Honourable Gaston Browne v The Attorney General of Antigua And Barbuda
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THE EASTERN CARIBBEAN SUPREME COURT
ANTIGUA AND BARBUDA
IN THE HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV2013/0635
BETWEEN:
HONOURABLE GASTON BROWNE
(THE LEADER OF THE OPPOSITION)
Claimant
and
THE ATTORNEY GENERAL OF ANTIGUA AND BARBUDA
First Respondent
and
MR. JUNO SAMUEL, MR. NATHANIEL JAMES, MR. JACK KELSICK
MR. ANTHONYSON KING, MRS. GLENDINA MCKAY, MRS. PAULA LEE
(members of the Antigua and Barbuda Electoral Commission under the
Provisions of The Representation of the People (Amendment) Act
No. 12 of 2011)
Other Respondents
Appearances:
Mr. Anthony Astaphan SC with Ms. Samantha Marshall for the Claimant
Mr. Justin Simon QC for First Respondent

Mr. Russell Martineau SC with Ms. Patricia Simon-Forde for Second Respondent

2013: December 4
December 6

December 18

Judgment
[1] Cottle, J.: By Act 6 of 2010, the Parliament of Antigua and Barbuda made provisions setting out
the qualifications which would enable a person to register as an elector, and thereby vote, in the
constituencies which comprise the State of Antigua and Barbuda. The Act is an amendment to the
Representation of the People Act 2001. It amends Section 16 of that Act.
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Section 5 (1) of the amending Act (the 2010 Act) reads as follows:
“Section 16 of the principal act is amended –
(a) In subsection (1) (b) by repealing the word “three” and substituting the word
“seven”;
(b) In subsection (1) (d) by repealing the words “one (1) month” and substituting
the words “six (6) consecutive months”; and
(c) By inserting after subsection (1), the following subsection –
“1(A) Subject to this Act and any enactment imposing any disqualification
for registration as an elector, a citizen of Antigua and Barbuda who is not
resident in Antigua and Barbuda, is qualified to be registered as an elector
for a constituency if on the qualifying date he –
(a) Is 18 years of age or over; and
(b) Has resided in the constituency for a period of at least one (1) month
immediately preceding the qualifying date.”
[2] The effect of the amendment is to increase to seven years the period of lawful residence that would
qualify a commonwealth citizen, other than a citizen of Antigua and Barbuda, to be an elector and
register as such. Before the amendment, the period of lawful residence was three years. The
amendment also now requires a period of six consecutive months residence in a constituency to
qualify for registration as an elector in that constituency. The period used to be just one month.
[3] The right to vote, or rather the right to be registered as a voter in Antigua and Barbuda, is of
constitutional origin. Sections 40 (2) and 40 (3) of the Constitution of Antigua and Barbuda read as
follows:
“40. (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
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such a voter in accordance with the provisions of any law in that behalf and no other
person may be registered”
“40. (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.”
[4] The present Claimant has brought the instant action seeking a declaration that the 2010 Act is
inconsistent with Section 40 of the Constitution. As a second string to his bow, the Claimant also
contends that the 2010 Act offends Section 14 of the Constitution in that it is not reasonably
justified in a democratic society while being discriminatory in effect.
[5] The Claimant also complains that the registration process being carried out is inconsistent with the
constitutionally provided right to be registered as an elector in Section 40 (3). I reproduce the other
pleaded complaints of the Claimant:-
“6. Without prejudice to the generality of Declaration no. 5 above, a Declaration that
6.1 The intended registration process to be carried out by and at the direction of the
Commission is in breach of sections 16 and 19 of the Representation of the
People Act;
6.2 The failure of the Commission to hold any proper or adequate educational
program has prejudiced the ability of persons to be informed registration process
and to be properly registered;
6.3 Persons eligible to be registered from the constituency of City East be required to
register in the constituency City South contravenes section 12 (1) of the
Representation of the People Act (Amendment) Act No. 11c of 2002;
6.4 The inconsistent demands for documentary or additional documentary information
by certain registration officers is unreasonable and oppressive and restricts or
unduly fetters in the right to vote.
