Readers’ comments on the judgement of Gertel Thom and the need for expeditious and successful appeal

It is fair to conclude that notwithstanding the ruling of Justice Thom, a considerable majority of Dominicans both at home and abroad are convinced that both Messrs. Roosevelt Skerrit and Petter Saint Jean were illegally nominated on 02 December 2009 to contest the 2009 general elections and to serve in the parliament of the Commonwealth of Dominica. It is also widely believed that both gentlemen were aware that they were by virtue of their own adult actions, under allegiance, adherence or obedience to the foreign state in contravention of Section 32.1.A of the Constitution of Dominica.

It seems that readers were in general very appreciative of the articles and commented on how the series helped in broadening their understanding of the issues raised and considered in this landmark case.

Timeliness of the series of articles

After almost 1070 days, we may finally get to know who our legally elected members of parliament are soon after 13 November 2012. In the final analysis, win, loss or draw, the quality and considerable delays in the justice system have not served the system and Dominica well.

Many readers commented on the timely publication of the series of articles (which could be accessed through the links below), particularly in light of the constitutional doctrine of Mr. Charles Savarin, the Minister of National Security during the 2012-2013 budget debate that the Constitution of Dominica does not expressly state that if one is knowingly ineligible to be nominated as a member of parliament of Dominica that he should not be nominated.

According to Mr. Savarin, there is no law or any constitutional provision that prohibits a person from contesting the elections in Dominica. However, when a person, who is knowingly ineligible, is nominated and contests the elections in violation of the provisions of the Constitution and actually wins, those who are dissatisfied may elect to challenge him in court in keeping with their rights to do so.

It was correctly observed by the readers that even if the above irresponsible twist of Mr. Savarin were to be true, it does not take into account the tremendous costs, frustration, time and effort by those who have been aggrieved in taking this matter to court.

It does not take into account the tremendous decline in public trust and the integrity of our election process. It also fails to account for the total waste of the resources of the court for which those found guilty should be asked to pay substantial costs by the court of Appeal. Unfortunately, in the instant case those who have adopted this approach were exonerated by the High Court.

The case was decided in favour of those who have broken the law and violated the Constitution of Dominica based on the accumulation of lies, clever “lawyering” and legal technicalities mixed with incompetency and the lack proper understanding and application of the function and role of the court by a judge, who seemed to have been on a frolic of her own as she frustrated the process with unreasonable and inordinate judicial delays.

Popular themes discussed

The following were among the more popular issues discussed by readers: (1) the concept of the inherent jurisdiction of the court, (ii) the application of the principle of self-incrimination, (iii) the alleged inadequacy and low quality of the evidence presented and/or accepted by the court (iv) the author and the judge and (v) the conduct of the lawyers.

The inherent jurisdiction of the court

Whereas many readers commented on the inherent jurisdiction of the Court, it appeared that these comments were from lay persons like the author or from individuals who had a political agenda. It was hoped that comments would have been attracted from trained and experienced legal luminaries on the subject but as we know our lawyers are not keen to public discussions on matters of national interest.

The majority of readers observed that there is no question that the presentation of Skerrit's French passport would have been useful in determining the validity of his membership in the parliament of Dominica in the interest of truth and justice. In general, readers disagreed with Justice Gertel Thom’s conclusion that the court has no authority to order disclosure of Mr. Skerrit’s passport.

They dismissed the notion that parliament having not included discovery and 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. One does not have to be a learned counsel to reject the findings of Judge Thom that the court had no jurisdiction with regard to the interlocutory process, which she claimed is not provided for in our election law, especially as she was able to hear the motion itself based on the very authority derived from the inherent jurisdiction of the court and not based on the statutory rules, which the Chief Justice has yet to put in place.

Some readers rejected the rationale of the Judge that the Civil Procedure Rules (CPR 2000) do not apply to election petitions in Dominica. They noted that while parliament has conferred on the Chief Justice in Section 68 (2) of the House of Assembly Elections Act, the responsibility for making the rules governing the conduct and procedure of such petitions through the Court, the Chief Justice has not yet delivered and this ought not necessarily tie the hands of the court from employing its inherent powers in search of justice, especially when it involves a decision to give meaning to the Constitution. It was observed that the court has its inherent powers not because of the rules made by the Chief Justice but in spite of the said rules.

It was recalled that Justice Thom herself reminded us of what the term inherent jurisdiction means by use of the definition in Halsbury Laws 4th edition, volume 37 as a virile and viable doctrine that reserves powers or a residual source of powers, which the court may draw on as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them..."

It was observed that had the petitioners not filed their petitions within the 21 day window allowed for so doing, the very court would have deemed their application irreceivable, ratione temporis. Thankfully, the petitions were filed in a timely manner and even after waiting for an unreasonably long time for a final determination of this matter, we can only keep asking questions about what prevented Justice Thom from invoking the inherent jurisdiction of the court to order the disclosure of the passport of men who swore to uphold the Constitution and to conduct in themselves always in the best interest of the public.

