The Hon. Gaston Browne et al v The Constituencies Boundaries Commission et al

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THE EASTERN CARIBBEAN SUPREME COURT
ANTIGUA AND BARBUDA
IN THE HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV2013/0405
IN THE MATTER OF
THE CONSTITUENCIES BOUNDAIRES COMMISSION
and
IN THE MATTER OF PURPORTED RECOMMENDATIONS AND
“CONSULTATIONS”
OF THE CONSTITUENCIES BOUNDARIES COMMISSION
and
IN THE MATTER OF
SECTIONS 40 AND 64 OF THE CONSTITUTION ORDER 1981
OF ANTIGUA AND BARBUDA
and
IN THE MATTER OF THE
CONSTITUENCIES BOUNDARIES COMMISSION GUIDANCE ACT 10/2012
and
IN THE MATTER OF AN APPLICATION FOR DECLARATORY
INJUNCTIVE AND OTHER RELIEF BY THE APPLICANTS,
THE HON. GASTON BROWNE, THE HON. LESTER BIRD, THE HON. ASOT MICHAEL
EISEN BAPTISTE, PAULET HINKSON
UNDER THE PROVISIONS OF SECTION 110 OF THE ANTIGUA AND BARBUDA
CONSTITUTION ORDER 1981 AND/OR THE GENERAL LAW
BETWEEN:
THE HON. GASTON BROWNE, LEADER OF THE OPPOSITION
THE HON. LESTER B, BIRD, THE HON. ASOT A. MICHAEL
MR. EISEN BAPTISTE, MS. PAULET HINKSON
Claimants/Applicants
and
THE CONSTITUENCIES BOUNDARIES COMMISSION
First Respondent
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and
THE ATTORNEY GENERAL OF ANTIGUA AND BARBUDA
Second Respondent
and
THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
Third Respondent
and
THE PRIME MINISTER OF ANTIGUA AND BABRUDA
Fourth Respondent
and
THE ATTORNEY GENERAL FOR AND ON BEHALF OF
HER EXCELLENCY THE GOVERNOR GENERAL
Fifth Respondent
Appearances:
Mr. Anthony Astaphan SC, Mr John Fuller and Ms Samantha Marshall for the Claimants/Applicants.
Mr. Douglas Mendes SC and Mr. M. Quamina for the First and Third Respondents

