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

Introduction

My motivation to draft this 5-part article stems, in part, from the need to add my virtual voice as a member of what I commonly refer to as the “People’s Virtual Parliament (PVP) of DNO” and the segments of our small population that continues to express tremendous concerns about the role and functioning of our institutions of governance in Dominica.

Justice Gertel Thom.

I have been and remain particularly disheartened by the continued unnecessary and prolonged delays in rendering justice in this important constitutional matter.

Already, three years have elapsed without the final resolution of this constitutional matter and I feel compelled to encourage other patriots to join the call for a more expeditious handling of the appeal of the decision of Justice Gertel Thom, irrespective of the side of the political divide on which one may stand.

Like me, many patriotic Dominicans are of the firm belief that the ruling of Justice Gertel Thom has dealt a grievous blow to our Constitution and undermined the rule of law in our young democracy and the entire OECS region.

Consequently, it is necessary to ensure that the appeal of this critical constitutional matter is dealt with seriously and expeditiously in the interest of the public and to safeguard democracy in the Commonwealth of Dominica.

We cannot allow this matter to be swept beneath the political or judicial carpets of those who now hold power in Dominica.

In her judgment, which was read by Justice Cottle at the High Court of Dominica on 10 January 2012, Judge Gertel Thom dismissed the petition filed by the unsuccessful members of the United Workers Party (UWP), (“the Petitioners”) against Mr. Roosevelt Skerrit and Mr. Petter Saint Jean, (“the Defendants”) in the matters of the House of Assembly (Election) Act Cap 2:0l and the parliamentary election for the constituencies of La Plaine and Vieille Case.

The judgment sent shock waves through the Dominican society, the effects of which were sadness and disappointment among a section of the population but which also brought many to the streets of Roseau in a carnival-like atmosphere in celebration.

The judgment of Justice Thom was water cooler discussion at government offices, the courtrooms, living rooms, barber shops and in every rum shop on Island.

A lot has been said about the judgment of the Honourable Judge on the streets of Dominica, on radio and television shows, in newspaper articles and on several internet blogs.

An appeal against the judgment of Justice Thom was launched before the Eastern Caribbean Court of Appeal (ECCA) on Thursday, 16 February 2012, but even at that level the crippling and disabling worm of delay that has affected our justice system continues to raise more doubts about the sincerity and integrity of our justice system.

Certainly, the functional and institutional delay in our justice system is cause for concern, especially as there is a sense of increasing denial of justice in Dominica.

Issue

The primary issue before the Honourable Judge Gertel Thom was whether the Defendants were lawfully elected to the parliament of the Commonwealth of Dominica or in other words whether by virtue of the provisions of the Constitution of the Commonwealth of Dominica (“the Constitution”), the Defendants were disqualified members of the House of Assembly (“the House”).

Preliminary matters of law

Essentially, the Constitution provides that one is disqualified to be nominated for election as a member of the parliament of Dominica if by virtue of his own act or if he is under any acknowledgement of allegiance, obedience or adherence to a foreign power or state at the time of nomination.

The Court was therefore petitioned to consider the facts, evidence and applicable laws in making a determination of far-reaching constitutional implication.

As a preliminary matter, Justice Thom correctly accepted the submission of Counsel for the Petitioners with regard to the applicable burden and standard of proof in the instant case.

She rejected the argument of Senior Counsel Astaphan, who called for the higher criminal burden of proof. Although she did not provide a rationale in her judgment, she nevertheless appeared to have accepted Mr. Astaphan’s secondary submission as the basis for her final judgment i.e.,

“if the Court were to accept the lower standard of proof, strong evidence is required bearing in mind the gravity of the issue and the consequences attendant on any adverse finding against the Defendants.”

With all due respect, Senior Counsel Astaphan was well aware that this should have had no bearing on the case. Unfortunately, it did, based on the conduct and findings of the Judge. Senior Counsel Astaphan must be applauded for putting this argument in the mix, albeit he knew that Mendes S.C was correct.

I have analyzed the judgment based on my layman’s understanding. In doing so, I am not in a position nor could I discount the brilliance of Mr. Astaphan S.C. and his junior co-counsel.

Having ruled, as she did, on the applicable standard of proof in this case, one is at a loss to understand why the learned judge failed to use the lower standard of proof as required in this case in order to draw appropriate inferences from the limit evidence admitted.

The passports

The Petitioners submitted that the Defendants were disqualified to be nominated and elected as members of the House of Assembly pursuant to Section 32 (1) of the Constitution of Dominica as they were at all material times and voluntarily, under acknowledgement of allegiance, obedience or adherence to France having acquired French passports.

On this point, the Court donned its blindfolds in defeating every attempt by the Petitioners to adduce evidence for judicial scrutiny. The Court’s decision on the interlocutory matters regretfully prejudiced the case from am early stage and laid the foundation for the terrible judgment.

Treatment of French law

According to Mendes S.C, the acquisition (by extension possession) of a French passport is by itself an act of acknowledgement of allegiance or adherence to a foreign state within the meaning of Section 32 (1) of the Constitution and whether a person is a citizen of a foreign country is a question of the relevant law of that country.

The justification for this line of argument was that where no evidence of foreign law is adduced, it is presumed that the law of a foreign State is the same as the local law. In the instant case, the laws of France are to be assumed to be the law of Dominica.

One can well understand that a clever lawyer like Mr. Astaphan would wish to feast on such a rationale, considering the vast difference between the Civil Code/French law and the Common law tradition. In defense, Mr. Astaphan argued that if the question of allegiance is to be determined in accordance with foreign law, especially French law- a mandatory requirement would exist for the production of French law.

Therefore, in the absence of French law, it would be manifestly unfair, if not irrational, to apply English Law. The Honourable judge found, however, in favour of the Petitioners in accordance with common law precedence.

It was not required for the Petitioners to lead evidence to show that under French law the Defendants were disqualified. There was no justifiable reason to depart from the standard principle of law simple because the French legal system differs from the English Common Law tradition as argued by Mr. Astaphan S.C.

Editor's Note This is the first of a five part series exploring the history making court ruling on the legality of PM Skerrit.