Sir Gerald A Watt v (1) Attorney General (2) The Prime Minister (3) Juno Samuel Defendants

• Jurisdiction: Antigua and Barbuda
• Judge: Remy, J.
• Judgment Date: 25 January 2012
• Judgment citation (vLex): [2012] ECSC J0125-3
• Court: High Court (Antigua)
• Docket Number: Claim No. ANUHCV 2011/0025
• Date: 25 January 2012

[2012] ECSC J0125-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. ANUHCV 2011/0025

In the Matter of the Representation of the People (Amendment) Act 2001

In the Matter of the recommendation of the Prime Minister to remove Sir Gerald Watt, QC as Chairman of the Electoral Commission

In the Matter of an application for leave for Judicial Review

In the Matter of an application for an Administrative Order

Between:

Sir Gerald A. Watt, KCN, QC

Claimant

and

(1) The Attorney General

(2) The Prime Minister

(3) Juno Samuel

Defendants

Appearances:

Dr. David Dorsett for the Claimant

Mr. Sanjeev Datadin, with Ms. Sheri-Ann Bradshaw for the 2 ^nd and 3 ^rd named Defendants.

Remy, J.

1 On the 1 ^st March 2011, and with the leave of the Court, the Claimant Sir Gerald Watt, filed a Fixed Date Claim seeking "Judicial Review of the decision of the 2 ^nd Defendant (which decision was executed by Her Excellency the Governor-General, represented in these proceedings by the 1 ^st Defendant) that Claimant be removed as Chairman of the Antigua and Barbuda Electoral Commission ("ABEC") and that the Claimant's office in ABEC be that of ordinary member."

2 The Claimant's Fixed Date Claim was supported by an Affidavit filed on the same day. In that Affidavit, the Claimant deposed that he had reviewed his Affidavits filed on the 13 ^th and 25 ^th January 2011 in support of his application for leave to bring a judicial review claim and that he wished to incorporate the contents of those Affidavits into the Affidavit in Support of the Claim. An additional Affidavit was filed by the Claimant on the 22 ^nd March 2011. The four Affidavits will be referred to in this Judgment in chronological order as follows:-

• a) The first Affidavit (Affidavit #1) filed on 13 ^th January 2011.

• b) The second Affidavit (Affidavit #2) filed on 25 ^th January 2011.

• c) The third Affidavit (Affidavit #3) filed on 1 ^st March 2011.

• d) The fourth Affidavit (Affidavit # 4) filed on 22 ^nd March 2011.

3 The facts relied on by the Claimant in support of his claim can be distilled from his Affidavits filed, in particular Affidavit #1 and Affidavit #2, and are as follows:-

• (a) The Claimant was duly appointed as Chairman of ABEC with effect from 1 ^st October, 2005. On 29 ^th April 2010, the 2 ^nd Respondent represented to the Governor General that the question of the removal of the Claimant from the office of Chairman of ABEC be investigated. On 23 ^rd June 2010 a tribunal headed by Justice of Appeal Ian Forte, a retired Justice of Appeal of Jamaica (the Tribunal), was established for the said purpose of investigating if the Claimant should be removed on the ground of inability. On 16 ^th July 2010 the Governor General suspended the Claimant from the functions of his office. On 14 ^th October 2010 the Tribunal issued a report to the Governor General commending the Claimant and advising that it could not recommend that he be removed as Chairman of ABEC. By letter dated 20 ^th December 2010, the Governor General wrote to the Claimant informing him that the Tribunal did not recommend his removal as Chairman of ABEC. The Governor General in the said letter further directed the Claimant to resume the functions of his office on 10 ^th January 2010.

• (b) By letter dated 5 ^th January the 2 ^nd Respondent wrote to the Claimant stating: "I am confident that you will agree that the people of this fair nation reasonably expect, and rightfully deserve, an Electoral Commission in which they have full faith and confidence and more particularly, a Chairman in whom they repose confidence given that the very crux of our democracy rests with this institution and its members. It is evident that you no longer enjoy that confidence." The 2 ^nd Respondent in the said letter further informed the Claimant that he (the 2 ^nd Respondent) had written to Her Excellency the Governor General recommending that the Claimant be relieved of his position as Chairman of ABEC.

4 Under cross-examination, the Claimant testified that, since the filing of the action, he has not been prevented access to ABEC. He stated that he has since attended meetings of ABEC as a Commissioner, but did not perform the functions of Chairman. He testified that the 3 ^rd Defendant convened those meetings and performed the functions of Chairman at the meetings. He stated that when he attended the meetings, he believed that he should have participated as Chairman. He added that his "honest belief" was that, although he participated as a Commissioner, he felt he was legally the lawful Chairman of that Commission, and he still does and "that's why he's here."

