The Prime Minister of Dominica, Hon. Roosevelt Skerrit once declared that “No law, No Constitution” will stop him from being nominated as a candidate for election. The same prime minister is on record frequently calling for reform – legislative and/or constitutional reform whenever he believes that the proposed reform will be of personal benefit to him and will help his political party to preserve its ‘winning legacy.’ Therefore, it is prudent that we take any proposed reform of this prime minister with a huge grain of salt.
One year prior to the December 2014 general election in Dominica, the Skerrit-led DLP Administration reengineered the CBI program as currently implemented pursuant to SR&O No.37 of 2014. At that time, Prime Minister Skerrit was calling for a review of the country’s Constitution to allow Dominicans residing in the diaspora the opportunity to be nominated and to serve in public office as he advanced the candidacy of a Dominican with dual US citizenship for the President of Dominica. According to PM Skerrit,
“Another issue are the challenges which we normally have before the courts in respect to dual citizenship to be a representative in the Parliament of Dominica…I believe at 35 years we must critically examine our Constitution and see where we need to make certain constitutional amendments to foster a better way of life for our people of Dominica,” PM Skerrit stated in his address to the nation on the anniversary of the 35th year of Independence…the ambiguity in the Constitution in respect to persons with dual citizenship, particularly from North America, must be revised.”
This is a matter which is now placed in the hands of Sir Byron, who is charged with the responsibility to make recommendations to the government on electoral reform.
Just as the amendment to the Integrity in Public Office Act (IPO) was deemed necessary to save the prime minister from investigations into his alleged ownership of property acquired beyond his lawful income, the prime minister has always been excited to propose reform of our laws and the Constitution motivated by a personal desire to maintain and protect a political legacy rather than to address any genuine underlying concern for the welfare of the State.
On 31 March 2021, Prime Minister Skerrit again announced that the next step for Dominica, presumably following the completion of the ongoing electoral reform initiative, is constitutional reform to meet the challenges of contemporary society. While the prime minister is correct in highlighting the need for constitutional reform, this cannot be of the kind that will make him the executive president of Dominica. Dominicans must be wary of any attempt by this DLP Administration to the reform or amendment our laws and especially our Constitution as the intent is not pure and is motivated by what is in the best interest of the PM and his party.- not Dominica.
The latest call for constitutional reform by Prime Minister Skerrit appears to be motivated by the knowledge that the CBI program established under SR&O No.37 of 2014 is beyond the scope of both the letter and spirit of the 1978 Constitution of Dominica, the Citizenship Act, Chap 101, the Finance (Administration) Act. No 4 of 1994, the Financial Regulations (SR&O) 37 of 1976, and the Financial (Stores) Regulations No. 23 of 1980. In other words, the DLP Administration is well aware that the CBI program that it operates is ultra vires our Constitution and laws, particularly the MMCE arrangement, which is a gross violation of the very SR&O establishing the CBI program.
By virtue of the fact that both the 1978 Constitution and the Citizenship Act, Chap.101 of the Commonwealth of Dominica could not have contemplated the mass sale of our citizenship via a program like the CBI at the time they were drafted, it is unreasonable to design a CBI program based on the ordinary meaning and intent of the 1978 Constitution and Citizenship Act. This renders the CBI program ultra vires i.e. beyond the scope of the authority that is granted to the Minister to make and promulgate Statutory, Regulations and Orders (SR&O) pertaining to the citizenship of Dominica.
This is particularly manifested in what appears to be a gross abuse of section 76 of the Constitution with regard to revenues to be paid into the Consolidated Fund, in conjunction with section 83 of the Constitution pertaining the functions and duties of Director of Audit and the provisions of the Finance Administration Act with respect to the management of ‘public funds.’ It is inconceivable that the cabinet led by the Prime Minister and Minister of Finance could simply enter into an agreement with a foreign enterprise to sell Dominican citizenship on the open global market and to have a substantial percentage of the revenues generated from this activity deposited into ‘special purpose escrow accounts’ as private investment funds.
The Ministry of Finance and Investment has the responsibility for ensuring that the public finances are maintained in a satisfactory condition and for monitoring fiscal and economic performance. This responsibility does not include any function as part of an arrangement with private enterprise dealing with funds that are not classified as ‘public funds.’ Furthermore, the work of the Ministry of Finance is supposed to be pursued partly through its oversight responsibility for resource allocation in the budget (capital and recurrent) for implementation of the work programmes of individual Ministries, which should include housing, health centers, and hospitals- all of which are now through MMCE funding.
By virtue of the negative resolution of Section 20 (2) of the Citizenship Act of Dominica, which seemingly grants unfettered discretion and power to the Minister of Citizenship to make regulations pertaining to our citizenship without any oversight of the legislature essential delegates legislative function entrusted to the legislature by the Constitution to a Minster of the government could be viewed as going against the intent of Section 41 of the Constitution as the provision does not outline the legislative policy and guidelines regarding the extent of the exercise of such delegated power. The manner in which SR&O No.37 was enacted by Minister responsible for Citizenship may be equivalent to an abdication of the essential legislative function by the legislature.
