THE Rt. HOURABLE SIR VINCENT FLOISSAC
INAUGURAL MEMORIAL LECTURE
THEME: ASPECTS OF PROCEDURE IN ELECTORAL LITIGATION
THE HONOURABLE SIR HUGH RAWLINS
JUDGE OF THE ILO INTERNATIONAL ADMINISTRATIVE (Appellate) TRIBUNAL, GENEVA, SWITZERLAND FORMERLY CHIEF JUSTICE
THE EASTERN CARIBBEAN SUPREME COURT
LECTURER IN THE FACULTY OF LAW OF THE UNIVERSITY OF THE WEST INDIES
THE BAY GARDENS CONFERENCE ROOM
17 SEPTEMBER 2015
Mrs. Juliana Charles, President of the St. Lucia Bar Association, please accept my expression of great appreciation for your eloquent introduction.
Please permit me to recognize, first, the members of the Floissac and Bristol families, and, in particular, Mrs. Brenda Floissac-Fleming and Ms. Heather Floissac. Permit me also to recognize Lady Janice Compton.
Although the Protocol has been established, it would be remiss of me not to make specific mention of High Court Justices, the Honourable Francis Bell; Honourable Margaret Price-Findlay and Honourable Cadie St. Rose-Albertini; Honourable Attorney General Kim St. Rose; Honourable Magistrates; my colleague and friend, retired Justice of Appeal Michael Gordon, CMG; the Honourable Claudius Francis, President of the Senate, the Honourable Peter Foster, Speaker of the House, the Honourable Dr. Gale Regobert, Leader of the Opposition; the Members of the Council of the St. Lucia Bar Association, and Mr. Andy George, Immediate Past President of the Association.
It is good to be “home” and to see the familiar faces in the place where Lady Rawlins and I resided for about a decade. We hold many fond memories. Above all, however, we will forever cherish the moments when we sat with Sir Vincent and Lady Floissac particularly after the onset of their illnesses. We were saddened by Sir Vincent’s passing on 25 September 2010 and then by the passing of Lady Marilyn Floissac on 13 October 2014. She had dedicated her life to education, and was, among other things, the Resident Tutor for the University of the West Indies. We often very fondly recall, in particular, the farewell function which you held for us in July 2012. We reflected with great sadness when Mr. Blaise Claudio Pascal, who rendered such an outstanding tribute in songs, passed on 25 September 2013. His passing left us to wonder how was it that such an eminently talented person left us all too soon. We had similar thoughts and emotions when Justice Suzie d’Auvergne passed in August 2014. Through it all we drew solace from the words of the Lebanese philosopher, Khalil Gibran, in the Prophet when speaking of death:
You would know the secret of death.
But how shall you find it unless you seek it in the heart of life?
If you would indeed behold the spirit of death, open your heart wide unto the body of life.
For life and death are one, even as the river and the sea are one.
Your invitation that permits me to deliver this the Inaugural Sir Vincent Floissac Memorial Lecture is a signal honour. A Memorial Lecture is intended, in the first place, to memorialize the person in whose honour it is held. In the second place, it permits a look at some aspect or aspects of the person’s work which will continue to be of public importance.
The Rt. Hon. Sir Vincent Frederick Floissac, PC, CMG, OBE, QC, LL.M. (London), was born on 31 July 1928 and passed from this earthly life on 25 September 2010. He was a great man and one who is worthy of emulation and the highest praise! He was educated at St. Mary’s College here and was the winner of the St. Lucia Open Scholarship in 1948. He then pursued legal studies at University College, London, where he excelled. He was called to the Bar at Gray’s Inn and entered into private practice. He was appointed Queen’s Counsel in 1969; awarded the OBE in 1973; the CMG in 1985; the Knight Bachelor in 1992 and was appointed a Member of Her Majesty’s Privy Council in 1994.
