A Study in Peaceful Extra-Constitutional Change on the Caribbean Island of Dominica

(An Application of the Legal Doctrine of Necessity)

Faculty of Law,
University of the West Indies,
Cave Hill,
Barbodos

Thanks are due to Dr. Lennox Honychurch who painstakingly read through this paper and suggested some very valuable editorial changes.


Abstract

Dominica is the third largest and most rugged of that group of islands which were formerly compendiously known as the British West Indies. It was originally governed as a separate colony, and subsequently as a member of the Leeward Islands Group (1871 – 1940) with Antigua, St. Kitts, Montserrat and their dependencies. In 1940 it joined the Windward Islands (Grenada, St. Lucia and St. Vincent) and was administered with them until 1958 when it was attached to the ill-fated Federation of the West Indies as a separate unit. The mainstay of the island’s economy has been sugar, citrus and now bananas and tourism.

For almost twenty years after the general elections held in 1961 the Dominica Labour Party was victorious at the polls, and a situation was eventually created in which no member who supported the Government had ever served on the opposition benches. This resulted in a certain amount of intolerance for the views of others and a false sense of security.

After a forced shut-down of the country in May – June 1979, by persons who were opposed to the Government, "the people" appointed a new Government to replace the duly elected Government of Prime Minister Patrick John, and all attention then focused on the general election which was due in 1980. The people’s action was then vindicated.

This article chronicles the events which led up to the impasse of May – June 1979 and attempts to analyse the legality or otherwise of the actions of those who took part. Finally, the results of the general election which followed are noted and discussed.

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History and Government of the Island

Dominica is the third largest and most rugged of the group of islands in the Caribbean which were formerly compendiously referred to as the British West Indies. It was sighted by Christopher Columbus on his second voyage on Sunday 3rd November, 1493. Although it is 29 miles at its longest point and 16 miles wide at its largest span, the island is only about 300 square miles in area. Its landscape is extremely rugged and legend has it that this has contributed greatly to the tenacity of its people.

The early history of the island, like that of most of the other islands of that chain, reveals a constant change of ownership between one metropolitan European country and another, while the fierce resistance of the Kalinago / Caribs who formed the original inhabitants was aimed at retaining the island for themselves. The efforts of the Caribs were eventually in vain although they ensured that Dominica was the last Caribbean island to be colonized by Europeans. After going through several changes when it belonged at one time to France, at another to England and at some period to both it was finally officially ceded to England by the Treaty of Paris in 1763.

From its early days the island has always maintained a one-crop economy, in the sense that the production of a single crop always seems to dominate the economy of the island. First it was sugar which eventually gave way to citrus fruits, mainly in the form of limes and now it is mainly the production of bananas for export.

The island was originally governed together with Grenada and the other Windward Islands, as the ‘South Caribee Islands’, but this piece of administrative convenience was short-lived and Dominica was as administered as a separate plantation colony from 1770. From 1871 the island formed a single colony with the other Leeward Islands of Antigua, Montserrat and St. Kitts (with their several dependencies) each island having the status of a Presidency. There was a federal legislature which has the exclusive power to pass laws relating to certain defined subjects, and a federal public service including the police force. But for reasons best known to the political leaders of the day the island was separated from the Leeward Island grouping to become a colony of the Windward Islands group on 1st January, 1940.

In 1951 universal adult suffrage was introduced and at the election which followed a new class of candidates sought and gained entry into the legislature. Elections were not fought along political lines, however, until the general elections of 1957 by which time the new class of members had formed themselves into the Dominica Labour Party; and they won convincingly the elections held in 1961, 1966, 1970, and 1975. In the meantime, Ministerial Government had been introduced in 1956 and Associated Statehood with Great Britain (a form of internal self-government) was introduced in 1967. It was not surprising therefore, that the Dominica Labour Party negotiated for, and led the country to independence in 1978.

By virtue of the large majorities which the party obtained at the poll and the consistency of their victories an attitude of indifference developed among some Government Ministers, and supporters of the opposition became inclined to the view that the only way in which they could make their opinions heard was by open demonstration. Parliament became an instrument to be used for the twin purposes of approving the budget and passing laws; and whether or not those laws were previously circulated, all three readings of Bills were taken at one sitting.

