As noted in Part V of this series, where subordinate or delegated legislation is deemed to be beyond the scope of authority conferred or it is in conflict with the parent or enabling act, the subordinate is substantively ultra vires. Therefore, where the interests and/or rights of a citizen or group of citizens are adversely affected by a piece of delegated legislation, its vires can be directly challenged in court. Upon consideration of the matter, the court may;
(i) reject the application
(ii) grant an injunction to stop the conduct, action, scheme, or program executed under the legislation;
(ii) make a formal declaration;
(iii) issue mandamus and/or;
(iv) award damages to the affected person(s) as may be appropriate.
Unless a law, regulation, or rule is declared invalid by a court, it is presumed to be valid and the program operated thereunder is deemed lawful. Once the court has declared the primary and/or secondary /delegated legislation to be ultra vires, it becomes void, unenforceable and the program operated thereunder is deemed unlawful and cannot affect the rights and duties of any person.
The Constitution of Dominica is the supreme law and therefore any act passed by our legislature is required to be in conformity with the provisions of the Constitution. .In the same way, any delegated legislation must be in compliance with the letter and intent of the parent act from which it derives its authority. A law that is found to be in violation of the constitutional provisions is unconstitutional and void in the same manner any subordinate or delegated legislation made under the act will also be declared to be unconstitutional and therefore void. This also applies to a subordinate legislation that is in conflict to or ultra vires an enabling or parent act.
The Courts have made it clear that excessive delegation is not permissible. Excessive delegation is taken as an abdication of the essential legislative function by the legislature or parliament. The ultra vires doctrine establishes that delegated legislation must never be so unguided and uncontrolled, as is the case with SR&O No. 37 of 2014, which established the CBI program in Dominica. A regulation cannot enlarge the meaning of a statutory provision that governs it. Hence, SR&O No.37 of 2014 and all subsequent amendments thereto must yield to the provisions of the Citizenship Act and the Constitution of Dominica. Inasmuch as the delegation of the Minister responsible for Citizenship may be excessive, the CBI program itself must be deemed ultra vires and void in law. The SR&O and the program it authorizes must go- to the extent that it is assessed to be beyond the authority of what the provisions of the Citizenship Act and the Constitution of Dominica provide. Even where the SR&O may not be deemed an abuse of discretion, in some cases its provisions may be unreasonable and arbitrary and therefore ought to be struck down by the court as invalid.
SR&O No.37 of 2014 was executed by exercising power mala fide with an ulterior corrupt motive to engage in wholesale trading of the resources of the state (our citizenship/passports and in some cases to donate portions of protected reserve of parklands to aliens/foreigners, who did not come with their funds to invest in the construction of the Kempinski hotel project but were simply peddlers of Dominican citizenship to make a few quick millions of dollars, inclusive of the Italian Ambassador at the UN, who referred the opportunistic international hustlers to the governing hyenas of Dominica. These so-called investors never had a genuine interest in the development of Dominica. They have no desire of residing on Dominican soil. These foreign financial mercenaries are themselves corrupt and in some cases are criminals under the international money laundering radar- never mind what is said to be a “full proof;’ due diligence process.
Contrary to the lies of Ambassadors Henderson and Nathan in an interview with the Huffington Post[1], that “prospective developers [involved with the CBI program] must have equity and the companies should have invested money of their own upfront,” we recall that MMCE got involved with the CBI program as a relatively new company having raised its asset portfolio from the sale of our citizenship as a result of a sweetheart deal with the government, which allowed it to front the funds for construction projects, particularly the houses at Bellevue Chopin.
The truth is most of the investors involved in the CBI program do not contribute anything directly by way of real, genuine, and substantial investments in the development of the country as the EB-5/Golden Visa program in the United States encourage in exchange for a path to citizenship. Generally, the new citizens attracted by Dominica are individuals seeking second citizenship (a alternative passport). In fact, the government and its CBI promoters have identified the following key benefits to a so-called investor/economic citizen:
- Visa-free entry to a number of countries;
- Tax exemption on accumulated wealth, income, gift, inheritance, and capital gains;
- Equal/same constitutional and legal rights as every citizen born in Dominica- with privileges as UK citizens;
- The freedom to hold dual citizenship status;
- The opportunity to obtain citizenship without even having to spend a day on Island physically and
- The opportunity of passing down these privileges to future generations.