You are no doubt aware that he served at the Head of the 3 arms of Government created by the Constitution as the first President of the Senate of St. Lucia in 1979; Acting Governor-General from 30 April 1987 to 10 October 1988; a Judge of the Court of Appeal of the Seychelles during the period 1988 to 1991 and Chief Justice and President of the Court of Appeal of the Eastern Caribbean Supreme Court from November 1991 to July 1996.
Sir Vincent first sat as Chief Justice in St. Kitts and Nevis when I was the Solicitor General there. I recall the impression that he made as a highly knowledgeable, sharp minded, inquisitorial, imperious and handsome jurist. A Tribute to him which was published in the Telegraph of London of 26 October 2010 stated, among other things:
“A witty man, Floissac always seemed to have a frown in court and could use firm tones to curb over-enthusiastic counsel”.
I can attest to a part of that statement having been on the receiving end on an early occasion. The lesson was never lost on me.
Sir Vincent also rendered invaluable service as a member of the first Regional Judicial and Legal Services Commission (RJLSC) on the nomination of the Law Associations of the Caribbean. He served as one of the first Commissioners of the CCJ.
Sir Vincent is immortalized in his contributions to legal learning and jurisprudence. His legal reasoning was acutely analytical and clear. He is published by the University of Ottawa Press in a selection of Papers presented at the Seminars held in Quebec and St. Lucia in 1983 and 1994 on the Civil Codes of Quebec and St. Lucia. He was the President of the St. Lucia Bar then. The publication is entitled “Essays on the Civil Codes of Quebec and St. Lucia”. His Chapter in it is entitled “The Interpretation of the Civil Code of Saint Lucia”. His work discusses the sources of the Civil Code and the difficulties which are presented in its interpretation because of its hybrid character. In this regard he stated that the Code “… is a fascinating blend of Quebec, French and indigenous law”. His work provides a very enlightening analysis of the impact of the 3 sources, and makes compulsory reading for anyone who wishes to chart the depths and beauty of the Civil Code.
Sir Vincent was gifted in many areas. He was an avid sportsman, who excelled in soccer and tennis, in particular. He was St. Lucia’s tennis champion in 1943 and represented the island at several regional tennis competitions. He also had a ready and contagious wit and good humour. He always willingly shared his vast knowledge; goodly advice; sagacious counsel and kindly guidance.
Permit me to recall a small portion of what I said at the Special Sitting of the Court in his honour in 2010. Attention was drawn to the brilliantly balanced lecture that Sir Vincent delivered here on June 1997 which is contained in a handbook for the St. Lucia Media Workers Association on “The Law & the Mass Media: Perspectives on Libel”. He stated that the object of the lecture was to show why the Media should regard the law as its best friend. He said this from the perspective of the constitutional protection of freedom of expression; and the defenses of justification, absolute privilege, qualified privilege and fair comment. Attention was also drawn to his Essay on Judgment Writing which commends itself for constant reading and refreshing by Judges. Attention was drawn as well to some of his outstanding Judgments, some of which are published in the Law Reports.
One cannot speak of any aspect of Sir Vincent’s work without highlighting the Judgment which he regarded as the most important decision of his career: Michael Freemantle v The Queen  1 WLR 1437. He wrote it as a member of the Judicial Committee of the Privy Council. It is a seminal Judgment on visual identification and the possible consequences of the failure of a trial judge to warn the jury of the dangers of convicting on uncorroborated identification evidence. It became and remains the locus classicus, which Courts in the Commonwealth Caribbean apply in appropriate cases to give effect to the proviso. It permits the Court to uphold convictions even where no warning was given, once the quality of the identification evidence was exceptionally good.
The Tribute to Sir Vincent in the Telegraph of 28 October 2010 stated that it was on a visit to London in 1994 that he was invited to sit with the Privy Council and he so impressed the other members of the Panel that, unusually for a visitor, he was invited to deliver the Judgment. It further stated that after the hearing, Lord Nolan took him for a smoke and Sir Vincent returned to explain briefly and lucidly why a convicted murderer should not have been freed because of an error by the trial Judge.
