St. Christopher-Nevis Boundaries: Why Privy Council dumped Appeal Court decision!

The back story: On 4 January, 2015 the Eastern Caribbean Court convened to consider the matter involving appellants Mark Brantley (in his personal capacity and as a representative of the Concerned Citizens Movement); Timothy Harris (in his personal capacity and as a representative of the Peoples Labour Party); Sam Condor (in his personal capacity and as a representative of the Peoples Labour Party); and Shawn Richards (in his personal capacity and as a representative of the People’s Action Movement).

The respondents: The Constituency Boundaries Commission (comprising R. A. Peter Jenkins; Asim Martin; Marcella Liburd; Vance Amory and Vincent Byron. Also the prime minister of St. Christopher and Nevis, Denzil Douglas, and the attorney general, as the governor general’s representative.

The adjudicating panel comprised Justices Davidson Kelvin Baptiste; Mario Michel and Gertel Thom. Christopher Hamel-Smith SC and Douglas Mendes appeared for the appellants (leading DeLara MacClure Taylor instructed by Talibah Byron). Anthony Astaphan SC appeared for the second respondent (leading Angelina Sookoo). Peter Goldsmith QC appeared for the third respondent, the attorney general (instructed by solicitor general Simone Bullen-Thompson).

At the heart of the matter was a judge’s order setting aside an interim injunction that she had granted at an ex parte hearing on 16 January, 2015 and was discharged eleven days later, following an inter partes hearing on 22 January, 2015. The appellants appealed this order.

By the appeal court’s judgment: “The question whether or not to discharge an injunction is one which is concerned with the exercise of a judge’s discretion and necessarily engages the well-known principles upon which the exercise of a judge’s discretion can be assailed by an appellate court. Accordingly, it is incumbent upon the appellants to show that the judge was wrong in law, or took account of irrelevant matters, or failed to take account of relevant matters, or was obviously wrong in the conclusion arrived at.

“The learned judge had found in her judgment of 27 January, 2015 that the proclamation giving effect to the recommendations of the Constituency Boundaries Commission had been made by the governor general prior to the issue of an injunction by her on 16 January, 2015 and therefore the injunction, having been granted to prohibit an action already taken, was useless.

“The appellants have sought to argue that the learned judge erred in law in the exercise of her discretion because, as a matter of law, the proclamation by the governor general had not been made before the issue of the injunction. They based their arguments on their interpretation of Section 50 of the Constitution of the Federation of Saint Christopher and Nevis, in accordance with the definition of ‘proclamation’ contained in Section 119 of the Constitution.

“The submission is obviously challenged by the respondents, who contend that the making of the proclamation by the governor general had, as a matter of fact and law, been completed prior to the issue and service of the injunction and was therefore a useless and thus inappropriate exercise of the court’s discretion in granting the injunction.”

The appeal court expressed the view that the Constitution of the Federation left “no room for giving meaning to words used” in the section headed “Delimitation of Constituencies . . . by incorporating other sections contained in other parts of the Constitution. In accordance with the regime created by Section 50, the Constituency Boundaries Commission reviewed the boundaries of the constituencies in the Federation and recommended alterations to the constituency boundaries; a draft proclamation giving effect to the recommendations of the commission was thereafter approved by the National Assembly; the governor general then signed a proclamation which (according to the evidence of the attorney general) was published in the official Gazette.

“All of this happened on Friday 16 January, 2015 and though one may say the process was hurried through by the relevant authorities to gain an unfair political advantage, that is an issue of political morality and not constitutional validity, which is not suitable for judicial enquiry . . . The governor general signed the proclamation giving effect to the boundary changes at approximately 6.20 pm on 16 January, 2015 with a proclamation dissolving parliament or that he signed the proclamation to dissolve parliament at the same time as he signed the proclamation on the boundary changes. According to the governor general . . . the consequence of the actions of the governor general at approximately 6.20 pm on 16 January, 2015 is that when the parliament was dissolved by proclamation of the governor general the proclamation signed on the boundaries changes came into force.”

Moreover: “The appellants have argued that the coincidence of the signing of the two proclamations does not meet the requirements of Section 50 (6) for the proclamation to come into force upon the dissolution of parliament on that day, because there is no evidence that it was made before and not together with the dissolution proclamation, and so it can only come into effect following the next dissolution of parliament, whenever that may be in the ensuing five-year period following the 16 February, 2015 general elections.

“We reject this submission and prefer the submission of the attorney general that the intent of Section 50 (6) was to ensure that changes in the constituency boundaries should come into force during a subsisting parliamentary term so that a person duly elected as the representative of a constituency delineated in one way finds himself in the course of his parliamentary term representing a differently delineated constituency . . . We hold that the proclamation made by the governor general on 16 January, 2015 giving effect to the report of the Constituency Boundaries Commission recommending changes in the constituency boundaries in the Federation of Saint Christopher and Nevis came into force on 16 January, 2015 upon the dissolution of parliament on that day.”

