Eddy David Ventose v Chief Electoral Officer

• Jurisdiction: Caribbean States
• Judge: Byron, P.CCJ
• Judgment Date: 16 May 2018
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No BBCV2018/002; BB Civil Appeal No. 6 of 2018
• Date: 16 May 2018

Caribbean Court of Justice

Byron, P.CCJ; Saunders, J.CCJ; Hayton, J.CCJ; Anderson, J, CCJ; Barrow, J.CCJ

CCJ Appeal No BBCV2018/002; BB Civil Appeal No. 6 of 2018

Eddy David Ventose

and

Chief Electoral Officer

Appearances:

Mr. Elliot Mottley QC, Mr. Leslie Haynes QC, Ms. Faye F. Finisterre, Ms. Kashkha Mottley and Mr. Nicholas Jackman for the applicant/Intended appellant

Ms. Jennifer Edwards QC, Solicitor General for the respondent

Judicial Review - Decision to deny registration of the applicant as an elector — Locus standi — Whether the applicant had any standing to bring a claim — Whether the applicant was entitled as of right to be registered.

SUMMARY

1 The Intended appellant, Professor Eddy Ventose (‘Professor Ventose’) applied to the Caribbean Court of Justice (‘CCJ’) urgently on Friday May 11th, 2018 after office hours seeking special leave to appeal the decision of the Court of Appeal of Barbados rendered on May 6th, 2018. Professor Ventose wanted to be entered on the Register of Voters ahead of the May 24th general election date. Given the urgency of the matter, the Court heard the application via video-conference on Sunday May 13th, 2018 at 11am.

2 Professor Ventose, in his affidavit in support of his judicial review application, stated he was a St. Lucian national and therefore a citizen of a Commonwealth country, residing in Barbados for more than the last three years, living in the constituency of St James South since April 2010, over the age of eighteen years old and of sound mind with no criminal convictions. He is the holder of a Barbados national identification card bearing his photograph, having been legally working, by virtue of a CARICOM Skilled National Certificate, as a Professor of Law at the University of West Indies, Cave Hill Campus in Barbados since 2006. He claimed that he satisfied the requirements of section 7 of the Representation of the People Act (‘ROPA’) so as to be qualified to be registered as an elector for a constituency.

2 Professor Ventose was denied registration on three occasions between October 2013 and January 2018. On the last visit, January 4th, 2018 he was presented with a form (Form 1) which he submitted in a claim to be registered as an elector in Barbados as prescribed by ROPA. On submission of the claim for registration, the Intended respondent, the Chief Electoral Officer, Mrs. Angela Taylor, through her agents, advised Professor Ventose that it was the long-standing policy of the Electoral and Boundaries Commission (‘EBC’) only to register Commonwealth citizens as electors if they were Barbadian citizens, permanent residents or holders of permitted immigrant status. Professor Ventose considered this to be a denial of his claim to be registered and commenced an action for judicial review under the Administrative Justice Act, Cap 109B (‘AJA’).

3 On January 29th, 2018, the Honourable Chief Justice, Sir Marston Gibson, sitting as a High Court judge, agreed with Professor Ventose, accepting his affidavit evidence, and found as a fact, that he satisfied the qualifications under section 7 of ROPA (eg as to residence) and was qualified to be registered as an elector. Gibson CJ ordered the CEO to register him as an elector within 14 days. On May 8th, 2018, the Court of Appeal agreed that Professor Ventose had satisfied the legal and regulatory requirements but held that there was nothing in the Act which mandated the CEO to register him. Professor Ventose had no locus standi under s 6(a) of the AJA as his interests had not been adversely affected by an administrative act or omission but he did have locus standi under s 6 (b) because his application was justifiable in the public interest. Thus, the CEO was ordered to “make a determination” on his “claim for registration as an elector in Barbados within 24 hours using only the criteria in sections 7 and 11” of ROPA. By letter personally handed to Professor Ventose dated May 8th, 2018 the CEO, however, took it upon herself to state that she was not satisfied that he was resident for the statutorily mandated period.

4 The CCJ considered two issues in its disposition of this matter, (i) whether Professor Ventose had standing under section 6(a) of the AJA, ii) whether having satisfied the conditions set out in section 7 of the Act and having completed the requisite application form, Professor Ventose was entitled as of right to be registered. The Court first held that Professor Ventose had locus standi in accordance with section 6(a) agreeing with the Chief Justice that application of the ‘long-standing policy’ of the EBC and its CEO by electoral officials constituted an administrative act within section 2 of the AJA as it was designed to preclude Mr. Ventose from obtaining registration as an elector despite his meeting the statutorily mandated requirements. Accordingly, Professor Ventose was entitled to seek relief in his application for judicial review.

