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Answering CJ Smellie: “neither tradition nor religion could form the ‘rational basis for a law’”

Answering CJ Smellie: “neither tradition nor religion could form the ‘rational basis for a law’”


Is our God-fearing, Christian “tradition” outdated,  oppressive and irrational?

BRADES, Montserrat, April 6, 2019 –  In trying to establish what has been called “same-sex marriage”[1]  Cayman Islands Chief Justice Anthony Smellie, QC reportedly held[2] that  many inequities have existed in the name of tradition but neither tradition nor religion could form the “rational basis for a law.”  That is but an inch away from implying that the God-fearing, Christian faith that is the Caribbean’s dominant tradition is inevitably oppressive, outdated, ill-founded and/or irrational. Likewise, the historic legacy of Parliamentary Democracy in the Westminster system[3] with separation of the powers of government – the legislative, the executive and the judiciary – may also seem to be just as outdated. 

Such perceptions will not be left unanswered, even though this requires some fairly challenging steps of thought. Justice Smellie and others have forced the matter.

First, we must answer the attitude that one can tell the truth by the clock: what is old (or old-fashioned) is at best suspect. However, truth is not told by the clock, but by what is sound. Where,  well documented experience – history – is a key means to access what is sound.  Yes, slavery, racism, exploitation, oppression and other age-long painful evils and errors are in our past, but so are the conscience-guided reformation principles and movements that created a legacy of liberty and established constitutional democracy in our region. Where too, the Common Law and the linked Westminster system of Parliamentary Democracy under rule of law are historically anchored, time-tested traditions that build in many centuries of hard-bought experience and sound lessons in liberty and self-government. Failure to recognise, appreciate, acknowledge and respect that is not a credible context for sound reform.

Similarly, the foot of the cliff we fell over because we acted unwisely is not the best foundation for building a better future. For example, if we could go back to 1986 – 88, would we treat the Wadge-Isaacs report on volcano hazards in Montserrat in the same way? What should we have done differently between 1995 and 2003? What are we hearing today that we would be well-advised to heed (but may not take seriously)?

Likewise, it is often fashionable nowadays to denigrate the Christian religion and faith in God, the gospel and scripture. All of these are commonly dismissed as irrelevant, outdated, irrational emotional crutches or even as “fairy tales.” More broadly, “faith” and “reason” are often seen as opposites, so only what is “secular” and “modern” is responsible, sound, scientific, progressive and rational.  However, if we probe almost anything we accept as truth or knowledge (say, A), we will see that it has some sort of basis (say, B). But, why accept B? C, then D etc. We thus come to Agrippa’s three unwelcome alternatives:

[i] an endless (= “infinite”) chain of warrant we cannot complete, vs.

[ii] question-begging circularity, vs.

[iii] accepting a finitely remote, but unprovable start point (= a point of faith). 

Of these the first two fail immediately, forcing us to the third approach. The question we face, then, is not whether we have “a point of faith,” but in what/who and why.

Worse, we have seen many scientific revolutions that overturn older schools of thought – often, one funeral at a time. History has to be regularly updated or even revised. After Kurt Godel,[4] we know that the major axiomatic systems of Mathematics are not utterly certain; even while it is obviously self-evident that 2 + 2 = 4 etc.

Do we then throw up our hands and say, we cannot know anything for sure so we know nothing at all? No, even that is a (self-refuting) knowledge claim: we know that we know nothing. Oops.

Instead, we turn to reasonable, responsible faith. That is, we unavoidably have a “faith-point,” first things that we are willing to trust as credibly true but cannot prove – the “first principles” and “first plausibles” through which our proofs, arguments, knowledge and decisions are built. We may then compare alternative faith-points (“worldviews” is the technical name[5]) on [i] reliably covering the facts, [ii] logical coherence and [iii] explanatory power; towards the “best.”

Where also, there are a few plumb-line, self-evident truths we can use to test our thinking. For instance, it is undeniably true that error exists, which is thus certainly known, though humbling (as, we may err). So, worldviews that suggest that we cannot cross the ugly gap between our inner world of thoughts and how things seem to us and the outer one of how things actually are in themselves, fail.  Similarly,  we can be confident: truth says of what is, that it is; and of what is not, that it is not.  

Likewise, St Paul astutely asked: “even . . . [for a] pipe or harp, except they give a distinction in the sounds, how shall it be known what is piped or harped?” [1 Cor 14:7, KJV.] That is, without clear distinct identity we can neither think nor communicate. A first, inescapably true law of thought: A is A. Where: if A is confounded with what is not-A, there is only needless confusion and chaos.  (Which, should already ring a few warning-bells.)

Of the live worldview options before us, millions can testify that it is not at all unreasonable or irresponsible to trust the inherently good and utterly wise creator God, the veracity of the gospel of Jesus and the life-transforming insights of scripture.

Turning to the scriptures,[6] we meet there the voice of the Creator God, proclaiming the end from the beginning, establishing a covenant people, accurately prophesying the messiah to come hundreds of years ahead of time. A messiah who would be a despised, rejected wounded healer unjustly put to death but rising in triumph and bringing many souls to salvation. In the gospels, we see just such a Messiah,[7] one who was despised and unjustly crucified but rose from the dead with five hundred witnesses who could not be silenced, and now with millions across the Caribbean and world whose lives have been touched for the good by that risen Christ.

