Sarah Flood — Beaubrun Organization of National Empowerment Applicants v Marcus Nicholas Respondent [ECSC]

• Jurisdiction: Caribbean States
• Judge: Mason J
• Judgment Date: 19 December 2005
• Judgment citation (vLex): [2005] ECSC J1219-2
• Court: Eastern Caribbean Supreme Court
• Docket Number: Claim No. SLUHCV 823/2005
• Date: 19 December 2005

[2005] ECSC J1219-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. SLUHCV 823/2005

Sarah Flood — Beaubrun Organization of National Empowerment

Applicants

and

Marcus Nicholas

Respondent

DECISION

Mason J

1 On 31^st October 2005, the Applicants sought and were granted leave to apply for judicial review of the decision of the Respondent to exclude the Applicants' nominees from list of scrutinieers submitted by the Respondent to the Electoral Commission pursuant to Section 4 of the House of Assembly (Elections) Amendment Act 2005.

2 That Order of the Court operated as a stay in relation to the nomination, appointment, training or deployment of Scrutineers pending the hearing and determination of the application for judicial review.

3 The matter came on for hearing on 23^rd November, 2005 on which date, the Respondent sought to have the matter struck out on the grounds that, while admitting that the Respondent as a public official whose decisions are subject to administrative order, viz judicial review, the Applicants had no locus standi.

4 It was argued for the Respondent that in order to make an application under part 56 of the Civil Procedure Rules, 2000, a person must have a sufficient interest, one that is over and above other members of the public; that merely by being an elected member of Parliament (first Applicant) and a political party (second applicant) might give rise to rights but not interest over and above other members of the public, that being the criterion /basis for application.

5 Counsel for the Applicants submitted inter alia that they in fact did have a sufficient interest because it was the intention of the Applicants to contest the upcoming parliamentary elections and were genuinely and personally interested in obtaining the reliefthey were seeking and should therefore not be debarred from presenting their challenge to an administrative decision.

6 The court accepted the submissions of Counsel for the Applicants and ordered the hearing to continue.

7 The background facts and chronology of events, though lengthy but considered necessary to be recounted are as follows;

8 The first Applicant is a member of Parliament having contested the last General Election as a member of the St. Lucia Labour Party, the incumbent Government.

9 The second Applicant is a recently formed political party of which the first Applicant became the leader having parted company with the Government.

10 The Respondent is the leader of the Opposition who contested the said General Elections as a member of the United Workers Party.

11 There are four Opposition Parliamentarians in the House of Assembly. Honourable Arsene James, Honourable Marius Wilson, the first Applicant and the Respondent.

12 At a poll taken to determine which of them should be appointed Leader of the Opposition, Hon. Arsene James voted for himself, Hon. Marius Wilson and the Respondent voted for the Respondent, the Applicant abstained.

13 Her Excellency the Governor General as a consequence exercised her constitutional judgment pursuant to section 67(2) of the Constitution of St. Lucia and appointed the Respondent as Leader of the Opposition.

14 Subsequent to this appointment, the first Applicant became a member and later the Political leader of the second Applicant.

15 The Chief Elections Officer wrote to the Respondent on 10^th February, 2005 inviting him to submit to the Electoral Department a list of scrutineers, and secondly on 12^th July 2005 informing him of the criteria for the appointment of the scrutineers and of the extension of the deadline for submission of the list.

16 The House of Assembly on 16^th August, 2005 passed the House of Assembly (Elections Amendment) Act 2005.

17 The Respondent by letters to the Chief Electoral Officer first on 14^th September 2005, submitted a list of scrutineers and secondly on 15^th September 2005 notified of changes to that list.

18 On 17^th September, 2005, an article appearing in the Voice newspaper attributed. to the Respondent certain statements indicating his intention to nominate the scrutineers from the United Workers Party, the reason being that St. Lucia is a two party state.

19 On 28^th September 2005, the Chief Electoral Officer wrote again to the Respondent requesting him to submit an additional number of scrutineers.

20 The Applicants wrote two letters to the Respondent:

On 5^th October expressing concern that they had not been approached for their list of scrutineers; and on 20^th October 2005 submitting their list of scrutineers..

21 The amendment to the Act became law on24th October 2005 having been assented to by Her Excellency the Governor General.