You may wish to refresh your minds on his Judgments in Northrock Ltd v Jardine and Another (1992) 44 WIR 160 on delict under the Saint Lucia Civil Code; the need for a claimant to prove fault thereunder, and the inter-relationship between the application and interpretation of Code provisions and the common law; ETOILLE COMMERCIALLE S.A. v OWENS BANK  45 WIR 136, which adumbrated principles relating to leave to appeal to the Privy Council in a case involving the enforcement of a foreign judgment; Arawak Trust Co Ltd v Inspector of banks and Trust Companies  47 WIR 151, on which I wrote a published article when I was in another life. Charles Savarin v John Williams Civil Appeal 3 of 1995 is a guiding case on statutory interpretation, and Russell (Randolph) and Others v Attorney General of St Vincent and the Grenadines (1995) 50 WIR 127, which is a leading case on the appointment of a Constituency Boundaries Commission prior to elections under a constitution. It was wholly approved by the Privy Council.
Russell first attracted my attention as a University Teacher and later as a Judge faced with litigation in election cases. It highlighted for me the curious and sometimes complex interrelation between constitutional, legislative and rules provisions that govern these cases. In turn these reflect the many pitfalls in what might be perceived as the procedural aspects of these cases, which are so very critical to our constitutionally guaranteed democracy. My exhortation to practitioners is to be aware of the nuances produced by this complex inter-relationship as analysed in the underlying jurisprudence in order to avoid the frustration of our fragile democracy.
Russell was decided on constitution provisions, primary legislation and rules which are identical to those of Saint Lucia. It is an important Judgment because Sir Vincent Floissac CJ traced the jurisdiction of the court in parliamentary electoral cases and differentiated them from the constitutional jurisdiction of our courts. It is against this background that he stated, at page 137, that the jurisdiction to determine election petition cases was given to the local courts by legislation under constitutional mandate with no or very limited right of appeal after the hearing of the petition by an election tribunal to which those hearings were entrusted. This, he stated, is because it was essential that such matters should be determined as quickly as possible, so that the assembly itself and the electors of the representatives thereto should know their rights at the earliest possible moment.
Sir Vincent then concluded as follows, at page 138:
“Accordingly, there are significant differences between the constitutional jurisdiction conferred by section 96 and the parliamentary jurisdiction conferred by section 36. Whereas the constitutional jurisdiction is available to any person with a relevant interest, the parliamentary jurisdiction is available only to the Attorney-General and candidates and voters at the impugned election. Whereas the constitutional jurisdiction is regulated by procedural rules (if any) made by the Chief Justice, the parliamentary jurisdiction is regulated by procedural rules enacted by Parliament. Whereas there is an ultimate appeal to Her Majesty in Council from decisions given in the exercise of the constitutional jurisdiction, there is no such appeal from decisions given in the exercise of the parliamentary jurisdiction.”
Sir Vincent drew attention to the strict approach, which our courts have consistently followed in election cases, insisting that the jurisdiction of the election court is a very peculiar one and is not the ordinary civil jurisdiction of the court. It is seen essentially as a parliamentary jurisdiction assigned to the judiciary by the various Constitutions and by legislation.
This jurisprudence holds that the times stated in the Election Act for filing a petition or for doing almost any other thing must be strictly adhered to because they are substantive requirements for instituting election proceedings provided in sections 88 and 89 of the Elections Act. Sir Vincent stated that they provide a relatively comprehensive scheme for instituting election cases, with timelines prescribed by Parliament pursuant to the peculiar and special authority conferred on it by section 39 of the Constitution. Section 39 has provided Parliament with this peculiar and special law making power for election matters, which is separate from and additional to the general law making power which the Constitution conferred on Parliament under section 40 of the Constitution to make laws for the peace, order and good government of Saint Lucia.
