At some stage, I took the time to view recordings of the proceedings of the Privy Council, as they heard arguments in our Constituency Boundaries matter. For those who are unfamiliar with how we got to that point, here is a bit of a background. For this we will go back to antiquity, for the purpose of giving you a proper understanding:
Ours is a constituency system.
In the 1980 election which saw the PAM/NRP coalition take the reins of power, there were seven constituencies on St. Kitts, and two on Nevis. Labour won four on St. Kitts while PAM took the remaining three. NRP took the two on Nevis. As such, PAM’s three and NRP’s two created a parliamentary majority.
Some two years ahead of the 1984 election, and as had been provided for in the 1983 Constitution, one seat was added in St. Kitts, and one in Nevis. As such, Parliament consists of 11 seats. The constituencies that exist today have been this way since 1982. PAM/NRP crated them and, as time went by, they were to prove to work against them.
Under these same constituencies, PAM consolidated its position in the elections of 1984 and 1989, when they captured six of the eight seats on St. Kitts, while NRP held on to all three on Nevis.
In time, however, Labour gained ground to the extent where, in 1993, they added two seats to the two they had remaining and, two years later, in 1995, took seven of the eight on St. Kitts, and formed the government. The lone seat to have remained with PAM was Constituency No. 5.
By the next election, in the year 2000, as was its intention all along, Labourtook All Eight seats on St. Kitts. So, clearly, the constituencies were not an issue. As a matter of fact, Dr. Douglas is on the record as saying that he loved and owned the boundaries.
The election of 2004 saw Labour losing one seat to PAM, when the current Deputy Prime Minister, Hon. Sean Richards retook Constituency No. 5. As such, the upward trajectory had plateaued and was now beginning to become something different.
Ahead of the 2010 election, the Prime Minister of the day, Prime Minister Douglas attempted to change the boundaries in what was seen as a last-minute move, given that elections were due. However, the Opposition sought and obtained a court injunction, preventing him from tabling and making use of a report that he had received from the Constituency Boundaries Commission. However, he ignored the injunction and tabled it anyway and, as a consequence, his Attorney General, my classmate Dr. Dennis Merchant, was convicted in a case that was brought against him by the Opposition. They charged that Dr. Merchant either did not advise Dr. Douglas, or may have advised him incorrectly. That conviction was overturned, on appeal.
As a result of that failed attempt to change the boundaries at the 11th hour, for the first time in our history, the election was held after the fifth anniversary of the previous election. Ours is a 5-year cycle but the clock begins to tick on the date of the inaugural meeting of the National Assembly. According to the constitution, that inaugural meeting of Parliament must be held on a date no later than 90 days after the date of the election.
Now, the election of 2004 was held on October 24th, so, in essence the election could have been held as late as January 24th, 2009. However, in 2009, with there having been a number of legal challenges, the time for elections came and went. Yet, just hours before the Parliament would have been automatically dissolved by the Constitution on December 16th, Prime Minister Douglas did it, but, at that juncture, still refused to name a date for the election.
So, even without knowing the date of inaugural meeting of Parliament, in 2004, one can conclude that that meeting was held on November 16th.
In the aftermath of the 2010 election, the nation was hit with two surprises: (i) Hon. Patrice Nisbett of the NRP, who had previously sat on the Opposition benches and had been Deputy Speaker of Parliament, was offered, and accepted, the post of Attorney General, an appointment that meant that he could no longer be Deputy Speaker, and (ii) the introduction of VAT, was announced for the first time, to take effect in November of that year.
Patrice Nisbett’s inclusion was, at least from my perspective, a bit of an insurance policy. Bear in mind that there are 11 seats in Parliament and that the majority is 6. At that juncture, the Labour/NRP coalition had six of the seats on St. Kitts and Nisbett’s on Nevis, for a total of seven. I referred to Nisbett as an insurance policy because Lindsay Grant of Constituency No. 4 had contested the results there. Had Nisbett not been brought in, if Grant would have won his case, the government could have been toppled. However, with Nisbett in place, losing one would not have been an issue.
Now, let’s fast-forward.
On December 11th, 2012, the Leader of the Opposition, Hon. Mark Brantley, filed a Motion of No Confidence in the government. At the end of January 2013, Prime Minister Douglas fired Senior Minister Dr. Timothy Harris who, incidentally is the Prime Minister today. Within a few days, Deputy Prime Minister Sam Condor resigned from Cabinet. So, now, the government officially found itself in a minority position with only 5 seats.
Then, given the downward trend that Prime Minister Douglas must have seen, and with sentiments on the ground certainly not in his favour, he attempted to foist another boundaries change in October of 2013 but was met with an injunction, which lay dormant for another 15 months when what happened on January 16th, 2015, happened.
What happened on that fateful day, was that the Constituency Boundaries Commission held what was its final meeting and issued a report, complete with maps of the boundaries, a meeting which ended sometime in the afternoon. Bear in mind that two members of the Commission (Hon. Marcella Liburd and Asim Martin) were ministers in the Labour/NRP government while two (Hon. Vance Amory and Hon. Vincent Byron Jr.) were members of the Opposition. The Chairman was Peter Jenkins.