It is this same Messiah, Jesus of Nazareth, who taught us:

“Have you never read that he who created them from the beginning made them male and female, and said, ‘for this reason a man shall leave his father and mother and shall be joined inseparably to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh. Therefore, what God has joined together, let no one separate.” [Matt 19:4 – 6, AMP.]

Here, we see “tradition,” “religion,” “history” and the obvious complementarity of the two sexes jointly testifying to what marriage is at root, a law of our morally governed nature that is prior to any human government and its decrees. Therefore, as government did not invent marriage, its officers cannot use the magic of words to “modify” or “update” or “add to” it as they please under colour of law. Government is not God.

Until very recently, this was generally recognised and respected by legislatures and judges alike.  So, given the contrast between an ages old law anchored on the naturally evident creation order that founds stable human society and radical judicial novelties, which should we see as “reasonable,” why?

Now, too, is what is old inevitably suspect, likely to be oppressive, discriminatory, violating of “rights”?  To ask is already to answer: no, we also do not tell good/evil by the clock but by what is right. Marriage, as that which recognises and honourably binds men and women through natural and complementary differences vital to nurturing the next generation is clearly not “discriminatory.”   So, that our laws have hitherto recognised the law of our nature that is literally written into our maleness and femaleness is a reflection of reality, not “oppression.”

To suggest otherwise is blatantly morally unsound and chaotic. As, we are now beginning to see. E


[1] See, TMR https://www.themontserratreporter.com/what-is-marriage/

[2]See https://caymannewsservice.com/2019/03/legalises-gay-marriage/

[3] See http://australianpolitics.com/democracy/key-terms/westminster-system

[4] See https://plato.stanford.edu/entries/goedel-incompleteness/

[5] See https://www.thefreedictionary.com/worldview

[6] See https://www.biblegateway.com/

[7] See http://vimeo.com/17960119

Posted in Columns, Court, De Ole Dawg, Legal, News, Opinions, Regional1 Comment

Gerald elucidates on Redhead

Gerald elucidates on Redhead

Adapted from Radio Montserrat

A local social commentator continued to give a different view following the officially led public celebration of the life of the recently deceased Justice Albert Readhead, who was afforded a ceremonial burial in Antigua and followed up by being further honoured in Montserrat.

Justice Redhead, a long-standing jurist, who has served with the sub-region including Montserrat for over thirty-five years, died in Antigua in March after a period of illness. Claude Gerald, a keen follower of the workings of the law, told ZJBNews that when one becomes a Judge, one has to be prepared, to make social sacrifices.

“You cannot be fraternizing with Tom, Dick and Harry, because you will lose credibility, and you will compromise the judiciary. A judge does not have buddies or partners, except perhaps for his colleagues and maybe his family. Because judgeship is a very hallowed undertaking. So, it’s not about being popular and being in the center of the red of the egg. A judge becomes a hermit and a recluse once he accepts judgeship.

“I want to argue here, that it’s only in that light, that a judge can have the moral courage to do what the law says and make interpretations that are wholesome and to advance the law. That is what is essential.”

Mr. Redhead was given an official funeral by the government of Antigua, which was popularly broadcasted in the region. The government of Monserrat and the local bar joined also. But, Mr. Gerald says that despite all the words spoken at his death, “no one has uttered a word as to just how his Redhead’s actions helped to grow the law.

“How his decisions have made the law stronger. No one spoke of his integrity and his moral courage. It’s all empty talk about how he was a nice man, how he was my friend and how we got along very well,” he said.

“And, let me tell you this,” he concluded, “in our culture, when a man becomes the friend of an official, that official is expected to do the friends bidding. Justice Albert Redhead lived controversially, and died similarly because of his approach of matters before him.”

Justice Redhead was born in Grenada and studied in London, but, after returning to Grenada, moved on and worked in St. Kitts, St. Lucia and Montserrat for over 30 years. He first served in Montserrat in 1985.

Claude Gerald is a social commentator on Montserrat. Ceegee15@hotmail.com.

Posted in Columns, Court, Features, Legal, Local, News, Obituaries, Opinions, Regional0 Comments

Barr-D-Trump-Mueller

The Mueller Report Is Much Worse for Trump Than Barr Let On

https://www.wired.com/

JIM WATSON/Getty Images

If president Donald Trump isn’t guilty of obstruction of justice, who ever could be? Special counsel Robert Mueller’s 448-page report, made public Thursday in redacted form, outlined over nearly half of those pages how the president reacted to and fumed over the Russia probe, seeking to undermine it, curtail it, and even fire the special counsel himself.

AG Barr, President D**** Trump, SC Mueller

The first section of the Mueller report details Russia’s efforts to upend the 2016 presidential campaign, and scrutinizes the many interactions between Trump associates and Russia. But it’s in the second half, which provides a litany of instances in which Trump may have obstructed justice, that the real bombshells await.

‘I’m F***ed’

According to the report, Trump’s reacted to Mueller’s appointment as special counsel in May 2017 as follows: “Oh my god, this is terrible. This is the end of my presidency. I’m fucked.”

