Why Privy Coun­cil dumpe

The Star (St. Lucia) - - COMMENT -

The back story: On 4 Jan­uary, 2015 the Eastern Caribbean Court con­vened to con­sider the mat­ter in­volv­ing ap­pel­lants Mark Brant­ley (in his per­sonal ca­pac­ity and as a rep­re­sen­ta­tive of the Con­cerned Cit­i­zens Move­ment); Ti­mothy Har­ris (in his per­sonal ca­pac­ity and as a rep­re­sen­ta­tive of the Peo­ples Labour Party); Sam Con­dor (in his per­sonal ca­pac­ity and as a rep­re­sen­ta­tive of the Peo­ples Labour Party); and Shawn Richards (in his per­sonal ca­pac­ity and as a rep­re­sen­ta­tive of the Peo­ple’s Ac­tion Move­ment).

The re­spon­dents: The Con­stituency Bound­aries Com­mis­sion (com­pris­ing R. A. Peter Jenk­ins; Asim Martin; Mar­cella Liburd; Vance Amory and Vin­cent By­ron. Also the prime min­is­ter of St. Christo­pher and Nevis, Den­zil Dou­glas, and the at­tor­ney gen­eral, as the gover­nor gen­eral’s rep­re­sen­ta­tive.

The ad­ju­di­cat­ing panel com­prised Jus­tices David­son Kelvin Bap­tiste; Mario Michel and Ger­tel Thom. Christo­pher Hamel-Smith SC and Dou­glas Men­des ap­peared for the ap­pel­lants (lead­ing De­Lara MacClure Tay­lor in­structed by Tal­ibah By­ron). An­thony Astaphan SC ap­peared for the sec­ond re­spon­dent (lead­ing An­gelina Sookoo). Peter Gold­smith QC ap­peared for the third re­spon­dent, the at­tor­ney gen­eral (in­structed by solic­i­tor gen­eral Si­mone Bul­lenThomp­son).

At the heart of the mat­ter was a judge’s or­der set­ting aside an in­terim in­junc­tion that she had granted at an ex parte hear­ing on 16 Jan­uary, 2015 and was dis­charged eleven days later, fol­low­ing an in­ter partes hear­ing on 22 Jan­uary, 2015. The ap­pel­lants ap­pealed this or­der.

By the ap­peal court’s judg­ment: “The ques­tion whether or not to dis­charge an in­junc­tion is one which is con­cerned with the ex­er­cise of a judge’s dis­cre­tion and nec­es­sar­ily en­gages the well-known prin­ci­ples upon which the ex­er­cise of a judge’s dis­cre­tion can be as­sailed by an ap­pel­late court. Ac­cord­ingly, it is in­cum­bent upon the ap­pel­lants to show that the judge was wrong in law, or took ac­count of ir­rel­e­vant mat­ters, or failed to take ac­count of rel­e­vant mat­ters, or was ob­vi­ously wrong in the con­clu­sion ar­rived at.

“The learned judge had found in her judg­ment of 27 Jan­uary, 2015 that the procla­ma­tion giv­ing ef­fect to the rec­om­men­da­tions of the Con­stituency Bound­aries Com­mis­sion had been made by the gover­nor gen­eral prior to the is­sue of an in­junc­tion by her on 16 Jan­uary, 2015 and there­fore the in­junc­tion, hav­ing been granted to pro­hibit an ac­tion al­ready taken, was use­less.

“The ap­pel­lants have sought to ar­gue that the learned judge erred in law in the ex­er­cise of her dis­cre­tion be­cause, as a mat­ter of law, the procla­ma­tion by the gover­nor gen­eral had not been made be­fore the is­sue of the in­junc­tion. They based their ar­gu­ments on their in­ter­pre­ta­tion of Sec­tion 50 of the Con­sti­tu­tion of the Fed­er­a­tion of Saint Christo­pher and Nevis, in ac­cor­dance with the def­i­ni­tion of ‘procla­ma­tion’ con­tained in Sec­tion 119 of the Con­sti­tu­tion.