The appeal court also rejected the appellants’ submission that the definition of “proclamation in Section 119 of the Constitution must be applied in the interpretation of Section 50 and that the effect of its application is that the boundaries proclamation was not made until it was published in the Gazette and, further, that the publication includes circulation to the general public of the actual Gazette with the name of the printer imprinted at the end of it together with the words ‘by authority.’ ”

The court agreed with the judge that by the time she had granted the injunction on Friday, 16 January, 2015 and which injunction was served on the attorney general the same day, what she had sought to injunct had already occurred and so the injunction was properly discharged by her on 27 January, 2015.

Finally: “Having considered all the submissions, oral and written, by the counsel on behalf of the parties, we are satisfied that the appellants have not demonstrated that the judge’s exercise of her discretion in discharging the injunction was improper and should therefore be overturned.”

The court dismissed the appeal against the judge’s order discharging the injunction she had previously granted. “Consequently, the interim injunction ordered by this court on 29 January, 2015 pending the hearing of this appeal is discharged.”

There was no order for costs.

On 5 February, 2015 the Court of Appeal, with the consent of the parties, granted leave to appeal to the Privy Council Board, the parties having agreed that the Electoral Commission and the Supervisor of Elections would (1) prepare two lists of voters, one on the boundaries existing before the purported alteration on 16 January, 2015 and the other on the boundaries described in the impugned proclamation and (2) use for the purposes of the election the list which the Board held to be appropriate.

The Board concluded: The dissolution of the National Assembly occurred before the impugned proclamation was made. Accordingly, if valid, did not govern the election which followed that dissolution. But the appeal also raised important constitutional questions on which it is expedient that the Board express at least tentative views. Those questions are: (1) whether, if there were a deliberate attempt to exclude the review by the courts of the Constituency Boundaries Commission’s report, that attempt was unconstitutional because it was contrary to the rule of law; and (2) whether the publication of the impugned proclamation in the Gazette after the grant of the interim injunction was unlawful and therefore of no effect.

The Board noted: The Constitution of Saint Christopher and Nevis provides for the supervision of the registration of voters and the conduct of elections by a Supervisor of Elections. He or she in turn is supervised by an Electoral Commission of three persons appointed by the governor general. Section 49 of the Constitution provides for the Constituency Boundaries Commission of five members appointed by the governor general and Section 50 requires the CBC to review constituency boundaries to give effect to the rules set out in Schedule 2 and to report to the governor general at intervals of not less than two and not more than five years.

“Under Section 50 the prime minister is required to lay before the National Assembly a draft of a proclamation by the governor general for giving effect, with or without modifications, to the recommendations contained in the CBC report. It is appropriate to set out subsection (6), as it is central to the Board’s determination of this appeal: ‘If any draft proclamation laid before the National Assembly under subsection (3) or (5) is approved by a resolution of the Assembly, the prime minister shall submit it to the governor general who shall make a proclamation in terms of the draft; and that proclamation shall come into force upon the next dissolution of parliament after it is made.’

“It is appropriate also to set out the terms of subsection (7), which provides for the ouster of the court’s jurisdiction, in view of the appellants’ challenge, which the Board notes but is not in a position to determine, that the former governing party deliberately rushed through the approval of the impugned proclamation in order to prevent a legal challenge. Subsection (7) provides: ‘The question of the validity of any proclamation by the governor general purporting to be made under subsection 50 (6) and reciting that a draft thereof has been approved by resolution of the National Assembly shall not be enquired into in any court of law except upon the ground that the proclamation does not give effect to rule 1 in Schedule 2.’ ”

Regarding the “factual background” section of the appeal court judgment, the Board recorded what “appear to be uncontested fact. It is sufficient to say by way of background that for several years there have been disputes between supporters of the government and the opposition over terms of the CBC’s reports, giving rise to legal challenges. More recently a CBC report of 5 September, 2013 was subject to a legal challenge and was quashed on the ground of inadequate consultation on 31 July, 2014. After the CBC produced revised recommendations, members of the CBC, who had been appointed on the advice of the leader of the opposition, expressed concerns whether those recommendations complied with the requirements of Schedule 2. On 18 December, 2014 attorneys acting for representatives of the opposition parties wrote to the prime minister to intimate that they were instructed to mount a legal challenge to the revised recommendations in a forthcoming CBC report. Thereafter, on 13 January, 2015 the CBC met and by a majority of 3:2 approved maps of the revised constituency boundaries. This set the scene for the events of 16 January, 2015.”

“The appellants appealed,” the Board recalled. “On 29 January, 2015, the Court of Appeal granted the appellants interim relief pending their appeal. But on 5 February, 2015 the Court of Appeal – Baptiste, Michel and Thom JJA – refused the appeal. The court held that Section 50 was a self-contained regime purposively to provide that changes to constituency boundaries should not come into force during a subsisting parliamentary term. The court agreed with Carter J that the act, which she had sought to prohibit, had already occurred by the time she made the order and that the injunction therefore fell to be discharged. As already stated, the Court of Appeal granted leave to appeal to the Board.”

