Drocker Street Cell:
Los Angeles Email
add: kingallanp@gmail.com
California, 90013
CARICOM Secretariat, Communications@caricom.org
Turkeyen, Greater Georgetown,
Guyana,
South America.
5/21/2018
Dear Madam/Sir,
I have taken the opportunity to review the piece of
legislation that was tabled before the St. Vincent and the Grenadines
Parliament by the Government that is called the Attorney General Reference
(Constitution question) Bill. I must take this opportunity to inform the
readers of this document that I am not a lawyer; neither do I have any formal
training in law. However, I have an acute understanding of the law and the
application of the law.
I understand the St. Lucia Legislature passed a similar, law
and the said aw was use in a manner that is certainly less than honorable. It
is conclusion the St. Lucia legislator used this piece of law to deprive the
people of the country of their constitution power. In this case, it is the
power of the referendum in making key decision as it relates to working with
and of the constitution.
However, even though this piece of legislation was only use
in the manner out lined above it has the potential for further misuse. This judgment
that, is on the Eastern Caribbean Court of Appeal website under the caption: the
Attorney General Reference. The said piece of legislation has an even greater
potential to further misuse; and if passed in St. Vincent and the Grenadines
the current Government will use this bill to strip the people of the countries
that have passed this law of their constitutional rights (the power of the
memorandum) as was done by the St. Lucia’s Government. This law also has the
potential for unforeseen injustice; which I will explain later in this
document, as well as the misuse of the adversarial judicial system, to address
matter that could find alternative cures somewhere else, points which I will
elaborate on in this discourse.
The law that I speak about states as follows: section 1 and 2
dealt with the sighting of the law and the definitions.
3. The Attorney General may with the
approval of Cabinet, refer to the Court for hearing and consideration of any
important question of law or Fact concerning –
a) The interpretation of the
constitution;
b) The constitutionality or interpretation
of any legislation enacted by parliament and
c) Any other matter; which in the
opinion of the court Ejusdem Generist with the matter contained in paragraph
(a) and (b) Submitted by the Attorney General as an important question.
4. A question concerning any matter
mentioned in section 3 and reference to the court by the Attorney General shall
be considered to be a question of the public interest or public importance.
5. Where a reference is made to the
Court under section 3, the court shall –
a) Hear and consider the reference;
b) Answer each question so reference
c) Certify to the Attorney General its
opinion on each question, with the reason for each answer.
d) And the opinion shall be pronounce in
like manner as in the case of a judgment on appeal to the court.
6. The Court has power to direct that
any person interested or where there is a class of persons interested, any one
or more person as representative of that class, shall be notified of the
hearing on a reference under this act and those persons are entitled to be
heard thereon, where in person or by counsel acting on behalf of that person.
7. The Court may in its discretion
request any counsel to argue the case with respect to any interested that is
effected and provided that which, has not been instruct by an interested
person.
8. (1) The court shall not make an order
as to the cost for the exceptional reasons, the Court consider it proper to do
so.
(2) The Court may in its discretion,
make an order that the expense incurred for a matter heard under this act be
paid by the ministry of Finance, and shall be a charge on the consolidated fun.
9. The provisions of this act do not
derogate the power of the court under any other enactment.
My research revealed there is a
similar piece of legislation in use in Canada/British Columbia namely the
constitutional question act of 1996. However, there are some differences
between Canada and the Caribbean, especially an island like St. Vincent and the
Grenadines.
Two of the major differences between
is Canada and the West Indies; especially, St. Vincent and the Grenadines are:
1.
Canada
is a developed democracy, with a developed legal system;
2.
The
Canadian legislature has the needed integrity checks and balances, laws such as
these required to prevent abuse. They also has in place the required
institution to enforce those laws and the prescribed punishments to protect the
community from dishonest, unscrupulous, unethical and corrupt elected and
unelected public officers, who will endeavor to manipulatively use the
authority entrusted to them by their office to achieve some personal agenda that
is not beneficial to the nation and its people. In the same manner that
occurred in St. Lucia as sited above.