And then, as Mueller lays out in sometimes lurid detail, in at least 10 episodes over the ensuing months Trump sought to block or stop that very investigation. He did so even as Mueller doggedly made public the “sweeping and systematic fashion” in which the Russian government attacked the 2016 presidential election, and brought serious criminal charges—and won guilty pleas—from a half-dozen of the president’s top campaign aides.

Little if any of those revelations had made their way into attorney general William Barr’s four-page summary of the Mueller report last month. Even as he correctly summarized that Mueller did not find that Trump’s campaign conspired—distinct from colluding, which the report makes clear—with the Russian government, Barr appears to have misled the public about the severity of the evidence on obstruction of justice. He also misrepresented Mueller’s reasoning for not making a “traditional prosecutorial decision” on the obstruction half of his investigation.

The attorney general has implied that Mueller left that choice to Barr. In truth, the report makes clear that Mueller felt constrained by the Justice Department policy that a sitting president could not be indicted. Don’t mistake lack of prosecution, in other words, for absence of wrongdoing. “If we had confidence after a thorough investigation of the facts that the president did not obstruct justice, we would so state,” Mueller’s report says. “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Mueller then points to Congress, not the attorney general, as the body appropriate to answer the question of obstruction. As Mueller wrote in what seems to be all but a referral for impeachment proceedings, “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balanced and the principle that no person is above the law.”

Low Barr

That the contents of the Mueller report diverges so sharply from Barr’s portrayal has long seemed possible, based on his initial summary and subsequent appearance before Congress. Barr was appointed, after all, after writing a memo casting the Mueller investigation as illegitimate. In the hours leading up to the report’s release, that suspicion increased sharply.

Ninety minutes before the public had a chance to read the report, Barr held an odd and at times curt 22-minute press conference in which he re-summarized his views, presenting an argument that made him sound more like the president’s personal defense attorney rather than the nation’s chief law enforcement officer. “The special counsel found no collusion,” said Barr. “That’s the bottom line.” Barr went on to stress how frustrating the Russia probe was to the president, asking reporters to consider Donald Trump’s emotions and mental state.

Barr further praised Donald Trump for “fully cooperating,” ignoring the president’s refusal to sit for an interview with Mueller’s investigators, along with the fact that Trump tried at least once to fire the special counsel, consistently attacked the legitimacy of the investigation in public, and openly encouraged witnesses not to cooperate. Barr also never mentioned that a half-dozen of the president’s top campaign aides—including the former campaign chairman, deputy campaign chairman, national security advisor, and personal lawyer—have all pleaded guilty to crimes stemming from the probe.

The true scope and implications of Mueller’s work didn’t sink in until over an hour later, when the report itself was posted to the Justice Department’s website. It quickly became clear that the report didn’t line up with the rose-colored glasses with which Barr had presented it over the preceding month.

The contrast was especially stark in the matter of obstruction. The 10 episodes the report details include a Trump lawyer’s attempt attempt to keep national security advisor Michael Flynn from implicating the president, and Trump’s attempts to pressure White House counsel to cover up or stall the investigation of national security advisor Michael Flynn in the opening days of the presidency, and Trump instructing White House counsel Don McGahn to deny that Trump had ever ordered him to fire Mueller. Trump also, the report says, complained that McGahn kept notes of their meetings.

There was, Mueller also concludes, good reason for the president to attempt to obstruct the ongoing FBI probe. “The evidence does suggest indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal or political concerns,” Mueller wrote.

After reading through the numerous episodes, it seems almost nothing short of a miracle that Mueller’s probe appears to have wrapped up on his own terms, though not for lack of effort on Trump’s part to derail it. Instead, Mueller paints a picture of a commander-in-chief who fought back in private and public against the probe, but was ultimately saved from his worst instincts by aides like McGahn, who cooperated extensively with Mueller’s probe and testified for some 30 hours before his team. “The President’s efforts to influence the investigation were mostly unsuccessful,” the report reads, “but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

The Russia Probe

The question of obstruction will rightly take much of the spotlight Thursday. But the Mueller report also clarifies some questions about the Trump campaign and Russia—again offering a corrective to Barr’s enthusiastic exoneration of Trump.

The report’s first volume is a highly detailed and deeply informed investigation of the two-pronged attack by Russia on the 2016 campaign. It encompasses both the information influence operations of the Internet Research Agency and the active cyberthefts and document dumps of the Russian military intelligence agency GRU, funneled through WikiLeaks using the thinly veiled online personalities of DCLeaks and Guccifer 2.0. As Mueller wrote, “The Russian government interfered in the 2016 election in sweeping and systematic fashion.”

In the report’s first 200 pages, Mueller walks through Moscow’s efforts, as well as the various odd instances where Trump campaign officials or Trump aides met with Russian-linked individuals. While none of the interactions between Trump associates and Russians apparently rose to the level of a prosecutable conspiracy, Mueller himself set a high bar for such charges—defining such applicable charges as only arising out of an agreement, tacit or explicit, with the Russian government itself. Mueller was careful to say, though, that the Trump campaign apparently “expected” to benefit from Russia’s help.

