The Constitutional Reform Commission has said there is need to write into a new St. Lucia constitution, provisions which protect the rights of citizens with regards to access to the beach, coastal areas, reclaimed land and other public places. It said the Queen’s Chain “belongs to the people of St. Lucia”
It said that with regard to the foreshore and seabed, there should be a reserve, and there should always be some level of discussion and public participation on the disposal of public lands which the government holds in trust for the people.
Today, THE VOICE continues serializing the Commission’s Report:
REWORDING THE PREAMBLE
Language of the Constitution
In seeking to reword the Preamble, the Commission was ever mindful that, on the whole, the language in the Constitution is very legalistic and that it should be made simpler, more contemporary and void, as far as possible, of technical legal jargon. This view comes from recognition of the fact that the average layman has difficulty in understanding all of the niceties of the language of constitutional drafting. This viewpoint about the language of the Constitution starts in the Preamble and then works it way through the entire document.
There was a suggestion that the Constitution should be written in both English and Kwéyòl. This was not supported on the ground that the very persons who would read the English version would be the ones to read the Kwéyòl version. Owing to this situation, it was considered more practical to consider developing an audio version in Kwéyòl as a future project.
There were concerns about the absence of any gender neutrality in the language of the Constitution with the use of the words “he” and “his” being used to also include “she” and “her”.
There was consensus that the language of the Constitution should be gender neutral to the extent that “he” should be replaced with “the person” and that other usage should as far as possible be reflective of a genuine attempt to be gender neutral. These are general guidelines that the draftspersons must consider in preparing the draft constitution.
With respect to the language of the Constitution, the Commission recommends the following:
(1) The language of the Constitution should be simplified.
(2) The creation of a printed Kwéyòl version of the Constitution is not recommended to be part
of the current exercise, but a future project should be the creation of an audio version in Kwéyòl.
(3) The language of the Constitution should be gender neutral.
The purpose of a Preamble to the Constitution is to provide a statement of prevailing beliefs and values at the time of the introduction of the Constitution. While the Preamble is not a legally enforceable part of the Constitution, its importance lies in the fact that it introduces the Constitution and states quite clearly what the values of the State are and, by so doing, gives character to the
Constitution. The Commission is of the view that the Preamble is an umbrella or underlying sentiment that informs the beliefs, customs, or practices of the society.
Since 22nd February, 1979, there have been changes to some of the values that constitute the very essence of the Constitution. Indeed, there have been latter-day debates about the importance of the environment, the need to preserve the national patrimony, the broadening of human rights’ considerations that have questioned the inalienability of human rights themselves as well as greater social diversity to include atheism, sexual orientation, and gender.
The Commission considered a presentation on the rights of indigenous people, however, there was no definition of the term “indigenous people” save that the Commission was referred to the Convention on the Rights of Indigenous People that states: “People who inhabited a land before it was conquered by colonial societies and who consider themselves distinct from the societies currently governing those territories are called Indigenous Peoples”. The Commission also noted the definition by the UN Special Rapporteur to the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, which states that indigenous communities, peoples and nations are: “…those which having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”
The Commission took the view that the indigenous people of Saint Lucia should not be specifically recognised in the Preamble because the Commission did not wish to give special constitutional recognition to any one group over any other.
(4) With respect to indigenous people of Saint Lucia the Commission recommends that the indigenous people of Saint Lucia should not be specifically recognised in the Preamble.
The Commission discussed the importance of Saint Lucian culture, its preservation and its being constitutionally recognised. Paragraphs three (3) and five (5) of the Preamble of the Haitian Constitution were instructive on this point which states: “Establish a strong and stable State, capable of protecting the country’s values, traditions …” and “Strengthen national unity … by accepting the community of language and culture …”
Commissioners agreed to the submission that some statement about the preservation and protection of our culture be inserted in the Constitution, be it in the Preamble or otherwise, in order that our way of life, both traditional and modern, can be constitutionally recognised.
