit constitutional amendments similar to Australia’s transformation through the Australia Acts, Canada must be understood as falling outside the definition of a “foreign power or state” for the purposes of parliamentary qualification in St. Vincent and the Grenadines.

Dr. Jason Haynes is a barrister-at-law and solicitor and associate professor of law, University of Birmingham, UK. He is a national scholar, British Chevening Scholar, and Commonwealth scholar.