The delay in hearing matters before our regional courts continue to be of serious concern. The tardiness in delivering justice, especially in matters originating from Dominica is equally worrisome. For good reason(s), Dominicans no longer have confidence in obtaining timely justice from the ECSC and now the CCJ. The inordinate, undue, and unreasonable delay at all levels of our justice system is frustrating and must be addressed without delay.
The Dominica Frenchmen case
The case involving the eligibility of the two Dominica Frenchmen, Messrs. St. Jean, and Skerrit as members of parliament in Dominica languished in our courts for almost 3 years and the poor judgment that resulted was very untimely. To make matters worse, the judge in question Guyanese, Justice Thom did not bother to bless us with her presence in delivering her judgment. The judgment was emailed to the court in Dominica and read by resident Judge Cottle. The matter was appealed but it took another three (3) years following the general elections in December 2009.
2014 Treating case
In 2014, the UWP did not file any election petition. However, three [3] patriotic citizens namely Mr Mervin John Baptiste, Mr. Edincot St. Valle, and Mr Antoine Defoe [May his departed soul rest in peace] filed a summary criminal matter before the magistrate court. The slow, inefficient, and seemingly politically influenced ECSC system, once again has failed us. Years passed by without any action taken by the ECSC. The case was never heard by the magistrate court because judicial review was entertained. The matter was eventually struck out for lack of jurisdiction by our long serving Guyanese-born resident Judge.
The matter was appealed to the ECSC of Appeal. Fortunately 2 of the 3 judges agreed that it should be returned to the magistrate court. The single dissenting judgment was from a Guyanese-born judge on the panel of judges. In its 2-1 majority decision, the ECSC dismissed the decision of the Guyanese/resident Judge in Dominica. The Court of Appeal remitted the matter back to the magistrate court advising that it had jurisdiction to hear the matter.
SC Astaphan, who is now representing the Guyana Election Commission (GECOM), then sought permission from the Court of Appeal of the ECSC for leave to appeal the decision on the jurisdiction of the magistrate’s court to the Caribbean Court of Justice (CCJ)
On 10 December 2010, the CCJ heard the matter and after listening to over three hours of legal arguments from both sides and asking some probing questions, the judges of the apex Caribbean court reserved their decision in the matter.
We were advised that the decision in the 2014 treating matter was expected to be handed down early in 2021. Almost 3 months have elapsed and Dominicans are simply requested to have patience. We await a judgment. The delay in the judicial system persists.
2019 Election Petition matter
Almost a year after filing 10 (ten) election petitions before the High Court of the ECSC in Dominica and approximately two (2) months after the Respondents had submitted a reply to a strike-out application against the said petitions, the junior Grenada-based and Guyanese-born Judge Raulston Glasgow, who was the 3rd Judge of the ECSC to whom the matter was assigned started giving consideration to the matter. This was after an interesting period of judge shopping expedition involving the ECSC, local politicians, and prominent local legal personalities, another junior Guyanese judge was settled upon.
The said judge took a further six (6) months, perhaps to consult with the more senior experienced Guyanese judges on the ECSC bench before delivering his judgment. Delayed, as it were, the judgment finally came and the outcome was disappointing but for the majority of Dominicans, who lacks confidence in our courts, it was not unexpected. All ten (10) petitions were dismissed.
In his 120 page judgment, Justice Glasgow stated, “The pleadings failed to include particulars that would seek to identify whether the claim breaches all the irregularities affected or may have affected the outcome of the elections.” He also awarded a cost of $5,000 to the respondents. According to the judge, the petitioners are entitled to bring ‘evidence’ to substantiate their contentions (which they intend to bring at the substantive trial) … “but I cannot agree, that the petitioners will know the case and do not have not one factual basis set out on the pleadings to how a breach of the law and how it would have affected the outcome of the elections,” he stated.
Of Course, PM Skerrit chimed in with his comments. He considered the filing by the UWP as an abuse of the process. He advised the nation that “We always maintained that Dominica conducted a free and fair election…These elections were recognized as being free and fair by the Commonwealth Secretariat and the Organization of the American States (OAS), by the CARICOM and also a mission out of Latin America…It is shameless; it is disgusting, all in an attempt to give their narrow base, the impression that there is an opportunity for the courts to decide elections in a country,”
In early January 2020, the United Workers Party (UWP) filed an appeal against the decision of High Court judge. In its Notice of Appeal, it contended that the learned Judge specifically erred in law and in fact in making the findings in the extracts of his judgment and against the order of cost. The UWP requested that the Order of the Judge is set aside with cost to the Appellants/Petitioners and that the Notice of Motion by which the Respondents seeking to strike out the 10 Petitions should be dismissed.
Once again, Dominicans await. It is difficult to justify the protracted delay by the Court of Appeal in having this matter dealt with utmost dispatch.