7. An Order that the Chairman has acted with an improper motive and/or bias in that he:
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(i) has close political affiliation and personal ties to the Minister of Finance Mr. Harold
Lovell and Mr. Chaku Symmister, both members of the Antigua Caribbean
Liberation Movement ‘the ACLM’ at the same time with Mr. June Samuel. The
ACLM and in particular Mr. Harold Lovell and Mr. Chaku Symmister are now
integral parts of the UPP and the Government of Antigua and Barbuda;
(ii) said after the 2009 general election on a Crusader radio program with Colin O’Neil
that unless the UPP gets rid of the Commonwealth citizens they will not or may not
win the next election; and
(iii) has acted unilaterally and made decisions in relation to the registration process
which led to public criticism and condemnation by the deputy chairman of the
Commission.
The Chairman’s improper motive or bias, or the real likelihood or danger of bias, has infected the
decisions of the Commission or the majority of the Commission and therefore the decisions made
in relation to the registration or re-registration process are unlawful;
8. An Order quashing the decision of the Commission to hold this de-registration, registration
or re-registration process;
9. An injunction (including an interim injunction) restraining the Commission, its officers,
servants and agents, from applying or giving effect to Act 6 of 2010;
10. An injunction (including an interim injunction) restraining the Commission, its officers,
servants and agents, from carrying out and/or continuing to carry out the intended
registration process, or any registration process purported under the terms of the
Representation of the People At, as amended by the Representation of the People
(Amendment) Act or at all;”
[6] This is not the first challenge to the legality of the Representation of the People Act. The Court of
Appeal in Civil Appeal of The Prime Minister and another v Sir Gerald Watt KCN QC
ANUHCV2012/0042 held that the retrospective commencement of the Act was bad. A new date
for the Act to come into force was then proclaimed. In Honourable Lester Bryant Bird v
Attorney General et al ANUHCV2012/0164 the court held that the Representation of the People
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Act as amended by Act 12 of 2011 is unconstitutional, null and void “to the extent that it seeks to
alter the powers functions and duties of the Supervisor of Elections.”
The Claimant’s Submissions
[7] Mr. Astaphan SC mounted his challenge to the legislation under three broad heads. Firstly, he
says that upon proper construction of Sections 40 (2) and 40 (3) of the Constitution, the 2010 Act is
unconstitutional and certainly not justifiable in a democratic society. Secondly, he says that the
effect of the decision of Henry J. is to render all actions by the Antigua and Barbuda Electoral
Commission (ABEC) void as the fruit of the poisoned tree. Mr. Astaphan also questions whether
there is any provision in law permitting ABEC to in fact deregister all persons on the voters list and
require wholesale re-registration. He adds that even if such a power exists; it cannot have
retrospective effect by removing rights already vested. The issues of bias or apparent bias on the
part of the Chairman of Antigua and Barbuda Electoral Commission were also raised as grounds
for ruling against the 2010 Act and the registration process carried out under that Act.
[8] When construing constitutional provisions every effort should be made to do so purposively.
Mr. Astaphan submits that laws governing the right to vote ought to be construed to encourage
enfranchisement rather than to promote disenfranchisement. Mr. Astaphan gave background. The
Claimant in his affidavit says that the United Progressive Party (UPP), which forms the present
government, had alleged that the Antigua and Barbuda Labour Party (ALP), the previous governing
party, had illegally registered many commonwealth citizens as voters and this had almost cost the
UPP the 2009 general elections. The voters list was perceived to be “unclean”. The legislation
complained of is seen by the Claimant as the efforts of the governing party to remove from the
register of voters those, particularly commonwealth citizens, alleged to have been illegally
registered. I am not sure I understand this argument as saying that concerns such as those
attributed to the present governing party parliamentarians, properly cannot be considered by them
in deciding upon their legislative agenda. Similarly, I do not understand Mr. Astaphan to be
suggesting that it is impermissible for parliament to prescribe qualifications for Non-Antiguans to be
eligible for registration. No challenge to the legislation is mounted on these bases. Indeed, the Act
now under challenge is an amending act. Before its passage there were criteria which had to be
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met by commonwealth citizens who are not Antiguan, to be eligible for registration as electors. No
one has suggested that the previous legislation was bad for any reason. Can it then be said that by
making the requirements for registration more restrictive that this violates the constitution?
