IN THE HIGH COURT OF JUSTICE
GEORGE RICK JAMES
and
MR. JUNO SAMUEL MR. NATHANIEL JAMES
MR. JACK KELSICK MR. ANTHONYSON KING MRS. GLENDINA MCKAY
MRS. PAULA LEE
(In their capacity as Electoral Commissioners)
and
LORNA SIMON
(In her capacity as Chief Registration Officer)
Appearances:
Mr. Ralph Francis for the Claimant
Mrs. Patricia Simon-Forde for the First and Second Defendants
2014: June 11
Applicant
Respondents
DECISION
[1] HENRY, J. : By Fixed Date Claim Form filed on May 26th 2014, the claimant seeks an order that the first named defendant do fully comply with section, 18 (2) of the Representation of People (Amendment) Act 2001 and commence continuous voter registration of all qualified applicants and
secondly do fully comply with section 23 & 24 of the Representation of the People (Amendment) Act 2001 and cause to be prepared a revised register to include the names of the claimant and other eligible persons who would wish to be included thereo.n
[2] The Claimant’s claim against the defendant is that the First Defendant has failed to discharge its duty to allow for the continuous registration of voters as mandated by section 18(2) of Representation of the People (Amendment) Act No 11 of 2001. Further the Second Defendant has not prepared a revised register pursuant to Sections 23 and 24 of the said Act. As such the Defendant’s right under Section 40 (2) Antigua and Barbuda Constitution Order 1981 has been breached in that he has been unable to become a registered voter.
[3] In his affidavit in suppor,t the claimant states that he comes to the court in his personal capacity and also as the secretary of the Free and Fair Election League Inc (the League.) Over the period of its 22 years existence the League has worked assiduously as an election watch-dog and through its national campaign for electoral reform has assisted in the establishment of the Electoral Commissio,n voter re-registrtaion, the introduction of voter ID cards and the appointment of scrutineers. Furthermore it continues its efforts in advocating for the advancement of electoral reform in Antigua and Barbuda.
[4] The first named defendant, it is alleged, has responsibility for the general directio,ncontrol and supervision of the preparation of the voter’s registe.r
[5] The claimant avers that by an amendment to the Representation of the People Act Cap 379 (the Act), the re-registration of all persons eligible to be registered as electors for the constituency elections in Antigua and Barbuda was held over the period 28th September 2013 to 4th November 2013. He points out that the Act as amended requires that immediatelyupon publication of the register of electors generated from the re-registrationexercise there be continuous registration of all persons who are qualified and desirous of registrtaion. The said register of electors was published on Tuesday 20th May 2014.
[6] The claimant resides in the constituency of St. John’s City South and there is an election for a constituency representative to the House of Representatives due to be held on 12th June 2014. The writ for the election has been issued.
[7] The claimant asserts that he is not yet a registered elector in this constituenc,yand wishes to exercise his rights to be so regsi tered as an elector since, in his view, he meets all the qualifications to be registered.
[8] He states that the register of electors having been published on 20th May 2014, he presented himself at the Registration Unit for the constituency of St. John’s City South with the relevant documents to establish his eligibility to be regiset red. He requestedto be registered under the continuous registration provisio,nsection 18 (2) of the Act as amended. He was turned away and
not able to register as no provisions for such were made by the defendants. In fact as of the 26th May 2014, continuous registration has not started.
[9] The claimant points to section 24 (1) of the Act which he says demands that”. . . the Commission shall not later than 14 days after the issuing of the writ for an election for a constituency, publish in respect of that constituency, a register of electors to be known as a register for elections”. Friday 30th May 2014, he notes, will mark fourteen days since the publication of the writ for elections.
[10] The claimant states that he did on 21st May 2014 write to the first defendant on the matter; that he has also spoken in person to the second named defendant who promised to reply; but that he has not heard from the second named defendant.
[11] The claimant further points out that he is not alone in his circumstances. That the League has been inundated with calls by individuals seeking information about getting registered at this time. Each of these persons, for one reason or the other, did not obtain registration over the period 28th September to 4th November 2013.
