[1] The Hon. Gaston Browne, Leader of the Opposition [2] The Hon. Lester B. Bird [3] The Hon. Asot A. Michael [4] Mr. Eisen Baptiste [5] Ms. Paulet Hinkson Appellants/Applicants v [1] The Constituencies Boundaries Commission [2] Attorney General of Antigua and Barbuda [3] The Speaker of the House of Representatives [4] The Prime Minister of Antigua and Barbuda Attorney General (for and on Behalf of her Excellency the Governor General) Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: The Hon. Mde. Louise E. Blenman,The Hon. Dame Janice M. Pereira, DBE,The Hon. Mr. Davidson Kelvin Baptiste
• Judgment Date: 28 April 2014
• Neutral Citation: [2014] ECSC J0428-6,AG 2014 CA 5,[2014] ECSC J0428-1
• Judgment citation (vLex): [2014] ECSC J0428-2
• Date: 28 April 2014
• Docket Number: ANUHCVAP2013/0026
• Court: Court of Appeal (Antigua and Barbuda)

[2014] ECSC J0428-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE, Chief Justice

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise E. Blenman Justice of Appeal

ANUHCVAP2013/0026

In the Matter of the Constituencies Boundaries Commission

and

In the Matter of the Purpourted Recommendations and 'Consultations' of the Constituencies Boundaries Commissiion

and

In the Matter of Sections 40 and 64 of the Constitution Order 1981 of Antigua and Barbuda

and

In the Matter of the Constituencies Boundaries Commission Guidance Act 10/2012

and

In the Matter of an Application for Declaratory, Injunctive and other Relief by the Applicants Gaston Browne, Asot Michael, Eisen Baptiste and Paulet Hinkson

Under the Provisions of Section 119 of the Antigua and Barbuda Constitution Order 1981 and/or the General Law

Between:

[1] The Hon. Gaston Browne, Leader of the Opposition

[2] The Hon. Lester B. Bird

[3] The Hon. Asot A. Michael

[4] Mr. Eisen Baptiste

[5] Ms. Paulet Hinkson

Appellants/Applicants

and

[1] The Constituencies Boundaries Commission

[2] The Attorney General of Antigua and Barbuda

[3] The Speaker of the House of Representatives

[4] The Prime Minister of Antigua and Barbuda the Attorney General (For and on Behalf of her Excellency the Governor General)

Respondents

Appearances:

Mr. Anthony Astaphan, SC, with him, Ms. Samantha Marshall, for the Appellants

Mr. Douglas Mendes, SC, with him, Mr. Michael Quamina, for the First and Second Respondents

Civil appeal — Constitutional law — Constituencies Boundaries Commission — Antigua and Barbuda Constitution Order 1981 — Constituencies Boundaries Commission Guidance Act, 2012 — Election petition — Whether the Commission engaged in gerrymandering — Bias — Whether Commission was biased — Consultation — Information provided — Time allotted for consultation — Whether consultation adequate

The last general election in the State of Antigua and Barbuda was held in 2009. A Constituencies Boundaries Commission ("the Commission") was appointed in that State at latest, on 1 ^st March 2012 pursuant to section 63 of the Antigua and Barbuda Constitution Order 1981 ("the Constitution"). The Commission was constituted to give effect to the Constituencies Boundaries Commission Guidance Act, 2012 (" Guidance Act") which came into effect on 28 ^th December 2012. The Guidance Act is an Act to guide the Commission in its review of the numbers and boundaries of constituencies.

All of the appointees to the Commission, save for Mr. James Fuller ("Mr. Fuller"), were appointed by the Governor-General on the advice of the Prime Minister. Mr. Clarence Crump ("Mr. Crump"), the Chairman of the Commission was appointed by the Prime Minister after consultation with the Leader of the Opposition. Mr. Fuller was appointed on the advice of the Leader of the Opposition.

The Commission produced a first report in March 2013 in which it recommended alterations to constituency boundaries, after having organised one day of consultation with members of the public on 29 ^th November 2012. This first report fell within the Commission's deadline of 28 ^th June 2013 for submission of the report to the Speaker of the House of Representatives. Objections were made to it in the form of legal proceedings filed by two of the appellants. Following legal advice, this first report was withdrawn.