Barr had previously quoted in his summary the second half of a single sentence on the first page of Volume I, telling Congress that “the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference efforts.” The full sentence is decidedly more troubling. As Mueller actually wrote: “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference efforts.”

Moreover, Mueller makes clear that part of the reason he couldn’t find a prosecutable conspiracy between the Trump campaign and Russia was because he was stymied by lies, obstruction, and evidence deleted by his investigative targets. “The Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report,” Mueller wrote. In one specific example, Mueller says he was unable to reconcile the purpose of a long-mysterious meeting in the Seychelles because two key figures, campaign chair Paul Manafort and Blackwater founder Erik Prince, had deleted their exchanges about the meeting.

What Happens Next

There were countless moments—some accounted in great detail in the Mueller report—where it seemed that Mueller himself might be axed or his investigation hamstrung, including threats from the president and the still-inexplicable appointment of Matthew Whitaker as the acting attorney general. Yet, in the end, despite all the breathless cable coverage and breaking news headlines, both Mueller and deputy attorney general Rod Rosenstein endured through to the completion of the investigation on Mueller’s own terms. In Barr’s first letter to Congress announcing the end of the probe, he—as legally required to do—explained that there were no significant areas where he or Rosenstein blocked Mueller.

Given the nearly 200 pages of obstruction-related episodes and evidence that Mueller amassed, including confirmation that Trump tried to remove Mueller and gain control of the probe himself, that fact alone seems like a testament to the resiliency of the country’s democratic institutions.

But the report’s release also made clear just how much more investigation there may be still to unfold, even as Mueller himself prepares to wrap up work in the days ahead and return to private life. Mueller has evidently referred at least 14 ongoing investigations onto other prosecutors, including 12 that are redacted in the report to prevent harm to ongoing cases. The other two, which focus on Michael Cohen and former Obama White House counsel Greg Craig, have been publicly known for some time.

And beyond those, House Judiciary Committee chairman Jerry Nadler has already requested that Robert Mueller testify before Congress no later than May 23. Nadler has also said he plans to subpoena for the full, unredacted report, as well as any underlying materials. Which is to say: This is far from over. The long-awaited “Mueller Time” may have come Thursday, but Mueller’s impact will reverberate for some time to come.


More Great WIRED Stories


Garrett M. Graff (@vermontgmg) is a contributing editor for WIRED and the author, among other works, of Mueller’s War, available on Scribd. He can be reached at garrett.graff@gmail.com.

Posted in Crime, Featured, International, Legal, Local, News, Opinions, Politics, Regional0 Comments

webDSC_4710

How this overdone ‘laudation’

by Claude Gerald

This is ridiculous. It’s been overdone. It should never ever been conceived. Redhead is a tiny dot on the map in terms of contribution to growth of the law in this region…

We do not value what is valuable! That is our problem. And our institutions in government behave just like him in acknowledging him.  This hopefully is the last mention of his name in a public fora on Montserrat!

Justice Morley presides over special sitting

To honour Redhead is to dishonor what is moral, decent and proper. The man made a mockery of his role as an impartial adjudicator, imposing his personal views as the law itself, rather than be guided by it. He corrupted the process and sided ahead of time despite evidence.

This man has got a history of impropriety on the bench. Is that what we are celebrating? Notice how politicians in neighbouring Antigua worshiped him? Why you have to ask? What about the deceased ‘Justice’ that attracts such glamour and celebration and praise and adulation?

John Stanley Weeks, Warren Cassell and many others where he injected himself to determine their matters. Questions still persist on his handling of the missing ballots in the 1987 election on Montserrat and the Montserrat Printery where he sided with John Osborn and his lot. His pattern stunk.

We are lauding who is NOT laudable. Anything said about REDHEAD that is worthy is a big stretch of the mind. Notice no other judge who has left this world, not even an officer of the court at the level of a practitioner, anywhere in the Caribbean ever attracted such verbal glow. It is a big laugh but it is not funny at all.

To conceive of this sends the wrong signals to the society on a whole. We should all be thankful that he is not in our lives as a Justice. We should be breathing relief instead. This is all so hypocritical. It is nauseating.

Life is fulfilling without Redhead in our midst. And I wish that his adherents, the Redheadites   of this world could tell him (he lives in their soul) that I was never impressed with his demeanour on the bench, his value system and he devalued and discredited the philosophical virtues and standing of the practice of law. In fact he was a disgrace to decency…. he did what certain interest groups wanted despite what was before him….

Nature rids itself of the no good and the good and accepts their physical bodies in a recycling process for our good.  I wonder if Nature in its perfection could not have pressed the selective button and determine the quality of organisms that returns to its compost heaps. Certain remains need to be screened.  But then Nature is not discriminating in its overall judgments of issues before its courts!

Claude Gerald is a social commentator on Montserrat. Ceegee15@hotmail.com.

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Cayman Islands Chief Justice Smellie tries to redefine marriage, fails

Cayman Islands Chief Justice Smellie tries to redefine marriage, fails


A Special: Part 5

Does a judge have a just power to overturn the specific provisions of a Constitution?

