The judgement of Justice Thom and the need for an expeditious and successful appeal - Part V

The witnesses, the votes and the conduct of attorneys

In another twist of ironies, whereas the Court did not allow the Defendants to give evidence on their own behalf, the Petitioners argued that the Court should accept the testimony of one Felix Prosper that in June or July 2009, Mr. St Jean allegedly told him that he was in possession of a French passport.

In fact, Mr. Prosper testified that Mr. St Jean actually showed him the passport in question. This was sufficient prima facie evidence that Mr. St Jean had obtained (and was in possession) of a French passport. Mr. Astaphan rebutted that Mr. Prosper was an unreliable witness and his testimony should be discarded. In any event, even if the Court were to accept the evidence at it face value, it does not prove the specific allegations made against the Defendant-St Jean.

The Judge essentially agreed with Mr. Astaphan. She found the testimony of Prosper to be conflicting in relation to the period he was in Guadeloupe and his deportation to Dominica.

According to the Judge, if Mr. Prosper's testimony is to be credible, he could not have been in Dominica sometime in June/July of 2009 and could not have had a conversation with St Jean and be shown a French passport at Hartman Cuffy Junction.

It would appear that just the fact that Mr. Prosper was a one time deportee may have affected the way in which the Court assessed his testimony and challenged his integrity and credibility.

Outsmart

The Judge also found that the testimony of Prosper contradicted with Mr. Green’s testimony. Based on my understanding on the Judge’s findings, this is a travesty for which the attorneys for the Petitioners should not be exonerated.

This was dumb on their part to allow such contradiction. Clearly, they allowed Mr. Astaphan to get the better of them. Supporters of the UWP could cry foul all they wish but their lawyers must accept some of the blame for the defeat at the hands of a clever lawyer in the person of Mr. Astaphan. He got the better of them-period.

Unlike the Petitioners, Mr. Astaphan appeared to be well prepared and his clients were properly coached in how the case was to be presented. Mr. Astaphan is an excellent attorney. He deserves his praise. I have no difficulty recognizing that- his sometimes nasty and aggressive politics aside.

It seems to me that Counsel for the Petitioners failed the basic test that an attorney should never be surprised by the information that his witness is presenting to the Court and secondly an attorney should always know the answer to the questions posed to his client. Counsels for the Petitioners may be guilty of not adequately preparing their witnesses for the trial, within the limits of the law.

The time line of events should have been checked and cross-checked without leaving room for such issues of credibility. Counsels for the Petitioners allowed Mr. Astaphan to outsmart them once again. In any event, however, I must admit that the Judge seemed to have displayed a predetermined disposition to dismiss the Petitioners’ case by all means necessary.

Registration to vote

The Petitioners attempted to introduce evidence of a document dated 22 December 2010 from the Assistant French Consulate in Castries addressed to Mr. St Jean notifying him of the need to renew his registration on the database of French nationals residing outside France.

It was argued that this amounted to allegiance to France. Mr. Astaphan, however, argued that this was not pleaded as a ground of disqualification and therefore cannot be relied upon. Furthermore, he argued, there was no evidence of French law to show that registration to vote amounts to an act of acknowledgement of allegiance, obedience or adherence to France.

In my view, the Judge dealt with this matter correctly. She agreed with the submission of Mr. Astaphan that the issue was not pleaded and therefore the Petitioners could not rely on it.[1] Using the rationale that where no evidence of French law is adduced the Dominican law applies, the Judge held that under the Dominican law, the registration to vote does not amount to an act of acknowledgement of allegiance, obedience and adherence to Dominica.

Thus, this is part of the reason we are in need of electoral reform in making the case. Once again, I ask why was this not specifically pleaded before the Court by Counsel for the Petitioners by seeking leave of the Court to file an application to supplement their initial pleading?