[9] Section 40 of the Constitution is entrenched. It cannot be altered by parliament unless the
prescribed procedure to amend it is adopted. But Section 40 (2) does not set out the qualifying
criteria for eligibility to be registered as an elector. It leaves that responsibility to Parliament. The
phrase “as Parliament may prescribe” or its equivalent is to be found at many places in the
constitution. Section 40 (4), 67 (4), 36 (1) and 64 (3) are examples. The phrase is ambulatory. It
must mean as Parliament may prescribe from time to time, as Parliament always retains the power
to enact legislation for the peace, order and good government of the state. If Parliament chooses
to enact legislation which it is specifically permitted to do by Section 40 (2) of the constitution, I do
not see how this can be viewed as inconsistent with the constitution at the very section that permits
it. It is to be noted that no restrictions are placed as to the requirements that Parliament may
lawfully prescribe under Section 40 (2) of the Constitution.
[10] Section 14 of the Constitution of Antigua and Barbuda provides:
“(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall
make any provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (70), and (8) of this section, no person
shall be treated in a discriminatory manner by any person acting by virtue of any
law or in the performance of the functions of any public office or any public
authority.
(3) In this section, the expression “discriminatory” means affording different treatment
to different persons attributable wholly or mainly to their respective descriptions by
race, place of origin, political opinions or affiliations, colour, creed, or sex whereby
persons of one such description are subjected to disabilities or restrictions to
which persons of another such description are not made subject or are accorded
privileges or advantages that are not accorded to persons of another such
description.
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(4) Subsection (1) of this section shall not apply to any law so far as the law makes
provision –
(a) for the appropriation of public revenues or other public funds;
(b) with respect to persons who are not citizens; or
(c) whereby persons of any such description as is mentioned in
subsection (3) of this section may be subjected to any disability or
restriction or may be accorded any privilege or advantage that, having
regard to its nature and to special circumstances pertaining to those
persons or to persons of any others such description, is reasonably
justifiable in a democratic society.
(5) Nothing contained in any law shall be held to be inconsistent with or in
contravention of subsection (1) of this section to the extent that it makes provision
with respect to qualifications (not being qualifications specifically relating to race,
place of origin, political opinions or affiliations, colour, creed or sex) for service as
a public officer or as a member of a disciplined force or for the service of a local
government authority or a body corporate established by any law for public
purposes.
(6) Subsection (2) of this section shall not apply to anything that is expressly or by
necessary implication authorized to be done by any such provision of law as is
referred to in subsection (4) or (5) of this section.
(7) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision whereby persons of any such description as is
mentioned in subsection (3) of this section may be subjected to any restriction on
the rights and freedoms guaranteed by sections 8, 10, 11, 12 and 13 of this
Constitution, being such a restriction as is authorized by paragraph (a) or (b) of
subsection 3 of section 8, subsection (2) of section 10, subsection (4) of section
11, subsection (4) of section 12 or subsection (2) of section 13, as the case may
be.
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(8) Nothing in subsection (2) of this section shall affect any discretion relating to the
institution, conduct or discontinuance of civil or criminal proceedings in any court
that is vested in any person by or under this Constitution or any other law.”
[11] This constitutional provision is meant to prevent the enactment of legislation which is discriminatory
either of itself or in its effect. As I understand the complaint of the Claimant, the impugned
legislation permits different persons in Antigua and Barbuda to be treated differently on the basis of
their place of origin. This, according to the Claimant, is impermissible. In my view, the general
prescription against discrimination is not absolute. Subsection (4) restricts the applicability of
subsection (1) in so far as it deals with legislation which makes provision with respect to persons
who are not citizens of Antigua and Barbuda. There are many sound reasons why different
treatment may be accorded to persons who are citizens as opposed to those who are not citizens.
One obvious and unchallenged example is the legislation which requires a non-citizen to obtain a
license in order to hold land. No similar restriction is placed on a citizen’s right to hold land. With
the greatest of respect to this submission by Counsel for the Claimant, it appears to have no
foundation. The very section of the constitution that provides for non-discrimination, expressly
allows for different treatment to be meted out to non-citizens. The Section 14 complaint fails.
[12] I turn to examine the arguments concerning the effect of the judgment of Henry J in Bird v AG et
al ANUHCV2012/0164. Mr. Astaphan submits that the Learned Judge found that the registration
process was null and void because it was carried out under a regime whereby the Supervisor of
Elections had been unlawfully stripped of her responsibilities as Chief Registration Officer as
provided for under Section 67 of the Constitution.
