Court To Gov.: Submit the Constitution
Governor deJongh, forward the Constitution, as submitted, to President Barack Obama. Period.
That’s the court order in the latest round of legal battles concerning the submission of the document drafted by the Fifth Constitutional Convention.
Superior Court Judge Darryl D. Donahue, Sr., signed the order on December 23, giving the Governor ten business days to forward the document to Washington, DC.
The Court ruled that the Governor violated the provisions of Act. 6688 which clearly states, “The President of the Convention shall submit (the proposed Constitution) to the Governor of the Virgin Islands … and the proposed Constitution shall, within 10 days after it was submitted to him, be submitted by the Governor to the President of the United States.” (emphasis added)
Seems clear enough, doesn’t it? Maybe it’s that pesky word “shall” – remember how the Administration had trouble understanding that during the first Mafoliegate hearing?
But we digress.
The efforts to stall submission of the document began after the Governor failed to forward the document within ten days of its submission to him on June 1, 2009. After that failure, Constitutional Convention officers Gerard Luz James II, President, and Mary Moorehead, Secretary, filed a motion for a “Writ of Mandamus” which is a request for a court to order a government officer to perform a mandatory duty correctly, in this case, to submit the document within 10 days. The work “mandamus” means “we command” in Latin.
The Administration, through Atty. General Vincent Frazer, responded that the motion was invalid and should be dismissed because James and Moorehead were not authorized to pursue this action as officers of the Convention. And while the court agreed that James and Moorehead could not sue in their capacity as officers, they could bring the action as individual taxpayers. And that’s what they did. This ruling is in response to that action.
The ruling is attached below and is worth reading. The court is clear on the direction the Governor should have taken, and states that when the Legislature passes a statute, the court must presume that the body “says in a statute what it means, and means it a statute what it says there.”
Kind of reminds us of when the Legislature said in Act 6917 that those reprogrammed funds were supposed to go to road repairs but were somehow diverted to improvements at Estate Mafolie…
Back to you, Governor.
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In the wake of the court decision to transfer the draft constitution adopted by the Fifth Constitutional Convention of the (U.S.) Virgin Islands, the next steps should be instructive. The nature of the U.S. (federal) response to the document and the potential for the U.S. Congress to make changes should now be the points of our focus.
A number of elected politicians, including the governor and non-voting delegate to Congress and a few senators, have professed their opposition to the draft constitution. Ironically, the draft was adopted by the 30-member Constitutional Convention comprised of 30 members who were elected by the people of the Virgin Islands specifically to write the document. The law provided no role for the politicians. Maybe it should have, but it didn’t. The fact that some politicians have expressed their misgivings on the text based on charges of unconstitutionality is premature. It is the US. Congress which will decide what is constitutional, and what is not – not local politicians which have no real power to govern other than what the Congress decides to give them. It’s called colonialism, or dependency status, if you like (a rose by any other name).
Since these politicians were unable to prevent the draft constitution from reaching the federal government, I would suspect that this would not stop them from still trying to block it. Indications are that these politicians will attempt to derail the constitution by lobbying the Congress based on what they argue is unconstitutional even since the colonial status does not allow for all of the US constitution to apply to us. Many of the new powers requested in the draft constitution appear in other territorial constitutions, so why not in the Virgin Islands? In the end, it should be a political decision by the people of the territory to adopt, or to reject. If the Congress finds unconstitutional grounds for some of the language, then they would surely make the necessary changes. But it is not the place of the US Congress to remove any provisions based on political grounds after being lobbied by some local politicians who profess to protect the interests of all US citizens residing in the territory. Is this a constitution for the people of the Virgin Islands, for the Us citizens residing in the Virgin Islands?
It is not the role of the Congress to make our political decisions for us, but only to tell us what they think might be unconstitutional. If changes are made, especially on political grounds, then it will not be a constitution of the people of the Virgin Islands, but one which would be given to the people, take it or leave it. So much for democracy.
Congress now has its chance to conduct its analysis of the draft and tell us what they think. As in the case of previous attempts to write a draft constitution, it is the Constitutional Convention which should take the lead in explaining the draft to the Congress, and to justify all of its provisions – after all, they wrote it based on their lengthy discussions with the general public, legal counsels and experts. The Constitutional Convention should continue its work and educate the people of the territory on the issues in the draft constitution so that the people can be informed.
This is the process as adopted into law. If this doesn’t work, then maybe it is the process which should be re-visited. Should the draft constitution go to Washington after it is agreed by the people in a referendum, and not before? Was sending it to Washington first a conscious decision by the Legislature, or was this simply done by copying earlier constitutional legislation without thinking – because that is how it was done before? Why did the Republican Bush Administration deny the Constitutional Convention funding to undertake its work, and why did the Democratic Party –controlled Legislature deny adequate funding to the Convention? Was this designed to kill the document?
