Ed Ap­peal Court de­ci­sion!

The Star (St. Lucia) - - COMMENT -

of the reg­is­tra­tion of vot­ers and the con­duct of elec­tions by a Su­per­vi­sor of Elec­tions. He or she in turn is su­per­vised by an Elec­toral Com­mis­sion of three per­sons ap­pointed by the gover­nor gen­eral. Sec­tion 49 of the Con­sti­tu­tion pro­vides for the Con­stituency Bound­aries Com­mis­sion of five mem­bers ap­pointed by the gover­nor gen­eral and Sec­tion 50 re­quires the CBC to re­view con­stituency bound­aries to give ef­fect to the rules set out in Sched­ule 2 and to re­port to the gover­nor gen­eral at in­ter­vals of not less than two and not more than five years.

“Un­der Sec­tion 50 the prime min­is­ter is re­quired to lay be­fore the Na­tional As­sem­bly a draft of a procla­ma­tion by the gover­nor gen­eral for giv­ing ef­fect, with or with­out mod­i­fi­ca­tions, to the rec­om­men­da­tions con­tained in the CBC re­port. It is ap­pro­pri­ate to set out subsec­tion (6), as it is cen­tral to the Board’s de­ter­mi­na­tion of this ap­peal: ‘If any draft procla­ma­tion laid be­fore the Na­tional As­sem­bly un­der subsec­tion (3) or (5) is ap­proved by a res­o­lu­tion of the As­sem­bly, the prime min­is­ter shall sub­mit it to the gover­nor gen­eral who shall make a procla­ma­tion in terms of the draft; and that procla­ma­tion shall come into force upon the next dis­so­lu­tion of par­lia­ment af­ter it is made.’

“It is ap­pro­pri­ate also to set out the terms of subsec­tion (7), which pro­vides for the ouster of the court’s ju­ris­dic­tion, in view of the ap­pel­lants’ chal­lenge, which the Board notes but is not in a po­si­tion to de­ter­mine, that the for­mer gov­ern­ing party de­lib­er­ately rushed through the ap­proval of the im­pugned procla­ma­tion in or­der to pre­vent a legal chal­lenge. Subsec­tion (7) pro­vides: ‘The ques­tion of the va­lid­ity of any procla­ma­tion by the gover­nor gen­eral pur­port­ing to be made un­der subsec­tion 50 (6) and recit­ing that a draft thereof has been ap­proved by res­o­lu­tion of the Na­tional As­sem­bly shall not be en­quired into in any court of law ex­cept upon the ground that the procla­ma­tion does not give ef­fect to rule 1 in Sched­ule 2.’ ”

Re­gard­ing the “fac­tual back­ground” sec­tion of the ap­peal court judg­ment, the Board recorded what “ap­pear to be un­con­tested fact. It is suf­fi­cient to say by way of back­ground that for sev­eral years there have been dis­putes be­tween sup­port­ers of the gov­ern­ment and the op­po­si­tion over terms of the CBC’s re­ports, giv­ing rise to legal chal­lenges. More re­cently a CBC re­port of 5 Septem­ber, 2013 was sub­ject to a legal chal­lenge and was quashed on the ground of in­ad­e­quate con­sul­ta­tion on 31 July, 2014. Af­ter the CBC pro­duced re­vised rec­om­men­da­tions, mem­bers of the CBC, who had been ap­pointed on the ad­vice of the leader of the op­po­si­tion, ex­pressed con­cerns whether those rec­om­men­da­tions com­plied with the re­quire­ments of Sched­ule 2. On 18 De­cem­ber, 2014 at­tor­neys act­ing for rep­re­sen­ta­tives of the op­po­si­tion par­ties wrote to the prime min­is­ter to in­ti­mate that they were in­structed to mount a legal chal­lenge to the re­vised rec­om­men­da­tions in a forth­com­ing CBC re­port. There­after, on 13 Jan­uary, 2015 the CBC met and by a ma­jor­ity of 3:2 ap­proved maps of the re­vised con­stituency bound­aries. This set the scene for the events of 16 Jan­uary, 2015.”

