The New Today

Commentary

Reasoning and precedent advocate change of Oath of Allegiance

On the proposal to change the Oath of Allegiance, Joseph Ewart Layne makes a certain concession, from which no person can escape. Layne observes that the clause in the Constitution of Grenada which lists provisions in the Constitution that are protected against alteration by a Bill without the people approving same in a referendum (‘referendum-entrenched’) does not include Schedule 3 to the Constitution. Schedule 3 sets out the Oath of Allegiance.

Layne adds, though, that because certain referendum-entrenched provisions refer to the Oath of Allegiance, those provisions, in effect, confer referendum-entrenched status on the Oath of Allegiance. That is called ‘entrenchment by inflection’ or ‘entrenchment by implication’.

Layne’s attempt to apply the referendum-entrenched device to the Oath of Allegiance by inflection from other provisions which are referendum entrenched could not be more woefully and helplessly wrong. We can test it both by constitutional reasoning and by precedent.

Constitutional reasoning
On constitutional reasoning, the other sections referring to the Oath of Allegiance simply point to the Oath, whatever its form; those provisions have absolutely no interest whatever in preserving that form. Entrenchment by inflection operates to preserve a particular subject, such as to protect the Courts.

Three Acts were passed by the Parliament of Jamaica to move Jamaica out of the Privy Council and into the CCJ. The Privy Council is not referendum-entrenched in Jamaica. But, the Privy Council ruled in Jamaica Council for Human Rights v Marshall-Burnett [2005] UKPC 3, bringing in the CCJ would impinge upon the protection of the Courts in Jamaica.

So, bringing in the CCJ requires changing whatever provisions in the manner required by the Constitution; although the Privy Council could not say what entrenchment requirements would apply to provisions bringing in the CCJ; quite alarmingly.

So, entrenchment by inflection was there applied by the Privy Council, ostensibly anyhow, to protect the Courts in Jamaica. By contrast, there is nothing in the form of the Oath to protect under entrenchment by inflection. Whenever a provision in the Constitution deals with the Oath, the provision is satisfied with whatever form Parliament prescribes for the Oath.

Related:  One nation, one future, one allegiance

This is why some Constitutions do not put the form of the Oath in the Constitution. They leave it to Parliament to prescribe the Oath. Thus, the Constitution of St Vincent   section 105(1) says: “Oath of Allegiance” means such Oath of Allegiance as may be prescribed by law’.

Precedent
Stipulations as to entrenchment in Jamaica are by far the most complex in the Caribbean. Touching a provision which is not referendum-entrenched may well interfere with a provision which is referendum-entrenched. That is what happened in Jamaica Council for Human Rights v Marshall-Burnett, the epitome of the doctrine of entrenchment by inflection, discussed above.

The Constitution of Jamaica section 1(1) provides: “Oath of allegiance” means the oath of allegiance set out in the First Schedule to this Constitution’. In practically the same words the Constitution of Grenada section 111(1) provides: “Oath of allegiance” means the oath of allegiance set out in Schedule 3 to this Constitution’.

In 2002 Parliament in Jamaica changed the Oath of Allegiance to require allegiance to be given, no longer to ‘Her Majesty Queen Elizabeth the Second, Her Heirs and Successors’, but instead to ‘Jamaica’. No referendum was held.

Despite Jamaica being the home of ‘entrenchment by inflection’, Jamaica Council for Human Rights v Marshall-Burnett, the changing of the Oath of Allegiance without referendum approval has never been annulled. This precedent is absolutely persuasive for Grenada.

This is the Juncture
Whether a move is hurried depends on how complex and appropriate it is. There is nothing complex about changing the Oath; nothing could be more simple than changing allegiance from the British Monarch to ‘Grenada’; it was done easily in such countries as Jamaica and St Vincent, to say nothing about the republics in Barbados, Dominica, Guyana, and Trinidad & Tobago.

Entirely appropriate is it at this juncture to change the Oath; as Grenada turns Fifty. Let us render allegiance to ‘Grenada’ as One People, One Journey, One Future.

Dr Francis Alexis, KC is a former Grenada Attorney General and Minister of Legal Affairs