KINGSTOWN, St. Vincent – The case regarding the private criminal complaints against Prime Minister Dr. Ralph Gonsalves will test the constitutionally of the law under which the complaints were filed and could reach the London-based Privy Council, the highest court for such matters.
“I have serious questions about the constitutionality of that legislations,” Anthony Astaphan, a member of Gonsalves’ legal team said Thursday.
The complaints by New Democratic Party (NDP) senator, Vynnette Frederick relate to a statement by Gonsalves that Frederick’s father “send a daughter to study law, and came back and get a son, … a tomboy”.
Frederick’s lawyers are arguing that Gonsalves was referring to their client’s sexual orientation and this affected her performance in the Dec. 13 general election.
Frederick’s complaints were filed under the Representation of the People Act (RPA). Anyone convicted of an offence under the RPA is barred from voting or being a member of the House of Assembly for five years.
“I have serious questions about the constitutionality of that legislations. Let’s forget now the question of freedom of expression, which is a very debatable issues,” Astaphan said.
He said that the Constitution gives Parliament the exclusive power to make laws for regulating and challenging elections results and those laws say election petitions must be filed within 21 days are the polls.
“It is my firm view that the offences under the criminal code that says if somebody is prosecuted for making a false statement of fact … [that that] could lead to disqualification of an elected member is something that we have to look at very seriously,” he further stated.
“My point is that if you are going to institute proceedings after 21 days, to seek to set aside an election, there is a conflict between the Criminal Code and the Representation of the People Act that is going to have to be settled by the High Court and the Court of Appeal, perhaps, even the Privy Council in St. Vincent and the Grenadines before this matter with Frederick and statements of the Prime Minister is going to be settled,” said Astaphan, a Dominica-born senior counsel.
“So, that may well be another thousand-step march towards the conclusion of this thing,” he said.
Lawyers for the Chief Magistrate have appeal the ruling of High Court judge Justice Gertel Thom who, in the Nov. 15 judgement, dismissed the Chief Magistrate’s applications to set aside without notice orders granting Frederick leave to seek judicial review against her refusal to issue summons against Gonsalves.
Astaphan, speaking before the appeal was filed, said there are three “thousand-step” marches: in relation to the judicial review process; in relation to whether the matter is determined by the Chief Magistrate; and, “concerning the Constitutionality and legality of the provision and more specifically, … whether or not you can institute proceedings after 21 days to set aside the election of an elected member …
“These criminal charges were filed well after the 21 days and it … was a deliberate strategy on the part of the NDP to allow … [to] by-pass the rigours and stricture of the election jurisdiction of the election court and to rely instead on the summary jurisdiction of a magistrate’s court,” Astaphan said.
“And that is the subject that we are going to seriously contest. … So any celebration is wholly and absolutely premature at best,” he said of the ruling, which, before the appeal, would have seen Gonsalves in court on Nov. 30.
“Our courts have made it very clear that politicians should not come to the court in order to overturn the will of the people in any election unless there is clear, convincing evidence of corruption or that the election was not free and fair.
“And the idea that the NDP could be rejected by the people of St. Vincent and the Grenadines in emphatic terms — and especially in the constituency of Dr. Gonsalves — and seek to overturn the will of the people by relying on what is clearly an historical and out-dated provision, in so far as you can come after 21 days and seek to rely on the magistrate’s court as oppose to the election court to set aside the election of somebody is something that we take very seriously.
“And we are not going to allow the NDP to hijack the democratic process by seeking other means of overturning the will of the people,” Astaphan said.