Mr Justin Simon QC for The Second, Fourth and Fifth respondents

2013: October 18

December 4

Judgement
[1] Cottle, J.: The Claimants filed the present constitutional motion seeking declarations and injunctive
relief. A Constituencies Boundaries Commission was established under Section 63 (1) of the
Constitution of Antigua and Barbuda. It produced a report which recommended that the boundaries
of the constituencies, into which Antigua and Barbuda are divided, be altered. A commission was
appointed in February 2012. It produced a first report. The present Claimants challenged that
report, alleging inter-alia that the Constituencies Boundaries Commission had failed to adequately
consult with interested parties. The Constituencies Boundaries Commission sought and received
the advice of leading counsel. Based on that advice, the Constituencies Boundaries Commission
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agreed that the consultation had been inadequate. The report was withdrawn and the
Constituencies Boundaries Commission recommenced its work.
[2] It is important to note that the first report was withdrawn by the Constituencies Boundaries
Commission around the end of April 2013. By letter of 13th June, 2013, the Constituencies
Boundaries Commission wrote to the First Claimant. The First Claimant received the letter on
14th June, 2013. The missive invited him to consult, it included proposals for consideration.
Meetings were scheduled for consultations with interested persons. These meetings were fixed for
17th June, 2013 to 20th June, 2013. The Constituencies Boundaries Commission explains the haste
as follows: Under Section 64 (2), the Constituencies Boundaries Commission has at most 5 years
after the last report to submit its report to the speaker.
Section 64 (2) of the Constitution of Antigua and Barbuda reads:-
“A report by a Constituencies Boundaries Commission shall be submitted to the Speaker
under this section not less than two or more than five years after the date when the last
such report was submitted.”
[3] The Claimants advance several complaints. They say the Constituencies Boundaries Commission
abdicated its authority to conduct a review of all the constituencies and required data, and based
its recommendations instead on some digital or mathematical exercise conducted by the Statistical
Division. The Claimants also aver that the Constituencies Boundaries Commission violated Section
3 (1) of the Constituencies Boundaries Commission Guidance Act No. 10 of 2012.
Section 3 (1) is in these terms:-
“(1) In conducting its review the Commission shall be guided by the cardinal principles that
all constituencies shall contain as nearly equal numbers of inhabitants, taking into account
the need to achieve voter’s parity, as appear to the Commission to be reasonably
practicable, but the Commission may depart from the principles to the extent it considers
expedient and necessary to take into account the following factors:-
(a) The density of population and the changing demographics of the constituency;
(b) The need to ensure the adequate representation of sparsely populated rural areas;
(c) The geographical features of the constituency; and
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(d) The boundaries of the various towns and villages and more particularly, residential
area expansions.”
[4] Another grouse of the Claimants is the alleged failure of the Constituencies Boundaries
Commission to consult properly as required by Section 3 (2) of Act 10 of 2012:-
“(2) during the process of review, the Commission shall where necessary hold consultation
with interested persons and obtain credible data or information to assist it in its
deliberation.”
The Claimants also complain that the appointment of party supporters, affiliates and activists to the
Constituencies Boundaries Commission, gives rise to a real likelihood of bias in the carrying out of
the Constituencies Boundaries Commission’s constitutionally important functions.
[5] At the hearing, Mr. Astaphan SC submitted that the right to vote under the constitution is a settled
one. That right is a right to vote is a properly demarcated constituency. He pointed out that Section
3 of the “Guidance” Act establishes a need to achieve voter parity as far as this is possible. Under
Section 3, the Constituencies Boundaries Commission is required to consult with interested
persons. As I understand Mr. Astaphan’s argument, the affidavit of Mr. Crump, Chairman of the
Constituencies Boundaries Commission, reveals that various scenarios were put before the
Statistical Officers to arrive at the proposals that were eventually communicated to the First
Claimant. Mr. Astaphan says the Constituencies Boundaries Commission; in order to achieve
meaningful consultation ought to have let the Claimants know what those scenarios were. This
excites the suspicion of Mr. Astaphan. He asks what these scenarios were and what did the public
officers at the Statistics Division do with those proposed scenarios? He says that as a result, the
Claimants are disadvantaged because they were not informed as to how the Constituencies
Boundaries Commission arrived at the demarcation of the boundaries that were sent to the First
Claimant for consideration.
[6] Mr. Mendes SC for the Constituencies Boundaries Commission gave a useful background. The
first report by the Constituencies Boundaries Commission was withdrawn in April, 2013. Under
Section 64 (2) of the constitution the Constituencies Boundaries Commission was bound to submit
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a report to the speaker by 28th June, 2013. He says that against this background, the consultations
carried out, while not ideal, were the best that could be done in the circumstances.
[7] During the arguments it appeared that the claimants conceded that the Commission was bound to
place before them meaningful material to evaluate before inviting consultation. Indeed that was the
gravamen of the complaint which vitiated the first report. The Claimants cannot now argue that by
suggesting scenarios to the statistical officers to generate options out of which the Commission
