Putting the dual citizenship question to rest

By *Jason Haynes, PhD

In the last few days, there has been a flurry of noise over the question of whether two NDP candidates, both of whom hold dual Canadian and Vincentian citizenship, could legally stand for election as members of parliament in St Vincent and the Grenadines.

On one side of the spectrum, it has been strenuously argued that, in accordance with the Eastern Caribbean Court of Appeal decision of The Attorney General of Saint Christopher and Nevis v Dr. Denzil Douglas SKBHCVAP2019/0007, the candidates in question should not have had their nominations accepted by the supervisor of elections on condition of having failed to satisfy sections 25 and 26 of the Constitution of St. Vincent and the Grenadines, which provide:

Qualifications for representatives and senators.

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

b. has resided in Saint Vincent for a period of twelve months immediately before the date of his nominations for election or is domiciled and resident in Saint Vincent at that date: and

c. is able to speak and, unless incapacitated by blindness or the physical cause, to read the English language with a degree of proficiency sufficient to enable him to take an active part in the proceedings of the House.

(2) Subject to the provisions of section 26 of this Constitution, a person shall be qualified to be elected or appointed as a Senator if, and shall not be so qualified unless, he is a Commonwealth citizen of the age of twenty-one years or upwards. Disqualifications for Representatives and Senators.

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.

(…)

On the other side of the spectrum, there is an equally strenuous argument that the candidates in question were fully entitled to have been nominated on account of the fact that they there is no explicit prohibition of Commonwealth citizens from holding office in this country. To resolve the tension, it is important to construe the aforementioned constitutional provisions in the light of their natural and ordinary meaning and their context, bearing in mind that the constitution is a living instrument.

In The Attorney General of St. Christopher and Nevis v Dr. Denzil Douglas, the respondent (Dr. Douglas), a citizen of St. Christopher and Nevis, the leader of the opposition, and a member of parliament, having been elected to the National Assembly, applied for a Dominican diplomatic passport at the invitation of the prime minister of Dominica. He completed a passport application form with the exception of two columns of the form which required him to represent himself as a Dominican citizen, which he was not.

 The diplomatic passport was issued to Dr. Douglas by the Government of Dominica and the bio data page of the passport stated that he was a citizen of Dominica. The passport also contained an endorsement requesting that he be accorded the protections of a citizen of Dominica. Dr. Douglas thereafter used the passport to travel; he gained entry to several countries for “convenience of travel and business purposes”.

The attorney general became aware of Dr. Douglas’ diplomatic passport and filed an originating motion in the High Court on the basis of sections 28(1)(a) and 31(3)(c) of the Constitution of Saint Christopher and Nevis seeking, inter alia, a declaration that Dr. Douglas, by reason of his becoming a person who, by virtue of his own act, was under an acknowledgment of allegiance, obedience or adherence to Dominica, was automatically disqualified from sitting as a member of the assembly and was required to vacate his seat.

The originating motion was heard and determined by a judge of the High Court. The learned judge determined that Dr. Douglas was not under an acknowledgment of allegiance in accordance with Dominican law, and refused the relief sought. The attorney general appealed. The main issue for the Court of Appeal’s determination was whether Dr. Douglas, by his application for, receipt and use of a Dominican diplomatic passport, was under an acknowledgment of allegiance, obedience or adherence to a foreign power or state, in terms of section 28(1)(a) of the Constitution.

The Court of Appeal held that Dr. Douglas was required to vacate his seat in the assembly. In arriving at this decision, the court considered that section 28(1)(a) of the Constitution provides for three distinct legal requirements to be proved for a person to be disqualified from sitting in the Assembly. There must be:

• a de jure allegiance owed to a foreign power or state;
• some voluntary act on the part of the allegedly disqualified person; and
• the voluntary act by the allegedly disqualified person amounts to an acknowledgment of that allegiance.

This disqualifying provision was included in the Constitution as a means of avoiding the possibility of elected members having split loyalties which would render them incapable of acting in the interests of St. Christopher and Nevis in circumstances where such acts are diametric to the interests of the state to which they possess a competing loyalty.

