The Hon. Gaston Browne (The Leader of the Opposition) Appellant v Attorney General of Antigua and Barbuda First Respondent [1] Mr. Juno Samuel [2] Mr Nathaniel James [3] Mr Jack Kelsick [4] Mr. Anthonyson King [5] Mrs Glendina McKay [6] 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: Baptiste JA,Justice of Appeal,Davidson Kelvin Baptiste,Louise Esther Blenman,Gertel Thom,Justice of Appeal [Ag.]
• Judgment Date: 28 April 2014
• Judgment citation (vLex): [2014] ECSC J0428-3
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2013/0028
• Date: 28 April 2014

[2014] ECSC J0428-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal [Ag.]

ANUHCVAP2013/0028

Between:

The Hon. Gaston Browne (The Leader of the Opposition)

Appellant

and

The Attorney General of Antigua and Barbuda

First Respondent

and

[1] Mr. Juno Samuel

[2] Mr Nathaniel James

[3] Mr Jack Kelsick

[4] Mr. Anthonyson King

[5] Mrs Glendina McKay

[6] 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

Civil appeal — Constitutional law — Antigua and Barbuda Constitution Order 1981 — Electoral Commission — Right to vote — Entitlement to vote — Representation of the People Act — Representation of the People (Amendment) Act 2010 — Change in qualification for Commonwealth Citizens to vote in elections — Whether amendment to Act contravenes the provision of the Constitution — Whether amendment to Act limits or restricts the right of Commonwealth Citizens to vote — Registration process — Whether registration process illegal — Bias — Whether Electoral Commission was tainted with bias

In 2010, Parliament, by ordinary legislation, amended the Representation of the People Act ("principal Act") which amendment changed the qualifications for Commonwealth citizens to be eligible to vote in Antigua and Barbuda. Section 5 of the Representation of the People (Amendment) Act 2010 ("amending Act 2010") altered section 16 of the principal Act by increasing from 3 years to 7 years the residency qualification of a Commonwealth citizen before such citizen could be registered as an elector. Additionally, section 6 of the amending Act 2010 repealed and replaced section 18 of the principal Act by prescribing a period within which persons who now qualify under the amended section 16 are to apply for registration as an elector. The Electoral Commission ("the Commission") conducted a registration exercise in light of the new qualification for Commonwealth citizens.

The appellant challenged the constitutionality of the Representation of the People (Amendment) Act 2010 ("amending Act 2010") and posited that the re-registration process had retrospective effect and that this infringed section 40(3) of the Antigua and Barbuda Constitution Order 1981 ("the Constitution") and section 19 of the principal Act. The appellant alleged that during the registration process the Supervisor of Elections was illegally striped of her duties as the Chief Registration Officer. This rendered the re-registration process null and void. Further, the Chairman of the Commission was actuated with bias and this bias infected the Commission and its subsequent functions.

The learned trial judge disagreed with the appellant's allegations and claims and found that Parliament had the authority to legislate from time to time with respect to the qualifications for Commonwealth citizens. The amending Act 2010 did not violate or infringe any provisions within the Constitution. The learned judge found that the legislation prescribes the needed qualifications which are required at the time the right to vote is to be exercised. The learned judge could not identify any specific function of the Supervisor of Elections that was usurped. In addition, the learned judge found that there was no evidence of bias.

The appellant appealed contending that the amending Act 2010 was in direct contravention of the entrenched right to vote in the Constitution. In the event that Parliament had the authority to lawfully prescribe such qualifications the appellant alleged that evidence of the legitimate aim pursued by this prescription ought to have been adduced. The appellant further contends that the application of the amending Act 2010 violated the principle against retrospectivity and the rights of those persons already registered to vote, the compulsory re-registration process violated the Constitution, the learned trial judge failed to consider the cumulative effect of all the evidence in relation to the issue of bias and as the Supervisor of Elections was declared by the court to have been stripped of all powers as Chief Registration Officer this rendered the re-registration process illegal as the Supervisor of Elections was not involved in the process.