Will the Obama Administration provide the funding so that the Convention can present an adequate public education program? Or will the Democratic Party officials in the territory devote its energy to convincing the Obama Administration to block it? Should there be a referendum on the constitution during the general election next November on the constitution sent back to us? Or are the politicians afraid of a referendum at that time since they would have to actually take a position during the campaign on an issue? Repetitious slogans such as “the youth are our future” are no longer enough. The people are watching.
Carlos Otero
Carlos,
You made some excellent points:however, there are a few questions that I will like for you to addressed.
Did all 30 members reviewed and approved the final draft?
Were all members physically present at the last meeting?
Was each item inserted at the last moment discussed by the entire body?
Did the convention accept the advice of the legal counsel?
Was the final document proofread and edited to make sure there was no grammatical errors and ambiguities?
How many other U.S. territories constitutions have you examined? According to you, “many of the new powers requested in the draft constitution appear in other territorial constitutions.”
What powers are you referring to? Are you suggesting that a colony can exercise powers that supersede the U.S. Constitution and sovereignty of the federal government?
If the draft is presented for ratification by the voters during a general election, it would save us money. Do you agree?
The voters’ participation would be greater during a general election than a special election. Do you agree?
Do not expect the federal government to fund a local election. Has this ever occurred?
Politicians and any civic-minded citizen should not wait to take a position;the present moment is crucial. If the delegates were concerned about educating the people, they would not demand money to do so. They can write to newspapers and call radio show programs free of charge. Their role by law was to draft a document according to certain guidelines. They managed to produce a document. Unfortunately, the document drafted is of inferior quality and does not closely resemble any other territorial constitution. The Public Law stipulated that the proposed constitution should have been consistent with the U.S. Constitution and had to recognize the supremacy of it.The Bill of Rights is the only component of the document that comes close to the U.S. Constitution. The preamble appears to be a history book and the other parts appear to be the reflection of a few arrogant individuals with delusions of grandeur.
To: Anonymous
In response to your questions, I will try to answer them based on what I have been able to understand from the few convention meetings I attended, and from my own research. The press reports have been mostly biased against the draft constitution, and are unreliable. Crucians in Focus seems to provide the only real venue for this discussion.
All 30 members were not present at the meeting when the draft constitution was adopted, but there was a quorum present, and the legally sufficient number of members voted in favor of the draft which had been reviewed by all of the members throughout their sessions since the convention began. Items inserted on the final day were introduced as amendments, duly seconded and discussed, and voted upon consistent with the parliamentary procedure of the body.
Advice of the legal counsels (there were more than one) was provided. Some advice appeared to have been accepted, some not. If the final document had any grammatical errors, I would assume that they would have been corrected by the same legal counsels. I am not sure what is meant by any ‘ambiguities’ to which you refer.
I have read the constitutions and laws of several of the U.S. territories which have powers such as land ownership restrictions, natural resource ownership, protections of culture, among other areas. There are a number of academic papers on this which are more specific. Colonies are not states so they are not treated like states for many purposes. It is not a question of superceding the US constitution which does not apply to us in total. Who decides what applies, and what does not. It certainly is not we.
I agree that if the draft is presented for ratification by the voters during a general election, it would save us money, and that voter participation would be greater. I don’t consider a referendum as a ‘local election,’ even if it is under local election laws. I regard it as a ‘special election’ on constitutional development in which the federal government has an international obligation to assist under international law. Whether they do or not is another matter. I agree that politicians and any civic-minded citizen should not wait to take a position, but hopefully that position would derive from being informed of the facts and not the media dis-information.
I do not think that the delegates are ‘demanding money” for themselves, but rather requesting funds to educate the people. An effective campaign to inform the people of the issues in the constitution should not be left to some ad hoc approach of letters to the editor and calling the talk shows. It should be a well planned and professional program similar to other territories. I can think of little else more worthy of our tax dollars.
You contend that “the document drafted is of “inferior quality and does not closely resemble any other territorial constitution.” I do not agree, but we both have our opinions. The only opinion that matters at this point, however, is that of the federal government when it reviews the draft. In the Convention meetings I attended, there was a lot of review on other territorial constitutions, as well as state constitutions, to justify what they put in the draft. If things are constitutional in some territories and not others, well I for one would like to know why.
The view of many lawyers is that it is not necessary to spell out that the constitution must recognize federal supremacy. This is a given, after all, it is a colony (your words). Constitutionality of the draft will be determined by the federal government, not but local speculation on what is constitutional and what is not.
Carlos Otero
Mr. Otero, you make a lot of sense!
Carlos,
Please state the specific laws and clauses in territorial constitutions that “…have powers such as land ownership restrictions…” Everything else mentioned in your response are matters of opinion. All lawyers and legal minds do not have the same views or opinion on an issue. However, if you make an assertion, provide the evidence to support it.