BRADES, Montserrat, March 30, 2019 –  On Friday, March 29, 2019, Cayman Islands Chief Justice Anthony Smellie, QC reportedly ruled[1] that “marriage means the union between two people as one another’s spouses.” In doing so, he tried to establish what has been called “same-sex marriage”[2]; but, at the cost of precipitating[3] a needless, Caribbean-wide – arguably, Commonwealth-wide – constitutional crisis. That’s why the Cayman Government has protested:  “we believe that introducing the entirely new concept of same-sex marriage into the existing Marriage Law goes way beyond any reasonable interpretation of modification or adaptation.” It adds: “[t]his, we believe, might be inconsistent with the separation of powers by trespassing on the constitutional remit of this Legislative Assembly,” and it is appealing the judgement.

This is because Justice Smellie claimed to act under colour of “rights” that have been violated, then dismissed historic or traditional views as prone to “inequities,” further holding that “neither tradition nor religion could form the ‘rational basis for a law’.”  He also (tellingly) asserted that “it was settled case law that the court has the power to make legislation which breaches the constitution.”

Yes, Justice Smellie did plainly say or imply that “the court has the power to make legislation” and – even worse – that such new laws (issued by unelected judges!) can breach provisions of a Constitution. Nor does the claim[4] that “[i]t doesn’t say you can’t add the right of other people to enjoy those rights [of marriage]” change the pivotal fact that one is – by the obvious implications of “add” – amending a Constitution from the judge’s bench. Such, in the teeth of the known democratic intent of both the Legislature and the people of Cayman.

This is dangerous judicial over-reach and must not stand unchallenged. (Indeed, if it is so that “settled case law” backs the judge, it only implies that the danger is even more urgent, more clear and present.)

For, such an imposition threatens the general legitimacy of constitutional democratic government under the rule of law. Indeed, a claim that courts have Constitution-breaching, law-making power is manifestly a serious, anti-democratic judicial over-reach. One, that is obviously in contempt of Parliament, people and Constitution alike. (Indeed, this case may be grounds for establishing that our judges must now be subject to impeachment for contempt of Parliament, people and Constitution.)

But, but, but . . . shouldn’t the judiciary be independent?

Yes, judges are indeed independent. But, not so independent that they – being unelected and not accountable to voters – can strike down and replace actual specific Constitutional provisions as they wish, rather than soundly interpreting and applying the duly established Constitutional law.  In a Constitutional Democracy, for very good reasons, the Constitution is democratically established as the supreme law of the land and it should only be amended or replaced through a proper democratic process. Therefore, judges simply cannot have a legitimate power to unilaterally amend a constitution.

Now, the Cayman Constitution’s Section 14 has already specifically recognised the historic, Creation order based, naturally evident definition of marriage:  “Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.”  Where, no, this historic understanding that marriage is based on the naturally evident, creation order based complementarity of the two sexes is not mere bigotry or rights-violating oppression and discrimination comparable to slavery or racism or other age-long abuses. Such a suggestion[5] in the ruling is outrageous. Frankly, it reflects nothing less than utter contempt for the people of the Caribbean. People who historically suffered enslavement, oppression and racism.

Thus, fail.

For, we must have the rule of law (especially, through Constitutions), not rule of men. Therefore, judges simply cannot be allowed to dismiss inconvenient Constitutional provisions through dictating from the judicial bench by decree under colour of law.

Not even, under colour of “rights.”

Rights are an underlying issue: what is a right?  Let us therefore recall what was already noted[6] in this special series here at TMR:

“A right is a binding, moral claim that one must be respected and protected due to his or her inherent dignity and worth as a human being. Such worth can only come from our being made in God’s image and “endowed with certain unalienable rights.” Rights, that start with “life.” We are morally governed, conscience-guided creatures who have responsible, rational freedom. Clearly, then, to properly claim a right one must first manifestly be in the right.  Indeed, in order to persuade us the FAC expects us to know that we have duties to truth, right reason, prudence, fairness etc. That is, they too understand that we are morally governed creatures. But, such conscience-guided moral government, in the end, has just one credible source: the inherently good, wise, loving creator God.”

Therefore, it is fair comment to point out that those who applauded Justice Smellie’s ruling were inadvertently applauding the destructive subversion, usurpation and undermining of the rule of law through constitutional democracy in the Caribbean and the wider Commonwealth.

The Chinese speak of how a government has a mandate from heaven, which can be lost through folly and failure. That is because governments must be legitimate,[7] they must have what the American founders spoke of as “the consent of the governed.”  A government system that undermines and forfeits such legitimacy loses its “just powers” and so faces growing disaffection and the fatal, spreading contempt of ordinary law abiding people.

That is why it is a lesson of history (paid for with blood again and again), that governments that lose legitimacy become tyrannical as they try to impose increasingly unjust power. Such tyrannies will ultimately fail, but that usually costs rivers of blood.  Also, as certain neighbouring Caribbean countries show, there is no guarantee that a replacement will be an improvement.

Instead, let us carefully ponder how Jefferson, Adams, Franklin, Washington and the other American founders warned us all, on July 4, 1776:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Chief Justice Anthony Smellie, fail.  Fail, through judicial over-reach. Fail, through not understanding that to properly claim a right, one must manifestly be in the right; on pain of trying to compel others to taint conscience, ignore sound moral principle and support one in evil. Fail, through not recognising that reason itself is inescapably morally governed and that moral government therefore traces to the inherently good and wise Moral Governor of the universe, our Creator. We must do better as a region.


