Is the President of the Commonwealth of Dominica above the law?

Based on arguments that lawyers presented to Judge Bernie Stephenson in the High Court case, the Attorney General vs the Integrity Commission, we have concluded that the President of the Commonwealth of Dominica is, ipso facto, a king. He is not only above the law, he is the law, it appears.

And the lawyers actually argued at length, in the case mentioned above about the issue whether the president is a King and therefore is above the law.

According to the judgement issued recently by High Court Judge Bernie Stephenson: "The defendant (the Attorney General) contends that upon His Excellency the President of the Commonwealth of Dominica being sworn into office both at Common Law and by virtue of the Constitution His Excellency enjoys a special status, character and role which is similar to the British Monarch in Law and is to be regarded as above and beyond reproach. This status continues throughout his term of office".

She added: "On the other hand the claimant (the IPO) submits based on authorities cited…that the absolute immunity as vested in the English Monarch does not form part of the constitutional law of the Commonwealth of Dominica which is a sovereign state…"

But in her conclusion Judge Stephenson did not rule on that specific issue. She wrote that based on her application of Section 27 of the Constitution it was not necessary to "make a finding" on the issue of whether the President enjoys the privileges of a King or Queen. Judge Stephenson's decision on that contention would have been most interesting.

To provide some background, if you recall in December 2014 the Integrity Commission asked the court to decide whether President Charles Savarin should file declaration forms as required by all persons in public life according to the IPO Act.

It appears that the Honourable Charles Savarin before he became the President of Dominica was required to file a declaration in accordance with the IPO Act within three months of the end of 2013. Minister Savarin became President Savarin on 1st October 2013 and that's when the conflict with the IPO began.

In the case the IPO contends that His Excellency Charles A Savarin "was obliged to file a declaration with the Commission within three months of the end of 2013 and that he has failed and or refused so to do in spite of the requests made by the secretary to the Commission for him to comply".

Furthermore, the IPO argued, the Secretary to Cabinet after consultation with the Attorney General did not approve publication of the notice which included the name of the President "as this was contrary to section 27 of the Constitution of the Commonwealth to Dominica".

The President's lawyers also argued that the Government had a right to block the publication of the list in the Gazette containing the names of defaulters which included Mr. Savarin's.

"The Gazette is published by the Government of Dominica by the Government Printer which is authorized by or on behalf of the Government to print any written law or any other document …In those circumstances that it is the Government through the Secretary to Cabinet who determines the appropriateness or otherwise of what should be published in the Gazette and accordingly the Commission has no power or authority to determine what should be or should not be published in the Gazette."

Take note of the article in the Constitution (Section 27) that Judge Stephenson depended on to reach her decision: "Whilst any person holds office or is acting a President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official capacity or in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity".

In other words no law can be held against the President while he is in office. But this raises the common-sense question: if the president is so protected doesn't he or she have the moral responsibility or obligation to ensure that all laws of the land are respected and that he must set the example? According to United States President Abraham Lincoln he must lead by example. Lincoln stated in 1838 in an address entitled The Perpetuation of Our Political Institutions: "I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed".

The IPO law is not a "bad law" perse and in President Savarin's case that law may not be relevant but as Lincoln suggests shouldn't President Savarin have filed "for sake of example"?

In our view President Charles Savarin should have filed his declaration quietly (because, we assume, he has nothing to hide and he would have filed anyway if the post of President did not unexpectedly present itself), and point out to the IPO that as President the Commission could not force him to file a declaration. As President, he should have said, I will set an example that my "subjects" must follow.

Apparently, according to Judge Stephenson, all is not lost; the IPO can go after Mr. Savarin, the ex-President for his unfiled declaration within two months and 26 days after he leaves office. That could be sometime in 2025. Long live the President.