The result is that where, for example, the Act states that a Petition must be filed within 21 days and one alleging corrupt practices must be filed within 28 days, failure to do so will be fatal. No resort can be made to the Civil Procedure Rules to extend those times because the Constitution conferred the power upon Parliament in the widest terms to make laws to regulate election litigation. Moreover, secondary rules cannot amend or enlarge those time set by Parliament.
However, Parliament may expressly give the power to make rules to extend or vary time or to permit resort to the Civil Procedure Rules as has been done, for example, in Jamaica by Section 24(3) of the Election Petitions Act. It provides as follows in clear terms:
“(3) An election petition shall be deemed to be a proceeding in the Supreme Court and, subject to the provisions of this Act and to any directions given by the Chief Justice, the provisions of the Judicature (Civil Procedure Code) Law and the rules of court shall, so far as practicable, apply to election petitions.”
The Parliament of Trinidad and Tobago also provided for resort to the Rules of Civil Practice in sections 144 and 145 of the Representation of People Act as follows:
“144 The Rules Committee established by the Supreme Court of Judicature Act may make rules of court prescribing any matter of procedure that is necessary or expedient for the purposes of any of the provisions of this Act.”
“145. The High Court shall, subject to this Part, have the same powers, jurisdiction and authority with respect to any proceedings brought under or by virtue of this Part as if the proceedings were an ordinary action within its jurisdiction.”
These provisions confer very wide rule making discretion on the Rules Committee to prescribe matters of Procedure for election litigation. It is a jurisdiction that is much wider than that which is conferred upon the Chief Justice to make rules under section 89(2) of the Elections Act of Saint Lucia. Section 89(2) of the Elections Actprovides for the Chief Justice to make rules for specifically prescribed matters, namely, for the deposit of security; the procedure for the service of papers, and for the hearing of petitions and matters incidental thereto.
The Parliament of the United Kingdom also provided as follows in Section 157(3) of the Representation of the People Act 1983:
“The High Court has, subject to the provisions of this Act, the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction.”
So too has the Parliament of Antigua and Barbuda in section 63 of the Representation of the Peoples Act. This provision occasioned the High Court of Dominica todistinguish the Antigua position from that of Dominica, which is like Saint Lucia, in Frampton and Others v Pinard and Others, Claim Nos. DOMHCV2005/0149, 0150, 0151, 0152 and 0154, High Court of the Commonwealth of Dominica (delivered 28th October 2005, unreported), at para. 60. You may also note Peters (Winston) & another v Attorney-General & Another (2001) 63 WIR 244 (CA Trinidad and Tobago) and Jim Miller v Chris Bull (Returning Officer of Herefordshire Council) and others  EWHC 2640 (QB).
Thus, for example, in Lindsay Grant v Glen Phillip et al, Claim No. SKBHCV2010/0026, High Court of Saint Christopher and Nevis, Saint Christopher Circuit (delivered 4th November 2010, unreported), at para. 16, the court stated that inasmuch as election legislation are mandatory and must be strictly construed, a petitioner mustpresent and perfect his petition within the time prescribed in the Elections Act, in that case, 21 days. The result, according to the Court, is that all necessary parties must be joined; the petitioner must enter security for costs; the petition must be served; and “sufficient” material facts and particulars must be pleaded in order to disclose a cause of action, so that a respondent is not taken by surprise. The Court further stated that a judge trying an election petition has no power to allow alterations, changes or amendments. Similar statements were made by the Supreme Court of Jamaica in Stewart v Newland and Edman, applying the case ofStevens v Walywn and Another. The Grenada Court held, in George Prime v Elvin Nimrod et al, that an amended petition filed out of time offended section 100(1) of the Representation of the People Act and did not attract the jurisdiction of the court.