“The ap­pel­lants ap­pealed,” the Board re­called. “On 29 Jan­uary, 2015, the Court of Ap­peal granted the ap­pel­lants in­terim re­lief pending their ap­peal. But on 5 Fe­bru­ary, 2015 the Court of Ap­peal - Bap­tiste, Michel and Thom JJA - re­fused the ap­peal. The court held that Sec­tion 50 was a self-con­tained regime pur­po­sively to pro­vide that changes to con­stituency bound­aries should not come into force dur­ing a sub­sist­ing par­lia­men­tary term. The court agreed with Carter J that the act, which she had sought to pro­hibit, had al­ready oc­curred by the time she made the or­der and that the in­junc­tion there­fore fell to be dis­charged. As al­ready stated, the Court of Ap­peal granted leave to ap­peal to the Board.” The Privy Coun­cil Board De­ci­sion “The Board is per­suaded that the im­pugned procla­ma­tion, if valid, did not gov­ern the elec­tion which was held on 16 Fe­bru­ary. In its view, the case turns on (a) the cor­rect in­ter­pre­ta­tion of Sec­tion 50 (6) and (b) an anal­y­sis of when a procla­ma­tion is ‘made.’ The Board con­sid­ers that the words which it un­der­lined in Sec­tion 50 (6) above should bear their nat­u­ral and or­di­nary mean­ing. There is noth­ing in the statu­tory con­text or on an anal­y­sis of statu­tory pol­icy to re­quire an­other mean­ing to be given to those words. None was sug­gested.

“The next ques­tion is: when is a procla­ma­tion ‘made’ un­der Sec­tion 50 (6)? Un­der the Con­sti­tu­tion procla­ma­tions by the gover­nor gen­eral are limited to spec­i­fied mat­ters of im­por­tance. In ad­di­tion to the al­ter­ation of con­stituency bound­aries, they are: (a) the dec­la­ra­tion of a state of emer­gency (Sec­tion 19 (1)); (b) the re­vo­ca­tion of such a dec­la­ra­tion (Sec­tion 19 (5)); and (c) the sup­pres­sion of leg­is­la­tion of the Nevis Is­land Leg­is­la­ture in the in­ter­ests of ex­ter­nal af­fairs or in the in­ter­ests of de­fense (Sec­tion 37 (4)). Other things be­ing equal, one would ex­pect the Con­sti­tu­tion to reg­u­late pub­li­ca­tion of such legal in­stru­ments; and it does.

“Sec­tion 119 of the Con­sti­tu­tion de­fines what a procla­ma­tion is. It pro­vides, un­less the con­text oth­er­wise re­quires: ‘Procla­ma­tion’ means ‘a procla­ma­tion pub­lished in the Gazette, or, if such pub­li­ca­tion is not rea­son­ably prac­ti­ca­ble, pub­lished in Saint Christo­pher and Nevis by such means as are rea­son­ably prac­ti­ca­ble and ef­fec­tive.’

“The Board is sat­is­fied that the con­text of Sec­tion 50 does not re­quire in­ter­pre­ta­tion to the word ‘procla­ma­tion.’ Lord Gold­smith QC sub­mit­ted that Sec­tion 50 (6) was self-con­tained and did not re­quire pub­li­ca­tion of the procla­ma­tion be­cause it had its own mech­a­nism for the com­mence­ment of its legal ef­fect, namely that the procla­ma­tion came into force upon the next dis­so­lu­tion of par­lia­ment af­ter is it made.

“The Board is not per­suaded. The Board ac­cepts his point that the subsec­tion spec­i­fies the time for the com­ing into op­er­a­tion of the procla­ma­tion, whereas Sec­tion 42 (4) pro­vides that no law made by par­lia­ment shall come into op­er­a­tion un­til is has been pub­lished in the Gazette. But the spe­cific pro­vi­sion in Sec­tion 50 (6), which brings the procla­ma­tion into force, does not al­ter the mean­ing of ‘procla­ma­tion’ so as to dis­ap­ply the Sec­tion 119 def­i­ni­tion. The mak­ing of a procla­ma­tion is not sim­ply the sign­ing of a doc­u­ment, which can there­after be kept on an in­ter­nal gov­ern­ment file.