5 Agreeing with the finding of the courts below, the Court further held that the longstanding policy of the Electoral and Boundaries Commission in relation to Commonwealth citizens to register as electors only those persons who were Barbadian citizens, permanent residents or holders of permitted immigrant status, was unlawful and ultra vires. The Court offered a reminder that if there is good reason for such a policy to exist, then before it can lawfully be implemented the Executive must seek to have Parliament alter the law.

6 Finally, the Court considered whether Professor Ventose had a right to be registered. The Court observed that the legal framework is instructive and unambiguous as it relates to the registration of electors. If satisfied that an individual is qualified under section 7, the registering officer shall cause his or her name to be entered on the register (regulation 36(3)), or if the individual is not qualified, a notice of refusal is issued, and a very specific process ensues (regulation 36(4)). [Representation of the People (Registration of Electors) Regulations 1990] There is no discretion to add extra criteria to statutory criteria [As stated by the Eastern Caribbean Court of Appeal in George Rick James v Ismay Spencer and Lorna Simon Civ App No 27 of 2004 where it was held unlawful to require an applicant for registration as an elector to state his occupation on the application form.]. As such, a registering officer was duty-bound to cause Professor Ventose's name to be entered on the register as a result of the Court of Appeal's determination that Professor Ventose was qualified to be registered (eg as to residence) because this meant it was not open to the CEO or a registering officer to investigate the details on his application form and determine that he was not qualified.

7 The Court agreed to treat the application as urgent, granted special leave to appeal and treated the special leave hearing as the hearing of the appeal. It allowed the appeal, setting aside the orders of the Court of Appeal. It ordered the Chief Electoral Officer, Mrs Angela Taylor, to register or cause to be registered Professor Ventose as an elector by noon on Monday 14 May 2018 or be held in contempt of Court and imprisoned or fined. Costs in the CCJ and the courts below were awarded to Professor Ventose.

Byron, P.CCJ

INTRODUCTION

1 The Intended appellant, Professor Eddy Ventose (‘Professor Ventose’) was urgently seeking special leave to appeal the decision of the Court of Appeal of Barbados rendered on 6 May 2018. Professor Ventose, a Commonwealth citizen who resides in Barbados, wanted to be entered on the Register of Voters ahead of the 24 May 2018 general election date. The Court of Appeal directed the Intended respondent, the Chief Electoral Officer (‘CEO’), Mrs Angela Taylor, to “make a determination” on his “claim for registration as an elector in Barbados within 24 hours of May 8th using only the qualification criteria as set out in sections 7 and 11 of Cap 12”, the Representation of the People Act (“ROPA”). These criteria include residence in Barbados for three years immediately before the qualifying date, 4 January 2018. By letter personally handed to Professor Ventose dated 8 May 2018 the CEO stated that she was not satisfied that he was so resident. She re-iterated this in her letter of 10 May 2018 to his attorneys in response to their letter dated 9 May 2018.

2 As will be shown, the CEO's statements contradicted the factual findings of the Court of Appeal and of the Honourable Sir Marston Gibson, Chief Justice as the judge of first instance. On this basis, Professor Ventose urgently electronically filed an application after office hours on Friday 11 May 2018 to this court for an order directing the CEO to register or cause to be registered his name on the register of electors so that he will be able to vote in the 24 May 2018 General Elections. This court organised a hearing via video-conference at 11:00 am on Sunday 13 May 2018 and made the required orders in favour of Professor Ventose set out at the end hereof, stating that reasons would follow shortly. These are those reasons.

FACTUAL BACKGROUND

3 At all material times, Professor Ventose was a St. Lucian national and therefore a citizen of a Commonwealth country, residing in Barbados for more than three years, living in the constituency of St James South since April 2010, over the age of eighteen years old and of sound mind with no criminal convictions. He is the holder of a Barbados national identification card bearing his photograph and has been legally working, by virtue of a CARICOM Skilled National Certificate, as a Professor of Law at the University of West Indies, Cave Hill Campus in Barbados, where he has been employed since 2006. He thus claims that he satisfies the requirements of section 7 of ROPA so as to be qualified to be registered as an elector for a constituency because on the qualifying date “he

• (a) is a...