The Attorney General of Saint Christopher and Nevis v Dr. Denzil Douglas

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judgment Date: 10 January 2019
• Neutral Citation: KN 2019 HC 1
• Docket Number: CLAIM NO. SKBHCV2018/0008
• Date: 10 January 2019

In the Matter of an Application by the Attorney General of Saint Christopher SND Nevis Pursuant to Section 36 of the Constitution of Saint Christopher and Nevis and to Section 12 of the National Assembly Elections Act cap 2:01

Between:

The Attorney General of Saint Christopher and Nevis

Claimant

and

Dr. Denzil Douglas

Defendant

CLAIM NO. SKBHCV2018/0008

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Citizenship — Disqualification — Allegiance to foreign power or state — Diplomatic passport — Whether voluntary acquisition and use of a Dominican passport amounted to an acknowledgement of allegiance to the Commonwealth of Dominica disqualifying defendant from membership in the national assembly — Constitution of St. Kitts and Nevis, S. 28(1)(a).

Appearances:-

Mr. Douglas L. Mendes SC with him Mr. Michael A.A. Quamina, Ms. Leah Abdulah instructed by Ms. Talibah V. O. Byron for the Claimant.

Mr. Anthony W. Astaphan SC, Mr. Delano Bart QC with Mr. Sylvester Anthony and Mrs. Angelina Gracy Sookoo-Bobb and Mr. Kendrickson Kentish for the Defendant.

1 This claim seeks to challenge the eligibility of the Leader of the Opposition, Dr. Denzil Douglas, to retain his seat in the National Assembly having obtained and used a diplomatic passport issued by the Commonwealth of Dominica subsequent to his election. The material facts are summarised hereunder

2 The defendant is the leader of the opposition. He was elected as the member of the National Assembly of St. Kitts and Nevis representing the constituency of St. Christopher No.6. following Federal Elections held in St. Kitts and Nevis on 15 ^th February, 2015.

3 On July 30 ^th 2015, he was issued a diplomatic passport, by the Commonwealth of Dominica which recorded him as being a citizen of Dominica. The said document bears an expiry date of 29 ^th July, 2020.

4 The circumstances and procedure that led to the issuance of the diplomatic passport to the Defendant are as set out at paragraphs; 9 —16 of his affidavit in response to the originating motion and may be summarized as follows.

5 After the Defendant demitted office as Prime Minister in February, 2015 he met with the Prime Minister of Dominica and other government officials on a number of occasions on various matters. Consequently, the Prime Minister of Dominica offered to extend to him the use of a diplomatic passport as a political and professional courtesy in recognition of his status as a former Prime Minister and current leader of the opposition of the Federation of St. Christopher and Nevis.

6 The Prime Minister of Dominica subsequently invited the Defendant to fill in the necessary application form in order that the diplomatic passport could be processed. He did so, save for two columns on the form pertaining to citizenship which he left blank because he was not a citizen of Dominica and thus considered those columns inapplicable for the purpose of obtaining the diplomatic passport.

7 The diplomatic passport was subsequently issued to the Defendant in July 2015 and used by him to depart St. Kitts and to gain entry to seven countries on ten occasions for what he describes as “convenience of travel and business purposes.”

8 While the diplomatic passport reflects the Defendant's citizenship as Dominican, it has not been challenged that this is on account of the default setting of the software system used to process the passport so that any passport issued by the Commonwealth of Dominica, whether diplomatic or ordinary, will reflect that the holder is a Dominican Citizen. This evidence is contained in a letter from the Permanent Secretary in the Ministry of Foreign Affairs, Dominica and the affidavit of Margaret Astona Browne, former St. Kitts Permanent Secretary in the Ministry of National Security and Immigration with responsibility for administrative oversight of the passport processing system

The Claimant's submissions

9 Basing itself solely on the defendant's possession and use of the said diplomatic passport, the claimant contends that by virtue of his own act, the Defendant is, in accordance with the laws of Dominica, under an acknowledgement of allegiance, obedience or adherence to a foreign power or state, namely the Commonwealth of Dominica in breach of section 28(1)(a) of the Constitution of St. Kitts and Nevis.