5 The Claimant testified that he has not been lawfully removed as Chairman. He is of the view that "as a practical matter, he attends the meetings as Commissioner to serve the country, not because he accepts that he could be removed as Chairman and continue to be a member." He stated that he has brought those proceedings (for judicial review) to be restored to his "lawful position" and so it made "legal sense to continue" to attend the meetings of ABEC. He explained what he meant by "legal sense" in those terms:-"The legal sense is that I had filed judicial review proceedings in order to regularize my position, not because I accepted that my removal was correct."

6 The Claimant further testified that his appointment as Chairman was made on the recommendation of the Prime Minister (the 2 ^nd Defendant) in consultation with the Leader of the Opposition. He acknowledged that he was not aware that there was a "public advertisement" for the position, and further acknowledged that he did not have a hearing before the appointment was made. He stated that in relation to the letter which he received from the Governor-General in relation to his removal as Chairman, he did not respond in writing, but responded publicly. He also stated that he did not respond in writing to the Prime Minister but responded publicly, by means of a public statement which was over the media and that he gave a statement in writing to the Observer Radio.

7 Under re-examination, the Claimant was directed to the two Instruments of his appointment. He stated that both Instruments state, at the bottom thereof, that he is appointed as "Chairman of the Electoral Commission."

RELIEF SOUGHT

8 The remedies sought by the Claimant as stated in his Fixed Date Claim are as follows:

• i. "An injunction prohibiting the 3 ^rd Defendant whether by himself, his servants, or agents, or howsoever otherwise from continuing to act as Chairman of ABEC, from continuing in office as Chairman of ABEC, from convening meetings, and taking decisions on behalf of ABEC whether purporting to act under the Representation of The People (Amendment) Act 2001, or otherwise, and from issuing any orders or instructions to the election officers and staff, administration or otherwise, or acting in any way to their detriment.

• ii. An order of mandamus requiring the 1 ^st Defendant (as the (sic) representing Her Excellency the Governor-General in these proceedings) do produce and deliver to the Claimant a dated and signed copy of the report of the Tribunal established under section 4 of the Representation of the People (Amendment) Act 2001 and issued on 14 ^th October 2010, which report the Governor-General referred to in her letter to the Claimant dated 20 ^th December 2010.

• iii. An injunction prohibiting the 2 ^nd Defendant whether by himself, his servants, or agents, or howsoever otherwise from continuing impeding, interfering, or otherwise hindering the Claimant from fulfilling the functions of Chairman of ABEC.

• iv. An injunction prohibiting the 2 ^nd Defendant whether by himself, his servants, or agents, or howsoever otherwise from continuing impeding, interfering, or otherwise hindering the Claimant from attending and/or entering the offices and headquarters of the Antigua and Barbuda Electoral Commission situated at the David Shoul Building, Queen Elizabeth Highway, St. John's, Antigua, or wherever such offices and headquarters may be otherwise situated from time to time.

• v. A declaration that the recommendation of the 2 ^nd Defendant to the Governor General on 5 ^th January 2010 that the Claimant be relieved of his position as Chairman of ABEC is illegal, namely, contrary to sections 3 and 4 of the Representation of the People (Amendment) Act 2001, and is therefore null, void, and of no legal effect.

• vi. A declaration that the decision of the 2 ^nd Defendant on 5 ^th January 2010 to recommend to the Governor General that the Claimant be relieved of his position as Chairman of ABEC is irrational, in light of the report of Forte tribunal finding no fault with the Applicant or his discharge of the office of Chairman of ABEC, and is accordingly unlawful.

• vii. A declaration that the decision of the 2 ^nd Defendant on 5 ^th January 2010 to recommend to the Governor General that the Claimant be relieved of his position as Chairman of ABEC is procedurally unfair, namely, the Claimant was not given an opportunity to be heard with respect to the allegation he no longer had the "full faith and confidence" of "the people of this fair nation", accordingly unlawful.

• viii. A declaration that any and all actions taken pursuant to the recommendation of the 2 ^nd Defendant given on 5 ^th January 2011 that the Claimant be removed as Chairman, including any actions taken by Her Excellency the Governor General Dame Louise Lake-Tack, GCMG, DStJ, is of (sic) null, void, and of no legal effect whatsoever.

• ix. A declaration that the appointment of and/or continuation in office by the 3 ^rd Defendant as Chairman of the Antigua and Barbuda Electoral Commission is contrary to law, ultra vires the provisions of the Representation of the People (Amendment) Act 2001, and is null, void, and of no legal effect.

• x. A declaration that the 3 ^rd Defendant holds the office of member of ABEC (and...