selected, one as the basis for its proposals amounts to abdication of the Commission’s
responsibilities. The claimants were correct to place little reliance on this complaint.
[8] As the hearing developed, it appeared to this court that the single issue that remained in contest
was whether Section 64 (2) of the constitution is mandatory. If it is mandatory, the efforts by the
Respondents to consult are admittedly the best that the limited time permitted. It must be borne in
mind that the Claimants are not entirely new to this matter. They would long have been aware that
the Constituencies Boundaries Commission was contemplating changes to the existing
constituency boundaries and would have been able to put forward their own proposals, developed
independently, for the Constituencies Boundaries Commission to consider.
[9] The Claimants cited the decision of the Privy Council in Russell v Attorney General of St.
Vincent and the Grenadines,1997 1 WLR 1134. Section 33 (3) (a) and Section 33 (4) of the
Constitution of St Vincent and the Grenadines read as follows:-
“33 (a) Constituency Boundaries Commission shall be appointed in the following
circumstances, that is to say: whenever a census of the population of St. Vincent has been
held in pursuance of any law.”
(4) Whenever the commission has been appointed in the circumstances specified in
subsection (3) (a) or in the circumstances specified in subsection (3) (b) of this section it
shall forthwith carry out a review of the boundaries of the constituencies into which St.
Vincent is divided and may (and in the circumstances specified in subsection (3)(b) shall),
by order, alter the boundaries in accordance with the provisions of this section to such
extent as it thinks desirable in the light of those circumstances and the review.”
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[10] After a census had been held and a report published, no Constituencies Boundaries Commission
was appointed. An election was held. The Claimants contended that the general election had been
conducted in contravention to Section 33 of the constitution. The matter was considered by the
Privy Council. Their Lordships concluded that Section 33, of the Constitution of St Vincent and the
Grenadines was not ‘mandatory’ in the special sense that the appointment of a Constituencies
Boundaries Commission was a condition precedent to a valid election.
[11] Counsel for the Claimants now argues that the failure to submit a report by 28th June, 2013 would
not be fatal to the validity of the Constituencies Boundaries Commission report. There would then
be no need for the hurried consultation. The Commission could ignore the June 28th 2013 deadline
and hold extended consultation sessions.
[12] I note that the Privy Council in Russell’s case was careful to confine their remarks to the effect of a
failure to comply with Section 33 of the constitution on the validity of a subsequent election. I do not
take that to mean that a constitutionally imposed obligation is to be lightly or cavalierly ignored.
[13] Lord Hailsham put it well in London and Clydesdale Estates Ltd v Aberdeen District Council
1980 1 WLR 182 at page 189-190:-
“When Parliament lays down a statutory requirement for the exercise of legal authority it
expects its authority to be obeyed down to the minutest detail. But what the courts have to
decide in a particular case is the legal consequence of non-compliance on the rights of the
subject viewed in the light of a concrete state of facts and a continuing chain of events.”
[14] In the present case, I conclude that the Constituencies Boundaries Commission was entirely
justified in considering themselves bound to produce their report by the June 28, 2013 deadline.
The Constitution remains the supreme law. Given this imperative, the consultations, admittedly less
than ideal, were adequate in the circumstances.
[15] The Claimants also complain that the Constituencies Boundaries Commission failed to consult
before coming up with their proposals. Section 3 (2) of the Guidance Act requires the
Constituencies Boundaries Commission to consult with interested persons. It is accepted that the
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Claimants fall within this class of persons. But it is now settled law that in order to have proper
consultations, those who are to be consulted must be afforded information as to what is to be
considered. The Constituencies Boundaries Commission received the census data on
7th June, 2013. They then developed the proposals which they sent to the Claimants for their
consideration one week later. The consultations were fixed for a 4 day period beginning on
17th June, 2013. I am satisfied that the Constituencies Boundaries Commission complied with Act
10 of 2012.
[16] The Claimants also submitted that the recommendations of the Constituencies Boundaries
Commission are unreasonable or irrational. The role of this court is not to substitute its judgment
for that of the Constituencies Boundaries Commission. It cannot be said that the conclusions at
which the Constituencies Boundaries Commission arrived are so outside the pale that no
reasonable body could reach them. I am satisfied that this description cannot be applied to the
recommendations of the Constituencies Boundaries Commission.
[17] Although the Claimants also averred gerrymandering and bias on the part of the Constituencies
Boundaries Commission no cogent evidence was led to support either allegation. The
Constituencies Boundaries Commission says they had no regard to party support in deciding on
the amended boundaries. In his affidavit, the First Claimant says the effect of the proposed
recommendations is to dilute his areas of popular support and strengthen those of less political
opponents. This was not demonstrated with the specificity an allegation of fraud would demand. It
was not pursued with any vigor at the hearing. The Claimants were correct to adopt this approach.
[18] I therefore decline to grant the Claimants they seek. The claim is dismissed. I do not consider that
the Claimants have acted unreasonably in bringing the present claim and so I make no order as to
costs.
Brian Cottle
High Court Judge