The Privy Council Board Decision

“The Board is persuaded that the impugned proclamation, if valid, did not govern the election which was held on 16 February. In its view, the case turns on (a) the correct interpretation of Section 50 (6) and (b) an analysis of when a proclamation is ‘made.’ The Board considers that the words which it underlined in Section 50 (6) above should bear their natural and ordinary meaning. There is nothing in the statutory context or on an analysis of statutory policy to require another meaning to be given to those words. None was suggested.

“The next question is: when is a proclamation ‘made’ under Section 50 (6)? Under the Constitution proclamations by the governor general are limited to specified matters of importance. In addition to the alteration of constituency boundaries, they are: (a) the declaration of a state of emergency (Section 19 (1)); (b) the revocation of such a declaration (Section 19 (5)); and (c) the suppression of legislation of the Nevis Island Legislature in the interests of external affairs or in the interests of defense (Section 37 (4)). Other things being equal, one would expect the Constitution to regulate publication of such legal instruments; and it does.

“Section 119 of the Constitution defines what a proclamation is. It provides, unless the context otherwise requires: ‘Proclamation’ means ‘a proclamation published in the Gazette, or, if such publication is not reasonably practicable, published in Saint Christopher and Nevis by such means as are reasonably practicable and effective.’

“The Board is satisfied that the context of Section 50 does not require interpretation to the word ‘proclamation.’ Lord Goldsmith QC submitted that Section 50 (6) was self-contained and did not require publication of the proclamation because it had its own mechanism for the commencement of its legal effect, namely that the proclamation came into force upon the next dissolution of parliament after is it made.

“The Board is not persuaded. The Board accepts his point that the subsection specifies the time for the coming into operation of the proclamation, whereas Section 42 (4) provides that no law made by parliament shall come into operation until is has been published in the Gazette. But the specific provision in Section 50 (6), which brings the proclamation into force, does not alter the meaning of ‘proclamation’ so as to disapply the Section 119 definition. The making of a proclamation is not simply the signing of a document, which can thereafter be kept on an internal government file.

“Nor is it the production of a hard copy of the text of a Gazette which similarly is deposited in a file and not made available to the public by the publication of the Gazette. A proclamation is what it says it is. It is something which is proclaimed or published; and the constitutionally recognized means of publication are stated in Section 119. Lon Fuller in ‘The Morality of Law’ identified as one of eight desiderata of law the need to publicize, or at least make available to the affected party, the rules he is expected to observe. One of the benefits of such promulgation is that laws can be subjected to public criticism. Section 119 provides the means for promulgation by which law is made by proclamation.

“The respondents did not argue that it was not reasonably practicable to publish the impugned proclamation in the Gazette (which is defined in the Constitution as the official Gazette of Saint Christopher and Nevis). Accordingly, the other means of disseminating the terms of the impugned proclamation, which Section 119 authorizes, are irrelevant. Therefore the dissemination of the text or the bulk of the text of the proclamation on the government’s website is not a substitute for publication in the Gazette. The question is: when was the impugned proclamation published in the Gazette?

“The answer to that question lies in the unchallenged evidence adduced by the appellants. In particular, the Hon. Sam Condor, the third appellant, records in an affidavit that when on 19 January, 2015 he approached the Government Information Service Department, which is the government department responsible for distributing the Gazette, he was informed by responsible officials that there was as yet no published Gazette for 2015. On the following afternoon, when he again asked for Gazettes published in 2015, officials gave him the impugned proclamation, which was published as Extra Ordinary Gazette No 3 of 2015, and the proclamation dissolving parliament, which was Extra Ordinary Gazette No 3A of 2015. The attorney, Mr. DeLara MacClure Taylor, also gave evidence in an affidavit that the Government Information Service Department was the only department responsible for distributing the Gazette to the public. On visits to that department on both 19 January, 2015 and on the morning of 20 January, 2015 officials told him the most recent Gazette was Gazette No 56 of 2014.

“It follows, in the Board’s view that the impugned proclamation was made no earlier than 20 January, 2015 when it became available to the public by publication in the Gazette on the authority of the governor general. The proclamation dissolving parliament was published at the same time. In that proclamation (which, like the impugned proclamation, was erroneously stated to be published on the 16 January, 2015), the governor general dissolved the parliament ‘as from the 16 day of January 2015.’ The dissolution, which unquestionably occurred with effect from 16 January, predated the ‘making’ of the impugned proclamation. As a result, the impugned proclamation, if valid, will have effect only on the dissolution of the parliament that was elected on 16 February, 2015 (Section 50 (6).”

The Board also dealt with other constitutional questions, to be reproduced here at a later date. Suffice it to say at this time that the Board advised her Majesty that “the appeal should be allowed and that the parties should make written submissions on costs within 21 days of delivery of this judgment.”