BASSETERRE, St. Kitts – LAWYERS representing the Government announced yesterday that they have recommended for Parliament to “revise” the National Assembly Elections (Amendment) Act 2009, which is currently being challenged by the opposition People’s Action Movement (PAM).
Portions of the new legislation prompted heated debate as the amendment, passed by Parliament in early July, requires a returning officer to “receive and approve” proof of renunciation of foreign citizenship for prospective candidates on Nomination Day.
The new legislation also stipulates that candidates up for nomination must take an oath stating that he or she does not currently hold dual citizenship.
The case had an early hearing on Monday (Oct. 26), at which His Lordship Justice Errol Thomas ordered both sides submit their interpretation of the role of the returning officer to clarify whether or not a prospective candidate can actually be denied to contest the General Elections.
Lawyers for the Government were expected to make submissions today (Oct. 29) in order to narrow down the arguments to be dealt with in case management next Friday (Nov. 6).
However, in a press conference held yesterday (Oct. 28), lead counsel Anthony Astaphan SC said his team had a number of options available to it, including fighting the case or allowing Parliament to make the intentions of the law clearer so as to “remove any reasons for further litigation”.
Astaphan indicated that revisions, among other things, would ensure that questions of disqualification are “unequivocally and unambiguously vested in the Supreme Court” by virtue of the provisions of the Constitution.
“Our advice to the Attorney-General was never intended to mean that the basic objects of the act changed. The purpose of the Act, although perhaps expressed in language which needs to be clarified, was to ensure that persons who are eligible to be elected sign the appropriate declarations which are consistent with the provisions of the Constitution,” Astaphan said.
He did not disclose the amendments to be made in the revision of the legislation, but did note that it is “not merely removing obstacles or reasons for litigation; it will also add to the scope of the amended act”.
The announcement to revise the law comes exactly one week after PAM Parliamentary Representative Hon. Shawn Richards had filed an affidavit outlining his objections to the legislation. The affidavit assesses each part of the new amendment and attempts to prove that the legislation is “hurriedly and badly drafted”.
Senior Counsel Astaphan dismissed claims that his team was responding to Richards’ affidavit in a way to circumvent the court ruling in the matter.
He noted that the team made a “deliberate, independent judgement on the matter”, as it felt that there were certain things needing to be removed or included in order to avoid any ambiguity.
“Does that make sense to a sensible person?” PAM lead counsel Constance Mitcham sharply questioned the explanation given by Astaphan.
She asserted that lawyers for the government are simply doing “damage control” to amend a “half-baked piece of legislation”.
“We had filed an application to the Court stating that the amendment that they passed is bad and we had pointed out all of the wrong things with that piece of legislation which makes it unconstitutional. That is why they have to run back into Parliament and try to change it, because we were right all the time,” Mitcham argued.
As it relates to the November 6 court hearing in this matter, Astaphan explained that the AG has already been advised to revise the legislation, and there would be no need for the government to pursue its application to strike out PAM’s challenge and to file submissions. He added that the Court had already been informed of his team’s decision.
Mitcham said she expects government lawyers would wait until next Friday for the judge to make a decision. She said that the team sees its defeat in the case and is now trying to “pull out to avoid paying costs”.
“I would have thought that they would wait to hear the Court’s ruling. They would know which aspects of the impugn legislation are unsatisfactory and that Court decision could give them a guide as to how they should go about it.
“We don’t know how they are going to change it, but if they do not change it properly, we will be back again until they do it right. But we are going to Court on Friday and if he withdraws, we will ask for costs,” she concluded.
