How the Byron Report Violates the Dominican Constitution
By Dr. Darius Lecointe
As the nation anxiously awaits Sir Dennis Byron's report it seems obvious that his recommendations on electoral reform will improperly extend beyond our electoral laws. The primary reason rests in the fact that, whereas the mechanisms of our electoral system are controlled by law - more precisely, the House of Assembly (Elections) Act - the right to vote is not given by law but is a right that is enshrined in the Constitution. It is a constitutional right, not a right of law. Only We The People are allowed input on what the Constitution means. The Constitution introduces itself as the affirmation and will of the People, and this difference between the law and the Constitution places restrictions on what can be considered by Parliament when the Constitution is being addressed. It is an accepted principle in the law that the Court will not accept as valid a will that does not represent the will of the purported testator. A lawyer can assist an individual in formatting a will but she cannot instruct that individual regarding what must be expressed in the will.
The Constitution is the Will of The People. No one who is not a member of The People has any authority under the law or the Constitution to exert any influence regarding the contents of The Constitution. Since November 3, 1978, each Parliament, which in Dominica is made up of the President and the House of Assembly, takes an oath to honour, protect and defend The Constitution. The oath goes beyond a pledge to obey the Constitution. The President and the House of Assembly have pledged to do all they can within their power to ensure that the Constitution remains as the express will of We the People, and only We The People.
Whatever qualifications he may possess, Sir Dennis Byron is not a member of We The People. As a Commonwealth citizen, our Constitution grants him the right to participate in our elections as an elector but that does not make him a member of We The People. There are no Pacts or Treaties to which Dominica may be a party that confers such a privilege to him. When he presents his report he will not be speaking as a member of We The People.
The Constitution grants to the Parliament limited authority to alter the Constitution by revoking it, modifying some of its provisions or to suspend its operation for a limited period. But Parliament is not endowed with the authority to violate any of the provisions of the Constitution while the Constitution remains in force. Parliament would be voluntarily violating its oath to honour, protect and defend the Constitution if it were to listen to anything Sir Dennis Byron has to say regarding our Constitution. This is our Supreme Law and it cannot be made subject to any other Constitution or to someone who is not a member of We The People. The only exception to this general rule is an empaneled bench of the Caribbean Court of Justice (CCJ) which Dominica has accepted as its highest Court. But that privilege does not extend to Sir Dennis Byron in his present capacity as a former president of the CCJ. As a former president of the CCJ Sir Byron should also find these arguments persuasive. considering the concurring opinion in the recent treating case.
It would be a very sad day in Dominica if its Parliament were to once again functionally strip its Constitution of its Supremacy. Six months after we achieved independence from Great Britain and had taken possession of the Constitution that they had written under the guidance of our elected representatives and other members of We The People, Parliament subverted the Constitution to remedy a serious constitutional crisis. Parliament and our "best minds" failed the nation then and they should not fail us now. Sir Byron does not qualify to speak for the lowliest of The People on the nature of our Constitutional rights. Parliament has sworn to defend the integrity of the Constitution and the Constitution looks with stern disapproval on any violation of its provisions by Parliament.