It was against this brief background, therefore, that the events which are about to be chronicled must be read and understood. For as the figures reveal that the Dominica Labour Party which had hitherto won 47.5% (1961), 64.8% (1966), 57% (1970) and 49.3% (1975) of the votes cast, now polled a mere 16.9% (1980). This stands as a sharp reminder to political aspirants everywhere as we begin the account of the events of May 29, 1979 and onwards.

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The Background to the Crisis

The Constitution of Dominica provides for a unicameral legislature, a House of Assembly comprised of 21 elected representatives and nine senators who are presently nominated, but who may be elected at the polls if Parliament makes provision to that effect The House of Assembly now comprises twenty-one elected members and nine Senators appointed by the President; five on the advice of the Prime Minister, and four on the advice of the Leader of the Opposition.

At the general elections which were held on March 24th, 1975, the Dominica Labour Party led by Mr. Patrick Roland John captured sixteen seats, the opposition Freedom Party won three seats, and two seats were won by Independent candidates, one of whom subsequently aligned himself to the Freedom Party. The composition of the House was brought to thirty-one by the election as Speaker of an individual who was not a member of the House. Mr. Patrick John subsequently became Prime Minister when the country attained Independence on November 3rd, 1978.

A meeting of the House of Assembly was summoned for May 29th, 1979, and according to the minutes business seemed to have been conducted as usual despite the fact that the sound of gun fire could be heard from the Chamber, coming from the area surrounding the building which houses Government Headquarters and the House of Assembly. There were only four members absent, two of whom were abroad, and the third was ill. Towards the end of question time further gun fire could be heard, at which stage the Leader of the Opposition questioned the wisdom of continuing the sitting in view of what was then taking place outside, and the fact that so far one man had been killed. The Speaker left the matter for decision by the House; which, by a majority, resolved that business should continue. All the members who did not support the Government then walked out of the Chamber.

The House then went on to pass four Bills through all their stages into law including an Industrial Relation (Amendment) Act, before the Speaker suspended the House for a short break at 1:45pm. On the resumption at 2:05pm the Speaker was absent and the Deputy Speaker was pressed into service. Six more Bills were passed into law including a Libel and Slander (Amendment) Act, 1979; and some other minor Government business was duly attended to before the House was adjourned sine die at 3:30pm.

The Industrial Relations (Amendment) Bill had sought, among other things, to reduce the incidence of strikes (particularly by Civil Servants), which had continually plagued the island; and it also intended to make it a criminal offence to assist a worker who was on an illegal strike. Critics saw the Libel and Slander (Amendment) Bill as an attempt to muzzle the only regular weekly newspaper in the island, consequent on its repeated criticism of what was perceived to be acts of maladministration by the Government. Both bills attracted strong and sustained criticism from persons in various walks of life, and especially by leaders of the various trade unions, and the management and readers of the newspaper.

Public discontent had reached its highest at a public meeting which was held in the capital Roseau, on the eve of the sitting of the House of Assembly. At that public meeting citizens were advised to assemble peacefully next day as a form of protest, outside of the building at which the meeting of the House was to be held. When members of the House arrived to attend the meeting they were variously cheered or jeered, depending on the political party which they supported. The Defence Force was called in to assist the Police in maintaining order and in the general confusion which followed one man was killed and several persons were injured.

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The Battle Lines are drawn

The crowd subsequently retreated to the Goodwill Parish Hall about half a mile north of Roseau where their leaders formed themselves into a Committee for National Salvation vowing to advise workers to stay away from work, and business places to remain closed, until the Government resigned. This Committee was comprised of representatives from various organisations including the trade unions, the employers, the farmers’ union, the political groups opposed to the Government, and the Church; and for the next twenty-six days it met daily to press demands for the resignation of the Government. During that period all offices and other places of business were brought to a standstill as the population stayed away from work.

Mr. Oliver Seraphin who held the portfolio of Minister of Agriculture in Mr. John’s government, and who was ill on that fateful day in May, resigned from the Government, and subsequently announced the formation of a new political party, the Democratic Labour Party. Other members of the Dominica Labour Party gradually joined Mr. Seraphin, so that by the time things returned to normal nine of the sixteen members who had been elected to office on the Dominica Labour Party platform had expressed support for Mr. Seraphin as leader of the new party.

