BASSETERRE, St. Kitts - An appeal which was filed in the Eastern Caribbean Court of Appeal on behalf of former Attorney General Dr. Dennis Merchant who was found in contempt of court by the High Court, was allowed and has led to his vindication.
On August 7, 2009, High Court Her Ladyship Justice Rita Joseph-Olivetti ruled that Dr. Merchant was in breach of an injunction which the court had imposed and which prohibited the use the report compiled by the Constituency Boundaries Commission (CBC) for the revision of the constituency boundaries.
Despite this injunctive measure, the Prime Minister of the Federation, Dr. the Honourable Denzil Llewellyn Douglas, tabled the document and the draft proclamation during an emergency sitting of Parliament on Wednesday July 8, 2009, with the resolution being approved and the proclamation being signed by the Governor General Dr. Sir Cuthbert Sebastian on the following day.
According to the People’s Action Movement’s case of contempt filed against Merchant, he was the government’s principal advisor and was responsible for advising the government pertaining to their responsibilities and requirements under law. As such, the lawyers argued that Merchant, notwithstanding his responsibilities, allowed the Prime Minister to table the CBC’s report in the House of Parliament thus being in contempt of the court’s order.
Yesterday, following the opening ceremony to mark the commencement of the 2010-2011 law term, Justice of Appeal Ola-Mae Edwards, during the sitting of the Court of Appeal read the judgment which allowed Merchant’s application and which overturned the decision of the High Court declaring that he was not guilty of contempt.
Justice of Appeal Edwards explained that the injunction which was imposed to prevent use of the CBC’s report was imprecise and too vague and that the court did not see how it could be realistically found that Merchant could have performed the duties outlined by PAM in their case.
“If the order intended to prohibit the further uses of the report as envisaged by the constitutional stages that the report was to go through after the Commission has submitted it to the Governor General, this clearly was not reflected in the order. It is too wide, vague and imprecise. In my opinion the true scope of it is doubtful and it does not provide explicit notice of the conduct prohibited. What the learned judge deduced from the order is not what it conveyed…
“… I might add that on that evidence I do not see how it could validly be found that it was within the power of the appellant to perform as the respondent perceived the injunction ordered, considering that he was not one of the constitutional functionaries under section 50 of the Constitution who would use the report; and those functionaries were not the appellant’s servants, agents or persons subject to the appellant’s authority or direction.”
JA Edwards explained, however, that the law of civil attempt lucidly explains and holds that the orders of the court must be obeyed.
“I wish to reiterate that the law of civil contempt makes it quite clear that an enjoined party who questions the scope of the injunction, and believes that the injunction is defective for vagueness, ambiguity, imprecision, or lack of clarity, should not unilaterally resolve the defect in his own favour and then seek to avoid a finding of contempt by claiming that the injunction is defective. ‘The simple and only view is that an order must be obeyed, [and] those who wish to get rid of the order must do so by the proper course, an appeal. So long as it exists the order must be obeyed, and obeyed to the letter.’”
In a brief interview with SKNVibes, Dr. Merchant said he was happy with the decision and thanked his legal team and others for their support.
“I am very happy with the decision and that I, in my view, having looked at the judgment, feel it is the correct decision. Unfortunately the office of the AG was the target of an awful lot of vilification and castigation in the past and I trust that now, all of that would be brought to rest. Thanks to my legal team headed by Anthony Astaphan SC and to all my supporters friends and family.”
