Why Privy Council dumpe
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?