One would have thought, the Attorney
General of St. Lucia, would have recognized a weakness in the constitution, he would
have then take the required course of actions, to determine if such section
made the constitution a better document or a weaker document that would protect
the rights that are embedded in that document for the future. As a result, of
the court’s opinion, the Government should have taken the necessary action to
make the document a stronger and better document by causing the constitution to
be amended if that was best.
These laws must have specific
objective which have everything to do with making the constitution a stronger
document and nothing to do with as a tool of enforcement and manipulation; which
unfortunately, defeats legislative intent. If a document has an error embedded
within it, it does not mean that it was the intent of the legislature to have
the law-interpreted base on the intent.
The unscrupulous and current Prime
Minister of St. Vincent and the Grenadines: Ralph E. Gonsalves; will act where
there is no check or balance to keep public elected and none elected officers
in check. He will misuse such laws and encourage his public appointees to do
the same, because there is no set of consequence in place to deal with any
unethical, dishonest and or corrupt behavior unless such behavior contravene a
particular area of the criminal law. He will cause his appointees to nolly
proseque any such effort to prosecute him or his aids; as he has done several
times before to protect himself from several public allegations of rape and
other sex crimes.
In my opinion, this piece of
legislation seeks to do the following things, none of which appear to legal or
good for the justice system and should not be allowed to happen; I will list
them below and later elaborate on each of them.
I.
The
law seeks to use the Appeal Court as the Attorney General’s legal advisor.
II.
Such
actions defeats the true purpose of the court.
III.
Take
the affordable means of legal redress out of the hands of the citizenry.
IV.
A
tool of manipulation.
V.
Give
the attorney Generals a scape goat not to take the correct and prescribe course
of action using readily available remedies for simple problems.
VI.
Seek
to deceive the constituent of its true intent.
VII.
Bring
added and unwanted burden upon the Court of Appeal
VIII.
To
manipulate, change and or modify the mandate and the protocol of the Appeal
Court.
The Argument
I.
The Appeal Court the attorney General’s legal advisor.
The Appeal Court as a part of the Justice System has a historically defined
duties and the purpose; therefore, the court should use its resources to solve
and bring resolution to real disputes in the criminal and civil jurisdiction by
enforcing laws, as well as to test laws in a fair and rational manner. This
should be done in an adversarial system, with legitimate disputes, not a mock
trial
In the case that this piece of legislation is trying to do, is to provide
the environment where the Attorney General uses the Appeal Court as his or her
personal legal counsel and in so doing getting judgments on matters where there
is no real dispute on the issue of law or other legal question. This does not
meet the purpose of the court and the court should not be abused in such a
manner. This law also takes away the true adversarial element of the court and
seeks to introduce a mock trial system, for in this context, there is nothing
to be gain, but an answer to satisfy the attorney generals ignorance on a
matter.
Because of the climate (Lack of true adversarial tension), the court will
not get the best opposing legal argument, in order to arrive at the best
possible conclusion. This law also seeks to abort the daily practice of a
viable alternative. There are learn men and women who have dedicated their
entire life to the study and the practice of particular area of law, and
because of the vase amount of practical, academic, and experience, they are
considered experts in the particular area of law. Such expertise is sought and often obtained by
virtue of a retainer or a consultation as is done by practicing lawyers,
cooperation, government and private citizen.
The attorney General who ought to be a competent lawyer, and is involved
in an active legal practice should not be allowed to get an advantage over the
other practicing lawyers and members of the community, whom he or she may have
to appear in court as opposing counsel against members of the community. In
other words, an Attorney must not be giving preferential treatment because of
who his employee is or the title of his office. The Attorney General who is a
practicing lawyer, who is employed by a government, must be allowed to consult
an expert in the particular area of law upon matters that he is having lacking
in. The fact that he is a lawyer who provides legal representation to a
government should not give him any special privilege that other practicing lawyer
does not get; especially in the context of this law.
