Disqualification simplicita at the watershed

Roseau, Dominica (TDN) — Before the long, tortured journey of trying to determine the lawful constitution of the Parliament of Dominica following the 2009 general election, Roosevelt Skerrit hailed as a “witness of truth” following his appearance in a BVI court in 2009, was required to answer truthfully one simple question:
Do you, or do you not, have a French passport?

Journalist Lennox Linton.

What is "self-incrimination"? The law dictionary defines it as "describing oneself as being involved in the commission of a crime or other wrongdoing." For good reason, the law provides that a person accused of a crime cannot be forced to give evidence at his trial for that crime. By section 3(1) of the Perjury Act, Cap. 10:30 of the Revised Laws of Dominica 1990, any person who, being required by law to swear an oath, and who "knowingly, willfully and corruptly, upon such oath, swears to or makes any false statement as to such fact, matter or thing", is guilty of willful and corrupt perjury.

A clear, honest answer to the question would have spared the nation the pain and suffering it has been put through in this on-going struggle to defend the constitution and uphold the rule of law.

The “witness of truth” chose instead to abandon the honourable conduct expected of honourable members of Parliament in favour of playing the games of trickery and deception that lawyers design for those clients who are satisfied that the truth and fact of their challenged actions cannot succeed in court.

Skerrit confessed that he was a citizen of France, but that such citizenship was attained through his mother and not by his own act. In other words, according to the provisions of Constitution at 32.1.A, the involuntary circumstances through which he came into French citizenship would not disqualify him from membership in the Dominica Parliament.

But Skerrit’s possession of a French passport as an adult is an entirely different matter as it represents “acknowledgment of allegiance to a foreign power or state” by virtue of his own act.

The February 2009 Appeal Court ruling in the Jamaica case of Abe Dabdoub versus Darryl Vaz, clarified that issue of dual citizenship disqualification for membership in Parliament and has become the legal authority most relied on in this regard.

Skerrit himself cited Dabdoub versus Vaz in his letter to the French authorities seeking immediate renunciation of his French citizenship on November 27th, 2009, eight days after he announced the date for the election that he alone had the authority to call.

Like Skerrit, Vaz got his second citizenship through his mother and the court accepted that this involuntary attainment of US citizenship did not disqualify him from sitting in the Jamaica Parliament. Vaz was nonetheless disqualified because as an adult he was in possession of and used a US passport.

As such, there is no way Skerrit could have been thinking about French citizenship through his mother when he referenced Dabdoub versus Vaz in his letter to the French Embassy:
“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 elections in my country…”

Quite clearly, the possession of a foreign passport – the reason for which Vaz was disqualified – was the only thing on Skerrit’s mind in that reference to “new questions about dual citizenship” raised by the “recent court decision in Jamaica”.

Skerrit then went on to confess that he was the holder of a foreign passport in letter to voters in the Vielle Case constituency dated December 17th, 2009. In his ruling on the applications by Skerrit and company to strike out the various charges brought against them in the election petitions following the 2009 election, Justice Errol Thomas reduced the case for trial to the bare bones of its simplicity:

At paragraph 173 of his August 2010 ruling, Justice Thomas notes: In the case of Mr. Roosevelt in DOMHCV0007/2010, the fact of citizenship is not denied having been acquired in his infancy. However, the matter of the passport is rejected in the Application filed on 30thMarch, 2010. However in ANNEX C to the said Application, being a letter to "Electors" dated 17th December, 2009, the matter of "my possession of a foreign passport" is raised. But nothing more is said except that: "Despite what you have heard I am validly nominated and your votes for me will not be thrown away."

I understand Justice Thomas to be indicating that given the provisions of 32.1.A of the Constitution and having regard to the February 2009 Appeal Court decision in Jamaica, you cannot confess to be in possession of a foreign passport as a big grown man and at the same time state that you are validly nominated for an election to the Parliament of Dominica.

And so at paragraph 193, Justice Thomas concludes:
“Accordingly, the applications to strike out… paragraph 7 of the Maynard Joseph Petition are hereby refused. Therefore, Petition…DOMHCV2010/007 will proceed to trial on the sole issue of disqualification for nomination and election…”

The foreign passport of Roosevelt Skerrit therefore became a crucial document for examination by the court in its truthful and expeditious determination of Skerrit’s qualification for nomination on December 2nd, 2009 and election on December 18th, 2009. Passports are not issued in duplicate.

Lawyers for the petitioners made a written request for disclosure of Skerrit’s passport. The lawyers for the respondents replied asking for the legal authority on which the passport was requested. The authority was provided.

There was nothing further from the respondents. So the petitioners asked the court to order disclosure. Justice Gertel Thom ruled that the court has no jurisdiction to order disclosure of Skerrit’s passport. The petitioners then issued a subpoena duces tecum to compel Skerrit to produce his passport.

In an application to set aside the subpoena, Skerrit’s lawyers told the court that presentation of the passport would amount to an act of self-incrimination in respect of which he needed the protection of the court. Justice Gertel Thom set aside the subpoena. She said her reasons would be given later.

Note well that nowhere in response to this abundance of circumstantial evidence pointing to Skerrit’s possession of a foreign passport have you heard any statement to the contrary from Skerrit.

Indeed, he has not said he does not have a foreign passport. He has simply told us he cannot make it available to the court.

And so barring some more triumphant absurdities from Gertel Thom, Skerrit and company will soon have to place their trickery and deception in this matter before the appeal court of Chief Justice Hugh Rawlings.

But make no mistake about it; the simplicity of this case has brought us to the watershed where learned justices 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 a rogue Prime Minister.

How long? Not long!