Several years ago, I made an appeal via the popular talk shows for consideration to be given to the education of the population, as it relates to our constitution.
The idea was ridiculed, and I was told that people knew their rights. I was also assigned the new name of “Constitutional Police” by some. Today, I revisit our constitution in comparison with certain provisions contained in our civil code.
The St. Lucia Constitution came into existence by virtue of a Statutory Instrument of the United Kingdom, No 1901 of 1978 at the Court of Buckingham Palace on the 20th day of December, 1978. The said Constitution came into operation on 22nd February 1979, the drafting of which, was greatly influenced by the European Convention on human rights, to which the United Kingdom was a signatory and thus, applied to its dependent territories including St. Lucia, as was succinctly stated by Lord Wilberforce in a privy council judgement, in the Minister for Home Affairs, Bermuda V. Collins Mac Donald, May 14,1979. The constitution was also influenced by the United Nations Universal Declaration of Human Rights of 1948. Rights which have been deemed inalienable and supposed to guarantee human dignity according to the preamble.
For the purposes outlined before, the drafter of our constitution as is the case with the constitution of other countries within the region, commenced with chapter 1 (one) establishing the protection of fundamental rights and freedoms of the individual. Those rights, regardless of his/ her race, place of origin, political opinions, colour, creed or sex, and subject “only” to respect for the rights and freedoms of others, and/or for the public interest, include each and all of the following, namely – life, liberty, security of the person, equality before the law and the protection of the law.
The constitution also provides for freedom of conscience, expression, freedom of assembly and association, and protection for an individual’s family life. It does not make any distinction between persons born in or out of wedlock in its reference to family, and so, no such inference should be drawn in that regard.
Our civil code of 1957 however, establishes a distinction in the status of children born to married couples and those born to unmarried couples as legitimate and illegitimate respectively, a clear departure from our constitution and a violation of the equal protection clause.
While some have posited the view that such discriminatory provision is permissible by virtue of section 13 (4) (C) of the constitution, I wish to express my dissent. Section 13 (1) of the constitution reads- “Subject to the provisions of subsections (4), (5), and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.” This is the guiding rule. Subsection (2) states “Subject to the provisions of subsection (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person or authority.” This means that the government/state to whom this section applies, cannot treat its people including children (regardless of age) differently on the basis of the marital status of their parents at the time of their birth.
It follows the position stated by the US supreme court in Levy v. Louisiana (1968), where the court said, “A state cannot deny illegitimate children their rights based on their legitimacy under the equal protection clause.” It further stated that, “the equal protection clause forces governments to govern impartially, meaning that they cannot draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.” Almost ten years later, the supreme court struck down a similar law in Trimble v Gordon (1977). This law denied a child born out of wedlock the right to inherit from her father unless there was a provision in his will.
Section 13 (3) of the constitution describes the expression discriminatory as follows – “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, colour or creed, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or accorded privileges or advantages which are not accorded to persons of another such description.”
Section 13 (4) however, states – “subsection (1) of this section shall not apply to any law so far as that law makes provisions-
(a) for the appropriation of public revenues or other public funds;
(b) with respect to persons who are not citizens;
(c) for the application, in case of persons of any such description as is mentioned in subsection (3) of this section (or of persons connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters which is the personal law of persons of that description.
The improper interpretation of this last subsection may have been the genesis of much confusion as to whether the discriminatory provision in our civil code, relating to illegitimate children for the purpose of succession/inheritance is constitutional or not.
It must be noted that birth is not one of the categories listed as the potential areas to be covered by the provisions of Section 13 (4) (c). My view on the reason for this omission is that the drafter recognizes that an individual at birth, is unable to exercise their freedom of conscience, and so, he/she is not able to determine who he/she is born to. Therefore, no discrimination as it pertains to their equality before the law, and protection of the law, can be permissible under the constitution.
The exception made in section 13 (4) (c) of the constitution, is meant to allow entities or groups, especially those of a religious nature, who wished to make their own rules or laws, the ability to do so, without dictating to them what can and cannot be included in these rules or laws. It cannot be construed as giving the state authority to practice discrimination among its citizens. This is the effect of our civil code, as it relates to the status of individuals. Personal law of persons, should not be equated to laws passed and enforced by the state.
It is also quite clear in our constitution, that limitations on the fundamental rights and freedoms of the person can only be to the extent that it secures the enjoyment of those rights and freedoms of other persons, or the public interest, and nothing else.
In the circumstances, the state as a matter of urgency, and should they fail to, the courts as guardian of the constitution, should act swiftly to bring to an end this unjust, repugnant, unconscienable and unconstitutional law, contained in our civil code, where children are considered lawful and unlawful, depending on the marital status of their parents. There is no place for such a discriminatory provision within the legal framework of a democratic society.