DR. DENZIL Douglas, former Prime Minister and current Opposition Leader of the Labour Party in St. Kitts and Nevis, was ordered on Thursday by the Court of Appeal of the Eastern Caribbean Supreme Court to vacate his seat in the National Assembly.
The judgement was made on the grounds that Dr. Douglas, being a holder of a Dominican Diplomatic Passport, was in allegiance to the Commonwealth of Dominica, which was in breach of section 28(1)(a) of the Constitution of St. Kitts and Nevis. Because of this, and in accordance with section 31(3)(c) of the Constitution of Saint Kitts and Nevis, Dr. Douglas was ordered to vacate his seat in the Assembly.
The judgment was handed down by Chief Justice, the Hon. Dame Janice M. Pereira, DBE, the Hon. MdeGertel Thom, Justice of Appeal, and the Hon. Paul Webster, Justice of Appeal (Ag). The appellant in the matter was the Attorney General of St. Christopher and Nevis.
The conclusion of the Court, as stated by Janice M. Pereira, was, “The cumulative effect of my conclusions is that Dr. Douglas, by his application for, receipt and use of a Dominican diplomatic passport, placed him in clear breach of section 28(1)(a) of the Constitution. As a matter of law, the consequence in the terms of section 33(3)(c) follows. That consequence is that, Dr. Douglas is required to vacate his seat in the National Assembly in Saint Christopher and Nevis.”
Events which led to this ruling began when Dr. Douglas, at the invitation of the Prime Minister of the Commonwealth of Dominica, applied for a Dominican diplomatic passport. When Dr. Douglas completed the passport application-form he omitted two columns of the form which required him to represent himself as a Dominican citizen, which he was not.
But the diplomatic passport, which recognized Dr. Douglas as a citizen of Dominica, was issued, nonetheless. The passport also contained an endorsement requesting that Dr. Douglas receive the protections of a citizen of Dominica. According to court documents, Dr. Douglas used the passport to travel and gain entry to several countries for ‘convenience of travel and business purposes.’
The appellant (Attorney General of St. Kitts and Nevis), after becoming aware of Dr. Douglas’ diplomatic passport, filed an original motion in the High Court on the basis of sections 28(1)(a) and 31(3)(c) of the Constitution of Saint Kitts and Nevis, seeking that Dr. Douglas, “by reason of his becoming a person who, by virtue of his own act, is under an acknowledgment of allegiance, obedience or adherence to the Commonwealth of Dominica,” be automatically disqualified from sitting as a member of the Assembly.
This originating motion was heard by a judge of the High Court who determined at the time that Dr. Douglas was not under an acknowledgment of allegiance in accordance with Dominican law. The judge therefor dismissed the Attorney General’s originating motion on 20th February 2019.
The Attorney General appealed the judgment on six grounds of appeal. The issue for determination before the Court 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) and is therefore required to vacate his seat in the National Assembly in accordance with section 31(3)(c) of the Constitution.”
Section 28(1)(a) of the Constitution provides three distinct legal requirements to be proved in order for a person to be disqualified from sitting in the Assembly. These requirements include 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.
These provisions were included in the Constitution as a means to avoid possibly elected members from having split loyalties which would render them incapable of acting in the interests of Saint Kitts and Nevis.
The Court of Appeal determined, “In as much as Dr. Douglas was issued a diplomatic passport, the state assumed an obligation of protection over him. Dr. Douglas was therefore, by operation of law, vested with a concomitant duty of allegiance or fidelity to Dominica. The first requirement of section 28(1)(a) is satisfied.”
According to Janice M. Pereira, “The appeal raises a singular issue, that is, whether Dr. Douglas who, by his application for, receipt and use of a diplomatic passport issued by the Commonwealth of Dominica, amounts to him acknowledging an allegiance to Dominica. The consequence of so finding would place Dr. Douglas in breach of section 28(1)(a) of the Constitution of Saint Christopher and Nevis and consequently disqualify him from sitting as a member of the National Assembly.”
She continued, “Put another way, although there is no question of Dr. Douglas being unduly returned or that his election was invalid at the time he was elected at the last General Election, a finding that his subsequent acquisition and use of a passport issued by the Commonwealth of Dominica, would require him to vacate his seat in the Assembly. Throughout this judgment, the use of the phrase ‘acknowledging or acknowledgment of an allegiance’ is used as shorthand for ‘acknowledging or acknowledgement of obedience or adherence’ as in my view they connote the same thing.”