By the end of the meeting, and with the report in government’s hands, Parliament started to meet in what was described as an emergency session. However, neither member of the Opposition, not even the two who were in the meeting of the Commission, was aware that the meeting had been scheduled. They all received notice after the fact; one, the Leader of the Opposition, Hon. Mark Brantley, was away in the BVI, on business.
Eventually, those who were in the Federation made it to the meeting, in time to make certain challenges, not the least of which was that the rules were not being followed. That included the fact that no debate was being entertained and, after some pleading from Hon. Vance Amory, Sam Condor was allowed to speak. However, throughout his presentation, Speaker Martin kept interrupting him, indicating again and again that he was being repetitious and, eventually, shut him down.
In short order, the Boundaries Report and the draft proclamation were voted on and, given government’s Parliamentary majority, passed. At some stage, it was revealed that the Governor General was secreted somewhere in Government Headquarters because, within ten minutes of the adjournment of Parliament, he affixed his signature to the draft proclamation, sealing the deal. At, so they thought.
Prime Minister Douglas wasted no time. Before leaving Government Headquarters, he announced that Parliamenthad been dissolved and that the election date would have been announced at a later on. He did that, being fully confident that the shenanigans in which he had just engaged, had worked.
There is, however, that strange little “ass” known as The Law. It requires that a proclamation be gazetted and published before it becomes effective. The government, in its haste went through the motions of producing, on a computer, obviously, what they dubbed Extraordinary Gazette No. 3 but, as was borne out in the case in London, it lacked certain features. In addition, on the following Monday, the 19th, when members of the Opposition’s legal team went to that office in Government Headquarters where such things are available for distribution or sale to the public, it was not.
I was intrigued by the Government’s counsel as he argued that the document was published, at least to AG Hamilton who said he had a copy of it in his hand as early as 6:35 on January 16th so, according to the government’s legal team, it was published. However, as far as I was concerned, it bore no resemblance to the lexicographical meaning “publish”. Let’s look at it a bit more closely.
One dictionary says that it means: “to issue (printed or otherwise reproduced textual or graphic material, computer software, etc.) for sale or distribution to the PUBLIC.”
In AG Hamilton’s case, whilst he has always been a member of the public, in the context of his being part and parcel of the entity (the government) that was publishing the document, having it made available to him, and him alone, does not say that it was published. Anyone who writes a book, gets it printed and bound, but keeps all 2,000 copies in boxes in his basement, cannot be said to have published it, because the public has no access to it.
In the case of the proclamation, the normal procedure was not followed and, in addition, the perpetrators were not careful to have dotted their Is and crossed their Ts. As such, they erred; and erred terribly. The reason for their error was that they intended to have it all done before any injunction could have been obtained.
Let us not forget that, in December of last year, lawyers for the Opposition wrote to the electoral officials indicating that they intended to challenge any attempt at changing the boundaries, and asked for a period of five days in which to do so. It is quite obvious that the government was unwilling to countenance any of that so they did what they felt they had to do on Friday January 16th.
Eventually, the Privy Council ruled that the proclamation, “…if valid…”, was made after the dissolution of the House and, as such, could not have affected the election which, they also ruled, was to have been conducted on the old list.
The term “…if valid…” had to have been used because it was not the Law Lord’s purpose to determine that. However, one may be able to surmise that they felt that they because of the perceived intentions of the government in acting in such haste. That haste was clearly designed to deny the Opposition access to the courts, given that they were buoyed by the provisions of Section 50:7, where it is said that once a proclamation is signed by the Governor General, it shall not be enquired into by any court of law. Of course, they did not bank on the validity of other sections that guarantee the right of the individual to protections under the law which, if, even the Governor General were to violate, would be subject to judicial review.
In the end, one has to conclude that the government might have been better off giving the Opposition the time they sought, and may well have triumphed in the courts. Instead, it chose to do things the other way. It reminds me,somewhat, of Dr. Douglas’ initial attempt at bringing Jason Hamilton into Parliament as a senator. When the court challenge was heard, Justice John Benjamin ruled that, while there were three or four legal ways of doing it, Dr. Douglas chose the wrong one.
In the 2009 boundaries situation, Dr. Douglas had two options; abide by the injunction and not table the Report, or disregard it. He chose the wrong one.
In this 2015 boundaries case, he also had two options but, as all can remember from that fateful Friday afternoon in January, he chose the wrong one.
Throughout his tenure as Prime Minister, as long as he retained the Finance portfolio, he had the option of working with balanced, surplus or deficit budgets but, as the record shows, he consistently chose the wrong one. Simple math says that, if one overspends one’s income by $1,000.00 every month, at the end of a year, one will have a debt of $12,000.00. This is what accounted for the fact that we wound up with a debt of $3 billion after only 15 years.
Insofar as the Sugar Industry Diversification Foundation (SIDF) is concerned, Dr. Douglas had the option of obeying the Constitution by channeling its proceeds through the Consolidated Fund, where it would have been subject to the oversight of Parliament and the Auditor General, or making it a private affair. The results announced by current Prime Minister Harris two press conferences ago, show that Dr. Douglas chose the wrong one.
It is sad, therefore, that his legacy will include the fact that, again and again, faced with at least two options, he chose the wrong one.
*************************
DISCLAIMER
This article was posted in its entirety as received by SKNVibes.com. This media house does not correct any spelling or grammatical error within press releases and commentaries. The views expressed therein are not necessarily those of SKNVibes.com, its sponsors or advertisers