Comments on the adequacy and quality of the evidence

A few readers who were not quite pleased with the issues raised in the articles thought that they merely contained empty rants and ramblings. A frequent contributor, who is sympathetic to the government vehemently and repeatedly blogged,

“the fact of the matter is that the UWP (I mean the petitioners) had absolutely no evidence and went on a fishing expedition. They did not catch fish. No amount of hook and line pulling will catch fish. I will say this to you for sure. Roosevelt Skerrit never had a French Passport not even as a child. I cannot confirm for Petter Saint Jean. If Mr. Skerrit had a French Passport why then the same French give him a French Visa in 2004, 2006 and 2008. Can you Roseau Valley answer this? Do you believe that an American Citizen with an American Passport obtain a Visitors Visa B1/B2 form the US while having an American Passport? “

This is the type of debate that we ought to have in a mature democracy. In that regard, I was pleased to note the quality and nature of the responses to comments like the above. In general, the majority of readers did not subscribe to the narrow, partisan, Jude Nicholas-type comment. The consensus of the majority was that it did not matter whether or not Mr. Skerrit possessed a French passport and whether or not he secured a French visa in 2004, 2006 or 2008.

This consideration was deemed irrelevant in so far as the analysis of the judgment of Justice Thom is concerned but it should have been part of the court’s consideration to the extent that the evidence was admissible and to the extent that the court itself was genuinely interested in finding truth and delivering justice to the constitution and people of Dominica.

The readers concluded that the judge did not want to see the evidence. She blindfolded herself in an attempt to give blind justices and in the process she stalled every attempt by the petitioners to present relevant evidence. Furthermore, had Mr. Skerrit not been the coward that he has proven himself to be - hiding behind the criminal defense of “self-incrimination”, the question could have been put to him upon the examination of his passport (s), which Jude Nicholas has alleged contained the many travel visas that he obtained.

Of course, assuming that the comments of Jude et al were correct and Mr. Skerrit did not wish to submit his passport for the scrutiny of the court, he could have done the honourable thing by coming forward with his testimony under oath to declare in a bold and confident manner that he was never in possession of a French passport.

This may not have been the most prudent legal course of action but the best action nevertheless for one who holds the office of Prime Minister from a moral and political standpoint. A perceptive reader observed that the issue is not whether Mr. Skerrit had a French passport as a child but it ought to have been whether as an adult he owed allegiance to a foreign power, to which a defender of Mr. Skerrit noted;

“even if the truth flies in you all eyes, your hatred for Mr. Skerrit will blind you guys. From day one Mr. Skerrit has said that he is under no allegiance to a foreign power what you wanted him to do forge a French passport?”

A reader by the inappropriate blog name, “Civil Servant” again questioned the adequacy and quality of evidence presented to the court based on the principle that he who asserts must prove.

“It is the UWP who accused [so] it is the UWP to present the evidence. They could not present the evidence because there was none…How could Skerrit submit a passport when he never had one? If what I said is a lie then you know the truth. It is for you to show me a liar. I am telling you that Skerrit had French Visitors Visas in 2004, 2006 and 2008. Ask Floyd Capitollen. I am saying that the French would not give a visitor's visa if one has a French Passport. You are yet to disprove that. You are yet to prove that Skerrit is illegal and has violated the Constitution. JUST PROVE YOUR CLAIM OR SHUT UP… Just produce the evidence and finish with dat man…”

“Roosevelt Skerrit never had a French Passport not even as a child. I cannot confirm for Petter Saint Jean. If Mr. Skerrit had a French Passport why then the same French give him a French Visa in 2004, 2006 and 2008. Can you Roseau Valley answer this? Do you believe that an American Citizen with an American passport would obtain a Visitors Visa B1/B2 form the US while having an American Passport? “

The defense of self-incrimination

1. The observations of the former Chief Justice, Sir Brian Alleyne on the invocation of the defense of self-incrimination seem to have been well received by the general public. The author had no intention to add anything further to what the honorable former judge had already shared on the subject- not that he could as a layperson. To say the least, however, it was gratifying to note that readers seem to have a good understanding of the concept as used in the context of the criminal law and in general they accepted that the court has no constitutional jurisdiction in forcing a petitioner to produce evidence against himself for judicial scrutiny.

The majority of readers understood the gravity of the case and questioned whether one should be prepared to equate the legal protection of our constitutional provisions with the commission of an ordinary crime. In this case, the main issue is the legitimacy of the election of so called-honourable members of the House of Assembly–the Prime Minister and a Minister of Government, who have both sworn to uphold the Constitution of Dominica. These are the men who have raised the dubious defense of self-incrimination when their eligibility as members of parliament is challenged. This is shameful.

Statements about the Judge and the author

As expected, some readers were more focused on the author of the articles and the character of the Judge rather than the substantive issues raised. Whereas in general, the commentators were respectful of the Justice Thom, one commentator couldn’t resist observing, “that woman's face is everything that is wrong with justice in Dominica”.