II.
Law defeats the Purpose of the Court.
This law defeats the purpose of the court system, which is to deal with
real disputes in the criminal and civil Jurisdiction, in order to stay
vigilantism from taking over society and have potential litigants and
complainants and defendants taking matters into their own hands. There is the
issue of the true adversarial system, where people with guanine concerns
present their case to have matter lawfully and properly resolves so that they
can move on with their lives.
This law is seeks to create an environment where mock trial system, where
the environment does not lend itself to a real adversarial system, and the
finances associated with such mock trial, does not lend to the best opposing
argument, to help the court come to the very best decision possible.
III.
Take the affordable means of redress out of the hands of the community.
This law gives the Attorney General the power to circumvent the natural
protocol that is in place to access the Appeal Court. This creates several
concern, one of which is outlined in point one. However, there is the issue
where this law in circumventing the normal protocol of accessing the Appeal
Court, takes the affordable means of redress out of the hands of the community.
Although the law gives the impression that this process is design to get
the court’s opinion, we all know that when there is a trial the court gives its
opinion with a judgment. If the Attorney General is truly looking for an opinion,
then the Eastern Supreme Appeal Court is not the place for that; for the
appropriate place to derive such opinion in this case from a specialist in the
field.
I reviewed the Attorney General Reference Judgment that the EC Appeal
Court issued to the St. Lucia Attorney General, based on a constitution
question. The Government of St. Vincent and the Grenadines want to give the
members of the public the impression that all they are seeking is an opinion,
however, my scrutiny of that document it is a judgment with the court opinion
as per courts. If there is an
interesting party is not satisfied with the judgment, his or her only recourse
is to appeal to the Privy Council, which is a very expensive venture that is
outside the financial capacity of most citizen, business and organization. Therefore,
if the Court of Appeal gives its opinion on a matter, there is always option as
it laid out in the constitution a court that stands superior to the Eastern
Caribbean Court Appeal which is the Privy Counsel; and therefore interesting
parties should be allowed to seek a different opinion on a same question of
constitution importance.
IV.
A tool of manipulation
This piece of law has been use as a tool of manipulation by the St.
Lucian Government, when this law was used; and as such took away the
constitutional rights of the populace and stripped them of the power of the
referendum as it related to the question of the court of final appeal.
In a case where the legislative should have been concerning themselves
with strengthen the constitution of the land, as it relates to what may have
been an error in the supreme law of Sovereign St. Lucia, instead of considering
the legislative intent, to bring clarity to have determine if the section of
the law was an error or not. It would have been the right thing to, take the
step to have public consultation and take the step to ensure they strengthen
the constitution; unfortunately, the St. Lucia Attorney General, even before
there was a dispute got a judgment from the appeal court using this piece of
law.
I am of the opinion, if a person can think of it, with knowledge of the
procedure they can get it down. I can foresee the Government using this law to
circumvent a matter in the Eastern Caribbean Supreme Court (ECSC) using this
piece of law. Let me explain, a lawyer files a case in the ECSC that can have
adverse consequence the government or some faction of the Government. While the
case waits a hearing in the ECSC, The Government attorney could submit a mock
case as this piece of law permits and the Appeal Court give a judgment. It is
obvious that the ECSC will now have to rely on the opinion of that case to
govern the way they dispose of the case, which is currently before it.
I know that this may seems to be an outlandish occurrence however
outlandish it may appear it is not impossible. In a world where morality and
ethics are, taking second place to money anything can happen.
V.
Give the AG a scapegoat not to do
what is right.
As in the St. Lucia case, they attorney General used this law not to take
the naturally prescribed course to find remedy to a deficiency in the
constitution. There is a similar situation in the St. Vincent and the
Grenadines Constitution, hence the reason the current Government is trying to
secure the passage of this law. Instead of seeking the opinion of the
practitioner who specialized in constitutional law, to find out if such a
glitch actually makes the constitution a better document or the document is the
weaker because of it. And take whatever steps, to ensure the future have the
best document, that will ensure the rights of the people remain protected from
future unscrupulous governments should the country be curse with such.