(5) With respect to preserving our culture, the Commission recommends that statement on the preservation of Saint Lucian culture along the lines of paragraphs three (3) and five (5) of the Haitian Constitution should be inserted in the Constitution.
Rule of Law
The Commission supported a suggested amendment that subsection (d) of the existing Preamble which says, “maintain that these freedoms can only be safeguarded by the rule of law”, would be strengthened by stating that the enforcement of the rule of law was necessary in order to maintain rights and freedoms for the individual. The Commission concluded that the revised wording should read: “maintain that these freedoms can only be safeguarded by the impartial enforcement of the rule of law”.
(6) With respect to the rule of law, the Commission recommends that the revised wording for Subsection (d) of the Preamble should be reworded as follows:
“Maintain that these freedoms can only be safeguarded by the impartial enforcement of the rule of law”. “Maintain that these freedoms can only be safeguarded by the impartial enforcement of the rule of law”.
The Recognition of God
One of the major areas of debate in respect of the Preamble was the issue of the mention of God and that such references did not include non-believers and atheists. While there is recognition of the rights of atheists, the Commission felt that this cannot overcome the fact that the State is founded on a belief in the existence of Almighty God.
To remove references to God in the Preamble would severely compromise the argument contained in the existing Preamble that people are endowed by God with inalienable rights and dignity. The premise of the Preamble is that rights come from God and not from Mankind which is what makes them inalienable. Furthermore, dignity which is important for the existence of civilisation also comes from God.
The Commission considered that as a tolerant society, Saint Lucia does not have to eliminate its foundation as a God-fearing society in order to accommodate non-believers and atheists. Their principles are adequately included in all of the provisions of the existing Preamble. With the belief by some that rights are an inalienable divine gift to mankind, the non-believers and the atheists are protected as no man or woman will ever have the right to deprive any individual (believer or nonbeliever) of their natural and inalienable rights.
This is not to diminish in any way the many concerns/proposals about the Preamble in which there were conflicting views on this matter. However, there was a recognition that the majority of people were in favour of keeping the references to God in the Preamble. Nevertheless, there was the recognition of the fact that the views of the minority could be accommodated in the Preamble by an appropriately worded statement which would provide a sense of inclusion as opposed to a feeling of exclusion for anyone. The relevant section of the Preamble of the Independence Constitution states:
“WHEREAS the People of Saint Lucia –
(a) affirm their faith in the supremacy of the Almighty God;
(b) believe that all persons have been endowed equally by God with inalienable rights and dignity;”
The Commission suggests that (a) and (b) above should be replaced with the following:
(a) Acknowledge the reality that while the majority of Saint Lucians affirm their faith in the supremacy of Almighty God, they also commit to the principle of respect for other spiritual beliefs and persuasions. It must also be noted that the Preamble cannot be regarded as conflicting, because it has no function for the purpose of interpreting the later provisions in the Constitution which protect the rights of minorities.
(7) With respect to the recognition of God, the Commission recommends that subsections (a) and (b) of the Preamble should be reworded to read as follows: “… acknowledge the reality that while the majority of Saint Lucians affirm their faith in the supremacy of Almighty God, they also commit to the principle of respect for other spiritual beliefs and persuasions.”
The Queen’s Chain
In considering the Preamble to the Constitution, the Commission engaged in a debate about the need to protect the Queen’s Chain from property and other developers in order to safeguard the right of Saint Lucians to access their beaches.
The Queen’s Chain is the portion of land measuring one hundred and eighty-six point five (186.5) feet from the foreshore. The foreshore is that portion of land which is alternatively covered and left dry by the ordinary flux and reflux of the tides. In other words, the Queen’s Chain is that expanse of land running 186.5 feet inland from the high water mark, or rather, 186.5 feet from the edge of the clear-cut land and where the flow of the sea and waves do not come.