“Nor is it the pro­duc­tion of a hard copy of the text of a Gazette which sim­i­larly is de­posited in a file and not made avail­able to the public by the pub­li­ca­tion of the Gazette. A procla­ma­tion is what it says it is. It is some­thing which is pro­claimed or pub­lished; and the con­sti­tu­tion­ally rec­og­nized means of pub­li­ca­tion are stated in Sec­tion 119. Lon Fuller in ‘The Moral­ity of Law’ iden­ti­fied as one of eight desider­ata of law the need to pub­li­cize, or at least make avail­able to the af­fected party, the rules he is ex­pected to ob­serve. One of the benefits of such pro­mul­ga­tion is that laws can be sub­jected to public crit­i­cism. Sec­tion 119 pro­vides the means for pro­mul­ga­tion by which law is made by procla­ma­tion.

“The re­spon­dents did not ar­gue that it was not rea­son­ably prac­ti­ca­ble to pub­lish the im­pugned procla­ma­tion in the Gazette (which is de­fined in the Con­sti­tu­tion as the of­fi­cial Gazette of Saint Christo­pher and Nevis). Ac­cord­ingly, the other means of dis­sem­i­nat­ing the terms of the im­pugned procla­ma­tion, which Sec­tion 119 au­tho­rizes, are ir­rel­e­vant. There­fore the dis­sem­i­na­tion of the text or the bulk of the text of the procla­ma­tion on the gov­ern­ment’s web­site is not a sub­sti­tute for pub­li­ca­tion in the Gazette. The ques­tion is: when was the im­pugned procla­ma­tion pub­lished in the Gazette?

“The an­swer to that ques­tion lies in the un­chal­lenged ev­i­dence ad­duced by the ap­pel­lants. In par­tic­u­lar, the Hon. Sam Con­dor, the third ap­pel­lant, records in an af­fi­davit that when on 19 Jan­uary, 2015 he ap­proached the Gov­ern­ment In­for­ma­tion Ser­vice Depart­ment, which is the gov­ern­ment depart­ment re­spon­si­ble for dis­tribut­ing the Gazette, he was in­formed by re­spon­si­ble of­fi­cials that there was as yet no pub­lished Gazette for 2015. On the fol­low­ing af­ter­noon, when he again asked for Gazettes pub­lished in 2015, of­fi­cials gave him the im­pugned procla­ma­tion, which was pub­lished as Ex­tra Or­di­nary Gazette No 3 of 2015, and the procla­ma­tion dis­solv­ing par­lia­ment, which was Ex­tra Or­di­nary Gazette No 3A of 2015. The at­tor­ney, Mr. De­Lara MacClure Tay­lor, also gave ev­i­dence in an af­fi­davit that the Gov­ern­ment In­for­ma­tion Ser­vice Depart­ment was the only depart­ment re­spon­si­ble for dis­tribut­ing the Gazette to the public. On vis­its to that depart­ment on both 19 Jan­uary, 2015 and on the morn­ing of 20 Jan­uary, 2015 of­fi­cials told him the most re­cent Gazette was Gazette No 56 of 2014.

“It fol­lows, in the Board’s view that the im­pugned procla­ma­tion was made no ear­lier than 20 Jan­uary, 2015 when it be­came avail­able to the public by pub­li­ca­tion in the Gazette on the author­ity of the gover­nor gen­eral. The procla­ma­tion dis­solv­ing par­lia­ment was pub­lished at the same time. In that procla­ma­tion (which, like the im­pugned procla­ma­tion, was er­ro­neously stated to be pub­lished on the 16 Jan­uary, 2015), the gover­nor gen­eral dis­solved the par­lia­ment ‘as from the 16 day of Jan­uary 2015.’ The dis­so­lu­tion, which un­ques­tion­ably oc­curred with ef­fect from 16 Jan­uary, pre­dated the ‘mak­ing’ of the im­pugned procla­ma­tion. As a re­sult, the im­pugned procla­ma­tion, if valid, will have ef­fect only on the dis­so­lu­tion of the par­lia­ment that was elected on 16 Fe­bru­ary, 2015 (Sec­tion 50 (6).”

The Board also dealt with other con­sti­tu­tional ques­tions, to be re­pro­duced here at a later date. Suf­fice it to say at this time that the Board ad­vised her Majesty that “the ap­peal should be al­lowed and that the par­ties should make writ­ten sub­mis­sions on costs within 21 days of de­liv­ery of this judg­ment.”

For­mer deputy prime min­is­ter, now Jus­tice Mario Michel: Did he and his fel­low judges dis­miss cer­tain de­tails as

ir­rel­e­vant?

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