The appeal court could see that laws that should be repealed and or
amended being brought to it using this bill for obvious reason.
VI.
Seek to deceived the general public
by playing on the word Opinion
A review of this bill led me to believe, the St. Vincent and the
Grenadines Government in passing this law, have hide their true intentions and
have manipulated the discourse to and the wording of the law to deceiving the
community. By stating that the request to the court and the findings of the
court is not an enforceable judgment but an opinion, which do not have any
lawful value, but is just an academic document and such document does not have
any enforceable value. Why would any arm
of Government want to abuse the highest facility of adjudication with such an unenforceable
document?
However, from my review of the document from the Appeal Court, that
document was the work of the court that is derived from a judicial trial; even
though it was not a trial that occurred in the adversarial context of the
court. In addition, and contrary to the law, such document is not an opinion,
but it is a detail judgment which will include that judgment and an opinion and
have all of the enforceability of a Judgment that was given in a case that was
heard in an adversarial context of the court.
VII.
Added and unwanted burden on the
Court of Appeal
Tall of the courts that is a part of the Eastern Caribbean Court system
is already over work and have been within the pass years have been experiencing
a back log of cases that need to be dealt with; and because of the lack of
resources the courts within the system is unable to clear the back log. This
piece of legislation as unlawful and as potentially dangerous as it is, seeks
to increase the responsibility of the court. This new mandate will only add to
the continued back log and may contribute in the inefficiency of the court. It
will also add to the administrative expenditure of the court. The almost none
existent benefits of this law are not worth the weight it will cause the court
to carry, and should not be allowed to become an ingrained part of the legal
system.
It is also a waste of the court times to hear evidence, rule upon and
prepare lengthy judgment and opinions on matters of fictitious or made up
dispute. This creates an even longer cue as well as a longer period of wait,
for those members of the community with legitimate and pressing matters that
need resolution. It is those matters, the court’s time and resources should be
investing its time and resources in disposing.
VIII.
The Ease with which the Mandate and
the protocol of the court is manipulated.
In my opinion, I am deeply surprised and overly baffled at how easy; it
is for the court’s system mandate and protocol to be manipulated. In this case,
the mandate of the court was manipulated; this was not done by a careful study
of the system that revealed a deficiency within the court system; that if fix will
strengthen the institution; however, the court was manipulated with the passing
of a selfishly drafted, of poorly thought-out piece of legislation in the
sovereign of St. Lucia. Unfortunately, this was all it took to adversely impact
the way business is done in the judiciary.
It is also unfortunate that there is no safeguard in place to shield the
judiciary from such ill-intended legislation and their effects on the
institution of Justice as it relates to the Eastern Caribbean Jurisprudence. The
fact, it has been so easy to divert, change and increase the mandate of the Eastern
Caribbean Court System, as well as to change the established protocol of the same
Court System with no opposition is a dangerous sign. This is a sign that the
Justice System within the region is vulnerable to the unscrupulous acts of
corrupt and selfish politician; need to be vastly strengthened to prevent government
of the member states taking advantage of this proven vulnerable court system.
It is my desire that you see the value of this document and that you can
put the needed system in place to strengthen our legal system as well as to
make some efforts to get member nations to put the needed checks and balances
in place to limits and reduces the avenue of political and other corruption
within the Caribbean.
In service to the Caribbean Community.
Sig. ______________________
Allan H. F. Palmer
Cc. Heads of Government of CARICOM
Justices CCJ
Justices Eastern Caribbean
Court of Appeal
UWI Faculty of law (All
campus)
Princeton University Faculty
of law (Dean)
Harvard University Faculty
of law (Dean)
Comments
Post a Comment