Clearly, the declaration made by Roseau Valley that s/he is just an ordinary layperson was rejected by many readers. Some commentator expressed the view, “Roseau Valley is definitely a lawyer of high caliber.” One reader expressed the view, “Roseau Valley is a disgruntled lawyer like the former Chief Justice Sir Brian Alleyne.” Another commentator went as far as suggesting, “Roseau Valley must be male based on the style and tone of the writing.”

A commentator expressed the hope that based on the analysis of the case by Roseau valley, the UWP and by extension Dominica stands a chance of winning the appeal. Suspicion of the author was evident in remarks like those from Jude Nicholas;

“Roseau Valley you seems to posses some serious legal training. I suspect that you are a practicing lawyer opposed to Roosevelt Skerrit. (that is your choice and Constitutional right). “

“Very sound analysis from a man I suspect knows that rogue regime inside out! Looking forward to the next installments…’

A commentator with the blog name “Lance” advised that we’re not dealing with a crab, claiming that the author, Roseau Valley is among us in Dominica smiling with everyone pretending to be a friend and supporter but he has not drank the Skerrit cool aid. Therefore, he is not brain washed of his intelligence. Lance, who perhaps does not really know the person who calls himself “Roseau Valley”, advised that Roseau Valley is walking among us, eating and drinking with us but he is smarter than us because we are in bed with the devil and we do not know that.

Well, I am extremely flattered by these comments, especially to be associated with the caliber of a gentleman like Sir Alleyne and knowing that it is not deserved as my humble layman views are no where close to the brilliance, intelligence and knowledge of the gentleman. Suffice it to say, Roseau Valley is a Dominican who cares deeply about the country, one who has contributed in several areas of development and will continue to do so. However, it is not my intention to remove the doubts from the minds of the readers at this juncture.

Other issues

Some readers concluded that the type of governance that Dominicans have today is a direct result of the 18-3 mandate given to the government by the people and “the 18 constituencies are quite happy” with the status quo. They suggest that those who do not like it should;

“Keep your 3...if you are not happy with your 3, we shall elect some more. So decide what you really want.….Vieille Case people would storm Roseau if any judge would say that Maynard is their parliamentary Representative and likewise La Plaine…so unless UWP get over their nonsensical crap, it will be better for them and the country…Stop trying to be relevant” The blogger “Police” suggested that we should “spare the public the drama, UWP fini bat…”

But most readers got it. They advised that the issue is not about the opposition UWP nor is it about Mr. Skerrit per se. It is much bigger than that. It is about the protection of our constitution and our fledgling democracy. One commentator aptly remarked;

“Dominica has lost all semblance of sanity with a crooked group of politicians at the helm committed only to making money. Greed, lies and corruption are the order of the day. God help us!!”

An irate reader commented that the five part series of articles were “meaningless and only served to create more drama over a dead issue.” He concluded that the author and the owner of the Dominican.net were only “haters’ of Mr. Skerrit. On the other hand the majority of readers highlighted the fact that it was actually Mr. Skerrit and his cohorts who were the drama politicians, who take pleasure in violating our constitutional provisions by invoking fussy defenses like self-incrimination and the doctrine of necessity to justify their actions.

These readers expressed the wish that Mr. Skerrit would spare us the constitutional dramas and focus on uniting the people in achieving the common goal of national development. The issue, as far as these readers were concerned was not about the UWP, Edison James, Ron Green or Maynard Joseph but the protection of our constitution of Dominica and the integrity of our elections.

Dominicans who are concerned about good governance, truth and justice or the lack of it in this case look forward with a sense of eagerness to 13 November 2012. Justice has already been inordinately delayed, therefore it is our hope that the judgment of the Court of Appeal will not be reserved or further deferred to a future date. It is time that Dominicans know who our validly elected members of parliament are.

It is time to bring the illegal parade and manipulation of our constitution to an end. It is time to end the celebrations sparked by the judgment of Justice Thom. It is time that the Prime Minister come clean with the people and face up to the truth like a man win, lose or draw. He must begin the tough process of transforming the personal euphoria into a national moral ointment to ease the pain of those of us who are hurting.

In ancient Greek society, it was thought that good people with moral standing should be those who will do what is lawful as law makers determined what was right and wrong. Throughout time, we have realized that there is a fundamental difference between what is legally right such as not being forced to give evidence based on a misapplied legal principle of self-incrimination. What is lawful is not always morally or politically right such as lying to a nation repeatedly, except that in our Christian-based, god fearing society, we expect our legal system to almost mirror what is right, naturally or morally.

The failure of the court to admit crucial direct evidence and its dishonorable treatment of the mounting circumstantial evidence are both legally and morally wrong but above all Dominicans must ensure that both Skerrit and St Jean pay the heavy political price at the polls whenever the next general elections are called.

Until then, we can continue to lend support to The Citizens Forum for Good Governance (CFGG) and the Coalition in Defense of Democracy (CDD) by contributing to the Fund to Defend Democracy in Dominica at the designated bank accounts in Dominica, in person, or online on the website of http://wethepeopleofdominica.com. Win, lose or draw at the court of Appeal may the “Voice Of he Electorate” be heard. VOTE!