Votes thrown away

According to Judge Thom, in order for votes to be regarded as thrown away, the electors must have known the facts which created the disqualification of the candidate and in the instant cases; there is no evidence to suggest that the voters were armed with the knowledge of the facts grounding the disqualification record that they were voting in vain.

In effect the voters of the Vieille Case and La Plaine constituencies did not have the knowledge of the facts, which would have caused the disqualification of the candidates. One wonders how much more the UWP could have done to inform, advise and educate the voters of the two constituencies of the fact that Messrs Skerrit and St Jean obtained and were holders of a French passport by their own act prior to the election. The judge appeared to be misguided on that point.

I remain steadfast in my conviction that it is unfair to criticize or blame Mr. Astaphan for doing all within his legal abilities, and competence as an experienced lawyer, officer of the Court and a loyal member of the Labour Party to defend his clients.

We must remain mindful that Senior Counsel Astaphan was not involved in any moral or ethical dispute. His conduct and responsibilities were not motivated or guided by moral or ethical parameters nor were they constrained by strict politically correctness. First and foremost, Mr. Astaphan S.C served as the legal representative of the Defendants. As such, he is expected to employ his legal training, experience and skills in defending his clients to the best of his abilities.

To the extent that Mr. Astaphan has done this, it is unintelligent to refer to him as unpatriotic or to call him names such as “the Arab Lawyer.” I do not subscribe to that form of baseless attack against the learned Senior Counsel for doing all he could to defend his clients interest.

It does not matter whether the clients were liars, cheaters, thieves, crooks, farmers, drug dealers, garbage collectors, civil servant, police commissioner, junior lawyers of the Bar or the Prime Minister and his fellow government Minister. They all are entitled to the right to proper defense. Our laws, particularly our Constitution do not discriminate.

Even in the absence of a Legal Practitioners Act in Dominica, Mr. Astaphan, like the Counsels for the Petitioners, was duty bound as a senior member of the Dominican Bar of Association to:

• Appreciate and understand the legal framework including the applicable rules of law in other to provide the best/expert legal advice to and on behalf of his clients;
• Make certain that he provided and that his clients received the benefit of all their rights under the law, including the protection of self-incrimination (whatever one my think of this defense in the circumstances);
• Ensure that nothing was done that might have jeopardized the interest of his clients;
• Conduct the case of his clients within the ambits of the law, which meant doing so on both procedural technicalities and on the substantive merits as appropriate;
• Render the highest loyalty and fidelity towards the rights of his clients;
• Conduct the case in an orderly and expeditious manner and
• Obey the law and adhere to professional ethics.

Having noted the above, however, no accusation can be sustained that the attorneys in this case represented their clients in an unethical manner. The attorneys have represented their respective clients zealously and within the confines of the law.

It was up the Court to make a determination on the interlocutory and substantive matters before it based on the facts, evidence and the relevant rules of law. In my opinion and that of many, the Court failed to do so in a fair and expeditious manner. In the process, the Court has insulted our intelligence, offended our constitution and undermined our confidence in the ongoing efforts to build a stronger regional justice system.

On the positive side, the case demonstrated the high level of competence of our local and regional legal minds in analyzing legal issues and employing their knowledge of the law to the facts and evidence.

That is true even where one may not agree with the judgment. This case should also remind the citizenry of the fundamental importance of our constitutional provisions and it should ignite a slow burning fire for political change in the country. The rejection of these politicians at the polls must be the ultimate, sanction for having repeatedly breached our Constitution.

Above all, it is clear that Mr. Astaphan and his co-counsel Ms. Heather Evans-Felix are legal experts. Mr. Astaphan is a convincing communicator in the courtroom.

Criticisms of the learned Senior Counsel’s conduct in this case would be unjustified and be without merit, albeit there may be other instances where the Senior Counsel may have crossed the line in upholding the standard of ethics and integrity expected as a lawyer who combines his role as a man in a black robe with white neck band and a political advocate in a red Labour party T-shirt.