The Court of Appeal held that, first, by issuing a diplomatic passport upon the application of Dr. Douglas, the Commonwealth of Dominica 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. Accordingly, Dr. Douglas was vested with a concomitant duty of obedience or allegiance to the Commonwealth of Dominica.

Second, in terms of the requirement of voluntariness of conduct, Dr. Douglas had voluntarily applied for, received, and used the Dominican diplomatic passport to travel.

And, third, through his voluntary act, Dr, Douglas essentially acknowledged allegiance to Dominica, in particular, by the presentation of his diplomatic passport at the border controls of the countries which he visited, knowing that the passport represented him as a subject and citizen of Dominica and not St. Christopher and Nevis.

For these reasons, Dr. Douglas, by reason of his becoming a person who, by virtue of his own act, was under an acknowledgment of allegiance, obedience or adherence to Dominica in breach of section 28(1)(a) of the Constitution, was required, pursuant to section 31(3)(c) of the Constitution, to vacate his seat in the national assembly.

While there are some similarities between this case and the case of the two Vincentian candidates in question, these similarities do not appear to be sufficiently pertinent as to compel the unequivocal conclusion that the candidates’ nominations should not have been accepted.

Indeed, while it might be argued the two NDP candidates engaged in a voluntary act – having applied for and secured Canadian passports (requirement ii), and this act was an acknowledgment of their allegiance to Canada (requirement iii), this is not sufficient to compel the conclusion of disqualification.

This is because the tripartite test described above is cumulative and exhaustive, meaning that all three elements/requirements must be satisfied in order for the candidates to be disqualified. A close reading of the Constitution reveals that, in the context of the candidates here, the first requirement has not been satisfied; that is, the candidates do not owe de jure allegiance to a foreign power or state. This distinguishes their case from the Douglas case.

As a reminder, 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 (and, indeed, quite progressively) extends the possibility of nomination not only to Vincentians, but also to Commonwealth citizens.

It means, therefore, that citizens of, for example, Nigeria, Canada, India, or as far as Tonga, can, provided that all other conditions are satisfied (e.g. being over the age of 21), be nominated as candidates for service as ministers in our Parliament. These individuals are not treated as citizens of a “foreign power or state” by our Constitution. In fact, our Constitution presupposes that the person may have another citizenship, which is inherent in the wording a “Commonwealth citizen”. 

In this context, it might be argued that our Constitution not only tolerates Commonwealth citizens running for office but affords them preference over non-Commonwealth or “foreign” citizens, without requiring that they give up their citizenship before putting themselves forward as candidates. 

The provision does not say that the person may stand for office if he had been a Commonwealth citizen, but rather, that he could stand for office if he is a Commonwealth citizen, presupposing and implying the possibility of holding the citizenship of a Commonwealth country, other than (or in addition to) St. Vincent and the Grenadines, at the time of standing for office. Whereas Grenada’s constitution is similar in this regard to St. Vincent and the Grenadines’, St. Lucia’s is similar to St. Christopher and Nevis’.

This preference for Commonwealth citizens finds resonance in other constitutional matters. For example, section 25(2) of the Constitution of St. Vincent and the Grenadines provides that Commonwealth citizens (it does not use the language “persons who were formerly Commonwealth citizens”) qualify to be appointed as a senator. In fact, should that person cease to be a Commonwealth citizen (e.g. renounces his citizenship), he “shall also vacate his seat in the House” under section 29(3) of the Constitution.

Finally, while, admittedly, the Constitution does not define a “foreign power or state”, having regard to the overall context of the Constitution, it is useful to examine section 95 of the Constitution, which provides that “alien” means “a person who is not a Commonwealth citizen, a British protected person or a citizen of the Republic of Ireland”. The Cambridge English Dictionary 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.

Had sections 25 and 26 of the Constitution of St. Vincent and the Grenadines been drafted in as narrow terms as St. Christopher and Nevis’ in which eligibility depends on being solely a citizen of that country, the Douglas case would have applied seamlessly to the two Vincentian candidates in issue. Given, however, the clear differences in the (generous) language used by the Constitution of St Vincent and the Grenadines, it is safe to say that any constitutional challenge is likely to fail.

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.

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