A couple of months ago the Judge in St. Kitts told the Press that they should be accurate in quoting Court proceedings, Judgments and Orders. No one should argue with that. It is the responsibility of the Press to inform the public of all important court matters and that includes any reflections by higher courts on the performance of lower courts, and, should there be misconceptions or misunderstandings going around, these should be corrected or clarified. It is the duty of the Press to reveal injustice and for the Courts to resolve and relieve such injustice. A necessary harmony.
In the Election case before Justice Lionel Jones Petitioner Brantley was successful in that the election result of the contest between himself and Hensley Daniel was declared null and void, on grounds that some 203 names had been removed from the list without due process. Insufficient or no notice had been given to those persons of objection hearings, in respect of which they were by law entitled to five days notice.
It was acknowledged that some of the 203 did not live in St. John’s, and it follows that, if they had never lived in St. John’s, they should not have been on the list in the first place. I argued, earlier, that a Judgement ruling that the 203 names had been illegally removed, meant that those names were or should still be on the list as an illegal removal is no removal. I expected that the next new list after the Judgment would incorporate the names that Justice Jones ruled had been illegally removed. I then anticipated renewed objections to which valid notice of objection hearings would have been given. We could then have had clean lists with which all parties should have been satisfied.
However the names were not restored to the list until a Court Order in that regard on the eve of the January 2013 election. This was unfortunate in the timing as there was no opportunity to settle any of the objections. The Court was not in a position to assess the residence qualifications of individual potential voters. That is a function of the Registration Officer. Any of the 203 could have legally voted in St. John’s in the January 2013 elections. I am told that after those elections and renewed objections to the 203 and after proper notice of objection hearings most, or perhaps almost all of the names have been validly removed.
Also unfortunate was the ensuing Appeal Court Order as to costs. Former Premier Parry and Hensley Daniel, the earlier member for St. John’s, appealed Justice Jones’ judgment. Petitioner Brantley appealed the Order whereby each side was to bear its own costs. Here is the difficulty in which our Appeal Court managed to find itself. Under the heading COSTS at paragraph 92 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’, they then are obliged to rule when Messrs. Parry and Daniel appeal to them the Order for costs made against them, that there was no evidence in the court below to form the grounds for their finding. The Order made on the costs appeal was that all reference to Messrs. Parry and Daniel in the original paragraph 92 be struck out.
The Court has not told us why they made this mistake. Their error was either careless or deliberate. I make no allegations. I have no evidence relating to their thinking. One cannot countenance any suggestion that our court could have deliberately wronged these individuals. But it is a very serious matter to find a Premier and his Deputy guilty of bad faith and misconduct in the preparation of the list for an election. It is a finding of corruption of the worst kind. If a private person, not sheltered by protection of the courts, said these things of the former Premier and his Deputy, that person would expect a writ for defamation. To maintain the finding against Messrs. Parry and Daniel one would have expected convincing evidence showing that they had instructed or persuaded Mr. Benjamin, the Supervisor of Elections and the person responsible for the preparation of the list, to corrupt that list.
No evidence of this nature was produced at the trial court. Messrs. Parry and Daniel’s opponents used the Court’s original order for costs to reflect upon their character, and now when that order has been altered to omit in the relevant places any reference to them or their character, some of these opponents run a new line. They say that Ms. Lawrence and Mr. Benjamin agreed themselves to pay Messrs. Parry and Daniel’s costs. Those who understand the courts a little better, know that courts make orders as to who shall pay costs. They do not invite a party, if he cares to, to pay costs which would otherwise have fallen on someone else.
Politicians have concentrated on this case in their comments about our courts, but equivalent emphasis should be placed upon the events surrounding and the Judgment in the Commission of Inquiry (COI) case. In that case, Vance Amory versus Thomas Sharpe, Mr. Amory having been summoned to appear before the COI, Thomas Sharpe being the Commissioner, asked the court to declare that the Commissioner was biased or would be seen to be apparently biased against him. The Trial Judge dismissed Mr. Amory’s suit.
He appealed. Our Appeal Court heard his appeal but took 23 months before delivering its judgment which upheld Mr. Amory’s appeal. The court declared that the staff of the Commission with the exception of Senior Counsel was infected with apparent bias against Mr. Amory so as to render the Commission unfair, partial and biased against Mr. Amory. They issued an injunctive order against continuation of the Inquiry. At paragraph 19 the court found ‘…the evidence did not support a case of actual bias by Mr. Sharpe towards Mr. Amory and that a fair-minded and informed observer would not conclude that there was a real possibility that Mr. Sharpe was biased towards Mr. Amory’.
Surely 99% of the Commission is the Commissioner and Senior Counsel? And therefore surely it was open to the Court to allow the Commission to proceed on the basis that a new support staff was produced for it? That could have been done quickly so that the Commission and the work it had done would not have been lost. Also, had the Court made its decision within a reasonable time, a new Commission could have been appointed, which would have been able to take over the work of its predecessor and hold Inquiry hearings and report within a few months. Lastly, the court ordered that costs be paid by Thomas Sharpe QC, the Commission and the NIA. Why Mr. Sharpe, when the court finds him faultless?
I am a 100% supporter of the courts, but I am writing these things in a balanced way hoping that the court may if it considers it appropriate offer further explanations or apologies. I say this in the context of comments by the Privy Council in a recent case out of Antigua, and in the anti-court sentiments being expressed anonymously on various web sites, which I do not wish to repeat as the court would consider them scandalous. But when a respected and impartial journalist can pose a questions to a panel of politicians asking if the election case Appeal Court Judgement might be considered as a court coup, and when that question provokes much merriment and I think agreement, then perhaps the court is not receiving the respect which it might wish for.
The court is an emanation of the Crown, but ultimately fundamentally responsible to the people whom it serves. If the court loses the respect of the people we are all in serious trouble. Delayed or unsatisfactory judgements are going to be well publicised by politicians. There is no antidote to this, except to say that well reasoned, accurate good judgements delivered on time earn their own respect and lessen the likelihood of ill favoured political spin.
Now here are excerpts from the relevant passages in the Privy Council case out of Antigua in which their comments are about our Court of Appeal.
‘…there was a delay of over 22 months between the argument concluding in the Court of Appeal and the handing down of the Judgment. The notion that serious delays in obtaining a court determination amount to a denial of justice is too obvious and too well established to require any detailed explanation or authority. In the context of a delay of a similar length by a trial judge in England, the Court of Appeal, after saying that such a delay was unfair on the parties, observed that “an unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles”. As she also said, such an “extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances”.
The Privy Council went on to say that ‘a serious and unexplained delay of nearly two years by an appellate court … risks bringing the legal system into disrepute and therefore undermining the rule of law’. The same words apply to the 23 month delay of the COI case.
We cannot afford any undermining of the rule of law. We have to have a well respected court system to which we can resort at appropriate times. There is a certain disquiet about these two cases which may fester in the absence of any explanation or apology.
Syndicated columnist
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