Sir Gerald Watt, Kcn, QC Appellant v [1] Prime Minister [2] Juno Samuel Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Mitchell JA [AG.],Don Mitchell Justice of Appeal [Ag.]
• Judgment Date: 27 May 2013
• Judgment citation (vLex): [2013] ECSC J0527-4
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2012/0042
• Date: 27 May 2013

[2013] ECSC J0527-4

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice M. Pereira Chief Justice

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [ag.]

ANUHCVAP2012/0042

Between:

Sir Gerald Watt, Kcn, QC

Appellant

and

[1] Prime Minister

[2] Juno Samuel

Respondents

Appearances

Dr. David Dorsett with him Mr. Jared Hewlett for the Appellant

Mr. Sanjeev Datadin with him Ms. Sheri-Ann Bradshaw for the Respondents

Civil appeal — Constitutional law — Antigua and Barbuda Constitution Order 1981 — Representation of the People (Amendment) Act 2011 — Whether Prime Minister had lawful authority to give retroactive effect to Act — Representation of the People Order, 2012 — Whether Order was invalid — Electoral Commission — Judicial review — Retroactive orders

Sir Gerald Watt, KCN, QC was the Chairman of the Antigua and Barbuda Electoral Commission ("the Commission") before the Prime Minister recommended his removal to the Governor-General. Sir Gerald applied for judicial review of the Prime Minister's recommendation. Before the learned judge, Remy J, rendered her decision in the judicial review application, the Representation of the People (Amendment) Act 2011 ("the 2011 Amendment Act") was passed in the House of Assembly with one of the purposes being the dissolution of the Commission. It was passed by the House on 16 ^th November 2011 and by the Senate on 21 ^st November, and was Gazetted on 22 ^nd December. Section 1(1) provided that the Act should come into force on such day as the Prime Minister might appoint by Order.

Subsequently, Remy J handed down her decision granting Sir Gerald the reliefs sought; quashing the appointment of Mr. Juno Samuel as the Chairman of the Commission; and holding that Sir Gerald continued in the position of Chairman of the Commission. Six days later, on 31 ^st January 2012, by virtue of the Representation of the People Order, 2012 ("the 2012 Order"), the Prime Minister appointed the 22 ^nd day of December 2011 as the day on which the 2011 Amendment Act would be deemed to have come into force.

For that reason, Sir Gerald filed an application in the same suit in which he sought by way of interim relief a number of declarations which included a declaration that the decision of the Prime Minister to appoint the 22 ^nd day of December 2011 as the day on which the 2011 Amendment Act would come into force was null and void and of no legal effect and that all actions of the Prime Minister and Mr. Samuel made under that Act were null and void and of no effect, and that he remained the Chairman of the Commission and entitled to all the pecuniary and other benefits of the office of Chairman. Sir Gerald's contention was that the Prime Minister had no lawful authority to sign the 2012 Order bringing the Act into effect backdated to 22 ^nd December 2011. The 2012 Order was (a) an abuse by the Prime Minister of the power granted to him under that Act, (b) was actuated by improper motives and not done in good faith, and (c) amounted to an encroachment by a member of the executive onto the province and preserve of the judiciary. Further, the 2012 Order was invalid because it offended against the doctrine of separation of powers.

The application came before Michel J who ruled that the proceedings had already concluded with Remy J's judgment in that said suit. He however went on to determine the application and found that the making of the 2012 Order on 31 ^st January 2012 bringing the 2011 Amendment Act into force on 22 ^nd December 2011 was part of the legislative process that did not result in the application of the presumption against retrospection. The Prime Minister, in making the appointed day, was not acting as a member of the executive branch of government, but as a person carrying out a legislative function delegated to him by an Act of Parliament.

Sir Gerald has appealed the decision of Michel J.

Held: allowing the appeal; setting aside the order of the learned trial judge; and ordering that the Prime Minister pay the costs of the application in the court below and in the appeal to be assessed if not agreed, that:

• 1. A Minister who has the responsibility of selecting a date upon which an Act is to come into force is expected to exercise his discretion within the law. If a Minister to whom Parliament has delegated a discretion to bring an Act into force acts outside of the law, then the citizen is entitled in a suitable case to expect that the court will exercise its jurisdiction to grant a party such remedies as he or she appears entitled to so that all matters in controversy between them may be completely and finally determined, and a multiplicity of legal proceedings avoided. That principle would apply even though the trial court had just delivered a final judgment in the case. In the event that it is found that a Minister has acted illegally to interfere with a duly delivered High Court judgment, it is appropriate that interim relief be sought in the same case rather than the commencing of a new law suit.