The so-called investors have absolutely no allegiance and loyalty to Dominica. They do not have to visit the country by law and they do not. The government do not care as its primary purpose is to sell as many citizenships as possible to raise funds, particularly to establish and/or augment those hidden escrow accounts over which it has joint control with a few targeted individuals ensuring that the funds are concealed away from the Consolidated Fund of Dominica, which are not subject to an audit by the Director of Audit and therefore not available to the Public Accounts Committee (PAC) and subject to parliamentary oversight.
As previously observed, the current interpretation of the proviso in Section 76 of the Constitution must be challenged. The intent of the framers of the Constitution must have been to limit the meaning of the words ‘investment’ or special purpose to be based on the long-established concept where one injects funds into a special project for a return rather than acquiring the citizenship of a country and the funds paid as consideration is deemed considered as an investment in a government-approved project. This is not an investment by the ordinary meaning of the word. It is simply a payment for a product or service of a provider.
Where the property of the state is sold, the proceeds should be state funds and accounted for as public funds through the Consolidated Fund. This ought not to be treated as funds for any specific purpose under the law to qualify as funds for an escrow account. The funds used to purchase our citizenship cannot remain as an investment of the purchaser. The monies received in exchange are state resources and ought to be accounted for in the Consolidated Funds. It is only the purpose of the funds that are special not the funds themselves as the investors did not come with their own funds. The funds generated are from the sale of our citizenship. It is such terminology and operation which exposes the CBI program as an internationally corrupted Ponzi scheme.
To a large extent the provisions of SR&O No.37 are enlarged and stretched beyond the intent of the provisions of the Citizenship Act and the Constitution of Dominica. Therefore, the secondary legislation establishing the CBI program of Dominica should be subjected to a judicial review and possible struck down to allow for all proceeds from the sale of Dominican citizenship to be credited Consolidated funds and only funds contributed by genuine investors are to treated as non-public funds earmarked for a special purpose under section 76 of the Constitution.
It is further contended that the provisions of SR&O. No.37 may be an abuse of discretionary authority,unreasonable and an arbitrary exercise of authority granted pursuant to sections 100-101 of the Constitution and sections 8, 9 20 of the Citizenship Act of Dominica. Therefore, the delegated legislation ought to be challengeable on the grounds of unreasonableness and arbitrariness as the Regulation allows the responsible Minister too broad a policy-making discretion. The Regulation confers excessive authority to the Head of the CBIU and does not provide sufficient guidelines to regulate his discretion. The SR&O allows the delegated minister to make rules but the said Minister has exercised his authority to make rules that are unauthorized by the Citizenship Act. Consequently, the rule-making authority of the Minister has no substantive power under the empowering Citizenship Act. Conferment of a rulemaking power by an Act does not enable the rule – making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.”
Pursuant to section 41 of the Constitution of Dominica, parliament may make laws for the peace, order, and good government of Dominica, subject to the provisions of the Constitution. The Commonwealth of Dominica Citizenship Act, Chapter 1.10 was enacted as part of the laws of Dominica law for the good governance of our citizenship. It addresses matters pertaining to the citizenship of Dominica including the governance of the acquisition of our citizenship. It sets out the basic framework in sections 8 and 9 to allow individuals who participate in the CBI scheme to be granted a naturalization certificate.
The CBI scheme is framed within section 101 of the Constitution of Dominica. The section mandates the Parliament of Dominica to allow the acquisition of Dominican citizenship by persons who are not eligible or who are no longer eligible to become citizens of Dominica. It states;
“There shall be such provision as may be made by Parliament for
(a) the acquisition of citizenship of Dominica by persons who are not eligible or who are no longer eligible to become citizens of Dominica under the provisions of this Chapter;
(b) depriving of his citizenship of Dominica any person who is a citizen of Dominica otherwise than by virtue of section 97.98 or 99 of this Constitution;
(c) the renunciation by any person of his citizenship of Dominica.”
