Honourable Gaston Browne (The Leader of The Opposition) Claimant v Attorney General of Antigua and Barbuda First Respondent Mr. Juno Samuel, Mr. Nathaniel James, Mr. Jack Kelsick Mr. Anthonyson King, Mrs. Glendina Mckay, Mrs. Paula Lee (members of the Antigua and Barbuda Electoral Commission under the Provisions of The Representation of the People (Amendment) Act No. 12 of 2011) Other Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Cottle, J.
• Judgment Date: 18 December 2013
• Judgment citation (vLex): [2013] ECSC J1218-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV2013/0635
• Date: 18 December 2013

[2013] ECSC J1218-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV2013/0635

Between:

Honourable Gaston Browne (The Leader of The Opposition)

Claimant

and

The Attorney General of Antigua and Barbuda

First Respondent

and

Mr. Juno Samuel, Mr. Nathaniel James, Mr. Jack Kelsick Mr. Anthonyson King, Mrs. Glendina Mckay, Mrs. Paula Lee (members of the Antigua and Barbuda Electoral Commission under the Provisions of The Representation of the People (Amendment) Act No. 12 of 2011)

Other Respondents

Cottle, J.

1 By Act 6 of 2010, the Parliament of Antigua and Barbuda made provisions setting out the qualifications which would enable a person to register as an elector, and thereby vote, in the constituencies which comprise the State of Antigua and Barbuda. The Act is an amendment to the Representation of the People Act 2001. It amends Section 16 of that Act.

Section 5 (1) of the amending Act (the 2010 Act) reads as follows:

"Section 16 of the principal act is amended —

• (a) In subsection (1) (b) by repealing the word "three" and substituting the word "seven";

• (b) In subsection (1) (d) by repealing the words "one (1) month" and substituting the words "six (6) consecutive months"; and

• (c) By inserting after subsection (1), the following subsection

"1 (A) Subject to this Act and any enactment imposing any disqualification for registration as an elector, a citizen of Antigua and Barbuda who is not resident in Antigua and Barbuda, is qualified to be registered as an elector for aconstituency if on the qualifying date he —

• (a) Is 18 years of age or over; and

• (b) Has resided in the constituency for a period of at least one (1) month immediately preceding the qualifying date."

2 The effect of the amendment is to increase to seven years the period of lawful residence that would qualify a commonwealth citizen, other than a citizen of Antigua and Barbuda, to be an elector and register as such. Before the amendment, the period of lawful residence was three years. The amendment also now requires a period of six consecutive months residence in a constituency to qualify for registration as an elector in that constituency. The period used to be just one month.

3 The right to vote, or rather the right to be registered as a voter in Antigua and Barbuda, is of constitutional origin. Sections 40 ( 2) and 40 (3) of the Constitution of Antigua and Barbuda read as follows:

"40. (2) Every Commonwealth citizen of the age of eighteen years or upwards who possesses such qualifications relating to residence or domicile in Antigua and Barbuda as Parliament may prescribe shall, unless he is disqualified by any law from registration as a voter for the purpose of electing a member of the House, be entitled to be registered assuch a voter in accordance with the provisions of any law in that behalf and no other person may be registered"

"40. (3) Every person who is registered as a voter in pursuance of subsection (2) of this section in any constituency shall, unless he is disqualified by any law from voting in that constituency in any election of members of the House, be entitled so to vote in accordance with the provisions of any law in that behalf."

4 The present Claimant has brought the instant action seeking a declaration that the 2010 Act is inconsistent with Section 40 of the Constitution. As a second string to his bow, the Claimant also contends that the 2010 Act offends Section 14 of the Constitution in that it is not reasonably justified in ademocratic society while being discriminatory in effect.

5 The Claimant also complains that the registration process being carried out is inconsistent with the constitutionally provided right to be registered as an elector in Section 40 (3). I reproduce the other pleaded complaints of the Claimant:-

"6. Without prejudice to the generality of Declaration no. 5 above, a Declaration that

6.1 The intended registration process to be carried out by and at the direction of the Commission is in breach of sections 16 and 19 of the Representation of the People Act;

6.2 The failure of the Commission to hold any proper or adequate educational program has prejudiced the ability of persons to be informed registration process and to be properly registered;

6.3 Persons eligible to be registered from the constituency of City East be required to register in the constituency City South contravenes section 12 (1) of the Representation of the People Act (Amendment) Act No. 11 c of 2002;

6.4 The inconsistent demands for documentary or additional documentary information by certain registration officers is unreasonable and oppressive and restricts or unduly fetters in the right to vote.