In Browne v Francis-Gibson and Another, (1995) 50 WIR 143, Sir Vincent extensively reviewed the jurisprudence of the Privy Council and the House of Lords in a number of leading election cases. At page 148, he highlighted 5 differentiating aspects between the civil and election jurisdictions of our courts that are buttressed by Opinions of the Privy Council:
“Firstly, constitutionally the jurisdiction is essentially a parliamentary jurisdiction conveniently assigned to the judiciary by the Constitution or by legislation. It is not a jurisdiction to determine mere ordinary civil rights. Secondly, the parliamentary questions which the local courts are constitutionally or statutorily authorised to determine are expected to be determined expeditiously so that the composition of the legislature may be established as speedily as possible. Thirdly, the legislature must have envisaged that the parliamentary questions would be determined either on their merits or purely on procedural grounds and without hearing evidence. Fourthly, because of the urgency of the parliamentary questions, the legislature is presumed to have intended that the decisions of the local original and appellate courts would be unappealable to Her Majesty in Council. Finally, the presumption against appeals to Her Majesty in Council is usually confirmed by imperial or local legislation declaring the decisions of the local courts to be final and unappealable. In any event, the presumption is rebuttable only by specific imperial or local legislation unequivocally authorising such appeals.”
Ethlyn Smith v Delores Christopher et al and Reeial George et al v Eileene Parsons et al, Claim Nos. BVIHCV2002/0097 and 0098, High Court of the British Virgin Islands (delivered 23rd July 2003, unreported) reflects the speed with which election cases should be done. The elections, which were challenged, were conducted on 16 June 2013. The matters were heard on 15, 17 and 23 July and the Judgment was delivered on the said 23 July 2013. One petition was dismissed because each petitioner failed to provide the required security for costs: two petitioners who filed a joint petition provided $5,000 while the legislation required each to provide $5,000. The other petition was dismissed because it sought a re-count impeaching the alleged failure to count some ballots that were cast but provided no particulars for scrutiny of the relevant ballots. The provision of any or any sufficient particulars is a common failure in election cases, especially where corrupt practices, treating and bribery, for example, are pleaded.
The case Brantley and others (Appellants) v Constituency Boundaries Commission and others (Respondents) (St Christopher and Nevis)  UKPC 21, also indicates why speed is usually an absolute necessity in these cases. That case was concerned with an application for injunctive relief. It was filed in the High Court on 16 January 2015, and elections were scheduled for 16 February 2015. It suffices to state that the matter went through all of the stages and courts so that the Privy Council handed down its decision on 12 February 2015. That decision prevented the elections from being held on new constituency boundaries that had been purportedly declared on 16 January 2015. The case also reminds us that the prerogative remedies of mandamus, certiorari and prohibition, as well as the common law remedies of injunction and declaration are available in election matters by the operation of the common law.
The Constitutional Provisions
Section 39 of the Constitution of Saint Lucia states as follows:
“39.–(1) The High Court shall have jurisdiction to hear and determine any question whether–
(a) any person has been validly elected as a member of the House;
(6) The circumstances and manner in which and the imposition of conditions upon which any application may be made to the High Court for the determination of any question under this section and the powers, practice and procedure of the High Court in relation to any such application shall be regulated by such provision as may be made by Parliament.”
It is pursuant to this enabling power that the Parliament of St. Lucia enacted the Elections Act Cap 1.02 of the Revised Laws of Saint Lucia, 2001. Sections 88, 89 and 90 particularly provide for election Petitions. It is section 88 that gives standing to file an election petition complaining of an undue return or undue election of a member of the House to a person who voted or had a right to vote at the election to which the petition relates; a person claiming to have had a right to be returned at such election; or a person alleging himself or herself to have been a candidate at such election. In comparison a person who has a relevant interest has standing in normal constitutional cases.
Locus standi is usually a threshold issue. You may however recall my comment on the intriguing manner in which Sir Vincent dealt with the question of locus standi in the case Re Blake (1994) 47 WIR 174. This case was concerned with judicial review: the question of the justiciability of a decision by a Governor-General to appoint a Prime Minister after elections and fundamental rights and freedoms. The appellant had sought mandamus against a decision by the Governor-General to appoint a Prime Minister and to establish a minority government after general elections. The order of mandamus which he sought was to require the Governor-General to remove the Prime Minister from office; dissolve Parliament and have fresh general elections. I was the Solicitor General then. The applicant tried to serve the application on me because he said that the Attorney General, as a member of the government, which he claimed was illegitimate, could not be served. In the end he served it on the Secretary. The trial Judge dismissed his applications on the ground that he had no locus standi (no nexus with the claim to bring it).
