By *Jomo Thomas
A legal slugging match is on the way in the High Court in Kingstown. Presided over by Justice Gertel Thom, the case, which will determine, in the short term, the political fate of Prime Minister Godwin Friday and Foreign Minister Fitzgerald Bramble, is probably the most consequential constitutional challenge since independence in 1979. The only other matter that comes close is the vaccine mandate case, which is working its way to the Privy Council in England.
At its core, the case will decide what it means to bear allegiance to a foreign power. By their own admission, PM Friday and Mr Bramble hold Canadian citizenship. Luke Browne and Carlos Williams, the Unity Labour Party’s candidates in the 2025 elections, contend that both men are ineligible to be nominated and/or elected to the parliament of St Vincent and the Grenadines and are asking the court to find their election unconstitutional.
This is a high-drama trial with plenty at stake. Two of the most prominent members of the NDP government, who convincingly won their seats in last November’s elections, could be ejected from Parliament if the petitions succeed.
About 10 lawyers represent the parties. The petitioners’ legal team is led by Stuart Young, the lawyer/politician and former prime minister of Trinidad and Tobago, while Anand Ramlogan, a former attorney general of Trinidad and Tobago, leads the respondents’ team. Both men are experienced senior counsel with extensive trial experience. A senior counsel in a republic is the equivalent of a King’s Counsel.
The trial, which began on Tuesday and was allotted three days, is expected to take longer. The petitioners’ case was not completed by the end of Wednesday’s sitting. The respondents’ case is yet to come.
At the beginning of Tuesday, Ramlogan channelled his team’s intended direction. He indicated to Justice Thom that he wanted to raise a point in limine, which is essentially a preliminary point of substance that could derail the entire proceeding. The point was that the petitioners failed to present evidence that supported their pleaded case. There is a maxim in law that she who alleges must prove, and the respondents’ point is that, on the evidence before the court, the petitioners’ case must fail.
However, Justice Thom refused to allow the motion in limine without making a determination on its viability. She declared her preference was to hear the evidence and then allow the respondents to pursue the point once the petitioners’ evidence was completely before the court.
And so it went with Carlos Williams, Friday’s challenger, who garnered all but 365 votes, followed by Luke Browne, whom Bramble defeated by 1,001 votes.
Both Browne and Williams have maintained that the margins of defeat are of no moment since they carried out a vigorous campaign to alert the electorate that a vote for Friday and Bramble will amount to a wasted vote. Four other witnesses for the petitioners testified that they distributed, posted or caused to be distributed posters to inform and caution the electorate of the Northern Grenadines and East Kingstown about the dangers of voting for Friday and Bramble.
Two of the petitioners’ witnesses stumbled during their testimony. One used a word in his affidavit that he did not know the meaning of, while the other witness, when asked to read parts of his statement, had some difficulty doing so. The discomfort/embarrassment experienced by both witnesses must be attributed to the attorneys who drafted the statements. Judges have repeatedly warned attorneys that statements from witnesses must be in language the witness is familiar with and understands.
And then the matter got testy and truly adversarial. The petitioners’ lead counsel, Stuart Young, called his expert witness and indicated that he wanted the witness to amplify her expert evidence, which was contained in her affidavit and/or to comment on the evidence of the respondents’ expert’s report.
Ramlogan forcefully objected. Channelling much of what he proposed in the motion in limine, he presented two major assaults on what the petitioners were attempting to do.
Firstly, he argued that what the expert presented in her affidavit was not an expert report but rather a restatement of the law and the requirements for persons who acquired a Canadian passport or Canadian citizenship, with no expert comment on their implications. He noted that this was precisely why he wanted to make the motion in limine because there was no evidence before the court that supported the petitioners’ pleaded case. He told the court that, since there was no expert evidence before it, there was nothing for the expert to amplify.
His second point was that allowing the petitioners’ expert to comment on the respondents’ expert report would be unfair to the respondents, as it would, for the first time, allow the petitioners to place expert comments and evidence before the court, which they were not entitled to do. He maintained that allowing amplification and/or comment would be to provide the petitioners a second “bite of the apple” when the time to do so had passed.
Young dismissed Ramlogan’s argument that the petitioners failed to support their pleaded case. He argued that the petitioners’ expert’s affidavit met the threshold required by law. He noted that while the report did not say that my opinion was this or the other, that did not mean it fell short of the requirements of the law.
On the issue of the petitioners’ expert being allowed to comment on the respondents’ report, he noted that commenting on an opponent’s witness statements and affidavits is well established in law.
The arguments became technical and legal, with citations to decisions from across the region and beyond. Much of the legal argument was potentially beyond the comprehension of many people in the courtroom.
By the time this article is published, Justice Thom would have decided whether to allow the Petitioners’ expert to testify and be subjected to cross-examination.
At this junction, we can be sure that the party that loses will appeal to have the Justice Thom’s decision reviewed.
*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former Speaker of the House of Assembly in St. Vincent and the Grenadines.
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