[12] Section 31 of the Act, he notes, allows for an extension of time for holding of an election as appointed by the writ for the holding of any poll because of 31 (1) (b) the likelihoodthat the register of electors for any constituency will not be ready before the day appointed for the holding of the poll.
[13] The claimant asserts that if he is denied his constitutional right to be registered it would place him at a disadvantage as he would not be able to vote for a candidate of his choice to represent his interest in the House of Representatives. The same, he state,sapplies to all others who would wish to be so represented.
[14] In response to the claimant’s affidavit, Juno Samuel, Chairman of the Antigua and Barbuda Electoral Commission (ABEC) filed an affidavit on behalf of the first and second named defendasn.t According to Mr. Samuel, at the close of the re-registration exercise, the law provides for certain events to take place: (a) the publication of the elector’s list in accordance with the Representation of the People (Amendment) Act, 2002 Regulation 14 (2)(the 2002 Regulations;)(b) simultaneously with the publication of the electors’ list, the law provides for the communiciaotn of the time and place for the hearing of claims and objections to the list. Claims and objections must be submitted within 30 days after the close of registration, according to regulations 15 and 16; (c) thereafter the registration officer proceeds to hearing of the claims and/or objections; and (d) thereafter there is provision for appeals to ABEC.
[15] Mr. Samuel notes that pursuant to section 28 (2) of the 2002 Regulation,sthe list of registered electors derived from the continuous process, is, and must be subject to the same scrutiny of the claims and objections process as the list of registered electors generated from a re-registration execr ise.
[16] Mr. Samuel admits that the law provides for the continuous registration, of all persons qualified to be registered as electors, immediately after the publication of the register of electors, consequent upon the registration of voters, but states that by regulation 28(2), same shall be undertaken at such place and at times fixed by the Commission.
[17] Mr. Samuel states that ABEC realizes its responsibilities to ensure that voter registration remain continuous. Howeve,rhe asks the court to consider the position that ABEC found itself in on the 15th May 2014, when not only the election date was announced, but the date of the issue of the writ for election and Nomination Day, were announced. There had not yet been a publication of the register of electors, consequent upon the re-registration exercise.
[18] ABEC, he believe,swas by law faced with certain mandatory matters which had to be put in place immediately, namely: commence issuing of the identification cards, consequent upon the re registration exercise, as Nomination Day was the 21st May, 2014, and the nomination process provided for the identification cards to be produced by the Nominee,sSeconders, proposers and other persons, to effect the nomination process.
[19] These identification cards are issued by the Registration Officer, utilizing the same computer facilities, and the Registration Officers are the same election officers to whom an individual must present their information for registration as an elector. Furthermore, prior to the issue of the identification cards, the register of electors had to be published and that Register was not published until 20th May 2014. Thereafter a register for elections must be published no later than 14 days after the issuing of the writ for elections for a constituency.
[20] He concludes that due to the time lines and the date of the publication of the register of electors consequent upon the re-registration exercsie, there can be no revised registe,r to supplement the register of electors published on 20th May 2014.
[21] Further, in any event, any possible supplementary list to be derived from continuous registration would have been published, as outlined in the law, on the 15th June 2014, after the stated election date. Additionally, this supplemental list would still be subject to the claims and objections process, and the resultant time lines as outlined.
[22] His stated position is that due to the logistics outlined and the fact that the process of issuance of the identification cards and the continuous registration can only be conducted by the Registration Officer, coupled with the fact of the impending election date of 12th June 2014, ABEC had to defer the commencement of the continuous registratio.nBut a date for its commencement will be made shortly.
Claimant’s Submissions
[23] The claimant submits that the claim is based on Section 40 of the Constitution Order of Antigua and Barbuda which guarantees the right of persons to vote.. Counsel did not develop this submission further except to point to paragraph 15 of the claimant’s affidavit where he states: “If I
[24] The claimant further submits that section 18 (2) of the 2001 Amendment Act provides for continuous registration of all persons qualified to be registered as electors in each constituency immediately after the publication of the register of electors under subsection (1). No continuous registration has commenced despite the publication of the register of electors consequent upon the
re-registration exercise on 20th May 2014. Mr. Samue’sl affidavit acknowledges same. The
claimant’s position is that barring the intervention of a weekend, that continuous registration should begin within a day or two of the publication of the register. ABEC, he contends is required to put procedures in place to see that there is no impediment to the continuous registration as provided for in the law.
