Appellate court quashes 2011 Order to amend Electoral law

ST JOHN’S, Antigua – The Court of Appeal has declared invalid and ultra vires, all actions by Prime Minister Baldwin Spencer and Antigua & Barbuda Electoral Commission (ABEC) Chairman Juno Samuel under the Representation of the People (Amendment) Act (RPA) 2011 which came into effect December 22, 2011.

This decision formed part of the appellate court’s recent ruling as it relates to whether the prime minister has the power to make an Order for the retroactive effect to the Act; and whether he acted fairly in doing so since his Order ultimately undermined a High Court ruling related to Sir Gerald Watt’s removal from the electoral commission.

A week ago, OBSERVER media reported Sir Gerald – who had challenged the Order – defeated Spencer and Samuel before the court of appeal.

However, it was only yesterday the parties obtained the judgment in this and another related case.

Yesterday, Sir Gerald’s lawyer and chamber colleague, Dr David Dorsett told OBSERVER media, “Anything they (Spencer and Samuel) would have done, or are doing, amounts to a legal nullity. Under the 2011 Act, new officers were appointed to the commission, those officers and those appointments according to this judgment are null and void and of no legal effect.”

The attorney further noted the project undertaken between the electoral commission and the Canadian Bank Note (CBN) for the issuance of new ID cards, would also be deemed null and void.

Dr Dorsett said while the prime minister has the power to now sign another Order for a new date to enforce the Act, he still has to address the things already done under the now void Order.

To address that, he said PM Spencer would have to go to Parliament and have a law passed to validate the actions done under the 2011 Amendment Act.

“If the prime minister wants to somehow have what occurred under the 2011 Act legal, he would have to move Parliament and Parliament would have to move an Act that says all those actions that were taken are validated.

“If he wants to appeal, I wouldn’t dissuade him. And, in terms of getting an injunction in the interim, I don’t know if that is a practical matter because what the court has done is issued declarations which are legal pronouncements,” Dr Dorsett said.

He noted that once a legal declaration is made, it is not possible for it to be withdrawn unless a higher court determines the pronouncement was in error.

Dr Dorsett said the prime minister has a tough decision to make and while he wouldn’t advise Spencer on his next move, he suggests he (Spencer) thinks carefully about what to do.

Whatever the prime minister’s decision, Dr Dorsett said he must act quickly because the country is mere months away from the next general elections constitutionally due next year.

Sir Gerald and Dr Dorsett had challenged the Order because, although the prime minister signed it on January 31, 2012, he appointed December 22, 2011 as the date it would have become effective.

That Act cemented Sir Gerald’s removal (which was initially done in January 2011) from the electoral commission of which he was chairman.

Just days earlier (January 25, 2012), a High Court judge ruled he was unlawfully removed from the commission in January 2011.

Last week Spencer’s lawyer Sanjeev Datadin said he would be appealing the judgment. However, the grounds of the appeal were not determined since, at the time, he hadn’t received the judgment.

Dr Dorsett said the rules give litigants 21 days – from the time of the judgment – within which they could file an application for leave to appeal.

In this case, the appellate court ruled the prime minister is to pay costs of the application and if the amount is not agreed within 30 days of the judgment, it would be referred to the High Court for assessment.

Also, it ruled that Sir Gerald is entitled to all the pecuniary (monetary) and other benefits of the office of Chairman of the commission.

Had the prime minister not removed Sir Gerald, his seven-year tenure would have expired in October last year.

(More in today’s Daily OBSERVER)