Lead judge in vaccine mandate appeal ruling under scrutiny  

The validity of the government’s appeal court win in the “Vaccine Mandate Case” is in question amidst a challenge to Justice of Appeal Eddy Ventose’s appointment as a justice of appeal.

Justice Ventose wrote the 2-1 majority verdict handed down on Feb. 12, overturning the March 2023 decision of then-High Court judge Esco Henry, now an appeal judge, declaring the mandate illegal.

Justice of Appeal Paul Webster agreed with Ventose, while Justice of Appeal Gerhard Wallbank wrote a dissenting judgment, saying he would have dismissed the government’s appeal.

However, on Wednesday, a commentary by Mark A. G. Brantley, premier of Nevis and leader of the opposition of St. Kitts and Nevis, flagged the issue, two weeks after Anthony Astaphan, the lead lawyer for the government in the Vaccine Mandate Case, said the outcome of the challenge to Ventose’s appointment would have no bearing on his Court of Appeal ruling.

In December, former Attorney General of Grenada James A.L. Bristol KC, brought a legal challenge before the Eastern Caribbean Supreme Court seeking judicial review of the Judicial and Legal Services Commission (JLSC) appointment of Ventose as a justice of appeal.

Bristol is asking the High Court to quash Ventose’s appointment, arguing that Ventose did not meet the qualifications for his appointment as a justice of appeal as prescribed by Section 5 of the Courts Order.

He said that when Ventose was appointed on Jan. 8, 2024, “he had not been a judge for the period of five years as required by Section 5(2) (a)(i) of the Courts Order; nor was he qualified to practice as an advocate and had practised as an advocate for less than 15 years as required by Section 5(2) (a)(li) of the Courts Order”.

Bristol said that the JLSC was empowered by Regulation 8 of the JLSC Regulations to consider only persons “eligible” for the appointment and failed to consider the Ventose’s qualifications as mandated by the said regulation.

“The Defendant acted outside its jurisdiction in making the Appointment,” Bristol said in his claim form.

On Feb. 16, four days after the Appeal Court’s decision in the vaccine case, Astaphan was asked on WE FM about the implications of the outcome of the challenge to Ventose’s appointment.

“I give you the same response I’ve given in the past when I’ve been contacted about that. I don’t know about it. It’s a matter that’s before the court. I do not want to say anything that may prejudice the hearing of the case for people to say I say,” Astaphan said.

“I leave it to the good judge to make the decision that’s in his best interest, the best interest of the court. And if he intends to fight it, I think that’s his right. If he wants to step down, that’s a matter for him. But based on my understanding, the integrity of his judgments would not be affected. That’s all I’m prepared to say at this time,” Astaphan said.

When asked further about the matter, Astaphan said:

“I don’t intend to discuss this case at all. … it’s been discussed with me professionally — or should I put it with colleagues of mine, privately. But I don’t intend to discuss that case publicly at all.”

On Thursday, Jomo Thomas, a lawyer for the claimants in the Vaccine Mandate Case, told iWitness News that he would rather not comment on the issue.

“To the extent that it is a matter before the court, I have no comment one way or the other except to say we believe in the rule of law and let the law take its course,” Thomas said.

St. Kitts Opposition Leader ‘very troubled’

Meanwhile, in his commentary on Wednesday, headlined “The Appearance of Justice is as Important as Justice Itself”, Brantley said he had been “very troubled” by the development.

“The claim doesn’t trouble me because it was brought. The fact that it was brought is testament to our belief in the rule of law and our confidence in the administration and administrators of justice in our region,” Brantley said.

“The case troubles me because since its filing, Justice of Appeal Eddy Ventose has continued to sit as a member of the Court of Appeal in the various jurisdictions of the OECS without apparent let or hindrance.”

He noted that Ventose delivered the leading judgment in the Vaccine Mandate Case and other cases across the region.

Brantley said his commentary was not intended to assess the merits or otherwise of the claim against Ventose.

“If the Court ultimately finds that Mr. Ventose was properly appointed, then that is an end of the matter. My concern at this point however is what if the Court finds otherwise?” Brantley said.

“Put bluntly, what would be the effect on the administration of justice in the OECS if the Court were to find that Mr Ventose was not qualified and therefore improperly appointed to the Court of Appeal?

“And if that is a live consideration and possibility (as it must be in contested litigation) then why is the administration of justice in the OECS not safeguarding itself from any possible negative fallout flowing from that possibility?

“I wonder aloud for example what would be the status of decisions from the Court of Appeal where Justice of Appeal Ventose presided? What would be the status of decisions from the Court of Appeal where Justice of Appeal Ventose was a member of the panel especially if those decisions were not unanimous?

“And if in unanimous decisions of the Court of Appeal what would be the status of such decisions if the panel was tainted with unqualified membership? What would be the position where the decision of the Court was that of Justice of Appeal Ventose with whom other members of the panel concurred?

“What does the possible uncertainty do to litigants who come to seek justice and to commercial interests that look to the Court for guidance, reliability and predictability of outcomes? But even more fundamentally to the rule of law in the sub region, how will this all look to that man on the Charlestown omnibus or that woman in the Castries market?”

Brantley said that if the intention is to avoid any controversy or appearance of controversy, “then on one view it is open to Justice of Appeal Ventose to voluntarily step aside until the judicial review proceedings are concluded.

“Indeed I would argue that that is the type of temperament and level of self awareness that our judicial officers must have as they too must be concerned that justice not only be done but that it manifestly be seen to be done.”

He said this applies to matters in which judicial offers are asked to adjudicate “and even more so in matters where the adjudication directly involves them.

“It may also be possible for the Judicial and Legal Services Commission or the Chief Justice to request that Justice of Appeal Ventose step aside from sitting as a Court of Appeal Judge or decline from scheduling him to so sit pending the adjudication and conclusion of this matter.

“Again that would demonstrate that the perception of the rule of law which is so critical to the continued respect for the rule of law is given paramountcy.

 “What I believe is not acceptable is that those charged with upholding this critical foundation of our OECS States continue to act as if all is well and that there is nothing to worry about. In all that we say and do, we must never ever forget that the appearance of justice is as important as justice itself,” Brantley said.