[1]See https://caymannewsservice.com/2019/03/legalises-gay-marriage/

[2] See, TMR https://www.themontserratreporter.com/what-is-marriage/

[3] See KY Gov’t http://www.gov.ky/portal/page/portal/otphome/announcements/statement-on-same-sex-marriage-ruling?fbclid=IwAR0m5tvwHvjd6ZPen82RAzmd-zA3Y0fVj172KftvDmaI0H3u1SjdWoReDWo

[4] See https://www.caymancompass.com/2019/04/01/the-issue-explained-a-closer-look-at-the-same-sex-marriage-ruling/

[5] See, https://www.caymancompass.com/2019/03/29/chief-justice-rules-same-sex-marriage-is-legal/

[6] See, TMR: https://www.themontserratreporter.com/fac-report-pushes-for-homosexualisation-of-marriage-how-can-montserrat-respond-reasonably-and-responsibly/

[7] See, SEP https://plato.stanford.edu/entries/legitimacy/

Posted in Business/Economy/Banking, Columns, Court, De Ole Dawg, Education, Legal, OECS, Opinions, Regional, UK - Brexit1 Comment

Redhead on the bench in Montserrat - DSC_5880 web

Justice Albert Redhead dies

Some sections of the legal fraternity here and across the Eastern Caribbean are said to in mourning at the news of the death of retired Justice Albert Redhead who died on March 4 after a brief period of illness in Antigua.

Justice on the bench in Montserrat

He has been referred to as a “powerhouse’ while Justice Keith Thom, the husband of Justice Gertel Thom who sat with Justice Redhead on the bench to officially mark in Montserrat, said of Justice Redhead a former colleague was a ‘legal giant’.

“He was my mentor and my friend. I recall the days when I appeared before him as a prosecutor. Every day was a learning experience,” he said, adding that he was happy he was able to express his love and respect directly to Justice Redhead when he was alive.

According to the Antigua Daily Observer, there have been similar sentiments expressed as tributes poured in throughout the Organisation of Eastern Caribbean States (OECS) Bar Association.

Justice Redhead has served throughout the OECS region. He was called to the bar of England and Wales in 1972 and two years later he moved to Saint Kitts and Nevis where he began working as a Crown Counsel. He moved on to being Registrar of the High Court and also served as a magistrate of the courts. In 1980 he became the Director of Public Prosecutions for Saint Kitts and Nevis, before moving on to becoming a High Court Judge of the Eastern Caribbean Supreme Court ECSC in 1985.

In 1997 he became an Appeals Court Judge of the same court, serving often in Montserrat, retiring in 2003 but was re-appointed more than once thereafter to act as a judge in the High Court in several countries in the OECS.

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Attorney Warren Cassell

Brandt’s trial wavers

Brandt addressing court at Justice
Redhead’s retirement

Attorney-at-Law David S. Brandt, a former chief minister of Montserrat was arrested and charged on Monday, September 21, 2015, on sexually related charges allegedly involving minors dating back to 2010, has had several legal interventions through the appellate courts.

Now on new and or adjusted charges, the news is that new Justice Garret Evans has decided that the trial will take place in June or early July this year.

But, there arose seemingly new problems which suggest a trial may not take place on the matters.

As recorded earlier, “The man known as ‘the man of the people’ and still popularly referred to politically as, ‘The Heavy Roller’ is second to former Premier Reuben T Meade who served for 25 years non-stop from 1991 – 2014, and he for 23 years as the longest serving legislators in Montserrat alive…”

The new dispute is that the prosecution had allegedly told the court that Mr. Brandt would not receive a fair trial in Montserrat and ask that the matter be transferred to another jurisdiction, creating a problem for the trial taking place at all. Mr. Oris Sullivan, Director of Public Prosecution (DPP) in Montserrat disputes the information and according to reports has told ZJB News that the decision made by Justice Evans for the trial to proceed, was based on the eight counts on which Mr Brandt is being charged including exploitation of girls under the age of 18 years.”  

Mr. Sullivan has said: “…that Mr Brandt is capable of having a fair trial in Montserrat. In fact Justice Evans has ruled that having regard of the evidence before him that Mr Brandt is capable of having a fair trial on Montserrat.”

DPP Oris Sullivan

Sullivan said he is responding to “all sorts of rumours or statements that the crown raise the issue that Mr. Brandt is incapable of getting a fair trial,” citing that as being the issue on the matter.

“Of course the issue was raised…before the court. Let me set the records straight and say the crown did not raise that issue before the court,” Sullivan says, explaining: “The issue the crown raised before the court was to bring the courts attention to the fact that Mr. Brandt is a very influential person and the selection of a jury might prove difficult in those circumstances. We are always of the view that Mr. Brandt will get a fair trial in Montserrat. He is not the only high profiled person to be tried on Montserrat.”

Attorney Warren Cassell

But, Attorney Warren Cassell, who contends he is not a member of Brandt’s defence team as reported, has expressed surprise at the DPP’s utterings. “I was pretty much surprised to hear the DPP on radio saying that they always thought that Mr. Brandt could get a fair trial in Montserrat, he says.

