The Registrar of the High Court is said to be investigating how 12 matters came to be listed for hearing by Justice Esco Henry this week — a week which had been dedicated to the hearing of the two petitions challenging the results of the December 2015 general elections in St. Vincent and the Grenadines.
Because of the list, Justice Henry, on Tuesday, recused herself from hearing the petitions, four days after she granted an application that the hearing be postponed to Feb. 11, 2019.
Benjamin Exeter and Lauron “Sharer” Baptiste of the main opposition New Democratic Party (NDP) are challenging the announced victories of Sir Louis Straker and Montgomery Daniel, of the ruling Unity Labour Party (ULP), in Central Leeward and North Windward.
The ULP won the general election by an 8-7 margin, giving it a fourth consecutive term in office.
Kay Bacchus-Baptiste, one of the lawyers for Exeter and Baptiste on Tuesday used the NDP’s “New Times” programme on NICE Radio to apprise listeners of the development.
Bacchus-Baptiste, who is also an NDP senator, said that on Monday, Justice Henry had summoned to appear before her on Tuesday (today), all lawyers in matters listed for Monday, Tuesday, and Wednesday of this week.
She said the lawyers in the petitions had been summoned also, although Justice Henry had, on Friday, granted an application by Carlos James, the junior lawyer for Sir Louis and Daniel, to postpone this week’s hearing in the petitions because the senior lawyer, Grahame Bollers was unwell.
After hearing the application, which the lawyers for Exeter and Baptiste opposed, the judge adjourned the hearing of oral evidence to Feb. 11, 2019 and ordered that Sir Louis and Daniel find new counsel within two weeks.
Bacchus-Baptiste said lawyers did not know why the judge had summoned them to appear before her today.
“When we got there this morning, she said that she realised that there were several matters set down, in fact, 12 in all, for hearing during yesterday, today and tomorrow, DV, which disturbed her because it could be perceived by the public that she knew beforehand that the matters, the petitions, were not going on and that’s why matters were set down,” Bacchus-Baptiste said.
The lawyer said this is something that did not occur to her as she, too, had matters listed to be heard on Dec. 5 and 7 “and several other lawyers had matters set down”.
Bacchus-Baptiste said Justice Henry told the summoned lawyers that she did not know how those fixtures were made and the registry is looking into it.
Lawyers on both sides of the petition case thought that Justice Henry had taken the correct step “so that the public would know that she herself was not aware that the fixtures were made and that she had brought it to our attention and we had no problem, we think she had done the right thing and there was no further step to be taken,” Bacchus-Baptiste said.
Bacchus-Baptiste said that Justice Henry cited the oft-quoted case in which a judge had said that justice must not only be done but must also be seen to have been done.
She said the judge said her career could be affected if it appears that she had set down matters for hearing during the week that the petitions should have been heard, and had also adjourned the petitions ahead of the scheduled hearing.
“…it would look as though she had foreknowledge and based upon that fact, she recused herself from hearing anything else to do with the petitions,” Bacchus-Baptiste said.
She said that lawyers in the petitions felt that it was not necessary for her to recuse herself.
“… we said that we understood that a mistake was made, obviously, by the Registry, and we didn’t think that she had to go that far and take that step. But, obviously, she was still concerned and the fact is that she did recuse herself,” Bacchus-Baptiste said.
New judge needed
The lawyer said this means there is now no judge assigned to hear the petitions case.
The development comes three years after the petitions were filed and 18 months after the Court of Appeal reinstated them and ordered that they be heard “expeditiously”.
“It means that there is no judge now hearing the case and where the Court of Appeal said that these matters should be heard expeditiously, it is putting that again, in jeopardy because, again, a new judge has to be appointed who has to get up-to-date with copious amount of documents, submissions and filings and evidence and so, something has to be done immediately to put someone competent to hear this matter because we do not want the date of 11 February to be vacated again.”
She said her “great concern” is how the 12 matters came to be listed for hearing this week.
“They did not list themselves but the matters were listed. Not one, not two, not three, but 12 matters during a week when the petitions should have been heard, when it was well known that that was supposed to be the case. Maybe one or two could have been an oversight but 12 is very questionable,” Bacchus-Baptiste said, adding that Justice Henry said that the Registrar is investigating.
“… the result of it, whatever, whosever fault it is, is that the petitions … [are] now in jeopardy of having a judge, a competent judge to hear them. That’s the position so far.”
Bacchus-Baptiste, said she wanted to be very careful about what she says “because I ought to be responsible, as I am, generally.
“But I am human and I do have certain feelings. To my mind, these petitions are bothering the government. That’s a fact and I myself was very disturbed when I got the application filed by Mr. Bollers to adjourn them on account of his health. I had my own misgivings…”
The lawyer noted she said in court last Friday that she empathised and sympathised with Bollers but did not think his illness was enough for this week’s hearing to be postponed.
“… I said so because they have seven more competent lawyers still to try these matters; lawyers who have been doing the work before. And, generally speaking, Mr. Bollers usually just adopts the submissions made by his other colleagues, especially [Senior counsel Anthony] Astaphan and [Douglas] Mendes.”
Bacchus-Baptiste said her concern surrounding the listing of the other matters for this week, when the petitions should have been heard, is even greater because of the judge’s reason for recusing herself.
The petitioners are challenging the announced election of Member of Parliament for Central Leeward, Sir Louis Straker, left, and MP for North Windward, Montgomery Daniel. (iWN file photo)Way forward for petitioners
She said the way forward for the NDP is that the party will have to ensure now that the Chief Justice will appoint someone who is very versed in election matters.
“… because, as you know, they are highly specialised matters, but, nevertheless, Justice Henry was able to get up to speed to hear it,” Bacchus-Baptiste said.
She added: “I don’t know how many such matters Justice [Brian] Cottle would have heard. So there is precedence that a judge can become up to speed with it, but it would need to be done immediately so that that Feb. 11 date is not vacated.”
In March 2017, the Court of Appeal overturned Justice Cottle’s June 2016 decision to dismiss the petitions as improperly before the court.
Commenting on the delay in having the petitions disposed of, Bacchus-Baptiste said:
“It is too important for democracy and the petitioners, despite what you may hear Astaphan on the radio saying, they are very worried by these petitions and for good reason, because our case on the bad design of the ballots, on the void ballots that were counted and on the secrecy is very strong. They cannot overcome those matters. So they are very worried. The outcome of it is that we now have to look for a new judge to hear our case, hopefully in February.”