COMMENTARY

Law and Politics: The separation of power up for grabs!

by Lloyd Noel, a former Attorney General of Grenada, prominent attorney at law and political commentator

Tuesday,  December 13, 2005

In this tiny, miniscule, little dot of an Island, in the ocean of the massive universe of Planet Earth, there is hardly anything that makes news worldwide which does not take place in our midst, and in many cases we break the news first and well before anyone else can think about it.

And whether the breaking news is by design and pre-meditated, or because situations of reality simply catch up with our reckless behaviour, or because in this material jungle of chance-taking and crying "wolf" -- one day the real wolf must come along -- the fact remains, that we do have a penchant for attracting attention of all the varieties, of good, bad, and indifferent.

And what is of even greater concern, and crops up like endless recurring decimals, is that although the results, or the repercussions, or the lessons flowing from the many horrible experiences, linger on to haunt us for many, many years of human suffering, we nevertheless seem to repeat them, time and time, and wasteful time, over and over again.

It is also worthy of mention, that not all the breaking news, or our many "firsts" over the years, have been bad publicity for us as a people.

And the one that was the very "first" in the Organisation of Eastern Caribbean States (OECS), or the West Indies Associated States - our "Independence or National Statehood in February, 1974" - is today in the news headlines as "Breaking News." The Constitution of Grenada came into effect on the 7th February, 1974, and it emanated from the Grenada Constitution Order, 1973, which was made on the 19th December, 1973, at the Court at Buckingham Palace in London, where the Queen gave her Assent to the Order from the British Parliament in London, England.

Despite two or three Constitution Amendment Commissions -- and there is another one ongoing at this point in time -- that "1974 Constitution of Grenada" remains today exactly as it was passed in 1973, as a "Statutory Instrument - 1973 No. 2155." And, strangely as it may sound to those who do not know better, without having gone through the procedure to Amend the said Constitution, our Parliamentarians in the Lower House last Friday purported to do just that -- and spent the whole day going through what I regard as a farcical exercise, in debating a Motion or Resolution pertaining to Section 31 and 33 of the said un-amended Constitution.

If ever there was an occasion, when the seven opposition members of that House (MPs) should have walked out of the House, and leave the remaining nine persons to do their own things as they saw fit, it was last Friday a.m., when the Amendments to the Motion or Resolution were rejected, as expected.

The latest "Breaking News" modern discovery, of informing the public of matters concerning the public interest, of legal action the Government proposes to take, of any legal decision from any Court regardless of the significance, of any and everything political from all sides, is nowadays done by a press conference, and the issue of qualification and disqualification to sit or be removed from Parliament, was no exception.

The Attorney General and Minister of Legal Affairs, Hon. Elvin Nimrod, and the Special Advisor to Cabinet, Mr. Hugh Wildman, did just that three or four weeks ago -- and since then the arguments have been going to and fro.

The promise, or the threat, from those two persons was that Court action was coming any day now.

But out of the blue last week Monday, a Motion was entered on the Order paper, or agenda, for the Sitting of Parliament last week Friday.

The Leader of the Opposition, Hon. Tillman Thomas, and after him, Hon. Kenrick Fullerton, proposed certain amendments to the Motion. Those by Tillman were very much wider and deeper than that in the Motion; but those by Hon. Fullerton were clearly very relevant and material - if the House had to debate the issue at all.

But not un-expectedly, the Amendments were out-voted by the one seat majority on the Government side.

And that is where the walking out should have taken place, without any further ado.

The question or Sections about the composition of Parliament, is clearly outlined under the heading of "The Senate" and "House of Representatives," from Sections 23 to 37 of the Constitution.

For the Lower House of Parliament the Sections commence at 29, and for Qualification and Disqualification, the relevant Sections are 30, 31 and 33.

It must follow, therefore, that to be honestly and sensibly discussing disqualification of any MP, the question of qualification must be included in the discussion.

So that when the Amendment to include Section 30 of the Constitution was thrown out, in my humble opinion, the debate that followed was a farce and wasted public funds.

The single criteria for qualification to become an MP is that of a Commonwealth Citizen with the required residence and ability to speak English (Section 30 - (a) (b) (c)).

