By Stephen Lester Prescott
FOLLOWING the English High Court’s judgment on the Juffali case, the long knives were sharpened and placed ready for Kenny D. Anthony. The court had after all concluded that Dr.Juffali’s appointment as Saint Lucia’s IMO Ambassador was “contrived.” It did not matter to his detractors that this was but the first step. Even the most jaundiced who ought to have realized the judge had overstepped his judicial functions and had come to conclusions entirely divorced (pardon the pun) from the evidence presented to him, did not seem to care. Oh no, they were instead overjoyed that, to quote one anti Kenny crusader, “Kenny dead now.”
The frenzy reminded me of another time and another court case some years ago. That case involved the so-called “Rochamel Affair.” There, too, his detractors had worked overtime attempting to suggest that Prime Minister Anthony had somehow committed fraud and that he was guilty of misappropriating State funds. They gleefully salivated when the judge at first instance appeared to give support to their contention. If the Prime Minister was worried he certainly did not show it. On the contrary, he appeared a man at ease with himself and the decisions he had taken which he had considered to be in the country’s best interest. He was confident the judgment would be reversed. And so it came to pass in the most decisive manner imaginable! Not only did the three-member Court of Appeal unanimously overturn the judge’s ruling but it also took the unusual step of each appellate judge delivering a most scathing commentary. The Privy Council, normally generous in allowing appeals from Caribbean jurisdictions, refused to entertain an appeal. The rest, as they say, is history.
So “yes” following the first Juffali ruling the Prime Minister was on the receiving end of the most scathing criticism with some even suggesting in the local parlance that “money pass.” Taking things in stride, Prime Minister Anthony restated his government’s position that in appointing the ambassador he had followed international best practice and that the appointment was above board and in our country’s best interest. The Prime Minister, a constitutional lawyer in his own right, further commented that never mind the judge’s strong language that he was satisfied that not only was the judge in error but that the judge had erred in law when he considered matters extraneous to the evidence laid before him. The Prime Minister maintained that there was no need for the British Government to request a waiver of Juffali’s immunity not only because it was contrary to international law but also the issue of maintenance was a matter for the court to make a determination.
It would not be long before the Prime Minister’s words came to pass. First, let us recall the glee in some quarters when they claimed that a letter from the British Foreign Office had demanded Prime Minister Anthony withdraw Dr.Juffali’s credentials by a certain date or else sanctions would be applied against Saint Lucia. The Prime Minister had denied any such ultimatum had been suggested and that sanctions were on the cards.
Support for Dr. Anthony’s comments would come from the most unusual quarter, the British Foreign Minister himself. In a stinging statement, Philip Hammond said, “the High Court ruling should not be upheld or endorsed.” He added that if the court’s decision were not reversed it would have the effect of “British Diplomats being hauled before the courts of any country in which they are serving and their positions scrutinized and their status unjustifiably curtailed.” Isn’t that exactly what the Prime Minister had himself stated, on more than one occasion?
The Foreign Minister was hardly finished, however, as he stated that the only authority on the appointment of a diplomat was his office and that the judge had made a mistake in attempting to decide whether Dr.Juffali was a diplomat or not. That was not the court’s role, said the Foreign Minister. He added: “the judge erred in concluding that it was necessary for the court to look behind the Foreign Commonwealth Office certificate, which confirmed that Juffali had been appointed to the post of permanent representative of Saint. Lucia to the IMO and to consider whether he had taken up the post or exercised any functions in connection with it.” For the record, that is exactly what Prime Minister Anthony had stated.
Mere days later, the British Court of Appeal would itself join in criticizing the High Court judge. The Appellate Court headed by the Master of the Rolls concluded, “It is clear that Juffali has not only been appointed by the Saint. Lucia Government, but has also been accepted and received by the Foreign Commonwealth Office.”
As to the High Court ruling that Juffali had not performed any diplomatic functions not only did the appeal court conclude that there was no evidence to suggest that but it went further to state that even if that were the case that would not be an issue for the court to consider. Said the Master of the Rolls, “If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by Juffali. That is not surprising. The policy reasons justifying the conclusiveness of the Foreign Commonwealth Office certificates has been discussed most frequently in the context of issues relating to State Immunity.” Was this a subtle backhand jab at the judge’s lack of expertise in the area of diplomatic law?
In perhaps the most damning part of the judgment, The Master of Rolls concluded, “The Secretary of State certified that (i) he had been notified of Juffali’s appointment and of his arrival date and (ii) he had not been notified that Juffali’s diplomatic functions had been terminated. The certificate was conclusive evidence of the truth of (i) and (ii). It was also powerful evidence of the truth of the facts themselves i.e. the appointment, Juffali’s arrival date and the fact that his diplomatic functions had not been terminated. THE JUDGE’S FACTUAL DETERMINATIONS WERE INCONSISTENT WITH THIS POWERFUL EVIDENCE.
The appellate court’s support for the position adopted by the Government of St. Lucia would send Kenny D. Anthony’s detractors into another paroxysm of rage. So much so that the even this newspaper’s editorialist lambasted the Prime Minister in the most injurious manner imaginable. In an earlier editorial, the Voice had gleefully parroted the High Court ruling that the appointment was “contrived.” With the Court of Appeal putting a lie to that assertion rather than withdraw, the editorial writer would launch into another assault on the Government’s integrity claiming the “full story not told”. It went on to infer several things including that “it is obvious that the St. Lucia Government thought it would be helping Juffali in his divorce by appointing him as St. Lucia’s IMO representative because they felt he could have invoked immunity.” This is a damning allegation. It does pretend to be opinion. Not a shred of evidence was offered to substantiate this claim. If it were true then it would mean that the Government of Saint Lucia improperly used its authority to appoint Juffali. Of course, when reference is made to the Government, we all know the writer means, “Kenny Anthony”.
Surely, this is a claim that the writer of the editorial should be invited to prove and defend in an appropriate forum.
As they say, “Film at 11.”