The argument is advanced that the powers granted to the Minister responsible for citizenship under the Citizenship Act of Dominica could not have contemplated such powers to allow the responsible minister to make such broad statutory regulations, rules, and orders in the manner in which the current CBI program is operated pursuant to SR&O No.37 of 2014.
Consequently, the operation of the CBI program and in particular the management of the billions of dollars of revenues raised therefrom ought to be of grave concern to Dominicans. More so is the vexing issue of the revenues generated through the operations of MMCE, which are kept in an escrow account as private development funds away from the Consolidated Fund.
The CBI Unit is established under Section 3 of SR&O No. 37 of 2014. Regulation 6(1) establishes the procedure for obtaining citizenship under the scheme where a person makes an application for citizenship by himself or on his behalf through an authorized agent with an investment or executes a binding purchase and sale agreement for real estate or an investment agreement with the developer of an Approved Project.
The two lawful options via which citizenship can be obtained are (I) EDF option and (2) the Real Estate option. To qualify for citizenship under the latter, one may invest in the government Development Fund or in investment in real estate, which can either be a binding purchase or sale agreement for real estate; or an investment agreement with a developer of an approved project. The question that continues to haunt many is under what option is MMCE operating such that billions of state revenues are diverted to escrow accounts and hidden away from the Consolidated Fund of Dominica pursuant to section 76 of the Constitution and therefore away from the eyes of the Director of Audit as mandated under section 83. This is madness and cannot be within the contemplation of our laws.
Good governance dictates that our government ought not to be allowed to enter into a private arrangement with a foreign company to sell our passports and the payments thereunder are not subject to parliamentary oversight through the tabling of audited financial statements. This arrangement seems ultra vires to the intent of Sections 76 and 77 of the Constitution of Dominica. As already argued, the proviso in section 76 was never intended to be applicable to the mass sale of Dominican citizenship as a commodity and even if it is so traded, the proceeds generated from this activity cannot be considered private investment funds to be protected in an escrow account away from the Consolidated Fund.
Therefore, having concluded that these funds ought to be deposited in the Consolidated Fund of Dominica and subject to the functions of the Director of Audit pursuant to section 83 of the Constitution, it is submitted that the arrangement with MMCE violates other provisions of the Constitution and the Finance (Administration Act), No. 4 of 1994, which clearly states that no moneys shall be withdrawn from the Consolidated Fund except–to meet expenditure that is charged upon the Fund by this Constitution or by any law enacted by Parliament. It also provides;
* Where any moneys are charged by this constitution or any law enacted by Parliament upon the Consolidated Fund or any other ‘public fund’, they shall be paid out of that fund by the Government to the person or authority to whom payment is due;
* No moneys shall be withdrawn from any ‘public fund’ other than the Consolidated Fund unless the issue of those moneys has been authorized by or under any law (further to section 76 of the Constitution) and
*Parliament may prescribe the manner in which withdrawals may be made from the Consolidated Fund or any other ‘public fund’. [Note, the revenues from the MMCE sale of citizenship is not considered to be ‘public funds’
Essentially where subordinate or delegated legislation such as SR&O No.37 of 2014 goes beyond the scope of authority conferred on it or where it is in conflict with the enabling act or any other law higher in the hierarchy of legal norm, in this case, the Citizenship Act and the Constitution of Dominica, the delegated legislation is deemed to be substantively ultra vires.
The ultra vires doctrine refers to the extent, scope, and range of the power conferred by the Constitution or a parent act on a public official or authority to make secondary legislation or rules. However, the conferment of rule-making power by an Act on an authority does not enable the rulemaking authority to make rules that are beyond the scope of the enabling act, which is either inconsistent therewith or repugnant thereto. Any regulation or rule that is made has to be consistent with the provisions of the parent law. Just as a statutory provision cannot enlarge the meaning of the provisions of the Constitution, a regulation cannot be larger in scope to the provisions of an Act of parliament and likewise a rule cannot give greater authority than the regulation.
Our problem is as per SR&O No.37 of 2014, the funds generated by the CBI Real Estate option from the sale of our Citizenship/passports are not characterized as state revenues or public funds and are therefore put into secretive escrow accounts as ‘private investment funds,’ in the hands of MMCE. This arrangement cannot be considered as good governance and is not within the contemplation of the Finance (Administration Act), No. 4 of 1994 and the Financial Regulations adopted under it dealing with the management of public finance.
One is unconvinced that the operation of this CBI program is not within the spirit of the powers conferred on the respective Ministers of Finance and Citizenship by the Constitution and the Citizenship Act of the Commonwealth of Dominica. Without a doubt, this matter is deserving of judicial review and it is hoped that a case is advanced to challenge the program before the courts.
Behold, the Lord has risen and has appeared to us but Dominicans are blinded. Many among us like the Leader of Opposition, Hon Lennox Linton, have identified the fraud and have been helped to educate us. Dominicans can sense the unlawfulness. We cannot ignore the stench of corruption.
For the avoidance of doubt, this is clearly bad governance. It promotes and authorizes legislative corruption and it must be immediately addressed.