In the meantime, the President had fled from the country (having travelled to the airport concealed at the back of a bread delivery van) ostensibly to take his wife abroad for medical treatment thus leaving the country without a Head of State. The Constitution provides that whenever the holder of the office of President is unable to perform the functions of his office by reason of his absence from Dominica, those functions are to be performed by a person designated in writing by the President acting after consultation with the Prime Minister and the Leader of the Opposition, or where no person is designated, by election by the House of Assembly. The President had not designated anyone to act in his stead and the House of Assembly could not meet to elect a replacement; so that until June 21st, 1979 the country remained without a Head of State. An attempt was made by Prime Minister John to fill the vacancy on the strength of a letter which he received from the President after the latter was safely out of the country, but this attempted appointment failed when the person designated "resigned" within 24 hours consequent on the stoning of his residence. A second person whose appointment was contemplated went by the same route even before he had formally accepted the "appointment".

Meanwhile the C.N.S. gradually emerged as the de facto Government of the country; and it proceeded to draw up eleven points of grievance which were to be immediately remedied as soon as it was reasonably practicable to do so. These were -

  1. "that the elected members of Parliament other than the Ministers of Government and Ministers of State form a Parliamentary caucus, and that this Parliamentary caucus should elect a Prime Minister to head an Interim Government in consultation with the C.N.S,
  2. that the present nine (9) Senators immediately resign and that nine (9) Senators be appointed on the advice of the C.N.S,
  3. that the President resigns and that a new President be appointed in consultation with the C.N.S,
  4. that the Interim Government set up machinery for the holding of free and fair elections on a list compiled on the basis of island-wide enumeration, and that supervision be provided by a neutral body for both enumeration and election,
  5. that the Dominica Broadcasting Service be democratised immediately,
  6. that the Interim Government mount a public inquiry into the events of May 29, 1979,
  7. that in the interest of National Solidarity and Unity, the C.N.S. recommends that the Hon. Oliver J. Seraphin be elected as Prime Minister in the Interim Government,
  8. that the Interim Government carry out a full and thorough enquiry into all contracts with South Africa and other such dubious financial dealings,
  9. that the Interim Government examines the question of compensation for striking workers and farmers,
  10. that the Interim Government set up a Constitution Commission to review the present Constitution and to make recommendations for amendments,
  11. that the Prime Minister, Ministers of Government and Ministers of State resign from Cabinet and from the House of Assembly".

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The Long Road back to normalcy begins

Negotiations took place between Mr. Seraphin and the C.N.S. until there was agreement on the names of nine persons who were to be recommended for appointment as Senators, and the individuals who were to hold Ministerial office headed by Mr. Seraphin himself as Prime Minister, on a return to normalcy. Every candidate for office was screened before approval by the C.N.S., acting on what it anticipated to be the approval or rejection of those who filled the Goodwill Parish Hall daily. It was in effect, people’s democracy in action.

After several attempts had been made to arrive at a compromise the C.N.S. decided that the way back to normalcy lay in first convening Parliament so that a vote of no confidence could be passed against the Government of Prime Minister Patrick John who had steadfastly clung to office, and who, on more than one occasion stated quite categorically that he would not resign. The next step would then be to elect an acting President, who would be requested to confer office on the Ministers and Senators who had been chosen by the C.N.S.

There were however two hurdles which had to be crossed. The first was to satisfy the constitutional requirement necessary to pass a vote of no confidence in a Government, and the second was to ensure that the required number of members were present in the House on the day set for the meeting in order to pass that resolution; and even if these two hurdles could have been crossed successfully there remained the possibility that Mr. John could have used his constitutional authority to advise the President to dissolve Parliament if a vote of no-confidence had been duly passed against his government.