[25] With regard to the facts set out in Mr. Samuel’s affidavit, Counsel for the claimant submits that while he is not disputing the affidavit evidence, he asks the court to note that the main issue is whether or not persons who wish to exercise their rights to be electors can be denied them under the circumstances. However, in his written submissions, the claimant asserts that the main issue to be determined is at what stage of the registration process can one be held to be on the register of electors. He directs the court to section 12 and 13 of the 2002 Regulations.
[26] He submits that section 13 in particular addresses the procedure after the registration officer is satisfied that the applicant is eligible to be registered. According to him, the procedure which follows indicates that the individual is treated as a registered voter.
[27] He further submits that contrary to the assertions of the defendants, the revised register would also include persons who had not previously been registered but who fall within section 23 (2) (c) & (d) of the 2001 Amendment Act and presented themselves for registration. He submits that Subsection (2) of section 23 sets out 4 categories of persons to be included on the revised registe:r
(a) & (b) are persons who were previously registered. But (c) & (d) are persons who were not on any previous list. He submits that there is a difference between continuous registration under section 18 (2) of the Act as amended and the revised register under section 23. He therefore concludes that the 2002 Amendment in respect of continuous registration does not affect his case.
[28] Finally, he submits that the Representation of the People Act as amended, does provide the opportunity for the claimant and all others who would wish, to be so registered. Pursuant to section 24 of the 2001 Amendment Act, ABEC is required to publish, not later than 14 days after the issuing of the writ for an electio,na register of electors, known as a register for elections. This shows, he submits, that there are distinct lists from which the register of elections is composed: (a) there is the register from the re-registration; (b) list from continuous registration and (c) a revised list under section 23.
[29] Section 40 of the Constitution
Section 40 (2) and (3) of the Constitution addresses a citizen’s entitlement to vote and provides:
” (2) Every Commonwealth citizen of the age of eighteen years or upwards who possesses such qualifications relating to residence or domicile in Antigua and Barbuda as parliament may prescribe shall, unless he is disqualified by any law from registration as a voter for the purpose of electing a member of the house, be entitled to be registered as such a voter in accordance with the provisions of any law in that behalf and no other person may be registered.
(3) Every person who is registered as a voter in pursuance of subsection (2) of this section in any constituency shall, unless he is disqualified by any law from voting in that constituency in any election of members of the house, be entitled so to vote in accordance with the provisions of any law in that behalf.”
[30] The nature of the entitlement to vote as set out in section 40 (2) and (3) of the Constitution has been considered by the Court of Appeal most recently in The Hon. Gaston Browne v The Attorney General et al1. At paragraphs 28 and 29 the Court stated:
“[28) Subsection 3 of section 40 clearly and expressly recognizes that the right to vote is dependent on (i) registration pursuant to sub-section (2) of section 40 and (ii) disqualification by any law from voting…
[29] Sub-section (2) means that Parliament may from time to time by ordinary legislation pass laws prescribing qualifications relating to residence and domicile for Commonwealth citizens to vote. That is what Parliament has done by the amending Act of 2010. It follows that, (as section 40 (2) of the Constitution says) only persons who satisfy the qualifications set out in the amending Act 2010 and no other person may be registered. It also follows that by virtue of section 40 (3) only those persons (being entitled to be registered and being registered as voters) are entitled to vote.”
[31] The court expressly confirmed that there is no fundamental “right to vote” provision under Chapter II of the Constitution. That the entitlement to vote by any person, (which is enshrined in section 40
(3) is made subject to that person’s registration as a voter in pursuance of subsection (2)2. The entitlement to vote is also subject to the person, registered under subsection (2), not having been disqualified by law from voting in that constituenc.y
11 Claim No ANUHCVAP2013/0028 delivered 28 th April 2014
2 Ibid, paragraph [30)
[32] Parliament may therefore by ordinary legislation pass laws regarding the procedures for registration, the compilation of the register of electors and the revision of same.