Subsequently, the Commission revisited their review of the constituencies and boundaries. Prior to 13 ^th June 2013, after several meetings with the census officers and other experts assisting the Commission, the Commission was able to produce a preliminary proposal which could be put out for consultation. By letter dated 13 ^th June 2013 the Commission invited each of the current parliamentarians, prospective political candidates and others to consultation sessions which were to be held and were in fact held in four separate locations fixed over four consecutive days being 17 ^th 18 ^th 19 ^th and 20 ^th June 2013. In addition, the consultations were to be carried live on TV and radio. The Commission gave to interested persons, including the appellants, until 21 ^st June 2013, the day after the last consultation meeting, to submit any comments or counter-proposals.

The second report was produced by the Commission on 25 ^th June 2013 with various proposals including that there be no change to the number of constituencies, four constituencies be re-named, alterations be made to the boundaries of 14 of the 16 constituencies. The second report modified its proposals to boundary changes as contained in the first report. It also proposed modifications to 6 constituencies over and above the alterations proposed in the first report.

The appellants again took issue with the second report and instituted legal proceedings in that regard. The learned trial judge dismissed the claim holding that the Commission was bound to produce their report by 28 ^th June 2013; there was no abdication of the Commission's responsibilities; the consultations, admittedly less than ideal, were adequate in the circumstances; the conclusions reached by the Commission were neither irrational or unreasonable; and there was no cogent evidence to sustain an allegation of gerrymandering and bias by the Commission.

The appellants have appealed the decision of the trial judge on various grounds including inter alia that the learned trial judge has failed to properly consider the evidence and law; the learned trial judge erred in holding that (1) there was no evidence of gerrymandering and or bias by the Commission, (2) the consultation period was adequate, and (3) the Commission acted in compliance with the requirements of the Guidance Act.

Held: allowing the appeal only on the ground that consultation was inadequate and dismissing the other grounds of appeal and ordering that the parties bear their own costs, that:

• 1. A party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. Failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence. The appellants failed to cross-examine or test the evidence of Mr. Crump. In addition, there was simply no undisputed objective evidential material, either oral or documentary, inconsistent with the evidence of Mr. Crump which could not have been sensibly explained away. Bare assertions or equivocal inferences, which may be drawn from a primary fact, do not suffice. Accordingly, there is no basis for this Court to reject or disregard the evidence of Mr. Crump.

• 2. A decision making body is required to provide to persons with whom it must consult such information, in clear terms, as to what the proposal is and why it is under positive consideration. The decision making body ought to furnish enough information to enable persons to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this. In this regard, the Commission's obligation was to consult with the appellants on the changes being proposed to existing constituency boundaries and why the changes were being proposed. The Commission was obligated to disclose enough information to enable the appellants to make an intelligent response. The undisputed evidence indicates such evidence was provided to the appellants. There was no request by the appellants, who are veteran politicians and who would know the boundaries of their existing constituencies, for further information. It is unlikely that the body consulting would be on notice of its failure to provide additional information in the absence of a request for specific information. The body may have reasonably concluded that the information provided was sufficient for the consultation purposes. Accordingly, the complaint of failure to disclose information in the circumstances of this case cannot be sustained.

  Regina v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213 applied; Bushell and Another v Secretary of State for the Environment [1980] 3 WLR 22 applied.

• 3. In order for a charge of gerrymandering to succeed, two elements must be satisfied by cogent evidence. Firstly, it must be shown that the Commission altered the boundaries and that the alterations had the effect of diluting or weakening the opposing party's support in those altered constituencies. Secondly, it must be shown that the Commission so altered the boundaries precisely for achieving that effect – that is, the strengthening of the other party's electoral chances over the opposing party thus weakening the opposing party's electoral chances in those constituencies. On the facts of this case, gerrymandering was clearly not made out. The evidence fell short of establishing with clarity and certainty, that the ALP votes have been diluted to the advantage of the UPP. Further, there was no evidence which amounted prima facie, let alone established, that the Commission in fact set about re-drawing the constituency boundaries in order to negatively impact the ALP's chances and positively impact the UPP's chances or vice versa. Consequently, this ground of appeal also fails.

  In re H. and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 applied; and In re Dellow's Will Trusts [1964] 1 WLR 451 applied.

• 4. The test for establishing apparent bias is whether a fair minded and informed observer would consider that there was a real possibility of bias. An allegation of apparent bias is to be considered having regard to all the relevant facts and circumstances of the particular case based on the material before it and within the context of the issue to be decided. Therefore, a fair minded and informed observer having regard to all the...