Eastern Caribbean Supreme Court
  • About Us
    • Brief History of the Court
    • Court Overview
    • Meet the Chief Justice
    • Past Chief Justices
      • Sir Hugh Rawlins
      • Sir Brian George Keith Alleyne
      • His Lordship, the Hon. Justice Adrian Saunders
      • Hon. Sir Charles Michael Dennis Byron
      • Rt. Hon. Sir Vincent Floissac
      • Honourable Sir Lascelles Lister Robotham
      • More..
        • Hon. Neville Algernon Berridge
        • Sir Neville Peterkin
        • Sir Maurice Herbert Davis
        • Justice P. Cecil Lewis
        • Sir Allen Montgomery Lewis
    • Judicial Officers
      • Justices of Appeal
        • His Lordship, the Hon. Justice Davidson Kelvin Baptiste
        • His Lordship, the Hon. Justice Mario Michel
        • Her Ladyship, the Hon. Justice Gertel Thom
        • His Lordship, the Hon. Justice Paul Anthony Webster [Ag.]
        • His Lordship, the Hon. Justice Gerard Farara, KC
        • His Lordship, the Hon. Justice Trevor Ward, KC
      • High Court Judges
      • Masters
    • Court of Appeal Registry
    • Court Connected Mediation
      • Court-Connected Mediation Practice Direction Forms
      • Mediation Publications
    • More…
      • Career Opportunities
      • Legal Internship
      • Transcript Requests
      • Directory
  • Judgments
    • Privy Council
    • Caribbean Court of Justice
    • Court Of Appeal Judgments
    • High Court Judgments
    • Digests of Decisions
    • Country
      • Anguilla
      • Antigua & Barbuda
      • Grenada
      • Montserrat
      • Saint Kitts and Nevis
      • Saint lucia
      • Saint Vincent & The Grenadines
      • Territory of the Virgin Islands
    • Year
      • 1972 – 1990
        • 1972
        • 1973
        • 1975
        • 1987
        • 1989
        • 1990
      • 1991 – 2000
        • 1991
        • 1992
        • 1993
        • 1994
        • 1995
        • 1996
        • 1997
        • 1998
        • 1999
        • 2000
      • 2001 – 2010
        • 2001
        • 2002
        • 2003
        • 2004
        • 2005
        • 2006
        • 2007
        • 2008
        • 2009
        • 2010
      • 2011 – 2019
        • 2011
        • 2012
        • 2013
        • 2014
        • 2015
        • 2016
        • 2017
        • 2018
        • 2019
    • Judgment Focus
  • Sittings & Notices
    • Schedule of Sittings
    • Court of Appeal Sittings
    • Chamber Hearing (Appeals)
    • Case Management (Appeals)
    • High Court Sittings
    • Status Hearings
    • Special Sittings
    • Notices
  • Court Procedures & Rules
    • ECSC Court of Appeal Rules
    • ECSC (Sittings of the Court) Rules, 2014
    • Civil Procedure Rules [WEB]
    • ECSC Civil Procedure Rules
      • Civil Procedure Rules 2000 [Amendments to Nov 2015]
      • Civil Procedure (Amendment) Rules 2014
      • ECSC Civil Procedure (Amendment) (No.2) Rules
      • Civil Procedure Rules 2000 [Amendments to May 2014]
      • Civil Procedure (Amendment) Rules 2013
      • Civil Procedure (Amendment) Rules 2011
    • ECSC Criminal Procedure Rules
      • Criminal Procedure Rules SI No. 22 of 2015
    • ECSC Sentencing Guidelines
    • Non Contentious Probate Rules and Administration of Estates
    • Family Proceedings Rules
    • More..
      • Election Petition Rules
      • Legal Profession Disciplinary Procedure Rules (St. Lucia)
      • Code Of Judicial Conduct
      • Court Forms
        • Introduction of E-Filing
        • BVI Commercial Division E-Filing
        • Court-Connected Mediation Practice Direction Forms
      • Court Proceedings Fees
      • SILK Application Procedure
      • Practice Directions
      • Practice Notes
      • Video Conferencing Protocols
  • News & Publications
    • ECSC Media Gallery
    • Annual Reports
    • Appointments
    • Press Releases
    • Papers & Presentation
      • Opening of the Law Year Addresses
    • Tributes
  • E-Litigation
    • E-Litigation Portal
    • E-Litigation Instructional Videos
    • ECSC E-Litigation Portal User Information
    • Electronic Litigation Filing and Service Procedure Rules
    • Notices of Commencement
    • E-Litigation Publications
  • J.E.I
    • JEI History
    • Structure of JEI
    • JEI Chairman
    • Mandate, Objectives, Standards
    • Programmes Archive
      • Conferences
      • Programmes & Projects
      • Symposiums
      • Training
      • Workshops
    • Upcoming Activities
more
    • About Us
    • Meet the Chief Justice
    • Civil Procedure Rules
    • Mediation
    • Careers
  • Contact
  • Saved for Later
 Home  E-Litigation Portal
  •  Court Procedures And Rules
    • Civil Procedure Rules
    • Court Forms
    • Election Petition Rules
    • Practice Directions
  •  Judgments
    •  All
    •  Court of Appeal
    •  High Court
    •  Digest of Decisions
  •  Sittings
    •  All
    •  Court of Appeal
    •  High Court
  • Sign In
    
    Minimize Search Window
    •       {{item.title}} Filter By Category {{SelectedFilters.length}}x Categories 
    •       {{item.title}} {{selectedCountries.length}}x Countries Country 
    •       {{item.title}} Filter By Year {{selectedOptions.length}}x Options 
    
    Sorry can't find what you're looking for try adjusting your search terms
    Appeal
    {{doc._source.post_title}}
    Page {{indexVM.page}} of {{indexVM.pageCount}}
    pdf
    Home » Judgments » High Court Judgments » Honourable Gaston Browne v The Attorney General of Antigua And Barbuda

    Honourable Gaston Browne v The Attorney General of Antigua And Barbuda
    1
    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.
    2
    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
    3
    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:
    4
    (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
    5
    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
    6
    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.
    7
    (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.
    8
    (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
    9
    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
    10
    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.
    11
    (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
    12
    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
    13
    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

    /honourable-gaston-browne-v-attorney-general-antigua-barbuda/
     Prev
    Edmund Mansoor v Antigua Public Utilities Authority
    Next 
    The Hon. Gaston Browne et al v The Constituencies Boundaries Commission et al
    Eastern Caribbean Supreme Court

    2nd Floor Heraldine Rock Building
    Waterfront
    P.O. Box 1093
    Castries
    Saint Lucia
    T: +1 758 457 3600
    E: offices@eccourts.org

    • About Us
      • Court Overview
      • Career Opportunities
      • Directory
      • Privacy Policy
    • Judgments
      • Court Of Appeal
      • High Court
    • Sittings
      • Chamber Hearing
      • Court of Appeal
      • High Court
    • News & Updates
      • Appointments
      • Press Releases
    • Civil Procedure Rules
      • Court Forms
      • Practice Directions
    © 2023 Eastern Caribbean Supreme Court. All Rights Reserved

    Submit your email address and name to subscribe for email notifcations.

    [email-subscribers-advanced-form id="1"]
    Bookmark
    Remove Item
    Sign in to continue
    or

    Bookmarked Items
    •  Home
    • Judgments
    • Sittings
    •  News
    •  more