The Constitution provides that a question shall not be regarded as having been validly determined by a vote in the House unless at least twelve members take part in the voting, and as at the time there were present in Dominica six elected members and four Senators who did not support the Government, this hurdle did not seem insurmountable, since Prime Minister designate Oliver Seraphin and one of his colleagues who had been approved by the C.N.S. for high office could have made up that number; and the Deputy Speaker who would have been required to preside in the absence of the Speaker, also supported Mr. Seraphin.

Although a meeting so constituted could have elected an Acting President it could not have validly passed a vote of no confidence since the Constitution further requires that all questions of no confidence in the Government must be determined by a majority of the votes of all the elected members, in this case eleven; and although the Deputy Speaker had been chosen from among elected members of the House, he had only a casting vote. It was essential therefore for Mr. Seraphin to ensure that ten other elected members attended the projected meeting of the House of Assembly scheduled to be held on Tuesday 19th June, 1979 if that plan was to succeed.

Those were difficult times. Persons who did not conform with the wishes of the people frequently had their houses stoned. Three of the five Senators who had been appointed on the nomination of Mr. John had resigned. One elected member was subjected to a "citizens arrest" by some of his constituents and taken to the capital Roseau overnight, in order to ensure that he was present on the following day to support the resolution; and another agreed to attend the meeting on condition that an interview which he had given to a group of Secretaries (and which they seem to have taken down verbatim) would not be published in the local press.

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The Dawn breaks

The final breakthrough came on the morning of Tuesday 19th June. Hansard records that the meeting began at 11:15 am with an empty front bench in the absence of any Government Ministers. The Deputy Speaker was elected Speaker. A release was read to the House stating that on that very morning a meeting had been convened by the Christian Council of Dominica between Prime Minister Patrick John and the Leader of the Opposition, Miss Mary Eugenia Charles, at which agreement was reached on the joint nomination of Mr. J.P.M. Armour as Acting President, and an appeal was made for calm. That release had been signed by the Prime Minister, the Leader of the Opposition and the Chairman of the Christian Council of Dominica, who at the time was the Roman Catholic Bishop of Roseau.

Seventeen members attended that meeting, thirteen elected members (including the speaker) and the four Opposition Senators. The Leader of the Opposition withdrew a motion of no confidence which has been placed on the order paper in her name; and the Speaker acceded to a request by her that "all elected members should state whether they had withdrawn their support for the present Prime Minister and whether they supported a caucus of Government to appoint a Government for the Interim period before the holding of the next general elections in accordance with the provisions of the Dominica Constitution".

It was to be a short meeting, lasting in fact for exactly fifty minutes. All thirteen elected members present declared their support for the Interim Government. It was agreed that the proceedings should be aired over local radio; and the Speaker suspended the sitting at 12:05pm, to Thursday 21st June, 1979 at 10:00am.

The meeting resumed at 10:50 am on Tuesday June 21st, 1979 when the following motion was passed unanimously by the House:

"WHEREAS the Committee for National Salvation has proposed the formation of an Interim Government headed by the Honourable Oliver Seraphin;

AND WHEREAS at the request of the Committee for National Salvation a meeting of Parliamentary Representatives approved the recommendation of the committee for National Salvation that the said Oliver Seraphin be chosen to head the Interim Government;

BE IT NOW RESOLVED THAT this House recommends the appointment of Honourable Oliver Seraphin as Prime Minister of the Interim Government pending the results of a General Election in accordance with the provisions of the Dominica Constitution."

The Speaker informed the House of the joint nomination which he had received two days previously, and also that Mr. Armour had since consented in writing to act as President by letter dated June 20th, 1979. A Deputy Speaker was elected and the House was adjourned sine die.

At 1:10 p.m. on 21st June the Resident Judge Wuiszey Bruno, acting on the advice of the Chief Justice who was then in Antigua, swore in Barrister-at-law Jenner Armour as Acting President. At 1:15 p.m. Mr. Armour swore in Mr. Oliver Seraphin as the new Prime Minister. Minutes later Mr. Patrick John was informed that since he then failed to command the majority of members of the House of Assembly, his appointment as Prime Minister was thereby revoked18A.

