CATEGORY:COMMENTARY ------------------------- INSIDE GRENADA THURSDAY DECEMBER 06, 2007 by Lloyd Noel (The following article represents the views expressed by the writer and not necessarily those of Grenadian Connection) In the Civil Action No.07-2332 (ILG) (SMG) between Charles C. Howland as Plaintiff against Eric E. Resteiner, Keith Mitchell and Marietta Mitchell as Defendants – in the U.S. District Court for the Eastern District of New York – the Executive Branch of the U.S. Government has determined that permitting this action to proceed against Prime Minister Mitchell of Grenada, would be incompatible with the United State’s foreign policy interests. And as would be explained below, that determination must be given conclusive legal effect by the said court. That breaking news came out the same week that Prime Minister Mitchell, as Minister of Finance, was putting the final touches to his Budget presentation – which he delivered in Parliament last week Friday (30th November). Am sure many of his supporters would be thinking that the Prime Minister has beaten the system again, while I am equally sure that just as many would be thinking otherwise – or at least having second thoughts. What was very noticeable about that breaking news when it was published – was that no one in the Government, or the NNP top brass, made any public comment about the apparent let off for the Prime Minister. In fact, when a reporter contacted the Attorney General for a comment, since it was his letter to the U.S. State Department that had brought about the good news – he told the caller that he could not remember what was in the letter. The only other response I heard came from the Editor of the Grenadian Voice newspaper who, from what he said, showed that he did not fully understand the implication of immunity in the context of this matter – because he was implying that it was a good thing for the P.M., since it is well known that a lot of innocent people get convicted in the U.S.A. Neither innocence nor guilt had anything to do with the intervention of the U.S. President as head of the U.S. Executive Branch – when it was decided to suggest to the court in New York, that Prime Minister Mitchell as head of the Government in Grenada, should be granted immunity from the Court’s Jurisdiction. Another area where the wrong usage of legal terms may very well be leaving the wrong impression – is the whole question of immunity from prosecution by the U.S. Court. Prime Minister Mitchell was not being prosecuted in the case; it was a civil Suit in which Mr. Howland was seeking to recover some of the moneys he had deposited with Resteiner in the latter’s scam investment scheme. Resteiner was prosecuted in the Boston Court, found guilty and is now serving seven years in jail; and the Plaintiff Howland had sued Resteiner, and he joined the Prime Minister and his wife because, he claimed, they had benefitted from part of the moneys he had paid over to Resteiner. Judgment had already been entered against Resteiner, because he had put in no appearance or defence to the claim. If he has moneys wherever, the plaintiff’s Lawyers will seek to trace the same and take whatever measures available to recover Howland’s losses. I suspected that Mrs. Mitchell was joined in the case, because she and the Prime minister own property in New York, and if judgment was obtained against them the plaintiff could have moved to levy on that property to recover his losses. Another issue that still remains very much alive in this matter – is the whole question of the Prime Minister’s and his wife’s U.S. Citizenship. In the case filed against them in New York, it is alleged that they are U.S. Citizens. In the preliminary objections filed by the Lawyers for the Mitchell’s, it was not denied that they are U.S. Citizens – it simply said that they are citizens of Grenada, which they definitely are. That issue may still have further repercussions in the case, because the question of the head of a foreign Government immunity from the Jurisdiction of the United States Courts, under the doctrine of head-of-State Immunity as applied in the United States of America – can later come up for judicial review if, for example, when the Prime Minister was alleged to have received those sums of money from Resteiner at his Villa in Switzerland, and or in Grenada or elsewhere, he (the Prime minister) was a citizen of the United States of America. In other words, would it be justifiable for the Executive Branch in the U.S., to deny a U.S. resident citizen access to the U.S. Court, against another non-resident U.S. Citizen, on the ground that the latter is also a foreign Head of government? Always bearing in mind that the non-resident U.S. Citizen also owns property in the United States of America. The papers filed by the U.S. Department of justice, at the direction of the Attorney General of the United States – in response to the request by the Attorney General of Grenada – set out the reasoning of the Executive Branch for coming to its decision. It states in part that, - “the Head-of-State