The New Today


One nation, one future, one allegiance

That ‘Legal Eyes’ program last night live on YouTube hosted by Joseph Ewart Layne, hosting KC Ruggles Ferguson and Jerry Edwin was quite useful. It assists us in changing the Oath of Allegiance (‘Oath’) in time for 7 Feb 2024, on Grenada at Fifty.

The highlight last night was that Layne reiterated what he wrote on 23 Jan 24. Back then, he noted that the Constitution of Grenada, s 20, requiring the Governor-General (‘G-G’) to take the Oath, does not require referendum approval for its alteration, is not referendum-entrenched. So, he observed, ‘the amendment proposed by Dr Alexis can apply to the Governor-General’.

Layne extended that to ss 65 on Oath for Ministers including the Prime Minister (‘PM’) and 40 for all other Parliamentarians (called here ‘MPs’) including the Opposition Leader (‘OL’); saying ‘Schedule 3 could be changed in the manner suggested by Dr. Alexis in relation to them’.

So the Oath for the highest Oath-takers in the land may be changed without a referendum. The Constitution does not require the formal Head of State, the British Monarch, to take any Oath as to Grenada; nor may he do so without violating our Constitution, if not also the UK’s.

Layne last night maintained his stand of 23 Jan 24 that my proposal has difficulties with the Oath referred to in certain sections as these are referendum-entrenched. These require the Oath to be taken by the Supervisor of Elections (‘SOE’) s 35(3), and PSC members s 83(II). He refers also to s III(I) on Interpretation.

These is no difficultly whatever. The only provision which prescribes or sets out the Form of the Oath is Sch 3, which Sch 1 deliberately excludes from being treated as referendum-entrenched.

Ss 35(3), 85(II) and III (I) do not require the Oath to be in any particular Form. They simply stipulate that the Oath be taken; this is satisfied, whatever the Form of the Oath, once that Form is prescribed in accordance with Sch 3, which does not involve a referendum.

Related:  Reasoning and precedent advocate change of Oath of Allegiance

Very relevant, then, is the point Jerry Edwin was making, namely, that we should observe how other Caribbean Constitutions treat the Oath, some even allowing it to be changed by delegated legislation; while recognising Grenada needs an Act passed on Sch 3 to change the Oath.

The point was put another way repeatedly by KC Ruggles Ferguson. To read ss 35(3), 83(II) and III (I) as meaning they require the Oath to be to the British Monarch unless approved at a referendum; when the G-G, PM, OL and all other MPs can pledge allegiance to Grenada without referendum, would produce, he said, ‘absurdity’.

He suggested that, if the question of the change of Oath as to the SOE and PSC arises, a court is likely to treat the Oath regarding them as ‘procedural’, meaning, changeable the same way as the Oath for the G-G, PM, OL and all other MPs.

When asked to uphold an absurdity on a matter resulting from an apparent inconsistency between provisions in an instrument, a court identifies the principal imperative command on the matter and has that prevail. Such command here regarding the Oath is Sch 3, which may be changed without a referendum; no other Form of the Oath being set out in the Constitution.

Changing the Oath would not interfere with its purpose, namely, to commit the oath-taker to duties of loyalty. This accords with the ‘purposive’ canon of interpretation, which promotes the purpose of the Oath. That purpose is promoted by changing the Oath without referendum as to the SOE and PSC, as by so changing it as to the G-G, PM, OL and all other MPs.

This avoids the absurdity of suggesting a need for a referendum to change the Oath for the SOE and PSC; while recognising, inescapably there is no such need as to the G-G, PM, OL and all other MPs.

All this builds One Nation, One Future, One Allegiance.

Dr. Francis Alexis, KC is a former Attorney General and Minister of Legal Affairs in the 1990’s