[1] The Prime Minister of the Commonwealth of Dominica [2] The Speaker of the House of Assembly of the Commonwealth of Dominica [3] Attorney General of the Commonwealth of Dominica Appellants v Hector John (Leader of the Opposition) Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: Pereira, C.J.,Chief Justice,Justice of Appeal,Louise E. Blenman,Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 13 January 2014
• Judgment citation (vLex): [2014] ECSC J0113-1
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCVAP2013/0006
• Date: 13 January 2014

[2014] ECSC J0113-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira Chief Justice

The Hon. Mde. Louise E. Blenman Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

DOMHCVAP2013/0006

Between:

[1] The Prime Minister of the Commonwealth of Dominica

[2] The Speaker of the House of Assembly of the Commonwealth of Dominica

[3] The Attorney General of the Commonwealth of Dominica

Appellants

and

Hector John (Leader of the Opposition)

Respondent

Appearances:

Mr. Anthony W. Astaphan, SC, with him Mr. Alick Lawrence, SC and Mr. Lennox Lawrence for the Appellants

Mr. J. Gildon Richards for the Respondent

Civil Appeal — Constitutional Law — Interpretation to be given to exclusion clauses of the Constitution — Whether Court can interfere in parliamentary procedures — Whether Court can question the certificate of election of the President issued by the Speaker of the House of Assembly — General and specific provisions — Sections 22(5) and 103(1) of the Constitution of the Commonwealth of Dominica — Application of section 121(11) of the Constitution of the Commonwealth of Dominica

On 15 ^th August 2012, the Prime Minister met with the leader of the opposition, Hector John, to inform him that he intended to nominate Mr. Eliud Williams to be Dr. Nicholas J. Liverpool's successor as President and requested that Mr. John join him in the nomination of Mr. Williams. Mr. John inquired whether Dr. Liverpool had tendered his resignation and the Prime Minister confirmed that he had not. Mr. John subsequently informed the Prime Minister that he was unable to join in the nomination of Mr. Williams as President.

On 24 ^th August 2012, the Members of Parliament were informed by the Speaker of the House of Assembly that Dr. Liverpool intended to vacate the office of President and that the Prime Minister had consulted with the Leader of the Opposition but they were unable to agree on a joint nomination for his successor. The Speaker further indicated that as a result, nominations for President would be accepted from the Members of Parliament as stipulated by the Constitution. Mr. John and other Members of the opposition voiced their disagreement indicating that there had been no consultation because Dr. Liverpool had not yet tendered his resignation.

On 17 ^th September 2012, a meeting of Parliament was convened for the sole purpose of electing a President. The Members of the Opposition were absent and no excuse for their absence was provided to the Speaker. The election of the President was done by ballots cast by the Members of the House of Assembly present representing a majority of all the Members of the House, after which Mr. Eliud Thaddeus Williams was returned and declared by the Speaker to be elected as President. On 11 ^th December 2012 the Speaker issued a certificate of election under the stamp of the House of Assembly.

Prior to the issuance of the Speaker's certificate, Mr. John launched a claim in the High Court by way of Motion against the Prime Minister, the Speaker and the Attorney General, challenging the election of Mr. Williams as President. He sought a number of declarations and constitutional relief in relation to the procedure and process of the election. The Prime Minister, the Speaker and the Attorney General, in response, applied to strike out the claim on the basis that the claim: (1) disclosed no reasonable cause of action; (2) was frivolous, vexatious and an abuse of the court's process; (3) was barred by virtue of (i) Sections 22(5) and 103(1) of the Constitution and/or (ii) the privileges and immunities of Parliament; all three of which precluded the High Court from hearing, inquiring into or making any determination in relation to the election. The learned trial judge dismissed the application and ordered that the matter proceed to trial.

The appellants appealed the matter on similar grounds raised in the court below.

Held: allowing the appeal, granting the application to strike out the claim and making no order as to costs.