[13] It is accepted that the effort to alter the power functions and duties of the Supervisor of Elections
and Chief Registration Officer, fell afoul of the constitution. The powers, functions of duties of the
Supervisor under Section 67 of the Constitution are entrenched and cannot be affected by ordinary
legislation. What I have searched for without success, is a clear indication of what functions have
been carried out during the just concluded registration exercise that should only have been done
by the Supervisor of Elections. It is accepted that thus far the Supervisor has played no part in the
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registration exercise. The 2001 Act, Act 17 of 2001, amending the Representation of the People
Act Cap 379 at Section 2 defines election officer as follows:
“…election officer” includes the Supervisor of Elections, the Assistant Chief Elections
Officer, returning officer, election clerk, presiding officer, poll clerk, registration officer and
any other person having any duty to perform under this Act or the regulations relating to
the registration of electors, the proceedings on polling day and the counting of the votes.”
Section 3 establishes the Antigua and Barbuda Electoral Commission (ABEC). Section 6 gives to
the ABEC the responsibility for general direction control and supervision of the preparation of the
voters list. The section reads:
“6. (1) The commission shall be responsible for the general direction, control and
supervision of the preparation of the voters’ register and the conduct of elections in
very constituency and enforcing with respect to all election officers, fairness,
impartiality and compliance with the electoral law.
(2) The Commission shall be responsible for the selection and appointment of
election officers and prescribing the duties of such officers.
(3) It shall be the duty of the Commission to –
(a) prescribe the qualification for the selection and appointment of all
officers of the Commission;
(b) develop and design training programmes for persons appointed to
be election officers, including such programmes shall ensure that
the functions of the Commission are carried out in an independent
and impartial manner;
(c) design a continuous non-partisan voter education programme for
voters;
(d) regulate the conduct of election officers.
(4) The Commission shall, in the exercise of its functions act impartially and
independently of any political or governmental influence and shall not be subject to
the direction or control of any other person or authority. The Commission shall
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conduct its affairs in a transparent manner, consistent with good election
management practice.
(5) The Commission shall:
(a) prepare and furnish to the Minister, as soon as practicable after
June 30 in each year, a report on the operations of the Commission during the
year that ended on June 30; and
(b) as soon as possible after polling day in a general election,
prepare and furnish to the Minister a report, with special reference to the
operations of section 83 of the Act with respect to that election.
(6) (a) The Minister shall cause a copy of a report furnished by the
Commission pursuant to subsection (5) (a) to be laid in the House of
Representatives at the sitting following the receipt of the report.
(b) The Minister shall cause a copy of a report furnished by the
Commission pursuant to subsection (5) (b) to be laid before each House
of Parliament at the meeting next following the receipt of the report.
By virtue of Section 9 the powers and duties of the Supervisor of Elections are set out. The section
reads:
“9. (1) For the purpose of this Act, the Supervisor of Elections appointed under
section 67 of the Constitution shall be the Chief Executive Officer of the
Commission and shall, at the direction of the Commission, perform the duties
conferred upon him under this Act in an impartial, fair and efficient manner.
(2) The Supervisor of Elections shall be the Chief Registration Officer and, for the
purposes of an election be the Chief Elections Officer and shall, on the written
instructions of the Commission –
(a) issue to election officers such instructions as are necessary for
ensuring effective execution of the provisions of this Act;
(b) execute and perform all other functions which by this Act or the
regulations and rules are conferred or imposed upon him.
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(3) Upon the issuing of a Writ of Elections, the Commission shall appoint an
Assistant Chie Elections Officer.
(4) The Assistant Chief Elections Officer shall assist the Supervisor of Elections
and shall, subject to any general or specific directions of the Commission, have
power to perform any of the functions which the Supervisor of Elections is by this
Act required to perform in relation to Elections.”
[14] It is to be noted that in carrying out her functions as Chief Registration Officer, the Supervisor of
Elections is bound to follow the written instructions of the ABEC. In the actual registration process,
the work was carried out by registration officers appointed by the ABEC under Section 20 of the
Act (2001). There are functions which are the especial province of the Supervisor of Elections
under the 2001 Act. For example, under Section 23, it is the Supervisor who makes additions to
the Registers of Electors. Because the Commission has yet to publish the Register, there has
been no action taken by any other person or authority to usurp this duty of the Supervisor.
[15] Despite my careful search, I can find no evidence of any wrongful usurpation of any function or
duty of the Supervisor such as would require the registration process carried out thus far to be
vitiated. As I see it, the ABEC has the general responsibility for the preparation of the preliminary
register and the Supervisor of Elections has obligations to ensure that all needed additions to that
register are made to produce a final voters list.
