A top regional jurist has advised the authorities in Grenada that opposition parliamentarians, Peter David and Nazim Burke are eligible to sit in Parliament.

GRENADA TODAY was able to obtain a seven-page confidential document with this legal advice that was given by the jurist from Trinidad and Tobago to Speaker of the House of Representatives, Lawrence Joseph.

Special Legal Advisor to Cabinet, Hugh Wildman is leading a charge in court on behalf of the Keith Mitchell-led government to remove David as the elected Member of Parliament for the Town of St. George Constituency.

Wildman also dropped hints that government intends to file a petition, most likely before the newly appointed Supervisor of Elections, Nadica Mc Intyre to prevent Burke from contesting the upcoming general elections.

Burke is the sitting MP for St. George North-east which he won in the 2003 poll.

The eminent regional jurist told Speaker Joseph that after reviewing the issue, he concluded that, "I am of the opinion that the two (2) members in question (Burke and David) are not disqualified from being elected to the House of Representatives by reason only of their holding citizenship of Canada", the legal luminary told local authorities.

Following is Part 11 of the document as obtained by this newspaper which was given to the House Speaker a few years ago:

No person shall be qualified to be elected as a member of the House of Representatives if he

(a) is by virtue of this own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;

(b) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Grenada;

(c) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in Grenada;

(d) is under sentence of death imposed on him by a court in any part of the Commonwealth or is serving a sentence of imprisonment (by whatever name

called) exceeding twelve months imposed on him by such a court and not acquitted by competent authority for some atrocities as imposed on him by such a court, or is under such a sentence of imprisonment the execution of which has been suspended: or

(e) Subject to such exceptions and limitations as may be prescribed by Parliament; he has any such interest in any such government contract as may be prescribed".

Prima facie the above means that any literate Commonwealth citizen who is eighteen 18 years and over; is domiciled and has resided in Grenada for twelve (12) months immediately before nomination for election is qualified to be elected to parliament.

This of course is subject to the provision of section 31 of the Constitution. Section 31 (1) lists the conditions which disqualify a person from being elected to the House of Representatives.

There is no difficulty in construing section 31 (1) (b) (c) (d) and (2).

Clearly if even a person is a Commonwealth citizen, he or she is disqualified from election if he or she is an undischarged bankrupt, insane, under sentence of death imposed by a Commonwealth court or has an interest in unexempted contracts with the Government.

The provision to which attention has to be paid is contained in section 31

(1):-

(a) is by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.

This sub-section deals with the situation of a person who by a deliberate voluntary act is under an oath of allegiance to Œa foreign power or state".

It does not apparently apply to a person who is a citizen of "a foreign power or state" involuntarily such as by birth or descent.

In cases of citizenship by birth or descent the particular person acquires the citizenship of "a foreign power or state" without taking any oath of allegiance or doing anything.

The sub-section is therefore intended to catch those who originally have one citizenship but acquire another by actively swearing allegiance to "a foreign power or state".

The tasks therefore is to decide what the Constitution means by the term " a foreign power or state".

First of all, section 111 (1) of the Constitution defines Commonwealth citizen as follows:-

"Commonwealth citizen" has such meaning as Parliament may by law prescribe".

Under the Citizenship Act Cap. 54s. 2 (1) the term "Commonwealth" has such meaning as the Governor General may by Order under section 3 of that act declare and "Commonwealth citizen" is to be construed accordingly.

By the Commonwealth Order of 31st December 1990 the countries listed to the schedule to the Order are stated to comprise the Commonwealth. Both Grenada and Canada are listed in the Order as Commonwealth countries.

Therefore the two (2) members of the House of Representatives in question are Commonwealth citizens.

It is assumed that they are over eighteen (18) years of age, are literate and have the residence qualifications set out in section 30 (b), (c) and are not undischarged bankrupts.

Since both of the questioned members were born in Grenada, I assume that they became citizens of Grenada at independence on the 7th February 1974 in accordance with section 94 (1) of the constitution.

This means that in order to obtain Canadian citizenship they would have, by voluntary act taken some oath or undertook some acknowledgment of allegiance, obedience or adherence" to the Dominion of Canada within the terms of section 31 (1) (a) so as to result in a disqualification of the two

(2) members.

I assume for the purposes of this opinion two (2) further matters. The first is that the basic law of Canada, not unlike that of Grenada, is that persons born in Canada of Canadian parents automatically/involuntarily become Canadian citizens.

Secondly, I assume that, to acquire Canadian citizens other than by birth or descent, the person "by virtue of his own act" has to take some oath or make some "acknowledgement of allegiance, obedience or adherence to the Dominion of Canada.

From this I deduce that the two (2) members in question had to take some oath or make some acknowledgement of allegiance, obedience or adherence to the Dominion of Canada in order to become Canadian citizens.

This returns us to the question whether Canada is "a foreign power or state" to which the members in question have sworn allegiance in terms of section 31 (1) (a).

The mischief against which section 31 (1) (a) is directed appears to be having person in the Parliament who are under an oath of allegiance, howsoever, to Œa foreign power or state".

If this sub-paragraph is given a literal construction, it would appear that any state other than the State of Grenada is "a foreign power or state".

Canada would therefore be such a foreign state that voluntary citizenship of it would disqualify the member even though he or she is otherwise a Commonwealth citizen within the terms of section 30 of the Constitution.

To give such a construction would mean that a Canadian citizen by birth or descent would be qualified for election to the House of Representatives, but that a person who acquired Canadian citizenship by taking an oath would be disqualified even though they both bear allegiance to the same country.

Both such persons would be under "acknowledgement of allegiance, obedience or adherence" to the Dominion of Canada but one person is disqualified because he assumed the obligations of citizenship by a voluntary act whereas the other obtained it by birth or descent.

One of the results of this interpretation would be that a born Grenadian who for economic purposes took out Canadian citizenship could not become a member of the House but a born Canadian could.

This would be even though the citizenship Act of Grenada does not prevent dual citizenship. Given this, I am of the opinion that a purely literal construction would lead to inconsistency and absurdity.

The scheme of sections 31 and 32 points to interpreting "foreign power or state" as referring to countries that are not Commonwealth countries.

It is to be observed that section 31 (1) (d) disqualifies a person if he has been convicted and sentenced to death or a term of twelve (12) months or more imprisonment "by a court in any part of the Commonwealth".

This indicates a policy of non-recognition of the sentence of courts in countries outside of the Commonwealth. Such countries are not recognised as having legal systems which could operate to disqualify persons from membership of the House.

This indicates that Commonwealth countries have a system which Grenada does not consider foreign or alien to Grenadian values and systems.

Grenada recognises the criminal law sanctions of states other than Grenada only if such states are members of the Commonwealth family.

I am, therefore, drawn to the conclusion that the term "foreign power or state" refers to countries which are not commonwealth countries.

I am fortified in this conclusion bearing in mind that the particular provision is dealing with a highly political matter contained in a largely political document (the Constitution) which has to be construed broadly and generously.

CONCLUSION

I am of the opinion that the two (2) members in question are not disqualified from being elected to the House of Representatives by reason only of their holding citizenship of Canada.

This is so if even they were required to renounce Grenadian citizenship as a condition to obtaining Canadian citizenship since this merely meant taking the citizenship of another Commonwealth country.

And I advise accordingly.