My understanding is that the Judicial branch of government interprets the law. Therefore, it is my understanding that even if the proposed constitution is ratified,certain provisions in it could be challenged in a Court of Law.For example, if a naturalized citizen decides that he is being discriminated by not getting the same tax exemption as his neighbor on the basis of place of birth, that person can take the matter to court.
I have read the local law that provided that”…members of this convention shall review and adopt provisions of the(proposed) Constitution of the Virgin Islands, previously approved by the Fourth Constitutional Convention, which are considered by the Convention to be standard and of a non-controversial nature. This is seen as both a cost and time-saving measure.”This convention appears to have done the exact opposite.
I did not attend any meetings,, but I have read the fourth draft. In my opinion, if this draft was reviewed by all members and each member unanimously voted on which clauses should have been retained or deleted, the fiasco would never have occurred. This convention created a monster and incited divisiveness. When everyone agrees on an issue, there is no controversy.Who would disagree that the U.S. Constitution is the supreme law of the Virgin Islands?
Deliberately omitting the supremacy clause is controversial.Further, it is an abomination to say the proposed constitution is supreme to the U.S. Constitution.
Separating a society into three classes is archaic and controversial. It reminds me of the Roman Empire. The elite class was more equal than the other classes.
Granting rights and privileges to the elite class and denying them to the other classes is controversial and regressive. Jim Crow laws have long been outlawed.
The new powers requested in this constitution draft such as the eligibility(native-born) to run for governor is not in Puerto Rico Constitution nor any other territorial constitution (prove this to be incorrect by citing the exact Articles or clauses).
The fourth draft was approved by Congress and rejected by the people of the Virgin Islands. Twenty year later,a more diverse population and a more politically conscious electorate have an opportunity to read and be informed of what the fifth draft contains.Unless you are illiterate and computer incompetent, you can educate yourselves about this fifth draft.All who happen to be reading my comments could download the document that is on this website.I assume you can read it without the delegates educating you about it. You may encounter some difficulties interpreting certain clauses, because there are numerous contradictions, grammatical errors, and ambiguities.How can a person not born here be an Ancestral native? How can a descendant of a person that was never a citizen of any country have more rights than a U.S. citizen residing or born in the VI?
I urge all civic minded citizens and residents of the Virgin Islands to write the President and Congress and let your concerns about the draft be heard. Whether you support it or oppose it, it is important that we exercise our rights of freedom of speech. We live in a democracy and all laws enacted must apply equally to all citizens!
Dear Anonymous,
You are obviously quite passionate about this issue, but it is all speculation at this point until the Obama Administration reviews the draft, forwards it to Congress, and they send back to us what they deem is constitutional or politically correct. We will then have the opportunity to vote on what they give us. Imagine that.
On Alvin G’s news this morning, John Greaux had a gov’s press release saying they were pleased that President Obama agreed with him, Gov. deJongh, that certain parts of the constitutional draft were not in accordance with the US Constitution.
That’s not how I heard it happened. The gov. and a group of 7 delegates wrote letters to Pres. Obama suggesting that sections of the draft were questionable. Pres. Obama merely sent a letter to Congress asking them to evaluate whatever it was being disputed. That does not constitute AGREEMENT with those who are trying to sabotage the process.
Now that we know what our gov. is capable of in the Mafoliegate scandal, it is not surprising that he is using the media so deviously.
The Congress will not approve the discrimination against those who are not natives. All the blowing of conch shells would not intimidate the Congress. The USVI is not an independent nation. It is a U.S. colony. The U.S. Constitution is for all U.S. citizens, including those who are naturalized.
Why are we dealing with the constitution and not Status? Status relates to the Right to Self Determination. If our constitution is based on the Constitution of the US then we are forfeiting our right to Determine who we want to be and who we choose to associate with even if it is with no one.
At this point in time Babylon is falling and they have bigger things to deal with than us. How much money does the US owe the Virgin Islands (including the gasoline excise taxes). Those of us of like minds need to start develop strategy as to how we are going to navigate here in the VI as well as on the International scene.
This statement is what grabbed my attention:
Social change does not come through voting. It is delivered through activism, organizing and mobilization that empower groups to confront the hegemony of the corporate state and the power elite.
http://www.globalresearch.ca/index.php?context=va&aid=17875
We are dealing with the constitution because the V.I. Legislature passed a bill to allow us to draft one. When there is an election to deal with status, the people always favor the status quo. Those who want independence are too few in numbers. The federal funds and U.S. dollars influence the people.Most do not wish for independence.We need the U.S.A. more than she needs us. We only produce and export rum. There is no gasoline cover-over program.Hovensa is a private cooperation that gets certain tax benefits. Without Hovensa, rum production and tourism, the USVI is nothing!
Please make correction : Hovensa is a corporation, not a cooperation. It refines crude oil to produce gasoline which is exported.If Hovensa leaves the territory, the USVI will suffer an economic loss.