Appeal Court rules injunction order was not breached, former Attorney General Merchant not in contempt of court

(Left to right) – Former Attorney General, Dr. Dennis Merchant; Minister of Education and Information, Sen. the Hon. Nigel Carty; Prime Minister Hon. Dr. Denzil Douglas; Dr. Henry L. S. Browne; Mr. Sylvester Anthony and Mr. Anthony Astaphan S.C.

BASSETERE, ST. KITTS, SEPTEMBER 14TH 2010 (CUOPM) – St. Kitts and Nevis’ Prime Minister Hon. Dr. Denzil L. Douglas was vindicated Monday when an Eastern Caribbean Court of Appeal ruled that his St. Kitts-Nevis Labour Government had not breached a High Court Order when he laid the Constituency Boundaries Commission Report in the National Assembly in July last year.

In overturning the contempt of court verdict by the trial judge, the Appeal Court found there was no allegation that the Court Injunction by High Court Judge His Lordship Mr. Justice Frances Belle “was too wide, vague and imprecise” and that then Attorney General, Dr. Dennis Merchant was not guilty of contempt of Court charges.

In giving weight to the evidence, Justice of Appeal Hon. Michael Gordon with the concurrence of Justice Davidson Baptiste found that even if there was evidence to support the allegation of failure or neglect or refusal to inform “which I find there is not, there would be no breach of the terms of the order.”

“The order/injunction is prohibitory, not mandatory and there is no allegation that the appellant did anything, only that he failed to do something,” said the Justices.

The Justices found that the learned trial judge, having found that the evidence against Mr. Cedric Liburd, a member of the Commission, related solely to words allegedly spoken by Mr. Liburd in the National Assembly and as such was totally protected by section 45 of the Constitution, “the same would have to be applied to any act done by the Hon. Attorney General (Dr. Dennis Merchant) in the National Assembly.” Richards had sought to hold Mr. Liburd in contempt but his Queen’s Counsel, Mr. Haynes conceded in closing arguments that he had no case against Mr. Liburd.

The two Appeal Court judges referred to a number of problems with a statement by trial judge Her Ladyship Rita Joseph Olivetti.

They found that the standard of proof required to establish contempt was not met in the four instances on alleged contemptible behaviour.

They found that the appellant did not know the agenda of the Emergency Meeting and from sworn affidavits from Messrs. Chesley Hamilton and Richard Caines, they found no reference to any action taken by the Attorney General in respect of advising His Excellency the Governor General.

“To put it simply, this complaint is a complaint with absolutely no evidential foundation and for that reason, if for no other must be dismissed for the puff that it is.”

“I find that there is no evidence of breach of the Court Order of July 6th 2009. The appeal is allowed and the order of the judge is set aside,” Justices of Appeal the Hon. Michael Gordon and the Hon. Davidson Baptiste wrote in the 27 page judgment.

In her separate judgement, Justice Ola Mae Edwards found that when the injunction was imposed by Mr. Justice Francis Belle, the Constituency Boundaries Commission Report was already submitted to the Governor General “and that part of the injunction as it stood at the date when it was granted would be useless and unenforceable.”

Edwards wrote that the words “making use of” in the order could not and did not refer to any act or use of the report which followed after the report was submitted to the Governor General, particularly where there is no reference in the order to the National Assembly, the Prime Minister or any other person or authority having a constitutional duty in the National Assembly.

“Had the judge applied the rule of construction (since it was undisputed that the order was made after the report was submitted to the Governor General) it would have been obvious that the injunctive order had expired or was redundant and could not be enforced. Moreover the word “use” in the order is pregnant with vagueness and uncertainty and is excessively wide because no person is able to decide what precise conduct will be regarded as “use” which could even include reading the report.” said Justice Edwards, adding:

“The judge accepted that the order was vague and uncertain and erroneously resorted to the degree of vagueness and uncertainty and the criteria of meaninglessness where she held that ‘the order is not so vague and uncertain as to be rendered meaningless.’

In allowing the appeal, Justice Edwards was of the view that there is merit in the submissions advanced for the Attorney General and the Constituency Boundaries Commission.

“If the order intended to prohibit the further use of the report as envisaged by the constitutional stages, that the report was to go through after the Commission had submitted it to the Governor General, this clearly was not reflected in the order as it is too wide, vague and imprecise. In my view the true scope of it is doubtful and it doesn’t provide explicit notice of the conduct prohibited. what the learned trial judge deduced from the order is not what it conveyed. The precise court order as written is what is to be enforced and not any amplification of the order by reference to the history of the litigation or knowledge of the other provisions in the constitution apart from Section 50 (1) (a) as the learned judge did in spelling out the meaning of the order, said Justice Edwards.

She found that for the order to be enforceable it should have been couched in language which conveyed that it was prohibiting at least the use of the report in terms of the Governor General submitting the report with his draft proclamation to the Prime Minister and or the Prime Minister laying the report with the Governor General’s draft Proclamation before the National Assembly.

“The absence of clarity in the injunctive order would by itself cause it to be unenforceable. The learned judge erred when she found that the “order was not so vague and uncertain as to be rendered meaningless.”

She noted that Justice Joseph-Olivetti made several references in her judgement that the Attorney General gave no evidence, pointing out that considering the nature of the contempt, Dr. Merchant was entitled to the presumption of innocence and Mr. Richards had the burden of proving the appellant guilty beyond a reasonable doubt. “The appellant therefore had an absolute right not to appear as a witness,” wrote Justice Edwards, concurring with justice Gordon’s reasoning and conclusions.

Peoples Action Movement (PAM) Parliamentary Representative, Hon. Shawn K. Richards filed the civil suit charging that the Attorney General Hon. Dennis Merchant “had advised the Prime Minister, the Parliament and or the Cabinet and aided and abetted the Prime Minister in violating the terms of the court order dated July 8th 2009.”

Senior Counsel Anthony Astphan, SC; Dr. Henry Browne, Mr. Sylvester Anthony and Mr. Arudranauth Gossai appeared for the Attorney General; Dr. the Hon. Kenny Anthony and Mr. Arudranauth Gossai for the Constituency Boundaries Commission; Ms. Mia Mottley, Q.C; Mr. Leslie Haynes QC; Ms. Kamla Persad-Bissessar; Ms. Constance Mitcham and Mr. DeLara Macclure Taylor for the Hon. Shawn Richards.

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