By virtue of section 20 (1) of the Citizenship Act of Dominica, “the Minister may by Regulations make provision generally for the carrying out of this Act or of Chapter VII of the Constitution of Dominica.” One of the most consequential provisions of the Citizenship Act of Dominica is section 20 (1), which provides, “the Minister may by Regulations make provision generally for the carrying out of this Act or of Chapter VII of the Constitution of Dominica.” Of even more significance is section 20 (2) of the Act, which provides, “Regulations made under this section shall be subject to ‘negative resolution’ of the House.“ This means that the S.R.&O, which is secondary legislation automatically passes into law without the involvement of parliament. To reverse such legislation, a motion to annul must be tabled and passed in parliament.
This procedure vests wide discretionary authority in the Minister responsible for citizenship to make Regulations and Rules pertaining to the status of our citizenship without the involvement of the Parliament of Dominica as was done with respect to SR&O No.37 of 2014 in establishing the CBI program. Of course, in the case of Dominica where the government has a significant parliamentary majority, parliament would simply endorse the legislation in any event. That notwithstanding, some jurisdictions have changed this inherited English procedure to ‘affirmative resolution’ with respect to any fundamental changes to the Citizenship Act, whereby any secondary legislation affecting citizenship requires approval from the national parliament before it passes into law. As previously discussed, unlike Dominica, the parliament of Antigua, Grenada and St Lucia have all amended the equivalent provision of their Citizenship Act to an affirmative resolution and in fact have enacted a Citizenship by Investment Act to establish their CBI programs.
It should be noted that the statutory provision governing the enforcement of the Citizenship by Investment (CBI) in Grenada, St Lucia and Antigua are not the same. In these jurisdictions, parliament has enacted a Citizenship by Investment Act pursuant to the Citizenship Act and then an SR&O is issued pursuant to the former unlike Dominica where the CBI program is operated pursuant to the authority vested in the Minister responsible for Citizenship under the Citizenship Act of Dominica. For example, in Antigua, the Antigua and Barbuda Citizenship Act, Chap 22 provides under Section 15 (1) that the Minister may make regulations generally for giving effect to the Act by unlike Dominica, it provides in Section 15 (2) that any regulation made under the Act shall, as soon as may be after they are made, be laid before each Chamber of the Legislature, and if either Chamber, resolves that any of those regulations shall be annulled that regulation is void as from the date of the resolution, but without prejudice to the validity of anything done thereunder or to the making of the new regulation.
Pursuant to the Citizenship Act, the Antigua and Barbuda Citizenship By Investment Act, No.02 of 2013 established the CBI program and provides under section 6 that the procedure for the consideration and approval of the application for citizenship by investment, the establishment of necessary administrative machinery and the making of administrative appointments shall be conducted in accordance with the provision of the Act. The Minister may by ‘regulations amend or add to the Regulations in the Schedule and may thereby make further provisions for the purpose of carrying the Act into effect, for the better carrying out of the objects and purposes of the Act
The Dominican parliament cannot simply annul an SR&O promulgated by the responsible Minister and even if it can, this is a moot argument in light of the large parliamentary majority of the DLP government, which would simply endorse the legislation in any event. This is why this provision has been amended to remove the inherited negative resolution in the very English procedure to ‘affirmative resolution’ with respect to any fundamental changes to the Citizenship Act, whereby any secondary legislation affecting citizenship requires approval from the national parliament before it passes into law.
The Citizenship Act of Dominica appears to be less in conflict with the Constitution of Dominica than SR&O No.37 of 2014 establishing the CBI program appears to be in violation of both the Citizenship Act, Chapter 1:10and the Constitution of Dominica. Nevertheless, the SR&O and the CBI scheme are unconstitutional and should be declared void. One is, however, mindful that the application of the ultra vires rule is very difficult because generally, the power to make such secondary legislation (SR&O) is broad. Moreover, the Courts generally interpret the enabling provisions such as the negative resolution contained in section 20 of the Citizenship Act of Dominica in a broad manner. It is said that the courts adopt a deferential, rather than a critical, attitude towards delegated legislation and they tend to apply the test of reasonableness in interpreting delegated legislation. The efficacy of judicial control of delegated legislation is very much dependent on how broadly the statutory formula confers power of delegated legislation.
[1] Dominica’s Citizenship Programme “Main Source of FDI”, Officials Say | HuffPost