“Judges or House Slaves” – How the courts failed the people of Dominica
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“Judges or House Slaves” – How the courts failed the people of Dominica

By Indian Warner
March 17, 2013 4:20 P.M



janice pereira mario mitchel don mitchel
Justices of the OECS Court of Appeal Pereira, Mario Mitchel and Don Mitchel.
Roseau, Dominica -- The recent Court of Appeal judgment in the Dual Citizenship matter handed down by the Eastern Caribbean Supreme Court seriously reduced the supremacy of the Constitution of Dominica and insulted the intelligence of the people. It further demonstrated the lack of testicular fortitude within the OECS Legal fraternity.

These judges manufactured lame excuses in order to shield themselves from dealing with the substantive issues in the case. By this cowardly and pathetic act, they exhibited the “House Slave” traits and concretized the reasons why the Caribbean Court of Justice (CCJ) will not work as our final appellate court. They also kept two illegal members in the parliament of Dominica.

In 2005, former Chief Justice of the OECS, Sir Hugh Rawlins in the Election Petition case of “Ferdinand Frampton Vs Ian Pinard” lamented the importance and urgency of knowing the legitimate representatives of the people.

In the 2012, St Lucian election petition matter of “Ezechiel Joseph Vs Alvina Reynolds & Lenard “Spider” Montoute Vs Emma Hippolyte”, Sir Rawlins said further, “In keeping with the strict approach, our courts have generally insisted that the provisions in elections legislation must be strictly complied with because the paramount public interest is that election petition challenges should be determined as quickly as possible so that the assembly and the electors should know their rights at the earliest possible time.”

This was evident in a few islands in the jurisdiction but “The no law, not even the constitution” syndrome was true to form in Dominica. The election petitions were filed within 21 days after the December 18th 2009 General Elections. The decision from the Court of Appeal came on March 11, 2013. This is over 3 years later and 60% of the 5 year term already gone. This was deliberate tardiness on behalf of the Courts.

In his judgment on August 25, 2010 of the application for strike out of the election petitions, Justice Errol Thomas ruled that the matters dealing with disqualification should go to trial. He said in respect to the case against Roosevelt Skerrit and Petter St Jean that, “…the Petition will proceed to trial on the sole issue of disqualification for nomination and election.”

Since that declaration by Justice Thomas, this court matter began to experience calculated maneuvering through delays, the changing of judges and selective technicalities. This is in total contrast with the importance and urgency that Sir Rawlins so eloquently stated. The Constitution and people of Dominica began to undergo a long and destructive court process.

Justice Gretel Thom who worked with Anthony Astaphan while she was the Attorney General in the Lester Bird led Antiguan Labour Party government, replaced Justice Thomas on the case. Justice Thom dismissed the matter for full disclosure of the passports and other critical documents on June 7, 2011.

She stated in the judgment; “Parliament not having included discovery and indeed the interlocutory process in the determination of election petitions it would be wrong for the Court by way of its inherent jurisdiction to include it. The election petitions could be determined in a fair and just manner without the application of the interlocutory process.”

This was a calculated decision by the Judge because she was fully aware that the availability of these critical documents would have had a huge impact on the case.

On September 7, 2011, Justice Thom put aside the subpoenas that would put Skerrit and St Jean on the witness stand to be cross examined. Another opportunity to get more evidence that would help the case in the interest of protecting the Constitution but it was also denied by Justice Thom.

In her ruling delivered on January 10, 2012 Justice Thom stated, “In conclusion I find that the subpoenas issued to the Respondents should be set aside. The Respondents are not witnesses within the meaning of Section 67 of the House of Assembly (Election) Act. I also find that the procedure of issuing the subpoenas was an abuse of process, they were a fishing expedition by the Petitioners to determine whether they had a case, and further the Court has already ruled that Parliament had not included the discovery procedure in the determination of Election Petitions therefore discovery could not be obtained by way of subpoena under Section 67 of the Act.” It is very apparent that Justice Thom found more interest in the protection of Skerrit and St Jean instead of the Supreme Law of the land.

These premeditated manifestations solidify the vehement denial of justice for the people of Dominica while protecting Roosevelt Skerrit who announced General Elections on November 19, 2009. Skerrit knew that he was disqualified under Section 32 (1)(a) of the Constitution.

Earlier in 2009, the Dominica Labour Party was advised by Senior Counsel Alick Lawrence that it would be a breach of the Constitution if anyone with dual citizenship contested general elections. Skerrit advised Former UN Ambassador, Crispin Gregoire not to contest the elections because of that disqualifying vice.