In the Court of Appeal, Sir Vincent Floissac, CJ dismissed the appeal on the following grounds: (1) Mandamus cannot be issued to an applicant who has not first applied for leave; (2) The constitutional provision under which the Governor-General made the appointment is non-justiciable; (3) Since the applications had no merit the appellant had no locus standi to bring them. The case is important because the Court could well have dismissed the appeal because the pleadings were strange to the court process. Notwithstanding this, Sir Vincent insisted that the applicant, who was unrepresented by counsel, must have his day in court. My view was, and still is, that this was a refreshingly commendable approach, particular because the applicant was unrepresented by Counsel.
Section 89(1)(a) of the Elections Act provides that a petition complaining of an undue return or undue election of a member of the legislature shall be presented within 21 days after the return made by a returning officer and within 28 days if the petition alleges corrupt practices. Section 89(1)(b) provides that security shall be given on behalf of the petitioner within 3 days after the presentation of the petition. This is for the payment of all costs, charges or expenses that may become payable by the petitioner to witnesses summoned by him or her or payable to any respondent in the petition. Section 89(1)(c) stipulates the manner in which the security is to be given and then section 89(2) is the enabling Rule making provision, which confers upon the Chief Justice.
Section 90 of the Elections Act provides for the trial of a petition. Section 90(2) states that at the trial of an election petition the judge shall have the same powers, jurisdiction and authority, and witnesses shall be subpoenaed and sworn in the same manner, as nearly as circumstances will admit, as in a trial of a civil action in the High Court, and shall be subject to the same penalties for perjury. Here, Parliament has set out the purposes for which a trial Judge may use the Civil Practice Rules for the actual trial of an election case. This is compatible with section 89(2).
Is there a Rules dilemma?
It might be helpful to note that Rule 3 of the Election Petition Rules of St. Lucia provides for the general form and content of a petition. Rule 4 precludes the statement of evidence in a petition. Evidence would usually be given by way of affidavit. Rule 5 requires a petitioner to give an address for service. Rule 6 provides for the manner of presentation of the petition and the time within which it must be presented. Rule 7 provides that on presentation, the Registrar must cause the petition to be published in the Gazette and in a newspaper published in Saint Lucia at the expense of the petitioner. Rule 8 provides for the manner in which the petition is to be served. Rule 9 makes extensive provision for security for costs. Rule 10 makes provision for the removal of objection where the security is declared to be insufficient, and, by rule 11, the petition is at issue once there is no objection on the ground of insufficiency of security when the time for objection passes. Rule 12 deals with amendment of a petition.
Since electoral cases are a separate and special species of actions, it is not surprising that there are or should be special rules that govern these cases and that the Civil Procedure Rules are not applicable, unless and to the extent that Parliament provides.
Perhaps an apt way to end this Memorial Lecture is to indicate that it was brought to my attention, in a rather curious way, in 2011 that Election Petition Rules might not exist, at least for some OECS jurisdictions. My research revealed that the Revised Rules of Saint Vincent & The Grenadines contains such Rules in Cap. 6. They were made in 1967 by Sir Allen Lewis, who was the Chief Justice at the time. Interestingly, 1967 was the year when the six States, which are presently independent, were made Associated States. The OECS Supreme Court was also established in its present form in 1967 by UK S.I. No. 223/1967. A Chief Justice would unlikely have made Election Petition Rues for one country under the jurisdiction of the Court. However, but quite curiously, we could not find any Rules that were made at the time for any other Territory.
