My response to ‘An Analysis of the R.P.A.’ by Parnell Campbell

by: Kay Bacchus – Browne 04.MAR.11

Introduction:

I must question Mr. P.R Campbell’s purely “legal analysis” of Bills which clearly emanate from purely political motives. I find it somewhat ironic that Mr. Campbell quotes Section 37 of our Constitution which gives Parliament the power to “make laws for the peace, order and good governance” of the state.

Is it conducive to “peace, order and good governance” to abolish the exact section of the law under which four (4) ULP parliamentarians have been criminally charged?{{more}}

Will peace reign if ordinary citizens of the state of St. Vincent and the Grenadines must face the criminal courts if they breach the criminal law and ULP parliamentarians simply use their slim majority in the house to abolish the law they are charged for breaching?

Background:

Four (4) ULP parliamentarians, the P.M Dr. Gonsalves, Mr. Clayton Burgin, Mr. Cecil Mckie, and Dr. Douglas Slater were charged with certain serious election offences. The proposed amendment to RPA seeks to abolish or remove those exact offences and their penalties.

THE BILL

The suggested weakness of S51 (3) listed by Mr. Campbell are purely theoretical and have no application in practice. As far back as 1895 with the English Corrupt and Illegal Practices Prevention Act, the same provision enacted in our 1982 RPA has been interpreted before the courts. In fact, section 106 of the English RPA 1983 is on all fours with our section 51(3). Therefore, for over 2 centuries, the courts have been interpreting and applying this section without problems. To raise issues that this section is imprecise is therefore academic, as there is a long line of English cases on the meaning of these words.

It is incredible that a Learned and thorough scholar like Mr. Campbell does not refer to a single case to support his arguments. Even more incredible is his failure to discuss 3 very pertinent recent English cases of Woolas 2010, Cummings 2010 and Grell 2007.

In those three (3) English cases, elected parliamentarians lost their seats when they were charged under S 106 of the English RPA (the same as our S 51(3)) All 3 parliamentarians were charged for making false statements in fact for the purpose affecting the return of their opponent candidates.

In Grell and Cummings the parliamentarians published words to the effect that their opponent was a “paedophile”, “homosexual”, “had sex with 14 year old girls”.

In St.Vincent the 4 ULP Parliamentarians were charged for making false statements in fact for the purpose affecting the return of their opponent candidates. The words they published were “paedophile” “had sex with 13 year old girls”, “lesbian” and “she went away a girl and came back a boy”. The evidence is on tape and is uncontroverted.

There can be no doubt therefore that the 4 ULP Parliamentarians charged would be found guilty applying those 3 English Cases, since the words they used are almost verbatim as the words used in the English cases.

There is nothing wrong with our RPA S 51(3) as Mr. Campbell suggests.

I repeat that section has been interpreted in the Law courts over 2 centuries!!!

The term “prospective candidate” in our law must be given its natural and ordinary meaning “anyone who intends to offer himself in an upcoming election”.

Contrary to Mr. Campbell’s comments the issue of a false “statement in fact” is very precise.

It must be a statement “in fact”, not a mere opinion. The maker or publisher is thus protected if he expresses opinion once he does not purport to base it on facts. This phrase is not ambiguous but quite precise.

There is no need for Mr. Campbell’s complaint here, except to create confusion where there is none in reality.

S51 subsection 4

The reasons for the disqualification under S 51 (4) have been eloquently stated in the said English case of Woolas 2010.

“The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate”.

The law protects the electors’ rights as well as those to be elected. It protects the candidates and the constituency from election offences or illegal practices.

I completely disagree with Mr. Campbell that there is no logic as to the choices of offences which attract disqualification. All those that attract disqualification are grave and serious offences.

How can an elected representative who breaches an election law or engages in illegal practices be protected to the detriment of the voters or the constituency as a whole?

The effect of false allegations of fact concerning a candidate as a “pedophile” or homosexual” “child molester, “lesbian” is manifest!!

In the case of Grell referred to above (by the way Ms Grell is a Dominican native who ran for elections in England and lost her seat because she made a false statement in fact to the effect that the opponent is a “pedophile”.) The London Guardian Newspaper said: “the lesson from Miranda Grell affair is that smears and character assassination have no legitimate place in democratic politics . It is time that Labour – and all parties – reiterated their commitment to fight fair and clean. Voters have a right to honest, smear free electioneering.”

The Law Lords in Cummings (referred to above), had this to say: “to call any body a paedophile, let alone a person in the eye of the public such as an MP … is a grave and serious allegation as can be made.”

No law is perfect, if S 50 is indeed unconstitutional, by all means amend it, but this can in no way justify abolishing it. S51 (3) &(4). Mr. Campbell’s argument re S 52 may have merit, but again, this cannot excuse the abolishing of S51 (3)& (4).