[16] Counsel for the Claimant argued forcefully that the challenged legislation is bad because it has
retrospective effect. It takes away from some commonwealth citizens a right to which they had
hitherto being entitled and which may have indeed vested. This is an interesting argument but as it
turned out it is of no more than academic interest. No evidence has been led before this court to
show that any commonwealth citizen has in fact been disadvantaged by the operation of the 2010
Act. All those persons who at the time of coming into force of the 2010 Act who met the then
existing criteria of three years residence at the time of the last General Elections in 2009 are likely
to again meet the new requirements as at the 2014 scheduled elections. It must be borne in mind
that a right to vote is a right to vote at an election. If no election is being held, there is no
opportunity to exercise a right to vote. Any questions of denial of any such rights are moot in the
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absence of an election. This underscores the logical fallacy in the suggestion that the qualifying
legislation is of retrospective effect. The legislation prescribes the needed qualifications which are
required at the time the right to vote is to be exercised. The fact that a person voted at one
election does not by itself mean that that person will have a right to vote at any future election. The
question of his eligibility is to be addressed at the point when the right to vote is to be exercised. In
the circumstances of this case, where there is no evidence of any commonwealth citizens actually
having been disenfranchised and where the timing of the legislation and the date for the next
scheduled elections makes it likely that any voters who were so qualified to be registered in 2009
are almost certainly qualified to be registered in 2014, I find that there is no merit in this complaint
against the 2010 Act.
[17] The pleadings revealed allegations of bias. As I understand the evidence, the Claimant and his
witness, Mr. Hurst, says that the Chairman of the Antigua and Barbuda Electoral Commission has
close personal and political ties with some ranking members of the ruling party. It is said that some
of the utterances of the Chairman betray his personal opinions as being similar to those ascribed to
the hierarchy of the UPP. Mention is also made of a radio broadcast which revealed a difference in
views of the Chairman and his Deputy as to decisions arrived at by the ABEC. The Deputy
Chairman said that the decisions had been taken by the Chairman while the Chairman said they
had been the decisions of the Commission. Counsel says that the effect of this public
disagreement could lead a reasonably well informed member of the public to apprehend bias.
[18] The authorities agree that the test is as set out in Porter v Mc Gill [2002] 2 AC 357. Would a fair
minded and informed observer having considered all the facts, conclude that there was a real
possibility that the ABEC was biased? Applying that test, I conclude that there is no likelihood of
the observer arriving at such a conclusion. There are several reasons. The ABEC is a body
comprising of five (5) persons, all appointed by the Governor-General under Section 3 of the 2001
Act. In her making of the appointment of the Chairman and two members, the Governor-General
acts on the recommendation of the Prime Minister. The recommendation of the Leader of the
Opposition is the basis for the appointment of the Deputy Chairman and one other member of
ABEC. It is far less likely that a group so comprised will be seen to suffer from apparent or real
bias rather than an individual. The fair minded observer is not particularly paranoid. He will
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recognize that both the Prime Minister and the Leader of the Opposition will recommend persons in
whom they have a degree of confidence. The informed and fair-minded observer will also know
that the ABEC did not pass the legislation into law and as such the issue of any apparent bias on
the part of the ABEC is of little moment in deciding whether the legislation can be challenged on
this ground.
[19] While it may be accepted that one possible interpretation of the utterances of the Chairman may be
that he is sympathetic to the views ascribed to the UPP that Non-Antiguan commonwealth citizens
by their voting patterns, almost cost the UPP the elections, there can be no finding, based on the
evidence before this court, that such feelings by the Chairman, somehow translated themselves
into legislation or action. There is also nothing in the evidence before me to show that in the
carrying out of the functions of the ABEC, there were decisions made which are being challenged
as having been tainted by bias. A broad allegation in this regard cannot suffice. There must be
some specific decision or decisions of the ABEC to which the claimant can point and say that it
could be viewed as biased or apparently biased.
[20] For the above reasons, this court finds that the claimant’s claim stands to be dismissed. The
declarations sought by the Claimant are refused. Under Part 56.13 (6), Civil Procedure Rules
2000, I make no order as to costs. I thank all Counsel involved for the invaluable assistance they
provided the court and the very helpful manner in which the contending submissions were distilled
and presented.
Brian Cottle
High Court Judge