According to court documents, during the 2009 general elections in Dominica allegations were made that two candidates were citizens of France and held French passports. The allegations against prime minister Roosevelt Skerrit and his education minister Petter St. Jean “were never specifically denied.” The candidates claimed to be entitled to be nominated to run in their respective constituencies. They were in due course nominated to run and were declared duly elected.
The unsuccessful candidates filed petitions alleging Skerrit and St. Jean were disqualified under the Dominica Constitution “due to their holding French passports.” Represented by senior counsel Anthony Astaphan, the respondents filed no defense, produced no witness statements. They also successfully resisted all attempts to compel them to produce their passports and to testify at the hearing of the petitions.
Represented by senior counsel Douglas Mendes, Ron Green and Maynard of the United Workers Party, testified and brought witnesses but were “unable by direct evidence to prove the allegations as to the existence of the alleged French passports.”
The trial judge Justice Gertel Thom “declined to draw inferences from the failures or otherwise of the respondents that would permit the petitions to succeed. She dismissed the petitions.” Green and Maynard appealed.
The trial judge additionally “dismissed the argument of the respondents that the petitioners were obliged to plead and to prove that by virtue of French law the possession by the respondents of French passports amounted to sufficient allegiance, obedience or adherence to a foreign state to disqualify the respondents. The respondents counter appealed.”
Dismissing the appeals, allowing the respondents’ counter-notice in respect of only the foreign law issue the Eastern Caribbean Supreme Court (Chief Justice Janice Pereira and Justices Mario Michel and Don Mitchell [AG] dissenting), and making no order to costs, that:
“The rules governing election petitions in the Commonwealth of Dominica are those found in the Elections Act. There are no statutory provisions applying the Civil Procedure Rules 200 to the hearing of election petitions nor has the court the inherent jurisdiction to introduce the interlocutory procedures in the Civil Procedure Rules 2000 into election petitions. Petitioners making specific allegations in their election petitions about the existence of a disqualification must bring the appropriate evidence to prove their allegations.
“The judge having found that there was no direct evidence of the allegations of disqualifications made in the petitions, she was entitled to dismiss the petitions. Before a court hearing an election petition can draw an adverse inference from the absence or silence of a witness there must be a prima face case to answer on the issues.
“The burden was on the appellants to have brought the necessary evidence before the court to prove that under the law of France, the respondents being in possession of French passports was an act which amounted to an acknowledgement of allegiance, obedience or adherence to the state of France. It was necessary to plead and produce evidence which would prove the principles of foreign law which would disqualify the respondents under section 32 (1a) of the Constitution of the Commonwealth of Dominica.”
According the ECSC decision: “The argument in this appeal raised two conflicting public interest issues. The first is the constitutional requirement that every trial should be fair. The denial of access to evidence is generally accepted to constitute a denial of the right of access to the court. Interlocutory procedures have been developed under rules of the court to ensure this objective of fairness.
“The second issue that conflicts with the first is the repeatedly stated requirement that election petitions must be dealt with promptly. It is in the public interest to know with certainty fairly soon after the conclusion of elections which candidates have been elected and which party has the necessary majority to form the government.
“Election petitions are of a special nature. There is a clear distinction between the election jurisdiction of the court created by parliament by a law intended to determine election matters, and the jurisdiction of the court under section 16 of the Constitution to determine constitutional issues. Very different rules apply in the election jurisdiction than do within the constitutional or ordinary civil jurisdiction of the court.
“The lack of election petition rules, or a statutory provision incorporating the normal civil procedure rules in the election petition process, sometimes gives rise to the uncertainty as to the correct procedure to be followed. Interminable interlocutory process might lead to a fairer and more transparent hearing, but might on the other hand cause an undesirable delay in establishing a new government after a general election. Until the necessary election petition rules are made under the Elections Act, or there is a statutory provision incorporating the Civil Procedure Rules, there can be no reliance placed on Civil Procedure Rules 2000 to supplement the rules found in the Elections Act itself and to introduce into election petition proceedings the interlocutory proceedings for civil trials found in those rules.”
Both appeal and counter appeal were dismissed. Observed acting Justice of Appeal Don Mitchell, “For the reason given by the learned judge in her judgment, viz, the great national importance of the matter, I would not make any order as to costs of the appeal.”