• 1. It is well established that exclusion clauses in statutes as well as in constitutions, are ordinarily to be accorded a literal (as distinct from a liberal) interpretation. In essence, they must be treated as meaning what they say, and no more. Sections 22(5) and 103(1) of the Constitution should be interpreted literally. The framers of the Constitution, holding the office of President in the highest regard, sought to protect the integrity of the office from disrepute, which may arise out of a challenge to the electoral process. The most effective way to do this was to preclude any inquiry by the court into the process. In relation to section 22(5) it may be said that the framers of the Constitution provided a double shield. Firstly, they provided that the Speaker's certificate is conclusive evidence of the fact. Accordingly, this would not permit rebuttal evidence of the fact as sought to be established by the respondent. Secondly, section 22(5) goes on further to say, that the certificate stating that conclusive fact shall not be questioned in any court of law. The language could not be plainer as to its meaning. This was deliberate. To give any other interpretation to this provision would not represent the intention of the framers.

  In the matter of an application brought by Aubrey Norton 1997 No. 5932 applied, Lestrade v The House of Assembly and Others [1985] LRC (Const) 48 applied.

• 2. Contrary to the argument presented by the respondent, section 121(11) of the Constitution does not allow the court to make an inquiry into the electoral process of the office of President and cannot be called in aid whenever any person or authority fails to follow a procedure provided for, or engages in a process not in compliance with the constitutionally provided methods. The Constitution cannot be seen to contradict itself or have competing provisions. Therefore, save for the very limited jurisdiction granted to the Court of Appeal in relation to challenges to the qualifications of a person to be nominated or elected to the office of President, it is clear that the court was not meant to have jurisdiction over the process of electing a President. Further, in the interpretation of the Constitution, general clauses cannot be seen to override the specific clauses. It becomes clear that section 121(11) of the Constitution is a general provision which must be read down and thus must give way to the specific provision of section 22(5), which ousts the Court's jurisdiction. To accede to the interpretation to this section offered by the respondent calls for ignoring the well-established rules of interpretation with the resulting conflict between the provisions. Such a course would promote uncertainty and lead to undesirable consequences, which would inevitably flow therefrom.

  Re Blake (1994) 47 WIR 174 and Browne v Francis Gibson (1995) 50 WIR 143 followed. International Management Group (UK) Limited v Peter German, Hr Trustees Limited [2010] EWCA Civ 1349 applied; Re Gerriah Sarran (1969) 14 WIR 361, Endell Thomas v The Attorney General of Trinidad and Tobago (1982) AC 113, Jones and others v Solomon 41 WIR 269, Smith v Mutasa et al [1990] LRC (Const.) 87 distinguished.

• 3. The court may not impute fraud or improper conduct or motive to the Parliament or any officer or inquire into any matters within Parliament's jurisdiction. There is good reason for the separation of powers doctrine and it is in matters of this kind that we see its full merit. It is no part of the court's function or responsibility to meddle in parliamentary affairs particularly when the Constitution clearly precludes it from so doing. The office of President is one, which was meant to be held in the highest regard and subjected to the highest form of integrity. To allow the court to meddle into the affairs of the election process of the President is an affront to the dignity of the high office of President. It is a course, which a court, in the face of expressed exclusion ought to be loath to permit incursion no matter how inviting the invited excursion may appear to be.

  Hoani Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308 , British Railways Board v Pickin [1974] AC 765 applied.

Pereira, C.J.

1 The Commonwealth of Dominica ("Dominica") upon gaining full statehood, like a few of its Caribbean neighbours, cut its monarchial apron strings with the United Kingdom monarchy and became upon independence, a republic. Its Head of State is designated as the President. The President, unless nominated jointly to Parliament by the Prime Minister and the Leader of the Opposition, is elected to office, not by popular vote of the electorate of the state, but rather by the votes of the elected representatives of the electorate in parliament. The procedure for the election of a President is provided for in Dominica's Constitution. This appeal concerns the question whether Mr. Eliud Williams, who succeeded the then President Dr. Nicholas J. Liverpool as President, was duly elected to the said office. More importantly, it concerns the question whether, in the face of a certificate appearing on its face to have been regularly issued by the Speaker of the House of Assembly certifying that the President was duly elected in accordance with the provisions of the Constitution, the procedure adopted on the election is justiciable.

The Background

2 In August 2012 the President of the Commonwealth of Dominica was His Excellency Dr. N. Liverpool. By letter dated 7 ^th August 2012, the Prime Minister invited Mr. Hector John, the Leader of the Opposition to a meeting scheduled for 15 ^th August 2012 for the purpose of consulting with him in respect of 'a matter relating to the Office of the President under the provisions of section 19(1) of the Constitution'. At the meeting, the Prime Minister informed Mr. John...