Thereafter the Acting President made the following appointments to the offices designated:

Elected Members
Oliver J. Seraphin Prime Minister and Minister of External Affairs Democratic Labour Party
Michael Douglas Minister of Finance, Trade and Industry Dominica Democratic Alliance
Ferdinand Parillon Minister of Home Affairs Independent
Luke Corriette Minister of Communications and Works Democratic Labour Party
Senators
Atherton Martin Minister of Agriculture Dominica Democratic Alliance
Charles Maynard Minister of Education and Health Independent
Brian G.K. Alleyne Attorney General Freedom Party

The other persons who were appointed as Senators to complete the membership of the House, were Roosevelt Douglas, Felix Thomas, Julius Sampson, Charles Savarin, Kurtist Augustus and Pierre Charles.

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Disaster strikes

The new Government soon began to work in earnest and in the first weeks of its existence it met sporadically with the C.N.S. Conscious of the fact that the financial year in Dominica runs from 1st July to 30th June, attention was closely focused on the preparation of the annual budget. For one reason or other, however, it was not possible to meet the requirement of the Constitution that the estimates of revenue and expenditure must be laid before the House of Assembly not later than forty-five days after the commencement of each financial year, so that when Hurricane David struck the island on 29th August, 1979 no budget had been presented and a further burden had been paced on the shoulders of the new Government.

Despite formidable problems the members worked closely together as a team and a vigorous assault was made on the eleven point mandate: an Interim Government headed by Prime Minister Oliver Seraphin had been installed; the new Senators recommended by the C.N.S. had been appointed; the electoral list was prepared with the assistance of the Government of Barbados; an independent Board was appointed to run the local radio station and all points of view were to be heard over the airwaves; a commission of enquiry was appointed to enquire into the events of May 29th; arrangements were made to compensate striking workers and farmers; and an attempt was made to set up a Constitutional Commission. For some weeks the former President refused to resign formally and when he did, the C.N.S. could not be consulted before the new appointment was made since by that time it had affectively ceased to function; no official enquiry was conducted either into contracts with South Africa, "or such other dubious financial dealings"; and it became unnecessary for any Minister of Ministers of State to resign from Cabinet. No one resigned from the House of Assembly.

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The Form of the Transfer of Power

The decisions of the C.N.S., and those of the House of Assembly at its meetings of 19th and 21st June, 1979, leave the observer in no doubt that all efforts were being made, to contain the crisis which had developed, so far it was humanly possible to do so, within the bounds of legality. It would seem however that despite those valiant efforts, it can be said that the Interim Government had necessarily rely on the legal doctrine of necessity to justify some of the steps which had to be taken in order to return the country to normalcy.

Before embarking on a discussion of the doctrine of necessity, however, one ought to define clearly the nature of the transfer of power under the circumstances which prevailed in Dominica at the time, in order to attempt to classify the unique20 method which was adopted. Was it a Coup or a Coup d’Etat? And if the actions of the C.N.S. do not fall neatly within either definition, it then becomes necessary to 20 Only one of those (Kurtist Augustus) had been a Senator before May 29, 1979. formulate and adopt an appropriate definition since the manner in which matters were conducted may provide a guide to other disgruntled peoples in the future.

Of the Coup d’Etat, Peter Calvert in a review article has this to say: "A Coup d’Etat is a specialized and extremely rare form of political activity. It is closely related to the Coup but is a specialized form of it, in which the agent seizing a greater share of power within the State is in fact, the incumbent government and the classic example of the Coup d’Etat proper is the seizure of power by Louis Napoleon in France in 1851. " One could add to Calvert’s example, that of President, Milton Obote in Uganda in 1966; but the events which occurred in Dominica quite clearly do not fit neatly into this definition, since the C.N.S. did not exercise any political power before May 29, 1979.

In the same article, Calvert defines a Coup as "the attack phase of a specialized form of violent transfer of political power. It is one deliberately designed to minimize participation and to avoid the involvement of extra-governmental forces". Here again it is difficult to fit the Dominica events into this definition since no armed forces were involved in the take over, although the change could quite properly be defined as a violent transfer of political power.

For want of a more precise classifications one may refer to the events which took place between 29th May and 19th June, 1979 in Dominica as a "Civilian Coup", and this would provide an example to Calvert, who has stated that "A Civilian Coup may be a theoretical possibility, but it does not appear to happen."