immunity doctrine, serves to protect the dignity of foreign leaders, and reflects the principle that conflicts with sovereign nations are often best handled through diplomacy rather than litigation”. Two points are relevant here; one is that the foreign leader is not necessarily the head of state, as is the Case with our Prime minister; and the other is that the immunity was concerned with conflicts with sovereign nations. However, over the years and under customary rules of international Law, recognized and applied in the United States of America, the head of a foreign Government has been accorded the same status of head of state under the doctrine of Head-of-State immunity. Strangely though, over the years the absolute immunity of the Sovereign State itself has been diminished through the acceptance of the restrictive theory of sovereign immunity, and that theory was reflected in the passage of the “Foreign Sovereign Immunities Act (FSIA)” of 1976. So that now-a-days, when the issue of immunity involves the Sovereign State itself, the U.S. Courts will decide whether immunity will be granted; but when it involves the head of Government or head of State – the Executive branch will make the decision. And even though the decision is clouded in the terms of a “suggestion” to the Court – that suggestion has been mandated by the Supreme Court to be, that the Courts of the United States are bound by all suggestions of immunity from the Executive. Notwithstanding all the foregoing, whether in the settled Law as applied by the United States Courts, or in the opinions of all others who agree or dis-agree for whatever reason – in our setting and cultural up-bringing and background in these Isles – the very disturbing State of affairs still remain to be resolved, or to be answered one way or the other. We already know, as we were told up front by the one man Commissioner – who was appointed by the Governor General to inquire into the said Resteiner Brief case issue, as to how much money the Prime minister actually received and for what purpose – there was no evidence that any money was given to the Prime Minister at St. Moritz in Switzerland. Even though the Prime Minister himself said he had received about US$15,000.00 for bills he had paid. And now in the U.S. Court the Prime Minster has been accorded immunity from the Courts jurisdiction. So where does that leave the Prime Minister and the allegations made against him? In the Commission of Inquiry he did not give evidence and in the New York case he will not be giving evidence nor be subjected to cross-examination by Howland’s Lawyer. So that the question of his innocence or guilt, or of his liability or other wise to Mr. Howland – remains in limbo. What then can the people make out of that scenario, in which the central issues of- did he received any money, and if so how much? Or is he liable to pay back one million dollars to Mr. Howland and others? Because he benefitted from Resteiner’s scam in cheating Howland and others? Because those issues were not fully ventilated in Grenada nor in the U.S.A. The shameful so-called inquiry in Grenada was disgraceful and did not help him in anyway; and the doctrine of head-of-state/Government immunity in the United States of America saved him for the time being – but neither offers any consolation with certainty for the future. And although we are still awaiting publication of the Commissioner’s report, which was due to be submitted since September 30th to the Governor General, the contents thereof will not make any difference to the issue of credibility – because the terms of reference in the instrument of appointment of the Commission of inquiry were not carried out. And last week we had what must be the last budget of revenue and expenditure from this government, before the next General Elections in 2008 sometime. From the little I have heard thus far, all sorts of hand outs and concessions have been thrown into the melting pot, hoping, no doubt, to attract sympathy and release from the harsh judgments that already are on the cards awaiting execution. As we go into the run up to Xmas, that will be no different for thousands of families who have been without an employed breadwinner for most of the year – the grapevine news is that there will be a big spending spree around the independence in February – 2008, all in preparation for a possible March-2008 Elections. Whether this comes to pass or not, the hardships so many families are experiencing will not get any better from the few handouts, nor the immunity from Washington to the Prime Minister. The sudden rush in roads and bridges repairs, that have been neglected for all of the past four years; and all the glib promises of thousands of new jobs way down the road – may very well be too late, to remedy the widespread damages inflicted on the people in the last four years especially. The roads ahead may well be rid of pot holes and dangerous land slides, at long last – but the cries of the long-suffering will need a lot of more drying up to bring back satisfied smiles to people faces.