  Section 20 of the Eastern Caribbean Supreme Court Act Cap. 143, Revised Laws of Antigua and Barbuda 1992 applied; Rule 17.2(1)(a) of the Civil Procedure Rules 2000 applied.

• 2. In exercising his discretion as to the date on which the 2011 Amendment Act came into effect, the Prime Minister was required to act fairly and to determine objectively an appropriate date for the law to come into effect. He was entrusted with a discretion and ought to have directed himself properly in law, and factor into the exercise of his discretion only those considerations which were relevant and material for that purpose. An abuse of discretion is a wrongful exercise of the discretion conferred and may be held to be ultra vires. In this case, the Prime Minister chose a date that was clearly designed to undermine or undercut the judgment of Remy J that was given in Sir Gerald's favour. It was a wrongful exercise of the discretion given to him and an encroachment on the principles of the separation of powers that Parliament, the Executive and the Courts each have their distinct and largely exclusive domain; in essence, it was an exercise of executive power. The Prime Minister not having lived up to the standard of fairness expected of him, his selection of the date he chose was ultra vires the discretion given to him.

  Padfield and Others v Minister of Agriculture, Fisheries and Food and Others [1968] AC 997 applied; Calder v Bull (1798) 1 Curtis 269 applied; Regina v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others [1995] 2 AC 513 applied.

• 3. Parliament may intend an Act to have retrospective effect. What must be done is an objective examination of the language of the Act to determine whether Parliament intended the Act to have such an effect. If the retrospectivity would have an effect that is unfair, the court must look very hard to see if it can be sure that this is what Parliament really intended. Once the unfair effect is clearly what Parliament intended, then the court will not hesitate to give effect to the intention of Parliament. Once such an intent is not clear, then the court may presume that the statute was not intended to have retrospective effect. In this case, the wording of section 1(1) and (2) of the 2011 Amendment Act does not suggest any intention of Parliament to give the Prime Minister power to give retrospective effect to his 2012 Order bringing the Act into force. The section is entirely devoid of any suggestion that he was empowered to give it such an effect. Given the injustice of interfering with the rights of Sir Gerald then subject to litigation before the court, the language of the section would have had to have been a great deal more compelling to drive this Court to the conclusion that there could have been no other intention of the legislature than to empower the Prime Minister to give retrospective effect to the Act.

  L'Office Chefifien des Phosphates and Another v Yamashita-Shinnihon Steamship Co. Ltd. [1994] 1 AC 486 applied.

• 4. Furthermore, legislation generally does not apply to actions which are pending at the time when it comes into force unless the language of the Act compels the conclusion that Parliament intended that it should. The language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature. Sir Gerald's action for judicial review was pending when the 2011 Amendment Act was passed. In light of that, the language of the enactment had to have been such that no other conclusion was possible than that that was the intention of the legislature.

  Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816 applied.

Mitchell JA [AG.]

1 The issue on this appeal is whether the appointment by the Prime Minister of Antigua and Barbuda of the date for coming into effect of the Representation of the People (Amendment) Act 2011 (the "2011 Amendment Act") 1 was a valid exercise by him of the discretion given to him by Parliament.

2 On 1 ^st March 2011 Sir Gerald Watt, KCN, QC ("Sir Gerald") filed a claim for judicial review of the Prime Minister's recommendation to the Governor-General of Antigua and Barbuda seeking his dismissal as Chairman of the Antigua and Barbuda Electoral Commission (the "Commission"), and seeking various declarations and orders. Subsequent to Sir Gerald's filing of his suit, the Prime Minister introduced into the House of Assembly of Antigua and Barbuda a Bill which was passed as the 2011 Amendment Act by the House on 16 ^th November 2011 and by the Senate on 21 ^st November. The Governor-General assented to it No. 12 of 2011, Laws of Antigua and Barbuda. on 13 ^th December 2011. One of the purposes of the Act was by section 22 2 to dissolve the existing Commission of which Sir Gerald was Chairman....