Some reckless Unity Labour Party commentators pretend that the cases filed were to protect the NDP parliamentarians and to shut up comments made by the ULP parliamentarians. If NDP candidates are guilty of these offences, WHAT is stopping the DPP or the police from prosecuting them. Do not be fooled by these ULP excuses.

Retrospective Effect of the Representation of the Peoples Act Amendment.

Because of the Retrospective effect of the Criminal Procedure Code amendment, it absolutely affects the ability to bring any charges under the Representation of People Act by private criminal complaints. The DPP will not give his Fiat for the charges already laid. In this regard, the C.P.C. amendment retroactively affects the Representation of People Act.

Because of the current political climate, it is quite clear no charges will be brought by the DPP or the police against the ULP parliamentarians who breached the Representative of the People Act. On the contrary, had there been similar breaches of the RPA by NDP parliamentarians, the DPP would continue prosecution. To abolish the right of private criminal actions as the amended CPC intends can only lead to manifest discrimination.

Is this what we want for St. Vincent and the Grenadines?

The Canadian Courts describes this private right as follows: ‘’The right of a private citizen to lay an information, and the right and duty of the Attorney General (DPP) to supervise criminal prosecutions are both fundamental parts of our criminal justice system.” The right of a citizen to institute a prosecution for a breach of the law has been called “ a valuable constitutional safeguard against inertia or partiality on the part of authority.”

Parliamentary Democracy

These Bills are undemocratic. They are self serving and seek to protect a category of politicians namely the four (4) ULP Parliamentarians who have been charged. They create an elite class.

Ordinary people must face the law if they breach it, but not these four (4). This makes the Bills inherently bad, interest serving, and they are therefore subversive of public good.

The power rests ultimately with the people, not Parliamentarians. Politicians are servants of the people not vice versa. If the people do not like these Bills, they have a right to protest. If government will not listen to the voice of the people, the people have a democratic right to call for fresh elections.

The constitutional right of a government to decide is subject to the will of the people. The government is NOT above the people. The people can recall the government at any time lawfully by protests and demonstrations.

Let no one tell you how to claim your democratic rights.

These Bills are wicked, they are oppressive, they are self serving and they must go! The country is almost equally divided. The NDP is also the democratically elected opposition. Its duty is to bring these wicked and unconstitutional bills to the public’s attention and to clamour for their recall. Anyone who defends these Bills has some self interest to protect!!

This ULP government has never understood that they should govern all Vincentians fairly. The call by the Prime Minister to his supporters to “own the government” is divisive and dangerous.

It is very sad that Mr. PR Campbell who has been in the forefront of reforming carnival costumes that expose women’s bodies in carnival does not appear to care about upholding a law that criminalizes character assignation, smear campaign, a law which ensures that such character assignation and dirty lies have no place in Democratic politics.

It is a red hearing for Mr. Campbell to say we have civil defamation as an excuse for abolishing S51(3) &(4) of Representation of the People Act. It is a weak argument to say the least. Both of these laws exist in England.

I end this response by quoting from The Parliamentary Debates (HANSARD) for the year 1972 St.Vincent and the Grenadines. The Honourable St. Clair Dacon, a Labour Party Parliamentarian, had this to say when then Junta Government passed legislation to change the law to protect their seats in parliament: “Woe to a country when it has reached that stage. Woe to a country when Legislators for their own benefit can circumvent law and prevent the proper administration of justice. …This piece of legislation, Mr. Speaker, Honourable Members, also tramples the legal principles wherein the executive should at no time whatever try to interfere with the judiciary. … And the people of St.Vincent must be aware of such legislation. They should be aware of people who can use their powers to circumvent law. They must be aware of politicians who, because you are in government, abuse Executive, abuse the Legislature so as to bring judiciary under their feet. Mr. Speaker, there is a lot of mischief in this Bill which is going is to be passed this evening… .”

Honourable R.B Russell said this in the same debate: “Mr. Speaker, this Bill that Government seeks to introduce in the house is a wicked and malicious Bill. It is designed to use the law as a football. And once you start using the law which is one of the highest authorities in our country as a football, then it is confusion and chaos. This law is designed to protect three Ministers. Because these are matters that are in the court. These are matters that have already been lodged there. Now justice must be for all. Not for the Ministers and not for the rest of the citizens. This Bill is in itself segregative. It is segregative in that it is a personal bill”…

“Because when you go out of your way and you start twisting and turning law and you start using it for your own selfish needs and gains, against the best interest of the citizens, then all you are asking, Mr. Speaker, you are telling the citizens, they must take the right into their own hands. And when the people go out and take rights into their own hands in an effort to get justice, that is a very serious state of things in your state….

“This is a bill that is designed to protect their very selves. Is it that they are afraid that they would be convicted of something they have done? Or that they are going to lose their seats? Well, if they have committed themselves like any other citizens who have committed themselves they must be punished for it”… .