“In fact on the tenth day of January 2018,” Cassell continues, “the said DPP and his cohorts to include Annesta Weekes QC (who is the lead prosecutor in the matters) made an application to the court to transfer the trial to another jurisdiction, and in their submission they said, and I am quoting from it, I have a copy, and it is date stamped, ‘filed in the in the court – (it says) “we submit that it is not possible to ensure a fair trial of this defendant if a jury in Montserrat is empanelled…”

“So as a minister of justice,” Cassell concludes, “he is misleading the public to now come and say that it was always their contention that Mr. Brandt can get a fair trial.”

Earlier Cassell had expressed the view that since the prosecution had said Brandt could not get a fair trial in Montserrat, with the defence agreeing, and that according to him there being no legal provision for such matter to be heard except in front of his peers as the law requires, there can then be no trial.

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Legal witnesses  testify in parliamentary disqualification trial of opposition leader

Legal witnesses testify in parliamentary disqualification trial of opposition leader

by STAFF WRITER

BASSETERRE, St. Kitts, Jan. 10, CMC – The case brought against the Leader of the Opposition, Dr. Denzil Douglas, continued in court Thursday with three expert witnesses on Dominican law making presentations before  Justice Trevor Ward QC to help him determine whether Douglas, through his use of a diplomatic passport issued by the Commonwealth of Dominica, is under allegiance to a foreign power.

The expert witnesses provided by the Government were  Reginald Armour and Justin Simon, former Attorney General of Antigua and Barbuda. 

Dr. Denzil Douglas

Both men, who are are Dominican   attempted to show that   Douglas  demonstrated his allegiance to the Commonwealth of Dominica when he travelled on his Dominican diplomatic passport.

The lone expert provided by the defendant was Attorney-at-Law,   Gerald Burton, also a Dominican.

Douglas, in an affidavit filed in the High Court Registry on February 21, 2018, admitted to holding a diplomatic passport of the Commonwealth of Dominica, which he has used to travel. 

He also admitted to filling out and signing an application form for the diplomatic passport he holds, which is valid until July 29, 2020.

The opposition leader has argued that he has not sworn an allegiance, taken an oath of allegiance, nor become a citizen of Dominica.

However, the Attorney General’s Chamber is arguing that  Douglas is in violation of Section 28 of the Constitution after filling out an application form for a passport of another country, being issued with said passport and using that passport to travel, which are positive acts that constitute adherence, allegiance and obedience to a foreign power.

The St. Kitts-Nevis government, through the Attorney General, Vincent Byron, is seeking a declaration from the High Court that, since the election to the National Assembly on February 16, 2015, Douglas became disqualified from being elected as a member of the National Assembly and was accordingly required to vacate his seat in the National Assembly by reason of his becoming a person who, by virtue of his own act, is in accordance with the law of Dominica, under an acknowledgment of allegiance, obedience or adherence to a foreign power or state, namely, Dominica.

Additionally, the government is also seeking a declaration that Douglas has vacated his seat in the National Assembly; an injunction restraining him from taking his seat in the National Assembly and from performing his functions as a member as well as costs, and other relief as the court may deem just and expedient.

Meanwhile,  Anthony Astaphan, lead counsel for Douglas in the Dominica Diplomatic Passport case said  the legal matter   “is a simple one.” “This Diplomatic Passport was given to Dr. Douglas as a matter of professionalism and personal courtesy (by the Prime Minister of Dominica, Hon. Roosevelt Skerrit). He applied for it as required under the regulations. He did not declare a citizenship of Dominica at no time, even when he travelled on his regular passport or on the Diplomatic Passport. His nationality was always declared as that of St. Kitts and Nevis or a Kittitian,”  Astaphan told reporters.

Prime Minister Dr Timothy Harris has described the matter of one of grave constitutional, political and parliamentary significance to the Commonwealth.

Both sides have until January 25 to submit written submissions based on evidence that was presented in court on Thursday, after which the lawyers will have until February 4 to respond, if necessary.

Posted in Business/Economy/Banking, CARICOM, Education, International, Legal, Local, News, OECS, Politics, Regional0 Comments

dbs

Caribbean Court of Justice rules in favour of dismissed radio station manager

by staff writer

PORT OF SPAIN, Trinidad, Nov 30, CMC– The Trinidad-based Caribbean Court of Justice (CCJ), Friday ruled that the Dominica Broadcasting Corporation (BDC) should pay its former general managerEC$52,000 (One EC dollar=US$0.37 cents) in damages for wrongful termination of her services.

In addition, the CCJ, the island’s highest court, awarded Mariette Warrington costs at the CCJ, estimated atEC$37,800, and prescribed costs in the High Court and Court of Appeal after

The CCJ ruled that Warrington shouldbe paid the equivalent of six months’ salary, gratuity and holiday pay totalling EC$52,3000 as damages. The DBC had paid her one month’s salary and an honorarium when they terminated her, and the High Court and the Court of Appeal had upheld these payments.

In her application before the CCJ, the former general manager had requested payment of her salary for the remaining years of her contract.