The RegistraitonProcess
[33] The claimant submits that the main issue is at what stage of the registration process can one be held to be on the register of electors. He invites the court to visit section 12 and 13 of the 2002 Regulations.
[34] Section 12 sets out the procedure for making an application for registration as an elector, including the production of relevant evidentiary documents required to authenticate the statements in his/her application.
[35] Pursuant to section 13, where the registration officer is satisfied that the applicant is eligible to be registered, he prepares and forwards certain documents to the Chief Registration Officer (CRO). After completion of certain administrative functions, the CRO then prepares and publishes the electoral list in accordance with section 14.
[36] At the same time as the publication of the electoral list, a notice specifying the manner in which and the time within which claims and objection may be made is published. It is only after the hearing of claims and objections and the time for appeals have expired and alterations have been made to the electoral list in each constituency, that the Chairman of ABEC can sign and certify the list. It is the certified list that is deemed to be the Register of Elector3s.
[37] Furthermore, the names on the register of electors published in accordance with section 21 of the 2001 Amendment Act are among those that are authorized by section 24 to be placed on the register for elections. The other source of names for the register for elections being the revised register published pursuant to section 23.
[38] It is important to note, as counsel for defendants submits, that in this matter, we are not here dealing with the register which is published pursuant to section 21 on 30th June and 31st December, annually which would in turn be revised by the 31st October and 30th April, annually. There has been a re-registration exercise. Upon the publication of the register generated by the re registration exercise, all other lists are extinguished. The earlier registers cease to have effect4. So there is no register published under section 21.
Continuous Registration
[39] Section 18 (2) of the Representation of the People (Amendment) Act 2001 speaks to continuous registration after a re-registration exercise. It provides:
3 Section 23 (1) & (2) of the 2002 Regulations
44 Section 18(5) of the Representation of the People (Amendment) Act, 2001
“(2) There shall be continuous registration of all persons quali fied to be registered as electors in each constituency immedi ately after the publications of the register of electors, under sub section (1). Every person who at any time after the period speci fied by the Governor-General under subsection (1) is or becomes qualified to be registered as an elector for a constituency shall apply in person with supporting documents as prescribed in the Registration Regulations to the Commission to be registered as an elector and have his name entered in the register of electors for that constitueny.c”
(40) The claimant makes the following submissions in this regar:d(a) that the register of electors was published on 20th May 2014 and that as of 26th May 2014, when his claim was filed, continuous registration had not commenced; that barring the intervention of a weekend, continuous registration ought to begin within a day or two of the publication of the register of electors; therefore ABEC has failed to discharge its duty to allow for continuous registrtaion; (b) further, that the second defendant has not prepared a revised register pursuant to section 23 and 24; (c)that the claimant’s (erroneously stated as defendant’s) right under section 40 (2) of the Constitution has been breached in that he has been unable to become a registered voter.
[41} ABEC has already recognized its responsibility to commence continuous registration immediately after the publication of the register of electors. However, it submits that due to the position in which ABEC found itself on the 15th May 2014, that it was unable to commence continuous registration. Further, that by Regulation 28 (2) of the 2002 Amendment Act continuous registration shall be undertaken at such place and at the times fixed by ABEC. That as of 2nd June 2014, there were still a total of 7000 identification cards to be delivered in the various constituencies. Therefore a final decision should be made shortly as to the commencement of continuous registratio. n
[42] By section 3 of the Representation of the People (Amendment) Act 2002, the First and Second Schedules of Cap 379 were repealed and new schedules substitute.d With regard to continuous regsi tration, the following regulations found in Second Schedule are relevant.
28. (1) Continuous registration of electors who are qualfiied, under the act shall take place in accordance with these regulations
are immediately after the publication of the register of electors pursuant to subsection 18(1) of the Act with respect to the regis tration of electors for each constituency consequent on the re registration of electors supervised by the Commission.