“The sub­mis­sion is ob­vi­ously chal­lenged by the re­spon­dents, who con­tend that the mak­ing of the procla­ma­tion by the gover­nor gen­eral had, as a mat­ter of fact and law, been com­pleted prior to the is­sue and ser­vice of the in­junc­tion and was there­fore a use­less and thus in­ap­pro­pri­ate ex­er­cise of the court’s dis­cre­tion in grant­ing the in­junc­tion.”

The ap­peal court ex­pressed the view that the Con­sti­tu­tion of the Fed­er­a­tion left “no room for giv­ing mean­ing to words used” in the sec­tion headed “De­lim­i­ta­tion of Con­stituen­cies . . . by in­cor­po­rat­ing other sec­tions con­tained in other parts of the Con­sti­tu­tion. In ac­cor­dance with the regime cre­ated by Sec­tion 50, the Con­stituency Bound­aries Com­mis­sion re­viewed the bound­aries of the con­stituen­cies in the Fed­er­a­tion and rec­om­mended al­ter­ations to the con­stituency bound­aries; a draft procla­ma­tion giv­ing ef­fect to the rec­om­men­da­tions of the com­mis­sion was there­after ap­proved by the Na­tional As­sem­bly; the gover­nor gen­eral then signed a procla­ma­tion which (ac­cord­ing to the ev­i­dence of the at­tor­ney gen­eral) was pub­lished in the of­fi­cial Gazette.

“All of this hap­pened on Fri­day 16 Jan­uary, 2015 and though one may say the process was hur­ried through by the rel­e­vant au­thor­i­ties to gain an un­fair po­lit­i­cal ad­van­tage, that is an is­sue of po­lit­i­cal moral­ity and not con­sti­tu­tional va­lid­ity, which is not suit­able for ju­di­cial en­quiry . . . The gover­nor gen­eral signed the procla­ma­tion giv­ing ef­fect to the bound­ary changes at ap­prox­i­mately 6.20 pm on 16 Jan­uary, 2015 with a procla­ma­tion dis­solv­ing par­lia­ment or that he signed the procla­ma­tion to dis­solve par­lia­ment at the same time as he signed the procla­ma­tion on the bound­ary changes. Ac­cord­ing to the gover­nor gen­eral . . . the con­se­quence of the ac­tions of the gover­nor gen­eral at ap­prox­i­mately 6.20 pm on 16 Jan­uary, 2015 is that when the par­lia­ment was dis­solved by procla­ma­tion of the gover­nor gen­eral the procla­ma­tion signed on the bound­aries changes came into force.”

More­over: “The ap­pel­lants have ar­gued that the co­in­ci­dence of the sign­ing of the two procla­ma­tions does not meet the re­quire­ments of Sec­tion 50 (6) for the procla­ma­tion to come into force upon the dis­so­lu­tion of par­lia­ment on that day, be­cause there is no ev­i­dence that it was made be­fore and not to­gether with the dis­so­lu­tion procla­ma­tion, and so it can only come into ef­fect fol­low­ing the next dis­so­lu­tion of par­lia­ment, when­ever that may be in the en­su­ing five-year pe­riod fol­low­ing the 16 Fe­bru­ary, 2015 gen­eral elec­tions.

“We re­ject this sub­mis­sion and pre­fer the sub­mis­sion of the at­tor­ney gen­eral that the in­tent of Sec­tion 50 (6) was to en­sure that changes in the con­stituency bound­aries should come into force dur­ing a sub­sist­ing par­lia­men­tary term so that a per­son duly elected as the rep­re­sen­ta­tive of a con­stituency de­lin­eated in one way finds him­self in the course of his par­lia­men­tary term rep­re­sent­ing a dif­fer­ently de­lin­eated con­stituency . . . We hold that the procla­ma­tion made by the gover­nor gen­eral on 16 Jan­uary, 2015 giv­ing ef­fect to the re­port of the Con­stituency Bound­aries Com­mis­sion rec­om­mend­ing changes in the con­stituency bound­aries in the Fed­er­a­tion of Saint Christo­pher and Nevis came into force on 16 Jan­uary, 2015 upon the dis­so­lu­tion of par­lia­ment on that day.”