However, the CCJ found she had not proved that loss and decided that “Ms. Warrington would have been entitled to the six months’ salary in lieu of notice and this amount is to be regarded in law as agreed liquidated damages”

At the root of this dispute was whether Warrington’s appointment was valid. She had served DBC under two consecutive employment contracts as the general manager which ended in 2008.

However, before the end of the last contract she wrote a letter requesting further employment with the Corporation as general manager “under similar terms and conditions” with an increased salary and protection against arbitrary termination.

DBC never responded to this request and at a board meeting, some months before the contract ended, a decision was taken unanimously to re-appoint her but this decision was never communicated to the former general manager.

The DBC board then decided to advertise the position of general manager and Warrington was the only applicant who applied for the position.

The CCJ heard that the Corporation did not respond to her application and after her contract ended she kept performing the functions as general manager and even wrote to the chairman of the DBC board inquiring about her employment status.

But after 15 months as performing the duties of general manager, in March 2010, she received a letter informing her that she was on a month to month contract and was terminated in the subsequent month.

In her challenge before the High Court and the Court of Appeal, they courts ruled that the purported contract of employment was invalid for non-compliance with the statutory provision that requires the Dominica Broadcasting Corporation’s Board to act on the advice of the Prime Minister in appointing its managers.

The Courts did not regard as significant the fact that, on 17th February 2009, the Board met with the Prime Minister and discussed “the matter” of Warrington’s appointment.

“It is most revealing that neither the Board nor the Minister (of Information) mentioned asking for the Prime Minister’s advice on the selection of Ms. Warrington as Manager. It appears the Board and Minister took it as a given that he approved of her continuing as Manager,” the CCJ noted.

It said that the board minutes bolstered the finding that the issue that engaged the board and the Prime Minister was the length of the contract to give Warrington rather than the Prime Minister’s approval of her continuing in the role. The CCJ found that Ms Warrington’s appointment was therefore valid.

The President of the Court, Justice Saunders, in a concurring judgment, noted that “it was quite inappropriate for the Board, unilaterally and belatedly, to seek to impose a one-month notice period. Apart from its inappropriateness, that period was unreasonably short”.

Posted in CARICOM, Court, Legal, News, Regional0 Comments

David-Brandt

Appeal Court denies two major appeals

Dr Perkins and lawyer Brandt lose their appeals

Dr. Franklin Perkins was adjudicated guilty by a nine-member panel jury on March 1, 2017, following a trial in the allegation that he indecently assaulted a nineteen-year-old female in his private surgery at Cudjoe Head.

Dr Franklin Perkins

Justice Ian Morley in the high court on Monday morning handed down the sentence in March this year, where he was ordered to pay the victim $10,000 within three months in default of which, he would serve a period of six months in jail. In addition, he was given an 18-month suspended prison sentence.

The 67-year-old medical doctor appealed the sentence against his conviction seeking to have the conviction quashed or reduced, insisting that it was a routine medical examination. This week the Appeal Court denied his appeal commenting that he in fact received a light sentence and that the $10,000 compensation was reasonable.

Dr. Perkins had appealed on five grounds which the court rejected.

They were: That the Trial Judge interfered in the case to such an extent that he became another prosecutor in the matter.

That the judge failed to carry out a means test and as a result the $10, 000 compensation awarded by the court was too severe in all circumstances;

That the judge did not properly direct the jury on how to treat with the evidence of the victim’s demeanor;

That the Judge failed to properly direct the jury on recent complaint; and, that the trial judge erred when he failed to allow the accused (Dr. Perkins) to give an unsworn statement from the dock.

At the sentencing, the doctor having denied that he committed the act, insisting that it simply was a routine medical examination, trial judge Justice Morley said he considered the statements given by persons who spoke in support of Dr. Perkins during his sentencing, adding that he also received a letter from some members of the medical fraternity on Montserrat who expressed surprise and disappointment at the guilty verdict.

 Giving an extended account of the case, he stated that this assault on the victim’s reputation and that of her family indicates an undercurrent of racism, sexism and snobbery in the Montserrat society.

Related – see: https://www.themontserratreporter.com/dr-perkins-gets-suspended-prison-sentence-and-victim-compensation-fine/

Brandt loses appeal but hints at taking the matter further to Privy Council

In another high-profile matter before the appeal court this week, Attorney David S. Brandt also lost a five-ground appeal against the decision of the trial judge, Justice Bell, at sufficiency hearing when Justice Bell ruled against him that on the strict construction of the statutes, the prosecution was right to lay the charges.


Attorney David S. Brandt

The lawyer was charged in 2015 with five counts of child sexual exploitation.

He had appealed to the court on the grounds that he was denied the protection of the law as provided for under the Montserrat Constitutional order 2010, the high court judge in his ruling calling the grounds ‘absurd’.

The court of appeal, in handing down the decision Thursday afternoon, was in full agreement with the trial Judge Justice Bell. In dismissing the appeal, the court ordered that the matter be remitted to the trial judge in the high for the continuation of the sufficiency hearing.

The court also asked that counsel provide submissions regarding the costs of the appeal.

However, it is believed that the Attorney will take the matter to the Privy Council convinced that his attorneys are right in their constitutional arguments.

Posted in Court, Crime, Featured, International, Legal, Local, News, Regional0 Comments

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