A line by the Roman poet Horace, written before the birth of Christ reads: ‘I am aggrieved when sometimes even excellent Homer (Greek poet c. 500 BC) nodded’. We do not know what annoyed Horace, but apparently what he was trying to tell us was that Homer had made an error; got it wrong. Two thousand years later we read in a submission to our High Court that Petitioner Brantley, through his lawyers wrote: ‘It is conceded that, to the extent that this Court based its decision to order Messrs Parry and Daniel to pay costs incurred in the High Court on a finding that they were guilty of bad faith and misconduct in the preparation of the list, this must have been a case where Homer nodded’.
Why can’t they say, ‘Judges, we concede you made an honest mistake’? Why has the meaning to be disguised? Judges are human. Like the rest of us they make all kinds of mistakes. What might be a little different here is that in most other cases when blunders are made they are corrected by a higher Court. In this matter the same Court, having the same panel of Judges is being invited to acknowledge its own mistake. That may be more difficult.
In a democracy the Community accepts with respect and good grace all decisions and orders of its Courts. The basis for this acceptance is that the Courts strive to produce reasoned and fair judgements in good time in all matters brought before them. The Press is sometimes referred to as a Public Watchdog, but it is the Courts which are the guardians of democracy. They can make orders to restrain Executive (government) action. The Press is able only to advise the public what is going on. Their only weapon is publically to embarrass the Executive, sufficient to cause a change of policy.
Press and Courts should work in harmony for the greater good. It is obvious that a part of this harmony is that the Press report Court decisions accurately at all times. This should not inhibit the Press from criticising decisions of a Court in a respectful fashion. The authority of the Court stems from the consent of the Community to subject themselves to that authority. The Community must therefore be fully informed, and that may include analysis and negative evaluation. An example from England. About forty years ago a Judge instead of committing a convicted rapist to prison, made a probation order allowing him immediate freedom. The Press and immediately thereafter, the Community, was outraged. The Judge was obliged to retire.
To many the Petition Appeal Court Costs Order is confusing. Surely the Judges must have thought long and hard before they wrote: ‘…Having found that the learned trial judge, in the light of the facts found by him, was wrong not to have found Mr. Parry and Mr. Daniel, Mr. Benjamin and Ms. Lawrence guilty of bad faith and misconduct in the preparation of the list used for the election…’ It is a serious, serious matter to say this of a Premier and a Deputy Premier. We must hope that the Court will clear up the confusion after January 3rd 2013 when it makes its ruling on the application of Messrs.
Parry and Daniel to vary the Order for Costs. Will they let us know how it was that they came to make this mistake, if they do acknowledge that they should not have written ‘guilty of bad faith and misconduct in the preparation of the list used for election’ in respect of the Premier and his Deputy? It is plain that an Appeal Court should not write ‘guilty of bad faith and misconduct’ without
(a) stating exactly what it was in respect of and why this constituted bad faith etc., and
(b) relying on facts found by the Trial Judge to support it.
The Court wrote that it was in respect of ‘preparation of the list used for the election’. Now the Petitioner has conceded ‘There was in fact no allegation in the Petition that they were guilty of bad faith or misconduct in the preparation of the list. There was as well no such finding by this Honourable Court against them’ Moreover there appears to be nothing in the Trial Court judgement showing that the Premier and his Deputy had anything to do with preparation of the list for election. So what can it be? The guilty of… cannot stand alone, as it would if you remove the reference to preparation of the lists.
Petitioner Brantley now says: ‘There is so much evidence direct and inferential from which the Court can conclude bad faith and even worse’. He does not say what it is. I cannot find any reference in the first judgement to Mr. Daniel’s conduct. If this is the case then what is there to support such a finding? Mervin Hanley on the CCM Website ‘Nevis Politics’, writes: ‘…Response from Mark Brantley… But the concession relates only to the ‘Preparation of the list’. The finding of misconduct and bad faith we feel is eminently open to the Court since Parry and Daniel are the direct beneficiaries of the illegal conduct of the electoral officials… it is clear even to the blind that Benjamin and especially Lawrence were merely carrying out the bidding of the NRP in manufacturing a win for them at the polls over CCM’.
If you have a rich uncle in New York who, over the years, sends you gifts and substantial sums of money, for which you are appreciative and grateful, are you to be declared guilty of drug running when eventually the law catches up with your uncle for that illegal activity, given that you had no idea that he was thus engaged and that you were benefitting from it? What is the difference in the Parry and Daniel case? We can all speculate one way or the other, but the Court is not interested in guesses.
Evidence is its currency. In the absence of evidence how is it clear that Benjamin and Lawrence were ‘merely carrying out the bidding of the NRP…’? A Court does not go in for political spin. It has to be impartial and should therefore be careful in its language. What is unambiguous is the CCM desire, for electoral purposes to link Messrs. Parry and Daniel to fraudulent electoral practices. The costs section of the Appeal Court’s judgement gave them an apparent strong start. But should the Court cut out reference to bad faith etc., the CCM will be left with their record versus that of the NRP.
A. Michael Perkins on Nevis Politics writes ‘…I challenge anybody to not conclude that the Jungle Warrior is guilty of corruption’. This is a reference to the fact that under the NRP Administration none of the Opposition CCM meetings in the run up to the July 2011 election were covered by the state owned Nevis Television, whereas those of the governing NRP were broadcast. This comment does not come well from Perkins since he was a member of the previous CCM Administration which, when it was in charge had adopted exactly the same policy, but in reverse; show CCM’s meetings not those of NRP.
This matter was a feature of the Election Petition and apparently formed a part of the ruling that a Parliamentary seat was declared null and void. The Petitioner was discriminated against said the Judge. I’m not sure that there is enough details or sanction in this part ruling. Objective reasonable persons would agree that in a democracy where there are two main parties, tax payers money should not be used solely for the benefit of whichever party is in Government.
What we need is a detailed Court Order, in the making of which both political parties should have contributed and agreed. An ideal would be a detailed Consent Order. The time to get this done is now, before an election, when neither party knows what position it will be in after the election. We, the voters should be given an opportunity to see and hear on the TV Channel which we pay for, representatives of the Opposition given their views on current affairs, particularly in time of crisis and before elections.
Syndicated columnist
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