Judge Jones: Can't just wave a Speaker's Certificate in Court's Face
Lionel Jones retired Justice of Appeal of Trinidad & Tobago has ruled that there is enough evidence for a trial to determine whether President Eluid Williams' appointment was properly elected according to the Constitution.
Opposition Leader Hector John and the United Workers Party (UWP) have challenged, in court, the procedure that the Government followed in electing the President and when government lawyers attempted to block the move, Judge Jones was hired to adjudicate on the matter.
In his judgment issued last week, Justice Jones stated that Section 19 of the Dominica Constitution provides a regime for the orderly transition from the outgoing President to the new President. He said the Constitution envisages the participation in the election of the President of all the representatives of the citizens of the Commonwealth of Dominica and, by extension, the citizens themselves. Section 19, the Judge stated, also makes it plain that the procedure is contingent on a vacancy in the office of President or the term of the office of President is drawing to a close.
The Government, he stated, contend that "the doctrine of necessity was invoked to ensure that there would be continuity in the office". But the Opposition argues that "in so doing they proceeded on a course not sanctioned by the Constitution." The Judge wrote that the Government argues that there was "no evidence in this case" and it seeks to have the claim dismissed on the grounds that the High Court has no jurisdiction to entertain the claim and has placed "heavy reliance on a certificate issued by the Speaker of the House in accordance with Section 22 (5) of the Constitution."
"In this case, a certificate in those terms was produced and the submission was that, that brought an end to the Claimant's attempt to invoke the jurisdiction of the Court. This submission proceeds on the premise that the Court cannot go behind the certificate. That to me is the flaw in the argument. Courts have gone behind such certificates to ensure that the person or body protected by such a certificate had lawfully performed assigned functions by acting within jurisdiction," Justice Jones wrote.
He added that the court, in establishing its jurisdiction in such a case, can determine from the record before it whether "the Certificate can be honoured."
Justice Jones stated that "in the instant case, there is no evidence from the Applicants/Defendants, but from the record which includes excerpts from the Hansard, there is evidence from which the Certificate can be challenged." Whereas the Speaker certified that the President was duly elected under section 19 on the one hand, there is evidence that the Hon Prime Minister wrote to the Claimant on August 29, 2012, the Judge wrote.
"It seems to me that from the above, the integrity of the Speaker's Certificate is in question and a clear path to the court under Section 103 remains open. I hold in the circumstances that this court has jurisdiction to entertain this claim," the Judge stated.
It is beyond dispute, he said, that "the Constitution is the supreme law" and so where there has been any breach of the Constitution "the Courts have the final say."
He stated further that "where the jurisdiction of the Court is excluded by the Constitution or any other law, the Court jealously and scrupulously would examine the circumstances to ensure that its process is not compromised or brought into dispute. The jurisdiction of the Court is not ousted by simply waving a Speaker's Certificate in its face."
"I accept as the Respondent/Claimant contends that he has a significant role to play in the process of the election of a President and for this reason I hold that his locus standi is indisputable," the Judge wrote.
Gildon Richards, the UWP's lawyer has welcomed the decision; he added that while his clients are "not questioning the qualifications of Mr. Williams for the post of President, they are however concerned at the manner in which the process was conducted."
Justice Jones is an experienced member of the judiciary of Trinidad & Tobago and is a former solicitor general, director of public prosecutions, a former chairman of the Police Complaints Authority of Trinidad & Tobago, former High Court and Appeal Court judge.