7. An Order that the Chairman has acted with an improper motive and/or bias in that he:

• (i) has close political affiliation and personal ties to the Minister of Finance Mr. Harold Lovell and Mr. Chaku Symmister, both members of the Antigua Caribbean Liberation Movement 'the ACLM'at the same time with Mr. June Samuel. The ACLM and in particular Mr. Harold Lovell and Mr. Chaku Symmister are now integral parts of the UPP and the Government of Antigua and Barbuda;

• (ii) said after the 2009 general election on a Crusader radio program with Colin O'Neil that unless the UPP gets rid of the Commonwealth citizens they will not or may not win the next election; and

• (iii) has acted unilaterally and made decisions in relation to the registration process which led to public criticism and condemnation by the deputy chairman of the Commission.

The Chairman's improper motive or bias, or the real likelihood or danger of bias, has infected the decisions of the Commission or the majority of the Commission and therefore the decisions made in relation to the registration or re-registration process are unlawful;

8. An Order quashing the decision of the Commission to hold this de-registration, registration or re-registration process;

9. An injunction (including an interim injunction) restraining the Commission, its officers, servants and agents, from applying or giving effect to Act 6of 2010;

10. An injunction (including an interim injunction) restraining the Commission, its officers, servants and agents, from carrying out and/or continuing to carry out the intended registration process, or any registration processpurported under the terms of the Representation of the People At, as amended by the Representation of the People (Amendment) Act or at all;"

6 This is not the first challenge to the legality of the Representation of the People Act. The Court of Appeal in Civil Appeal ofThe Prime Minister and another v Sir Gerald Watt KCN QC ANUHCV201210042 held that the retrospective commencement of the Act was bad. A new date for the Act to come into force was then proclaimed. In Honourable Lester Bryant Bird v Attorney General et al ANUHCV2012/0164 the court held that the Representation of the People Act as amended by Act 12 of 2011 is unconstitutional, null and void "to the extent that it seeks to alter the powers functions and duties of the Supervisor of Elections."

The Claimant's Submissions

7 Mr. Astaphan SC mounted his challenge to the legislation under three broad heads. Firstly, he says that upon proper construction of Sections 40 ( 2) and 40 (3) of the Constitution, the 2010 Act is unconstitutional and certainly not justifiable in a democratic society. Secondly, he says that the effect of the decision of Henry J. is to render all actions by the Antigua and Barbuda Electoral Commission (ABEC) void as the fruit of the poisoned tree. Mr. Astaphan also questions whether there is any provision in law permitting ABEC to in fact deregister all persons on the voters list and require wholesale re-registration. He adds that even if such a power exists; it cannot have retrospective effect by removing rights already vested. The issues of bias or apparent bias on the part of the Chairman of Antigua and Barbuda Electoral Commission were also raised as grounds for ruling against the 2010 Act and the registration process carried out under that Act.

8 When construing constitutional provisions every effort should be made to do so purposively. Mr. Astaphan submits that laws governing the right to vote ought to be construed to encourage enfranchisement rather than to promote disenfranchisement. Mr. Astaphan gave background. The Claimant in his affidavit says that the United Progressive Party (UPP), which forms the present government, had alleged that the Antigua and Barbuda Labour Party (ALP), the previous governing party, had illegally registered many commonwealth citizens as voters and this had almost cost the UPP the 2009 general elections. The voters list was perceived to be "unclean". The legislation complained of is seen by the Claimant as the efforts of the governing party to remove from the register of voters those, particularly commonwealth citizens, alleged to have been illegally registered. I am not sure I understand this argument as saying that concerns such as those attributed to the present governing party parliamentarians, properly cannot be considered by them in deciding upon their legislative agenda. Similarly, I do not understand Mr. Astaphan to be suggesting that it is impermissible for parliament to prescribe qualifications for Non-Antiguans to be eligible for registration. No challenge to the legislation is mounted on these bases. Indeed, the Act now under challenge is an amending act. Before its passage there were criteria which had to bemet by commonwealth citizens who are not Antiguan, to be eligible for registration as electors. No one has suggested that the previous legislation was bad for any reason. Can it then be said that by making the requirements for registration more restrictive that this violates the constitution?

9 Section 40 of the Constitution is entrenched. It cannot be altered by parliament unless the...