Article 355 of the Civil Code of Saint Lucia states that the “roads and public ways maintained by the State, the Queen’s Chain, the sea-shore, land reclaimed from the sea, ports, harbours and roadsteads, and generally all those portions of territory which do not constitute private property, are considered as being dependencies of the Crown domain”. Therefore, it is clear from the language of Article 355 that the Queen’s Chain is part of the Crown’s domain, and as such belongs to the people of Saint Lucia, for which the Government is the custodian.
As far back as the late 1600’s an area of land was reserved by the King of France, around the Island of Saint Lucia to enable the establishment of towns, parishes, forts, entrenchments, batteries and other public and necessary works. This was as much for their decoration as for the defence of the Island. In areas where towns, fortresses and batteries were established, they served for that purpose. In the rest of the island, the owners of lands above that portion which was reserved, obtained from the Lords, Governors and Stewards of the King permission to clear the lands which enabled them to procure facilities for the exploitation of their plantations. Permission was granted gratuitously, without any dues to the Lords or King and with the understanding that those lands can be reclaimed when they were needed for the service of the King or for the use of the public.
The Commission concluded that there is a need to write into the Constitution provisions which protect the rights of citizens with regards to access to the beach, coastal areas, reclaimed land and other public places. As it relates to the foreshore and seabed, there should be a reserve. There should always be some level of discussion and public participation on the disposal of public lands which the Government holds in trust for the people.
In order to guarantee protection to the citizens on this point, the Preamble should include a clear statement that protects the Queen’s Chain as an area that must be protected in perpetuity for the people of Saint Lucia as part of the patrimony for future generations.
With respect to the Queen’s Chain, the Commission recommends the following:
(8) A statement on the protection of the Queen’s Chain must be made in the Preamble toreflect the protection of the patrimony of the people of Saint Lucia.
(9) Provisions should be included in the Constitution to protect the rights of citizens to access the beach, coastal areas, rivers, reclaimed land and other public places.
Additional Matters Considered
There was general agreement among Commissioners that the format and content of the remainder of the Preamble were adequate; save for some minor additions or amendments. It was also determined that most of the remaining submissions were already provided for in the Preamble.
However, there were some submissions that Commissioners agreed should be given due consideration and included in the Preamble.
There were a number of submissions that protection of the environment be among the extension of rights. Generally, the trend is that constitutions make mention of the environment in the Preamble and make specific provisions for it in the Bill of Rights. The sentiment that the current generation should use our natural resources in a way that ensures sustainability, development and safeguards our patrimony for future generations, should be embodied in the Preamble, was endorsed by the Commission. To this end, the Commission concluded that a Natural Resource Management Act was required in ordinary legislation to support this thrust.
With respect to the environment, the Commission recommends the following:
(10) Our natural resources should be used in such a way that ensures sustainability,
development and safeguards our patrimony for future generations
(11) A Natural Resource Management Act is required by ordinary legislation to facilitate the protection of the environment.
Separation of Powers
There was a debate about whether or not there was a need to enshrine the separation of powers in the Preamble. Commissioners noted that there is a sufficient body of law under the existing Constitution that is very clear on the separation of powers as a doctrine and as an accepted principle. Commissioners felt that they would like to see the principle enshrined as an ideal, as they felt that laws could be easily changed by a majority in Parliament. At the very least, there should be a statement that would preserve the independence of the Judiciary.
With respect to separation of powers, the Commission recommends the following:
(12) There was no need to make specific mention of the concept of the Separation of Powers in the Preamble.
(13) There should be some statement in the Preamble that would preserve the independence of the Judiciary.
The Commission considered the issue of a mandatory review of the Constitution after a designated number of years. It was felt by a majority of Commissioners that such a provision would lead to an extreme level of uncertainty which would adversely affect the supreme law of the land. The process of constitutional reform cannot be labelled in such a way as to make it time-specific, but rather that future generations would respond to a prevailing need to amend the Constitution in the same way that the House of Assembly passed a resolution on 17th February, 2004 and the Senate did likewise on 14th April, 2004, calling for the establishment of a Constitutional Reform Commission.
(14) With respect to the Constitution, the Commission recommends that there should be periodic reviews but there should not be specifying a timeline for such review.