by Justice Jaco Congoree of the Law Firm of Black, Kalinago & Freed.
On or about October 19, 2020 one Justice Glasgow of the High Court struck out the election petitions brought by members of the United Workers Party (UWP) of Dominica grounded in bribery and various others violations of Dominica’s electoral laws. Without going into the details of the matter, the sum total of the judge’s decision can be said to reside in his reasoning that the petition filed did not provide the requisite evidentiary particularity sufficient to sustain the case. That, despite the fact that the petitions filed provided evidence that the ruling Dominica Labour Party brought in persons by the plane load to vote, thereby conferring a material benefit to electors to induce them to vote in a particular way, which is a violation of the elections law of the Commonwealth of Dominica. The court took zero judicial notice that the electoral laws of the Commonwealth of Dominica mandate a residentiary requirement that preclude voting by those who have lived outside the constituency for a given period of time.
The Glasgow decision means that the 2019 election is allowed to stand despite the fact it not took place without the electoral reforms recommended by the Commonwealth of Nations, the Organization of American States and Caricom.
A day or two later, the UWP leader Lennox Linton opined that Glasgow decision was influenced by political bias. In response the Dominica Bar Association and that of the Organization of Eastern Caribbean States harshly condemned Linton for making criticism as he did.
It is passing strange that these organizations which should support probity in office, were not heard when the Dominica election of 2019 proceeded without the electoral reform demanded by democracy loving Dominicans or the nations so organized and referenced above. Such deafening silence on injustice is not new in West Indian history. No word was heard from those organizations when villagers in Salisbury were teargassed in their homes in the dark of night on the eve of the December 2019 elections, or otherwise brutalized by local police with the support of troops from the so-called Regional Security System. Not a word was heard from these champions of justice nested within the OECS and Dominica Bar associations.
During the slave era none of the so-called bar associations saw it fit to condemn the slave system or the judges that sustained it. The wealth wrung from the blood, sweat and toil of our ancestors had to keep flowing to distant cities such as Liverpool, London or even Glasgow. The West Indian lawyers were part of the power elite and crushed the freedom of African and indigenous people under foot. Today, we have law garbed in black face, but how soon do we forget our history which is riddled with injustice.
That is why there exist no West Indian slave era version of Thurgood Marshall, the pioneering African American civil rights lawyer whose legendary work in the courts whittled away at the perversion of human rights under the racist Jim Crow system
The West Indian lawyers and judges of the slave era upheld slavery, an odious system which only ended after uprisings by our legendary anti-slavery heroes coupled with criticism and legislative action by conscientious white abolitionists.
In the modern era, the critique of lawlessness had to be further fought in the public domain by civil rights organizations that regularly condemned the anti human rights decisions such as Dred Scott and Plessy v. Ferguson which upheld racist laws and white supremacists thinking.
In the West Indies, of the 20th century it took trade union activism and the labor rebellions of the 1930s to usher in democracy by expansion of the franchise by universal adult suffrage coming to Jamaica in 1944 and thereafter to the other parts of the British West Indies. The masses had to rise to sieze their freedom, aided on occasion by noble lawyers such as Norman Washington Manley of Jamaica and Grantley Adams of Barbados. These two heroes of the West Indian bar were exceptions and not the rule. By and large the judges and lawyers who buttressed the structure of colonial era inequity, remained enablers of the system in all its corruption. Such is our history.
In the United States it was no different. Had public sentiment and outrage in the streets not accompanied legal action, African Americans would never have seen justice. Witness the current Black Lives Matter movement and the reforms now underway following the police murder of George Floyd.
It has been the same everywhere where judicial reasoning of dubious virtue has allowed for tyranny to reign. No impartial observer can whitewash the consistent and blatant “treating” and/or bribery engaged in by the Government of Dominica in bringing in voters from overseas to vote – clearly the provision of material benefits to voters in exchange for a vote. And there is more.
When will it stop when judges wrong foot every effort to correct such lawlessness? What pride and confidence can ordinary citizens have in law courts when they fail to serve the cause of justice?
I have heard no critique of the miscarriage of justice re the GON Emmanuel case where justice delayed was justice denied. That retired Judge, a member of the same bar, died before his case was ever heard and no judge – current or retired uttered a word.
I have heard no critique of the misuse and abuse of process when they hauled Dr. Sam Christian before the court on charges that he urged burning of the parliament based on a speech which was clearly a non-threatening reference to the historical burning of the German Reichstag, and well within his constitutional rights to give.
I have heard no critique of the abuse of process over the ludicrous charges brought against the leaders of the Dominica opposition for allegedly trying to overthrow the regime by sound truck in 2017. That case, and other such abuse of the power of arrest and malicious prosecution, are allowed free rein on our chained island. Not a mutter from the bar associations referenced above, riddled as they are by passport peddlers and those subject to that corrupting influence of easy money. It is the same corrupting influence of illl gotten gain that stilled the tongues of the slave era judges and lawyers who were complicit in the system of West Indian slavery that went on for almost four hundred years.
This is the same sleight of hand which occurred in the case which denied justice where Dominica’s ruling king was not compelled to produce his French passport and so confirm his foreign citizenship in violation of our electoral laws when he ran for office. This yet another glaring example of how our judiciary is misused and abused, no matter the claim that the election petition was inadequate.
While we would like to see the unbiased dispensation of justice, history teaches us that judges are not immune from the prejudices inherent to the societies within which they live. When injustices are allowed to thrive because of blindness, or the wilful blindness, of those who are supposed to be a brake on wanton misconduct in office in violation of law, who shall call wrong by its name? It is up to the people, to speak out against the perversion of justice. Such critique is what will compel balance and more credible weighing of the facts and application of the law. And it is such criticism that will compel legislative action to change the laws to fashion more just societies
Judge are not Gods. They are flesh and blood, susceptible to corruption and bias. History teaches that institutions which cannot do right by a people or uphold justice are threats to the people whose interest they are to protect and undermine public confidence in their probity.
The Dominica and the OECS Bar would do themselves justice where they are active in civic education and favor matters such as Law Day in schools to enlighten the public. It is such concern about education, the elementary norms of justice, and rule of law – not abject surrender to the dictates of the rich and powerful – which shall elicit the respect of the masses. It will never suffice to suppress criticism of wrong robed in judicial garb and garbled reasoning. What will render credibility to those bar associations is where they, and their members, assume the posture of freedom fighter and apostles of justice, not enablers of wrong.
Bar associations and lawyers who become cudgels in the hands of the powerful to batter those who rightfully exercise their right to critic warped judicial reasoning, only further undermine public confidence in the rule of law in our society. May we remember the noble few who used law to champion justice and expand the bounds of freedom.
Dominicans, your future is in your hands! Do your duty to your country.