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On Monday 19th October 2009 Mr. Justice Errol Thomas of the Eastern Caribbean Supreme Court delivered a 107-page judgment in the “constituency boundaries cases” in St. Kitts & Nevis.
The judgment is not light or easy reading for the layman. The learned Judge sets out the essence of each side’s legal arguments, the evidence he considered relevant, his analysis of the law and the evidence, and his decisions on the numerous issues raised by both sides in the cases.
It should surprise no one in St. Kitts & Nevis that the political parties are putting their own “spin” on the judgment: after all, general elections are only either weeks or months away.
Based on Justice Thomas’ reasoning, the following are some of the important points arising from the judgment:
1. The Constituency Boundaries Commission (“CBC”) is the body established by the Constitution to exercise exclusive jurisdiction of reviewing the electoral boundaries in St. Kitts and Nevis and making recommendations in that regard. The Government of the day, even if it held all the seats in the National Assembly, could not legally alter the composition or powers of the CBC because any such alteration requires support in a referendum in addition to a successful parliamentary vote.
2. Failure of the CBC to submit Reports to the Governor General at intervals of not less than two nor more than five years will not necessarily render invalid a CBC Report that is submitted outside those specified intervals.
3. Where a Court finds that a CBC Report is legally defective, the Court has the legal authority to declare such a Report null, void and of no legal effect. If a Court so concludes, any Proclamation passed by the National Assembly based upon such a legally defective Report will itself also be declared by the Court to be null, void and of no legal effect. This was the “bottom-line” conclusion of Justice Thomas.
4. In addition to the Proclamation being ruled invalid because the Report which prompted it was invalid, the Judge ruled that the Proclamation was also legally invalid because it had been signed by the Governor General after an injunction had been issued by the Court prohibiting “use” of the CBC Report.
5. Justice Thomas decided that the Proclamation approved by the National Assembly in July 2009 was invalid for the abovementioned two reasons: firstly, because the CBC Report was invalid, and secondly, because the Governor General signed the Proclamation when an injunction was in place.
6. The reasoning of Justice Thomas regarding the “directory” (as opposed to “mandatory”) requirement for CBC Reports to be prepared and submitted at intervals of between 2 to 5 years suggests that general elections can be validly held even if there has been no CBC Report for over 5 years.
7. The manner in which the Government established the Boundaries Technical Committee (“BTC”) and the role given to that BTC conflicted with the Constitution. The provisions of the Constitution did not permit the BTC to decide, or even greatly influence, any matters which were the exclusive responsibility of the CBC. The Government was faulted for establishing the BTC in the manner that it did, and the CBC was faulted for allowing itself to be greatly influenced by the BTC. Justice Thomas emphasized that the CBC must be seen to be producing its own recommendations after itself deliberating on the relevant matters stipulated by the Constitution as being the CBC’s exclusive responsibility. “[The CBC] has no power to accept or consider any recommendation from another body which purports to exercise the same or similar functions [as the CBC].”
8. Justice Thomas ruled that the CBC was not shown to have been biased or to have acted in bad faith. However, he found that the CBC “abdicated in favour of the Boundaries Technical Committee”. In other words, the CBC was too heavily influenced by the BTC’s views. The Judge also concluded that the members of the CBC did not properly address their minds to the matters which the Constitution required them to consider.
9. The Court ruled that the Claimants (Mr. Richards and Mr. Grant) had no legal right to be heard before the CBC made its recommendations, but even if they had such a right, they had waived that right “by their overwhelming non-participation in the Electoral Reform process as a whole consistent with the position articulated on behalf of the Peoples’ Action Movement.”
Looking forward, now that the Proclamation has been declared “null, void and of no legal effect” by Justice Thomas, if a general election is called very soon by the Prime Minister, such an election will be conducted on the existing electoral boundaries.
New electoral boundaries cannot come into effect unless and until there are:
(a) fresh CBC deliberations;
(b) a new CBC Report with properly considered recommendations;
(c) a new Proclamation debated and approved by the National Assembly;
(d) signed by the Governor General; and
(e) published in the Official Gazette.
Justice Thomas’ ruling has confirmed that CBC Reports are subject to judicial review of the process by which they are created. To properly complete fresh CBC deliberations and the entire process described above, all between now and the automatic dissolution of Parliament in mid-December 2009, will be a major undertaking and could land the country back in Court again.
In light of the recent Court ruling, the ball is back in the court of the Prime Minister to decide whether to advise the Governor General to dissolve the National Assembly before its automatic dissolution in mid-December, and to choose a date for general elections before they are constitutionally required.
The CBC also has to decide when it will reconvene and deliberate, if the Prime Minister does not “fly the gate” (as he constitutionally can) before they do. When the CBC reconvenes, whether with the current members or new members, it will need to carefully consider Justice Thomas’ guiding judgment.