(2) (a) Continuous registration shall be undertaken at such place or places and at the times fixed by the Commis sion
(4) The Commission shall, .at the end of each month, make available to every political party represented in the House of
Representatives and to every independent member of that House, the name and address of each person registered during that month.
(5) The Commission shall publish the supplementary list of electors registered under the continuous registration system monthly and shall cause to be prepared and published as soon
as possible there after and in any case not later than the fifteenth day of the following month a supplementary list of electors reg istered in accordance with the provisions of the Act and these regulations.
(6) The procedures applicable to claims and objections made hereunder are subject to rules 17 to 22.
(7) As soon as claims and objections have been dealt with or the period for making claims and objections has expired, the supplementary list shall be included in the revised register.
29. (1) The Commission shall cause the register of electors to
be properly maintained at all times by the timely inclusion of persons who have registered under the continuous registration process.
(2) The Commission shall establish procedures to ensure that deceased persons, persons who have changed address and per sons who have changed their names, through marriage or other wise, and persons who have become disqualified, by whatever means, are removed from the register in a timely manner.
[43] It is common ground that both subsection 18 (2) of the 2001 Amendment Act and Regulation 28 (1) provide that continuous registration shall take place immediately after the publication of the register of electors consequent on the re-registration of electors.
[44] The fact that regulation 28 (2) charges ABEC with the responsibility to fix the place where and times when the continuous registration shall be undertaken does not detract from the imperative expressed in the Act for it to commence immediately after the publication of the Register.
[45] However, Cockburn CJ in R v Berkshir5enoted that it is impossible to lay down any hard and fast rule as to what is the meaning of the word “immediately” in all cases. The words “forthwith” and “immediately” have the same meaning. They are stronger than the expression “within a reasonable time”, and imply prompt, vigorous action, without any delay. It has been held that the
5 (1878} 4QBD 469 at 471
[46] Accordingly, while the statute provides that continuous registration shall commence immediately after the publication of the register, the court is required to consider the surrounding circumstance. s The court must consider the extremely short time line between the announcement on 15th May 2014 of the dates for holding the election (12th June 2014) as well as the dates for the issue of the writ of election and the nomination day. This was followed by the publication of the register of electors on 20th May 2014. ABEC was required in this time frame to carry out several important functions including the production and issuance of identification cards, in some instances before nomination day. Therefore in deciding whether ABEC failed to act with reasonable promptness or as soon as possible, the nature of the act and the above circumstances must be weighed.
Furthermor,egiven the timelines, persons who would have registered had continuous registration began on 21st May, 2014, could not go through the process of claims and objections in time to have their names entered on a revised registe.r
[47] This is so because once continuous registration begins, ABEC is required to compile monthly lists of the name and address of each person registered during the month. That list, called a supplementary list, is to be published no later than the fifteenth day of the following month. The procedures for claims and objections apply to the supplementary list8. As soon as claims and objections have been dealt with or the period for making claims and objections has expired, Regulation 28 (7) requires that the names on the supplementary list be included in the revised register.
[48] The claimant not only seeks an order that ABEC comply with section 18 (2) of the 2001 Amendment Act by immediately commencing continuous registration, but he also seeks an order that ABEC complies with section 23 and 24 of the 2001 Amendment Act and cause to be prepared a revised register to include the names of the claimant and other eligible persons who wish to be included thereon.
[49] Section 23 provides:
23. (1) The Chief Registration Officer shall make all additions
to the register published under section 21 and shall make remov als therefrom in consequence of any action taken under section
6 R v Aston (1850) 19 UMC 236 at 239
77 45 (2) Halsbury’s Laws of England (4th Edn) para 251
8 See Section 18(3) of the 2001 Amendm ent Act and Regulation 28 (6) & (7)
8
19 or 22.
(2) The revised register shall be a list of electors for each constituency which shall consist of all persons –
(a) whose names appear on the register for the constitu ency who have notified the Chief Registration Of ficer of a change of address in accordance with the regulations and appear to be ordinarily resident in the constituency;
(b)whose names appear in the register for the constitu ency who have effected a change of address within the constituency and have notified the Chief Regis tration Officer in accordance with the regulations;
(c) who have reached the age of 18 years and who ap pear to the Chief Registration Officer to be otherwise qualified; and
(d) who otherwise become qualified persons
[50] As was noted above because of the re-registration exercise, there is no register published under section 21. Further, publication of any supplementary list as a result of continuous registration is not yet due.
