BASSETERRE, St. Kitts – FOUR days of contentious arguments have brought the Contempt of Court debate to an end, with presiding judge Her Ladyship Justice Rita Joseph-Olivetti expected to give her ruling on the matter “as soon possible”.
Contempt of Court charges were originally brought against the Attorney-General Hon. Dr. Dennis Merchant after he allegedly violated a July 2 injunction filed by the People’s Action Movement (PAM) that would have barred any use of the Constituency Boundaries Report by the AG or any member of the Constituency Boundaries Commission (CBC).
Counsel for both sides made their submissions in the Contempt of Court proceedings and debated for over three hours yesterday (Jul. 30). The claimants (PAM) maintained that the Attorney-General “aided and abetted” the Prime Minister in laying the CBC report before National Assembly in an emergency sitting July 8.
Lead counsel for PAM, Leslie Haynes QC, told the Court it is noteworthy that the Attorney-General has not filed an affidavit responding to the allegations made against him. He argued that whether or not the Attorney General advised the Prime Minister to lay the papers, as the principle legal adviser to the government, his advice or failure to advise can be inferred as a breach of the injunction.
“Whichever way you spin it...if he [Merchant] did advise the PM that the injunction did not constrain him, it is a failure in his duty! If he did not advise the PM, then it is a failure in his duty! The AG was mindful of the injunction, therefore he assisted or performed a part in assisting in making use of the report, which was in breach of the court order,” Haynes argued.
Counsel for the AG and the CBC, Dr. Henry Browne, opened his submissions by explaining to the Court the implications of contempt, which he warned “threatens the liberty of the subject”. He added that the charges are even more threatening for the AG as the chief legal adviser to the Government because such charges could “besmirch his professional life for good”.
Browne moved through the claimants’ grounds one by one, identifying what he saw as flaws in their arguments. He indicated that the AG was not at the ex parte hearing, the order did not have a penal notice as it should have and the order was required to be personally served to the respondents. He added that there has been no affidavit filed to show that this was the case.
“The trilogy of these omissions renders the order bad. The omission of those three conditions of precedent renders the order fatal,” Browne asserted.
Dr. Browne further stated that another major flaw in the claimants’ argument is that the terms of breaching the injunction were not clear, and cannot therefore be used as the basis for contempt charges. Calling the terms of the original injunction “mind boggling...murky and blurry”, Browne argued that the opposition must clearly state what acts of the injunction the AG had breached.
“Failing to give advice does not constitute contempt. At its worst it might constitute the dereliction of duty, but it would not constitute a crime. The acts which constitute the contempt must be stated clearly. It must sound in specificity in the application,” Browne repeated.
The respondents moved to quickly dismiss the affidavits filed by former senator Richard Caines on the grounds that the procedures that bound Cabinet and Parliament during his stint in government may not be the same. Browne also sought to dismiss Hon. Shawn Richards’ affidavit calling it “hearsay and inadmissible”.
PAM’s rebuttal was very short, but reiterated its stance that the Attorney General was the “right person” to be served with the contempt order due to his legal responsibility to the Government.
This morning (July 31), according to Justice Joseph-Olivetti, the application to strike out the second injunction, which bars the Supervisor of Elections and the Electoral Commission, would be heard before the Court.