Held: dismissing the appeal and making no order as to costs, that:

• 1. The scope of section 40 of the Constitution identifies the parameters within which a person becomes entitled to vote. It recognises that the right to vote is made subject to inter alia a person's registration as a voter. Apart from being a Commonwealth citizen having attained the age of 18 years and having not been disqualified to vote, a person must possess such qualifications relating to residence or domicile in Antigua and Barbuda as Parliament may prescribe to be entitled to register as a voter. The words "may prescribe" specifically mentioned in section 40(2) of the Constitution gives to Parliament the power to legislate from time to time and as it sees fit in respect of the qualifications relating to residence or domicile for registration of any person as a voter. The section clearly reserves to Parliament the power to pass ordinary laws in relation to the specified qualifications. Thus, it must be presumed that the framers of the Constitution intended that Parliament retain such power. In that regard, Parliament having made an amendment to the principal Act was not infringing section 40 or any other provision of the Constitution. Parliament purported to act within the powers directly conferred on it by the Constitution, particularly section 40(2).

  Section 40 of the Antigua and Barbuda Constitution Order 1981 applied; Lester Bryant Bird v Attorney General Claim No. ANUHCV2012/0164 approved; Attorney General v McLeod [1984] 32 WIR 451 applied; George Rick James v Ismay Spencer and Lorna Simon– Civil Appeal No. 27 of 2004 followed.

• 2. Fundamental rights and freedoms are generally protected under the Constitution except in certain instances where the provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society. The right to vote, though it is a constitutional right, is not a fundamental right. As such, there was no requirement for the State to show that the amendment was justifiably required in a democratic society. Auxiliary to that, section 40(2) of the Constitution does not speak to "justifiably required in a democratic society". On those bases, the changing of the provision with respect to the residency qualification does not attract or engage the requirement of "reasonably justifiable in a democratic society". Simply, section 40(2) does not engage the issue of proportionality.

  Elloy de Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries Lands and Housing et al (Privy Council Appeal No. 42 of 1997) distinguished; Paponnette v Attorney General of Trinidad and Tobago (2010) 78 WIR 474 distinguished.

• 3. There is a common law presumption that a statute is not intended to operate retrospectively. The presumption can be rebutted if it clearly appears that it was the intention of Parliament to produce the result in question. The words contained in the amendment to the Act in no way suggest that it was the intention of Parliament for the Act to operate retroactively or retrospectively. The entitlement to vote belongs to a person entitled to be registered. Parliament, exercising powers sanctioned by the Constitution, amended the law. The fact that the law is amended from time to time does not mean that those who were entitled to vote before the amendment and not entitled after the amendment could succeed in arguing that the amendment has retroactive effect. The amending Act 2010 unmistakably affected or altered existing rights prospectively. Therefore, the appeal on the retrospectivity of the amending Act 2010 fails.

  Wilson v Secretary of State for Trade and Industry [2003] UKPC 40 applied; Section 40 of the Antigua and Barbuda Constitution Order 1981 applied.

• 4. Section 40 of the Constitution does not confer on a person an entitlement to be registered for the purpose of voting ad infinitum or in perpetuity. The entitlement to vote is restricted to every person who is registered as a voter. With respect to the residency qualifications, Parliament reserves the right to alter such qualifications as it sees fit and from time to time. The amending Act 2010 altered the residency qualifications from 3 years to 7 years. That is the law which Parliament has prescribed and which law is currently in force. To be entitled to be registered to vote every Commonwealth citizen must satisfy the 7 year requirement. It follows that persons who do not fall within the new residency criteria are not entitled to be registered to vote. A re-registration process is but one method of ensuring that all persons registered to vote are so entitled based on the new residency criteria and so as to ensure that the register of electors are properly maintained at all times. Persons who were previously registered but have now failed to meet the new qualifications that Parliament lawfully prescribed cannot rightfully assert the right to remain registered. They have become "disqualified for registration" by virtue of the amending Act 2010.

  Section 19 of the Representation of the People Act applied; Section 40 of the Antigua and Barbuda Constitution Order 1981.

• 5. The appropriate test in determining an issue of apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The fair-minded and informed observer can be assumed to have full...