[51] Even if continuous registration commenced on 21st May 2014 (the day after publication of the
register of electors,)at the end of May, the names of persons registered during the month of May must be entered on a supplementary list which must be published by ABEC no later than 151h June 2014. The supplementary list is subject to the provisions for claims and objections. It is only after the expiration of the period for claims and objections pursuant to section 22, that the persons whose names appear on the supplementary list can be placed on the revised register.
[52] In other words, the initial registration alone, which generatesthe supplementary list, without going through the scrutiny of the claims and objection exercise and the revision process is not sufficient to have a person’s name entered on the revised register or the registerfor elections.
[53] Therefore, even if eligible persons were able to register starting on 21st May 2014, the earliest supplementary list on which their names would appear would be the one published on 15th June 2014 – 3 days after the election. Because it is only after the period of claims and objections, could those names be placed on the revised registe.r
[54] Counsel for the claimant submits that while section 23 (2)(a) & (b) refer to persons who were previously registere,dsection 23 (2)(c) & (d) refer to persons who were not on any previous list. He reasons that persons who reach the age of 18 years after the re-registration exercise, may during the continuous registration period, apply directly to the CRO and if she finds that they are qualified their names may be entered on the revised register without the need to be enteredon a supplementary list and be subject to the scrutiny of claims and objection.sHe further reasons that
11
j
[55) The court is unable to agree with Counsel for the following reasons:
(1) Section 18(3) of the 2001 Amendment Act and Regulation 28 of the 2002 Regulation make it clear that registration of voters carried out pursuant to the re-registration exercise and the continuous registration provisions shall be subject to the claims and objections procedures provided for in section 22.
(2) There is nothing in section 23 which creates a new category of registered voters who are exempt from the section 22 claims and objections procedures;
(3) To so interpret section 23 would be to create a group of voters registered outside the provisions of the statute.
(4) Such an exemption would lead to abuse since in order to avoid the scrutiny of objections and the revisions process, voters could simply delay registration until after the writ of election was issued.
(5) The statutory period for revision of the supplementary list consequent upon continuous registration undertaken after the re-registration exercise has not yet arisen.
(6) Further, the requirement that the provision for claims and objections apply to persons registered pursuant to the re-registration exercise and under the provision for continuous registration, is not tantamount to taking away a constitutional right. The entitlement to vote under section 40 of the Constitution has never been an absolute right. There are qualifications for registration and qualifications for voting in a constituency.
Conclusions
[56) Persons who are eligible to register during the continuous registration period following the publication of the registe,r are not entitled to have their names entered on the revised register without having their names entered on a supplementary list which would then be subject to the claims and objecitonsprocedure. The court therefore declines to order that their names be entered on the revised register or on the register for election.s
[57) .. Since any supplementary list arising from continuous registration is not due for publication before 15th June 2014, no revision of that list can take place now. Therefore an order by the court that the defendants do cause to be prepared a revised register now to include the name of the claimant and other eligible persons would be inappropriate.
[58) The requirement that the claims and objections proviisonsapply to persons registering during the continuous registration before such persons can be placed on the revised register does not amount to a breach of those persons rights under section 40 (2) of the Constitution.
[59] While section 18(2) provides for the commencement of continuous registration immediately after the publication of the register of electors, which implies promptness and without delay, the term “immediately” must be interpreted in light of the nature of the act and the surrounding circumstanc.esNotwithstanding the circumstances and the fact that any delay in the start of continuous registration will not affect anyone’s ability to have their names entered on the register for election, because of the language of the statute, the court will order that ABEC within 7 days, set a date, for the commencement of continuous registration.
[60] Accordingly:
(1) ABEC shall within seven days, set a date for the commencement of continuous registration.
(2) The other orders prayed for are refused.
(3) No order for costs.
Clare Henry
High Court Judge
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