22 The Applicants again on 26^th October 2005 wrote the Respondent, this time submitting a further list of scrutineers.

23 The Respondent did not reply to any of these letters.

24 It is necessary at this point to reproduce section 4 of the House of Assembly (Elections)(Amendment) Act, 2004, thee section which has given rise to this action.

25 That section provides:

Section 4 of the principal Act is amended by

• (a) deleting paragraph (b) of subsection (1) and by replacing it with the following:

• (b) the following officers appointed the Electoral Commission from among eligible persons:

  • (i) a Registration Officer for each electoral district;

  • (ii) such number of enumerators, enumerator co-ordinators, photographs and other persons as may be deemed necessary;

  • (iii) such number of scrutineers as derermined by the Electoral Commission to be nominated by the Prime Minister and appointed by the Prime Minister and appointed by the Electoral Commission;

  • (iv) such number of scrutineers, in equal number as appointed pursuant to sub-paragraph (iii), to be nominated by the Leader of the Opposition and appointed by the Electoral Commission to represent the official Opposition in Parliament".

(b) inserting the following subsection (5) after subsection (4): "(5) For the purposes of paragraph (b) of subsection (1), an eligible person means a person who:

• (i) is not less than 18 years of age

• (ii) is not declared to be a bankrupt

• (iii) has not been convicted of a criminal offence except where the offence is a minor traffic offence or has been spent in accordance with the Criminal Records (Rehabilitation of Offenders) Act 2004".

26 In my judgment, there are three issues which fall to be determined;

• 1) the interpretation of section 4(b)(iv) of the House of Assembly (Elections) (Amendment) Act 2005 and more specifically the meaning of who or what constitutes the "Official Opposition in Parliament".

• 2) whether the Respondent had a duty to consult with other persons in opposition in Parliament and whether having not so consulted, he failed in his duty to act with procedural fairness; and

• 3) whether therefore an action from judicial review is maintainable

27 }

Interpretation of Section 4 (b) (IV)

Meaning of the term "Official Opposition in Parliament"

28 The elementary rule of interpretation of statutes is that whenever a statement falls to be construed and there is no ambiguity in the language of the statute, the words must be given their natural and ordinary meaning and that nothing must be implied that would be "inconsistent" with the words expressly used:Maxwell on Interpretation of Statutes 11 edition chapter 1, page 1. The rule of construction is to intend the Legislature to have meant what they have actually expressed: ibid at page 4.

29 However, should there be ambiguity in the language, in order to interpret the statute, the Court may try to ascertain the intention of Parliament from external aids such as Parliamentary debates, Hansard reports and the like.

30 Counsel for the Applicants saw the need for the Court to seek the assistance of the Hansard Report of the debate in of the House of Assembly on 16^th August 2005, but I see no reason for the Court to consider the extract presented in order to interpret the legislation.

31 Section 4(iv)(b) of the Act as amended has three specific requirements;

• 1) That the scrutineers be equal in number to those nominated by the Prime Minister (and appointed by the Electoral Commission)

• 2) that the nomination of the scrutineers be made by the Leader of the Opposition (and appointed by the Electoral Commission) and

• 3) that the scrutineers represent the official Opposition in Parliament.

32 In my opinion the language of this section is clear, plain and unambiguous and its meaning and intention is not to be collected from any notions which may be entertained by the Court as to what is just or expedient: ibid at page 5. For once the meaning is plain, it is not the province of the Court to scan its wisdom or its policy. The duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words. Ibid at page 5.

33 This leads us then to the question of who or what constitutes the "Official Opposition in Parliament".

34 Counsel for the Applicants argued that the term must be taken to mean, given the present peculiar circumstances, all of the persons sitting in opposition in the House of Assembly.

35 This assertion was rejected by all opposing Counsel.

36 It is accepted however by all sides that previous to the amendment of the House of Assembly (Elections) Act 1979 the term "Official Opposition" had never been used or defined in any legislation in St. Lucia.

37 Neither the Constitution nor the Interpretation Act makes any reference to it.

38 The expression "Official Opposition", I am given to understand, has its genesis in the English Parliamentary system which is a predominantly two party system and in which the largest opposition group was and still is regarded as the official opposition.

39 St. Lucia has adopted a similar system.

40 Erskine May's Treatise on the Law, Privileges, Proceedings and Usage...