Why did, Skerrit and St. Jean write to the French Embassy on November 27, 2009 and November 30, 2009 respectively, requesting urgent renunciation of their French citizenship? Skerrit’s letter declared, “A recent court decision in Jamaica raised some new questions about dual citizenship and I therefore would not want to cause myself to be disqualified to contest the 2009 general elections in my country.”

What are you denouncing if there is nothing to denounce?

Why when Skerrit wrote to his constituents on December 17, 2009 he didn’t deny having a French passport?

Why Skerrit and St. Jean filed no defense to the petitions and produced no witness statements?

Why was Justice Errol Thomas replaced by Justice Gretel Thom?

Why on two occasions Justice Thom refused to stand on the side of the Constitution of Dominica by not allowing full disclosure and also set aside the subpoenas?

Why the lawyer for Skerrit and St. Jean offered his clients’ resignations if they were ordered by the court to make full disclosure and if the Claimants would agree to no longer pursue the matter?

The local judges also began the subversion of the Constitution. The seats in Parliament of Edison James and Hector John were declared vacant by the Speaker of the House, Alix Boyd-Knights on May 4, 2010.

The two gentlemen brought the matter before the court seeking clarification on the rights of the Speaker to vacate the seats. In her ruling of January 20, 2011 on the Application to strike out, Justice Birnie Stephenson-Brooks agreed that the Speaker had to answer a claim but she dismissed the case because she deemed it moot and academic.

She stated in her ruling, “…..I am of the view that there is a Claim for the Speaker to answer as to whether her actions in declaring the Claimant’s seats vacant were in breach of sections 8(8) and 35(1) of the Constitution.” Justice Stephenson-Brooks had the perfect opportunity to send the matter to trial to seek Constitution clarification on the behalf of the people; instead she conveniently shielded Speaker Boyd-Knights.

Taking advantage of a peaceful people defines the weakness of sincerity. It might gain you a sit at the master’s table but never a genuine place amongst the people. The March 11, 2013 Court of Appeal judgment could not be more damning in the eyes of the Dominican people.

Knowing the issues around this 3 years old matter and the decision of the court was devastatingly mind-blogging. Chief Justice Janice M. Pereira, who Anthony Astaphan was her divorce lawyer; Justice of Appeal Mario Mitchel, who was the Minister of Education in St. Lucia at the same time Skerrit was the Minister of Education in Dominica and Justice of Appeal(Ag) Don Mitchel handed down this fundamental miscarriage of justice. Though the judgment found issues with the decisions of Justice Thom to be questionable, they contradicted themselves in favour of Skerrit and St. Jean.

Paragraphs 11 and 20 – 24 of the judgment are destructively instructive. The contradiction is alarmingly dangerous. Paragraph 11 states in part, “The learned trial judge [Justice Thom] found this constitutional entitlement to be good enough reason to refuse the applications. However, for several reasons I have difficulty in seeing the relevance, and agree with Mr. Mendes, SC that the learned trial judge misdirected herself on this issue.”

Six critical reasons were given to strengthen the grounds for disagreeing with Justice Thom. Why not rule in favour of a re-trial at that time? The Constitution of Dominica was at the mercy of the Appeal Judges and they intentionally chose not to give it a life line.

In paragraph 22, Justice Don Mitchell accepted the interpretation of Mr. Mendes SC on Section 67 of the Elections Act but he, “cannot agree that the section was intended to be used in effect to shift the burden of proof from an election petitioner onto a respondent by enabling a petitioner, who lacks sufficient evidence to prove the allegation in his petition, to compel the respondent to testify against himself.” Amazing!! Does the petitioner own the passport of the respondent?

This court matter underlines the serious problem within the legal fraternity of the Region. Judges are afraid to safeguard the Constitution of a country and conveniently find technicalities to wash their hands like Pontius Pilate. Many of them are aware of what happened to retired Judges, Sir Brian Alleyne and Albert Redhead and refuse to ruffle the feathers of leaders who are found in breach of their respective constitutions.

A lot of room was left to speculate that the strategic utterance of Skerrit to make the CCJ the final appellate court of Dominica was a form of inducement to get a judgment in his favour. This judgment will remain a sad day in the history of Dominica.

There will always be a dark cloud hanging over the Judges who committed that act of betrayal of the Constitution of Dominica. They have also turned more people against making the CCJ the final appellate court of the Caribbean by having two illegal individuals in the Parliament of Dominica. What a Constitutional calamity they have created!!

Note

Countries under the OECS Jurisdiction are Antigua and Barbuda, the British Virgin Islands, Dominica, Grenada, Montserrat, ST Lucia, St Vincent and the Grenadines, and ST Kitts and Nevis

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