BASSETERRE, St. Kitts – SIX Opposition Members in the Federal Parliament of St. Kitts and Nevis have signalled their intention to challenge the intended second Report of the Constituency Boundaries Commission headed by Peter Jenkins.
The six Opposition Members, the Hon. Dr. Timothy Harris, Premier Vance Amory, Hon. Sam Condor, Hon. Mark Brantley, Hon. Shawn Richards and the Hon. Eugene Hamilton, had directed their lawyers to inform Prime Minister the Rt. Hon. Dr. Denzil Douglas and Jenkins, via individual letters dated December 18, 2014, of their intention to seek redress in the Court.
The letters that: “We are aware that the Constituency Boundaries Commission is in the process of preparing a report containing recommendations for changes to the boundaries in St. Kitts and Nevis for submission to His Excellency the Governor General. Our clients have approached us to advise with respect to a possible challenge to that report in Judicial Review proceedings.”
The lawyers had however highlighted that the High Court would have been on vacation from December 20, 2014 to January 4, 2015 and that any application to the Court for relief during that period would have faced logistical difficulties and caused significant inconvenience to the Court and its staff.
They also stated in the letters that there would be serious and irreversible consequences if the Constituency Boundaries Commission were to submit a report, and the Government were able to have it debated and approved by the Assembly and proclaimed by the Governor General before the Court could be moved to consider any application for a conservatory order and/or injunction pending the hearing of any application for judicial review their clients might instruct them to take.
To validate their argument, the lawyers made reference to Section 50(7) of the Constitution, which states:
A. There is a specific ouster provision which would exclude the Court from subsequently entertaining any challenge to boundary changes made as soon as the Governor General has acted under Section 50(6) and made a final proclamation, save only for an enquiry into specific and very limited questions as to the required balance between the number of constituencies in St. Kitts and Nevis (which do not arise in this situation);
B. The practical effect of a report being submitted, debated, approved and proclaimed, during a period when they might be unable to immediately access the Courts for relief, would be to permanently deprive our clients of their fundamental right to pursue a legal challenge to any of the changes proposed in such report as being unconstitutional or otherwise illegal.
The Attorneys-at-Law further stated that the very real and pressing nature of the risk that the Court’s jurisdiction might be ousted and their clients deprived of their fundamental legal and constitutional rights, is illustrated by:
a) On Friday 6th September 2013, the Constituency Boundaries Commission had submitted a report to the Governor General, recommending changes to the boundaries in St. Kitts and Nevis (“the First Boundaries Report”)
b) On Monday 9th September 2013:
i. The Prime Minister laid the draft Proclamation to approve the First Boundaries Report in the Assembly;
ii. The draft Proclamation was debated and approved in the National Assembly; and
iii. The Prime Minister then immediately submitted the Proclamation to the Governor General for proclamation.
c) Had the Governor General proclaimed the boundary changes, it would not have been possible to challenge them in Court given the ouster of the court’s jurisdiction in Section 50(7) of the Constitution, as already explained;
d) However, an application for urgent injunctive relief was heard ex parte on Monday 9th September 2013 and an interim conservatory order was made restraining the Governor General from making a Proclamation un Section 50, Judicial Review proceedings;
e) The substantive Judicial Review challenge to the First Boundaries Report was determined by a judgment dated 31st July 2014, in which Ramdhani J. quashed the First Boundaries Report on the ground that the Commission failed to consult fairly and properly;
f) On 5th September 2014 an appeal was filed against Ramdhani J.’s decision not to quash the First Report on the ground of the apparent bias of the Chairman of the Commiission due to inter alia his very close ties to, and involvement with, the ruling party;
g) On 23rd September 2014, the Commission itself filed a cross-appeal against Ramdhani J.’s decision of 31st July 2014 to quash the First Report;
h) Both the appeal and the cross-appeal are still pending;
i) On 27th August 2014, despite the existence of that appeal and cross-appeal, the Commission commenced deliberations on a proposed second report;
j) On 2nd and 15th December 2014, the Commission resolved 9by majority) to recommend a package of changes to the constituencies in St. Kitts and Nevis to be included in a proposed report to be submitted to the Governor General;
k) Based on the above, the Chairman of the Commission is drafting a report to be presented to the members of the Commission at a meeting yet to be fixed;
l) When asked, the Chairman said that he was unable to give any indication of when the draft report would be ready or when the Commission would reconvene to consider the draft report.
The lawyers claimed that based on what took place in relation to the First Boundaries Report, their clients are of the view that the Government has shown it is willing and able to act with great haste to submit a report from the Commission to, and have it approved by, the National Assembly and proclaimed by the Governor General.
“Should this be permitted to happen,” they stated, “then Section 50(7) of the Constitution would have the effect of ousting the Court’s jurisdiction to entertain a challenge to the validity of the Governor General’s proclamation (save only for an enquiry into specific and limited questions that did not arise in that situation). By this means, our clients would be deprived of their fundamental right to justice and to access the Courts to challenge a report as being either unconstitutional or illegal or both.”
They continued: “As a result of the haste with which the Government acted in dealing with the First Boundaries Report after the Commission submitted it to the Governor General, it unfortunately became necessary for some of our clients to mount an emergency ex parte application to the Courts. Had they not done so, and had they not been able to get the Court to immediately grant the conservatory order in time to stop the proclamation actually being signed, the First Boundary Report would have been unchallengeable and would have taken effect, without regard to the fact that it was the product of a legally flawed process and was ultra vires and ought to be quashed.”
The attorneys claimed that in the light of what transpired in relation to the Judicial Review proceedings in connection with the First Boundaries Report, they are hopeful that the Prime Minister and the Boundaries Commission Chairman would agree to the following:
1) It would be prudent and appropriate to avoid allowing another situation to develop in which the Court might once again be forced to have to consider an ex parte application for conservatory relief under unnecessary time pressure; and
2) It would be right and appropriate for our clients to be given a fair and reasonable opportunity to get advice and determine whether or not to initiate a Judicial Review or Constitutional challenge to any such report.
The letters ended with the attorneys asking Dr. Douglas and Jenkins to confirm to them that if the Commission should submit another report to the Governor General that, through them, the two of them would give their clients at least five days notice of the Government’s intention to lay a draft Proclamation to approve the report in the House of Assembly.
They stated that by so doing, it would allow them a reasonable opportunity to provide the necessary advice to their clients as to any legal challenges that might exist to the constitutionality or legality of such report and to approach the Court for relief if advised and thought necessary.
The letters, signed by DeLara Mac Clure Taylor also stated that the Attorneys-at-Law thank the two recipients for “your very earliest consideration of this matter and look forward to hearing from you as a matter of urgency”.
Speaking today (Jan. 4) with the Leader of Team Unity, the Hon. Dr. Timothy Harris, he told SKNVibes that since the letters were delivered his lawyers have not received a response from either the Prime Minister or the Chairman of the Constituency Boundaries Commission.