Even more interestingly, however, we found Election Petition Rules made for St. Lucia in UK S.I. No. 4/1948. These Rules were made by the then Chief Justice Sir Clement Malone on 17th January 1948 and came into effect on 21st February 1948. These are still the Electoral Rules in force in St. Lucia and are contained in the Revised Laws. It was further interesting that Chief Justice Malone made these Rules in pre-independence times. At the beginning of these Rules is the following statement:
“Rules made by the Chief Justice of the Supreme Court of the Windward Islands and Leeward Islands under the authority of section 46 of the Legislative Council (Elected Members) Ordinance, 1939, regulating the procedure with respect to election Petitions.”
The 1939 Ordinance was enacted by the UK Parliament for all of the OECS Islands that were then colonies. Our Election Petition Acts in their modern form date from that time. Section 46 of the 1939 Ordinance authorizes the Chief Justice to make the Rules in similar terms as section 89(2) of the Elections Act, except for that in Antigua and Barbuda, which gives wider Rule making powers.
My view is that Chief Justice Sir Clement Malone would have made the 1939 Rules for all of the islands. There is no evidence that those Rules were ever repealed, but they were obviously not reproduced in the Revised Editions of the Laws in some of the islands. However, once Rules were published in the islands they remain in force even if they do not appear in the Revised Editions because they could only have been repealed by the Chief Justice. Neither Parliament nor Law Revision Commissioners could have repealed them even in a Law Revision process.
In the face of a rising chorus for reform of the Election Petition Rules, I invited suggestions from the Bars in the Region. The main concern was that there should be a flexible process similar to the Civil Procedure Rules, which provide for case management; applications for extension of time, for disclosure of information and documents and the whole panoply of applications which the Civil Rules permit. On commencing work with a view to facilitating some of these things, my first reference was to the enabling power for making the Rules contained for example in section 89(2) of the Elections Act. It was then realized that there was no enabling power to provide for these things, some of which are actually provided by Parliament in the Elections Acts.
Consider section 70(2) of the Elections Act of St. Lucia, in which Parliament has specifically provided a method by which the most critical documents for the purpose of an election petition which has been filed questioning an election or return may be produced. It states:
“No such election documents in the custody of the Clerk of the House of Assembly shall be inspected or produced except under the order of a judge of the High Court; and an order under this subsection may be made by any such judge on his or her being satisfied by evidence on oath that the inspection or production of such election documents is required for the purpose of instituting or maintaining a prosecution for an offence in relation to an election or for the purpose of a petition which has been filed questioning an election or return.”
It is important to keep in mind, however, that in order for a petitioner to rely on section 70(2) there must first be a valid petition in strict compliance with the provisions of the Elections Act and the Rules. The petition must disclose a cause of action and pray for all relevant relief prior to the expiration of the 21 or 28 days within which the petition must be presented. All parties must be properly joined and served in accordance with the law. These follow because, as Sir Vincent keenly analyzed the legislation made under the enabling constitutional provision of section 39 and the underlying jurisprudence, the legislative provisions are substantive, mandatory and preemptory.
In closing, our courts must deal with these cases with the greatest urgency remembering that they are a special species of cases and must be driven by the trial court. It is incumbent upon Filing Clarks to draw the attention of the Registrar any case that touches and concerns election matters as soon as it is filed. In turn, the Registrar must inform a Judge immediately. The Registrar must also take steps, in accordance with Rule 7, to cause the petition to be published in the Gazette and in a newspaper published in Saint Lucia. The Judge must then take charge of the case and schedule a management conference, being however quite clear that that is not be done under the civil practice rules except to the extent that the Elections Act itself provides for its application. This must be a fast track endeavour aimed at a trial in the shortest possible time. The object is to ensure that members of the public know who their elected members are and the country may settle down quickly after an election.
May we ever celebrate the illustrious life of Sir Vincent and the legacy which he has left through his Judgments and writings, as well in in his dedicated service to his country, the Court and to the legal profession.
Hugh A. Rawlins
17th September 2015