We are now at a stage in the advancement of our little piece of human civilization where a senior counsel of more than 20 years standing at the bar is proud to tell the world that in the special jurisdiction applicable to election petitions in Dominica, the court has no authority to order any member of parliament to disclose any document considered necessary for the court’s constitutionally authorized determination of membership validity in parliament.
So once again, a legal loophole is exploited, legal technicality trumps justice and dishonesty soldiers on…
According to Skerrit, he is a citizen of France. According to Skerrit, he became a citizen of France through his mother and not by his own act. At 18 – the age of majority – Skerrit, who was not born in France, was therefore required by French nationality law to repudiate French Citizenship if he did not want to keep it. He did nothing and so confirmed as an adult that he wanted to be French. According to Skerrit, he has a French passport. According to Skerrit, he asked the French authorities at the Embassy in St Lucia to revoke his French Citizenship by letter dated November 27th, 2009. According to French immigration records, Skerrit’s French Citizenship was revoked in February 2010. Skerrit called general elections in Dominica for December 18th, 2009. He was illegally nominated on December 2nd, 2009 and he illegally contested the elections knowing that he was, by virtue of his own adult actions, under allegiance, adherence or obedience to the foreign state of France in clear contravention of section 32.1.A of the Constitution of Dominica.
Every court worth its salt throughout the civilized world has the authority to order disclosure of information, intelligence, evidence, documents etc deemed necessary for the courts truthful, righteous and just consideration of any matter presented for adjudication. In this case, we are dealing with the jurisdiction conferred on the court by the Constitution of Dominica (section 40) to determine issues of membership validity in the Parliament. There can be no question that’s Skerrit’s French passport is a crucial document in the truthful, righteous and just determination of the validity of his membership in Parliament in the public interest. Yet, Justice Gertel Thom concludes that the court has no authority to order such disclosure. In paragraph 77 of her judgment she states:
“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.” Of interest, Justice Thom’s judgment dated June 7th, 2011, was in respect of an application from the Petitioners, part of the very interlocutory process which she claims is not provided for in our election law. Therefore, since Justice Thom is of the view that the inherent jurisdiction of the court should not be invoked to facilitate interlocutory matters, under what authority or source of law was this application heard? And could she not have used the same authority or source of law, whatever it is, to order disclosure of Skerrit’s passport?
We are told that the Civil Procedure Rules (CPR 2000) do not apply to election petitions in Dominica. We are also told that while parliament has conferred on the Chief Justice (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. Even so, the Court is barred from using its inherent jurisdiction to order even modern day judicial fundamentals like disclosure. Justice Thom herself though reminds us of what this inherent jurisdiction thing is all about when she quotes the learned authors of Halsbury Laws 4th edition, volume 37 as follows:
“In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, 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…”
As we celebrate the triumph of absurdity gifted unto us in the judgment of Justice Thom, it is important to ask ourselves which of the stated uses of the inherent jurisdiction of the court would be offended by an order to disclose the passport of a man sworn to honest, honourable conduct in the public interest and whose membership validity in our parliament is before the court on account of a violation of section 32.1.A of the Constitution?
But keep the faith… things are looking up. 626 days after the election of December 18th, 2009 we will have an “expeditious” trial of the election petition filed against Skerrit and St Jean after all. At long last, after the petitioners met the legal requirement of filing the petition within 21 days of the election and after the people have waited for more than 28 more 21-day periods, we will finally begin the process of knowing who or validly elected representatives are.
Now Chief Justice Rawlings, can we kindly have the rules governing election petitions in Dominica when next you visit our nature island?
