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

By Roseau Valley
July 30, 2012 8:55 A.M


Roseau, Dominica (TDN) --

The evidence

According to Justice Gertel Thom, the Petitioners’ case rested on the following pieces of evidence.

  1. An alleged admission that they were each in possession of French passports, evident from a letters written by the Defendants with regard to their alleged possession of a French passports;
  2. The Defendants’ failure to deny that they acquired and were in possession of French passports, in circumstances where such denial, if truthful, would have been expected;
  3. The repeated contention by the Defendants that any Order of the Court compelling them to produce their French passports for scrutiny would constitute self-incriminate;
  4. The oral testimony of witnesses like Mr. Felix Prosper;
  5. The application and/or the act of registration by the Defendants to be French citizens and
  6. The failure of both Defendants to testify at the trial

Counsel for the Petitioners argued that the letters written by the Defendants to their constituents were implicit admissions by the Defendants that they had obtained a French passport by their own act and in fact they may have travelled on the said passports.

It is not known whether the particulars of the passports such as the passport numbers were presented as evidence. It is also unclear whether the Petitioners had adduced evidence that the Defendants had actually travelled on the passports.

It was argued on the behalf of the Petitioners that there was no other inference that could be drawn as the Defendants had expressly stated that they were making these statements and taking action based on the recent ruling in a Jamaican case. In his rebuttal, Astaphan S.C contended inter alia:

  1. His clients (the Prime Minister and a Minister of Government) are not attorneys and the letters were not signed by an attorney;
  2. There was no specific reference made in the letter to a specific Jamaican case and in any event, his clients may not have fully understood what was decided in the said Jamaican case, the facts of which he alleged to be different from the instant case; and
  3. The renunciation of his clients could have been merely out of an abundance of caution.

Before reading the findings of the Justice Thom, I studied the submission of Astaphan S.C and thought no way would the Judge accept such a submission. Therefore, I was pleased to note that the Judge ultimately rejected the argument of Astaphan S.C with regard to (b) above.

The Judge found that while no specific mention was made to Dabdoub v Vaz, the only reasonable inference that could be drawn is that the Defendants were referring to the said case in which the Jamaican Court dealt with a similar matter.

It is interesting that the Court found it appropriate in the instant case to draw a reasonable inference, whereas in other instances it did not see it appropriate to do so.

However, Justice Thom agreed with Counsel for the Defendants that there was no evidence that the letter was prepared by an attorney or written on the advice of a lawyer. One wonders of the nature of the evidence that the Honourable Judge was expecting from the Petitioners after she ruled against an application to have the Defendants take the stand and to be questioned as part of the oral evidence in this case.

It would have made a significant difference had she ruled in favor of Petitioners’ application for a subpoena where questions would be put to the Defendants while under oath. The question could be put to the Defendants: whether the letter was prepared on the advice of an attorney.

In any event, one wonders why would the Defendants have referenced the case if they were not advised by an attorney and why wouldn’t Messrs Skerrit and St. Jean seek legal advice in preparing such a letter? Couldn’t the Judge rely on her commonsense and her legal judgment to draw an appropriate inference and to find differently?

Mendes S.C argued that the Defendants had several opportunities to deny the allegations of their ownership of a foreign passport but they failed to make an equivocal denial, which in effect amounted to an admission. I have not been convinced of that argument.

Once again, Mr. Astaphan rebuttal was an interesting. His experience, talent, skills and training came to the fore in advancing a strong defense on behalf of his clients. He argued, inter alia, that there was no evidence to show that the allegations made at political meetings and discussions by the press or the media were ever known to the Defendants and in any event politicians have no obligation to respond to rhetorical questions or mere allegations made by his opponents in the course of an election campaign.

Having successfully challenged the application for subpoena to disclose the passports, Mr. Astaphan now tells the Court that a discussion on the request for disclosure of documents is now irrelevant and therefore the fact that the Defendants did not deny possession of a French passport in his challenge to the disclosure motion cannot amount to an admission.

It was hoped that the Judge would have once again referred to the inherent jurisdiction of the Court to draw appropriate and relevant inferences as she had already shown that she had the power to do in dealing with other issues in the case.