10 The Claimant further contends that by his voluntary act, the Defendant would have been disqualified from being a member of the National Assembly if he were not already a member and must therefore vacate his seat pursuant to section 31(3)(c) of the Constitution.

11 The Claimant accordingly seeks a declaration that the Defendant has vacated his seat and seeks an injunction restraining the Defendant from taking his seat in the National Assembly and from performing his functions as a member thereof.

The Defendant's submissions

12 The Defendant makes the preliminary submission that the Commonwealth of Dominica is not a foreign power or state within the meaning of section 28 (1) of the Constitution. He submits that by virtue of the definition of “Foreign Country” contained in the Citizenship Act, Dominica, as a Commonwealth country, is not regarded as a foreign power or state. He invokes the fact that Commonwealth citizens who satisfy the residency requirements are eligible to become citizens of St. Kitts and Nevis and attain the right to vote pursuant to section 92(2) of the said Act. He points out that Dominica has equivalent provisions in law. For these reasons it is said that Dominica is not a foreign power or state.

13 He urges the court not to follow the decision of Mitchell, J in Baldwin Spencer v Guy Yearwood 1 where it was held, that in relation to Antigua and Barbuda, Canada was a foreign power/state notwithstanding that it was a Commonwealth country. The Defendant submits that Mitchell, J failed to have regard to similar provisions in Antiguan law. Alternatively, submits the

Defendant, that decision should be confined to Antigua

14 The Defendant submits secondly that the Claimant must be confined to its pleaded case. It is said that the Claimant's pleaded case was that the Defendant was a citizen of Dominica, being recorded as such on the diplomatic passport, and that he swore an oath of allegiance to Dominica and thus attracted the section 28(1)(a) disqualification. He submits that the Claimant's case at trial evolved in a manner not consistent with its pleaded case. It is argued that at trial the Claimant's case changed by asserting that the Defendant attracted disqualification because he applied for obtained and used a Dominican Diplomatic passport.

15 The Defendant submits that since the Claimant now concedes that the Defendant is not a citizen of Dominica and that he swore no oath or affirmation of allegiance to Dominica the claim should be dismissed.

16 Alternatively, the Defendant's contention is that under Dominican Law, the mere possession and or use of a diplomatic passport does not render him under an acknowledgment of allegiance, obedience or adherence to the Commonwealth of Dominica in circumstances where he has never sought or applied for citizenship; is not a citizen or resident of Dominica and has not sworn an oath or made an affirmation of allegiance to Dominica and where he was granted the diplomatic passport as a professional courtesy by the Prime Minister of Dominica. In those circumstances, contends the Defendant, Section 28(1) has not been breached.

17 It is sensible to determine the preliminary points raised by the Defendant at the outset as, if meritorious, they are dispositive of the case.

Is Dominica a foreign power or state?

18 The Court must determine the meaning of the expression “foreign power or state” in the context of section 28(1)(a). It is well to bear in mind the mischief of this section which aims at the avoidance of divided allegiance or loyalties on the part of members of the National Assembly.

19 A useful definition of a foreign sovereign state in international law is contained in the House of Lords case of The Arantzazu Mendi [1939] AC 256 at 264—265:

“By ‘exercising de facto administrative control’ or ‘exercising effective administrative control’, I understand exercising all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of inhabitants of the territory to one another and to the Government. It necessarily implies the ownership and control of property whether for military or civil purposes, including vessels whether warships or merchant ships. In those circumstances it seems to me that the recognition of a Government as possessing all those attributes in a territory while not subordinate to any other Government in that territory is to recognise it as sovereign, and for the purpose of international law as a foreign sovereign State.”

20 In the Australian case of Sue v Hill 2 the issue was whether the United Kingdom was a foreign power in relation to Australia within the meaning of section 44(1) of the Australian Constitution. The High Court held:

“The expression “a foreign power” in s 44 does not invite attention to the quality of the relationship between Australia and the power to which the person is said to be under an acknowledgment of allegiance, obedience or adherence or of which that person is a subject or a citizen or entitled to the rights and privileges of a subject or citizen. That is, the inquiry is not about whether Australia's relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty.”

21 This Court respectfully agrees that the question of international and domestic sovereignty is the correct focus in construing the provision. The Constitution of Saint Kitts and Nevis...