As far as nationality or citizenship is concerned, the single criteria for disqualification from sitting as an MP, is "if he ceases to be a Commonwealth Citizen" (Section 33 (b) ).

And the determination of questions as to the membership of Parliament, is vested in the High Court and in no one else, as far as that of disqualification is concerned. (Section 37).

The questions in the Motion or Resolution, that were debated and upheld, as to whether any MP was a citizen of Grenada before nomination day, or ceases to be such a citizen after the Election, were absurd, a nullity, and un-constitutional.

The Speaker of the House, and/or the vote of eight members as against seven in the House, cannot amend the Constitution, to replace Commonwealth Citizen with "Citizen of Grenada, "for the purposes of Section 30,31, and 33 thereof.

The Constitution provides in Section 111 (1) "In this Constitution, unless the context otherwise requires - 'Commonwealth Citizen' has such meaning as Parliament may by Law prescribe." I am not aware of any law passed by Parliament, that has changed the meaning of "Commonwealth Citizen" as laid down in the British Nationality Act of 1948, and Amended by that of 1958.

And the eight against seven votes last Friday, in the Parliament sitting at the Trade Centre in Grand Anse, was certainly no such Law.

Citizenship of Grenada is recognised and provided for in Section 94 of our Constitution but for the composition of Parliament, as stated above, the qualification is "Commonwealth Citizenship" until the Constitution is duly amended.

And in Section 106 thereof it is clearly stated .... "This Constitution is the Supreme Law of Grenada" - and any other inconsistent Law is void and the Constitution shall prevail.

My contention, therefore, is that the Motion and the debate that followed had nothing to do with the Constitution as such, and the Opposition MPs should have boycotted the whole charade.

Having stayed in Parliament, and participated in the wasted day of endless "Mr. Speakers", that prompted the said Speaker to say at the end, when the Motion was approved, that it is a Resolution of the entire House and the Members are bound by it. I even heard him use words to the effect that to disobey, or refuse to answer the questions posed in the Motion, and adopted as a Resolution of the House as a whole, can amount to contempt of Parliament.

It was that statement that prompted the headline above -- that the separation of powers must be up for grabs!

It is, in my humble opinion, only the High Court that can grant a Declaration -- in the context of the qualification or disqualification of an MP -- which will be so binding that disobedience will amount to contempt of Court.

What is more, as I see it, the Motion and the debate which followed -- as well as the Resolutions passed -- were outside the Constitution, and since it is the Constitution that is supreme, and not the Parliament, then I fail to see how those who refuse to answer could be in contempt.

If, however, those MPs choose to answer, it is my view that all they need to say is .... "I was a Commonwealth Citizen and resident in Grenada for twelve months before the nomination date, and or domiciled in Grenada at the date of nomination." Nothing else.

But it is enlightening to look at the carry-on in Parliament last week Friday, from a purely political angle and in the context of our Parliamentary procedure and democracy as a whole.

Readers my recall, that when the "Briefcase" issue surfaced early last year, and after the Prime Minister had admitted that he collected about $15,000 US from Resteiner at his home in Switzerland, and that was to cover expenses he had incurred for the trip to Europe and Kuwait -- for which he had paid with his credit card; the Opposition sought a debate in the same Parliament, and requested that a Joint Committee be appointed to investigate all the circumstances surrounding the whole issue.

The Speaker’s ruling, without entertaining any debate on the matter, was that the matter was before the Court and therefore MPs in Parliament were debarred from discussing it.

In the issue before us, the very Constitution lays down, that only the High Court has jurisdiction to determine matters of qualification or disqualification, yet the same Speaker entertained a whole day’s debate, and allowed a Resolution to be passed, in open violation of the very Constitutional provisions that the same Parliament is duty bound to obey.

So what kind of message is being sent to our young and not so young, who have the propensity to rebel and disobey authority?

And then we wonder why law and order is breaking down, and the standards in our society have gone to the dogs.

Charity must begin at home; the examples and role models must come from those who lead in whatever field; what is sauce for the goose must also be sauce for the gander. The standards must be uniform across the board - or else everything we once stood for, will be up for grabs!

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