Moreover, it was hoped that the Judge would have borne in mind her earlier ruling in favor of the Defendants, whereby they were not required to give oral evidence. Based on my layman’s understanding and reasoning, this was more reason for drawing appropriate inferences from the facts and evidence.

Had Justice Thom allowed the application for disclosure and the subpoena of the Defendants to give oral evidence, Mr. Astaphan would not be able to sustain the argument that the evidence was not presented. Again, as a layperson, it is my humble opinion, that the least the Court could have done under the circumstances was to order the Defendants to take the stand in their own defense with the opportunity to state under oath that they would not answer questions that they felt would incriminate them. In that way, the Court would have demonstrated that it was in a search for truth in protection of our constitution.

I have found the findings of the Judge on this point to be interestingly flawed. The learned Judge found that there was no evidence adduced to show that the Defendants were present at the meeting referenced by Mr. James in the La Plaine constituency or that the Defendants became aware of the allegations during the political campaign, as if to suggest that the Defendants were residing on another planet or Dominica is such a large country that it is difficult for such an allegation to reach the attention of the Defendants.

With regard to the Defendants’ argument that they did not hear the allegation made at the political meeting, the Honourable judge may have mistaken the size of Dominica for Guyana, where political campaigns are largely held along the Demerara River and the west coast including Georgetown up to Berbice and Corentyne areas, excluding the more jungle-like interior regions of the Essequibo and Cuyumi-mazaruni regions.

On a small island like Dominica, news travel very fast and there is no way that Messrs Skerrit and St Jean did not become aware of the statements made by Mr. James and others during the election campaign. Once again, it appeared to me, at least, that the best way around this issue would have been to put the question directly to the Defendants on the stand- Were you aware of the statements made by Mr. James in Vieille Case and in La Plaine on x date and published in the media with regard to your alleged illegitimacy as it relates to your dual citizenship status?

The Judge further stated that where a person is seeking to get a petition struck out on the basis that no cause of action is disclosed, a failure on his part to deny the allegations in the petition cannot be inferred as an admission of those allegations.

Having denied the petitioner’s application for disclosure of documents and for a subpoena, the Judge then found that the Defendants sought to exercise their legal rights to challenge the applications and therefore they did not respond to the specific allegations of the Petitioners. In her opinion, this did not amount to an admission of the allegations. I concur with Mr. Astaphan’s argument on that point and the conclusion of the judge.

Mr. Mendes S.C submitted that the Defendants’ contention that a requirement to comply with an order for disclosure and subpoena would tend to incriminate them is a clear admission that they did have a French passport (If I may add, this should yet again have been fertile ground to draw a reasonable inference that the Defendants were either prepared to hide the truth or they were not prepared to assist the Court in finding the truth).

Interestingly, without giving any reason in support of her findings on the point, the Judge agreed with Mr. Astaphan's submission that his clients had every right to assert their rights and no adverse inference can be drawn against them for so doing. The findings of the Court on this matter sealed the case against the Petitioners but will hopefully serve as a key factor for consideration by the Court of Appeal in favour of the Petitioners and by extension Dominica.

On this point, it is nevertheless worth reiterating the valid argument made by Lennox Linton on his radio show “Between you and Me” that 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, a fact that Judge Thom appear to have prevented her Court from examining having blindfolded herself and the judicial process in rendering what was supposed to be blind justice without a conscience.

Hence, argued Mr. Linton, there is no way that Mr. Skerrit could have been thinking about French citizenship through his mother when he referenced Dabdoub v Vaz in his letter to the French embassy.

With regard to the issue of Mr. Skerrit’s reference to “my passport” in a letter dated 17 December 2009 written and issued to voters in the Vieille Case constituency, in which he made reference to “my” passport, I do not agree with the submission of the Petitioners and the anecdotal statements of Mr. Edison James and Mr. Lennox Linton et al that by this reference, Mr. Skerrit had admitted being a holder of a foreign passport.

I also do not agree with their argument that this was a confession of being a holder of a foreign passport. It was not a confession by any means.

Read Part 1 of this five part series
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