In considering the case based on the evidence allowed to seep through her pervious blindfolds, the learned judge stated that evidence of the main witness for the Petitioners was unreliable. The judge found that there was no admission by the Defendants implicitly or expressly that they had acquired, renewed or travelled on a French passport.

The reasonable mind asks, how were the Petitioners supposed to establish this when their requests for disclosure and subpoena were disallowed by the very court that failed to exercise its inherent jurisdiction? Clearly the matter was decided on the basis that the Petitioners allegedly failure to adduce relevant, sufficient and appropriate evidence. It was on that basis that the learned judge found that Messrs Skerrit and St Jean were not on nomination day disqualified pursuant to Section 32 (1) (a) of the Constitution of Dominica.

Of course, this judgment has left a large majority of Dominicans and citizens of the Eastern Caribbean in shock and disbelief. Some, like me, have been outraged that the Court did not see it necessary to use its inherent jurisdiction to seek disclosure in such an important constitutional matter dealing with the lawful election of members of our parliament. The reasoning of the judge on some key matters does not stand legal scrutiny and begs for the expeditious intervention of the Court of Appeal.

The conclusion of the Court that the absence of rules governing the handling of an election petition essentially limits its authority seems rather absurd. In fact, it seems to have been a perfect situation where the Court could have decided to employ its inherent jurisdiction. As many eminent jurists have noted, the absence of rules or legislation does not and cannot limit the inherent jurisdiction of the court.

On the contrary, it may be argued that it is such a void that calls on the Court to exercise this jurisdiction. From my admittedly uninformed position, it would appear that the Honorable judge is wrong on her interpretation and application of the relevant rules of law, especially as this was not a criminal matter where an issue of self-incrimination would have had its rightful place.

This was and remains a matter of critical national and Constitutional importance concerning the interpretation and application of the provisions of the supreme law of the Commonwealth of Dominica.

Reading between the lines of the judgment, it appears to suggest that the entire matter was based on the masterful performance or influence of Senior Counsel Astaphan, who may have capitalized on the failures of the Counsels for the Petitioners, his extensive research and familiarity with the judge and case laws.

Nevertheless, I am confident that Judge Thom has handed the Petitioners solid legal and factual grounds for victory on appeal. I support the statement that the simplicity of this case has brought us to the watershed where the Court of Appeal must choose between the integrity of the regional judicial system and an apparent fascination in some judicial circles with facilitating the anti-rule of law machinations of rogue ruling party politicians.

Apart from the solid legal and factual grounds for a successful appeal, there is a moral, political and constitutional imperative beyond the will and means of the UWP and Dominicans to mount a successful appeal. This matter has long been out of the hands and influence of the UWP. In fact, it is not just a Dominica issue anymore. It is now a matter of public interest for the entire jurisdiction of the Eastern Caribbean to have this decision successfully overturned.

In that regard, I support the bold initiative of the Citizens Forum for Good Governance (CFGG) and the Coalition in Defense of Democracy (CDD) in establishing the Dominica Democracy Fund and I urge Dominicans to contribute to the fund on http://wethepeopleofdominica.com. I am in full agreement with Attorney Gabriel Christian that all Dominicans must contribute and ensure that a firm stand is taken in defense of the Constitution. Mr. Atherton Martin is correct in stating that we give a collective vote of confidence in our collective ability “to rescue the governance of Dominica.”

No amount of words can express gratitude for the work of patriots lie Mr. Lenox Linton in spreading the good news of hope and for condemning the ruling of Justice Gertel Thom, irrespective of what Evangelists or Monsignors have to say. This ruling of Justice Gertel Thom has obviously dealt a grievous blow to our intelligence as Dominican, to our Constitution, to the rule of law and to our fledgling democracy.

[1] Once again, why wasn’t this pleaded? Did Counsel for the Petitioners seek leave of the Court to file a motion/application to supplement their pleadings?