Situation in Guyana
Compare and contrast the situation in Guyana where two election petitions were filed on 15 September 2020 following the elections held on March 2, 2020. Within 4 months of filing, the matter was before the court for a hearing. Chief Justice Roxane George-Wiltshire ruled that one of the two election petitions, which challenged the actual results that was declared, was dismissed because that petition was served late to Representative of the List for A Partnership for National Unity+Alliance For Change (APNU+AFC), David Granger.
According to the court, “The late service of P 99/2020 on the second named respondent amounted to non-service on him, This would lead to the nullification of petition 99 P 2020 ab initio (from the beginning) more so as the court has to consider the status quo at the time of service and not the proceedings or positions of party or parties adopted thereafter. This is to say from the time that petition 99 P of 2020 was served out of time on the second respondent as a necessary party, it was a non-starter.”
The Chief Justice flayed the petitioners for attempting to convince the court that Mr. Granger was no longer a necessary party to the petition. It noted that this could not be the case. The Court, however, upheld the other petition that challenges the constitutionality of the National Vote Recount Order No.60, which allowed for the recount of the votes that had been cast on March 2, 2020 general elections. Justice George-Wiltshire said the petitioners and the respondents would now have to proceed to file their arguments. She appreciated that there were certain factual issues that wouldhave to be advanced by the GECOM about the origin of Order 60, after she heard an inquiry from GECOM’s lawyer.
The Judge gave the Petitioners, until 12 February 2010 to file their submissions and 05 March 2010 for the Respondents. The Attorney General was given the date of 19 March 2021 to make submissions in reply. The parties are to return to court on April 7, 2021, barring any directions by e-mail.
It is regrettable and sad that to date Dominicans still do not know when the ECSC of Appeal will take up the appeal of the election petitions thrown out by the junior Guyanese Judge Raulston Glasgow nor is a date set for release of the reserved judgment of the CCJ on the 7-year-old treating matter emanating from the 2014 general election in Dominica.
Delay and denial of justice
The caution of former Chief Justice Sir Hugh Rawlings that the people of the Eastern Caribbean have a right to know who our legitimate members of parliament are and we are entitled to the constitutional right to a fair hearing within a reasonable time frame does not seem to apply to Dominica. According to Sir Rawlings, it goes without saying, the essence of any proceeding before a judicial tribunal is the search for justice and the importance of prompt dispensation of justice cannot be over emphasized and overlooked. The Former Chief Justice has repeatedly embraced the wisdom in the legal maximum, ‘justice delayed is justice denied without ensuring that the maxim guides the work of the ECSC in improving the efficiency of the delivery of justice. However, in every case, Dominica merely gets lip service from these Caribbean luminaries and justice for Dominicans more often than not experience significant delays.
The widespread delays in our justice system potentially subverts the entire judicial process, cause a lack of confidence in the institutions and eventually displaces the independence of the judiciary itself, while demoralizing those who wish to fight against it.
It is a real fear that we may experience one of the more common negative effects of delay in the justice system when ordinary Dominicans begin to take the law into their own hands in the search for justice, especially when their political leaders have brazenly declared that no law and no constitution can prevent them from doing whatever they wish.
We can all agree that inordinate delay does not only adversely affect the administration of justice but on every occasion it inflicts unnecessary anxiety and suffering on those seeking justice. Litigation is a stressful and costly process and the findings and conclusions of the court in its judgment have far-reaching implications. Hence, if only for that reason, timely and efficient administration of justice is a requirement of the rule of law.
Timely justice helps improve the integrity of the justice system and promotes healthy relations among citizens. Consequently, it is imperative that our courts give priority attention to the fair and prompt dispensation of justice. It is necessary for judgments to be delivered within a reasonable time frame. What is a reasonable time may, of course, vary according to the complexity of the legal issues, the volume and nature of the evidence and other factors by the repeated 3-6 years for a matter to reach a final conclusion is unacceptable.
The ordinary citizens have a strong sense of what is reasonable and the court has an obligation to match the expectation of the ordinary. The inordinate delay bug which has infected our justice system is biting hard and the authorities should pay attention. The maxim still holds true-Justice delayed is indeed justice denied in so far as neither legal redress nor equitable relief is available to Dominicans. Justice continues to evade Dominicans as a people before our courts. It is not forthcoming in a timely manner and it is in effect the same as having no remedy at all from our regional judicial system.
Like G.O.N Emmanuel, who passed awaiting justice after filing a 44 count criminal matter against his business partner before the ECSC, which has been under judicial review for a number of years, another patriotic Dominican- Mr. Antoine Defoe, who was one of the three complainants in the 2014 Treating case went to meet his maker on Monday, 22 February 202, awaiting the reserved judgment of the CCJ.
Unfortunately, the disrespect by our Caribbean courts remains our reality.