The ap­peal court also re­jected the ap­pel­lants’ sub­mis­sion that the def­i­ni­tion of “procla­ma­tion in Sec­tion 119 of the Con­sti­tu­tion must be ap­plied in the in­ter­pre­ta­tion of Sec­tion 50 and that the ef­fect of its ap­pli­ca­tion is that the bound­aries procla­ma­tion was not made un­til it was pub­lished in the Gazette and, fur­ther, that the pub­li­ca­tion in­cludes cir­cu­la­tion to the gen­eral public of the ac­tual Gazette with the name of the printer im­printed at the end of it to­gether with the words ‘by author­ity.’ ”

The court agreed with the judge that by the time she had granted the in­junc­tion on Fri­day, 16 Jan­uary, 2015 and which in­junc­tion was served on the at­tor­ney gen­eral the same day, what she had sought to in­junct had al­ready oc­curred and so the in­junc­tion was prop­erly dis­charged by her on 27 Jan­uary, 2015.

Fi­nally: “Hav­ing con­sid­ered all the sub­mis­sions, oral and writ­ten, by the coun­sel on be­half of the par­ties, we are sat­is­fied that the ap­pel­lants have not demon­strated that the judge’s ex­er­cise of her dis­cre­tion in dis­charg­ing the in­junc­tion was im­proper and should there­fore be over­turned.”

The court dis­missed the ap­peal against the judge’s or­der dis­charg­ing the in­junc­tion she had pre­vi­ously granted. “Con­se­quently, the in­terim in­junc­tion or­dered by this court on 29 Jan­uary, 2015 pending the hear­ing of this ap­peal is dis­charged.”

There was no or­der for costs.

On 5 Fe­bru­ary, 2015 the Court of Ap­peal, with the con­sent of the par­ties, granted leave to ap­peal to the Privy Coun­cil Board, the par­ties hav­ing agreed that the Elec­toral Com­mis­sion and the Su­per­vi­sor of Elec­tions would (1) pre­pare two lists of vot­ers, one on the bound­aries ex­ist­ing be­fore the pur­ported al­ter­ation on 16 Jan­uary, 2015 and the other on the bound­aries de­scribed in the im­pugned procla­ma­tion and (2) use for the pur­poses of the elec­tion the list which the Board held to be ap­pro­pri­ate.

The Board con­cluded: The dis­so­lu­tion of the Na­tional As­sem­bly oc­curred be­fore the im­pugned procla­ma­tion was made. Ac­cord­ingly, if valid, did not gov­ern the elec­tion which fol­lowed that dis­so­lu­tion. But the ap­peal also raised im­por­tant con­sti­tu­tional ques­tions on which it is ex­pe­di­ent that the Board ex­press at least ten­ta­tive views. Those ques­tions are: (1) whether, if there were a de­lib­er­ate at­tempt to ex­clude the re­view by the courts of the Con­stituency Bound­aries Com­mis­sion’s re­port, that at­tempt was un­con­sti­tu­tional be­cause it was con­trary to the rule of law; and (2) whether the pub­li­ca­tion of the im­pugned procla­ma­tion in the Gazette af­ter the grant of the in­terim in­junc­tion was un­law­ful and there­fore of no ef­fect.

The Board noted: The Con­sti­tu­tion of Saint Christo­pher and Nevis pro­vides for the su­per­vi­sion

For­mer St. Christo­pher-Nevis prime min­is­ter Den­zil Dou­glas:

Did his lawyers de­liver what tax­pay­ers paid for?

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