The policy of the Electoral and Boundaries Commission (EBC) that only Commonwealth citizens who hold the status of citizen, immigrant or permanent resident can register to vote, is in contravention of the Representation of People Act.
Deputy Solicitor General Donna Brathwaite, QC, conceded this point today as the Court of Appeal began hearing a legal challenge brought by the state against the February 26 ruling of Chief Justice Sir Marston Gibson that Commonwealth citizens who meet the legal requirements under the Act are entitled to vote here.
In a letter dated September 26, 2017, Chief Electoral Officer (CEO) Angela Taylor informed attorney-at-law Wilfred Abraham, who along with Bryan Weekes is representing Shireene Anne Mathlin- Tulloch, that the Department is “currently authorized” to register as voters, Commonwealth citizens who hold the aforementioned status.
However, the CEO’s lawyers today admitted that such a policy was wrong and that Commonwealth citizens who have residency of three years or more and meet all the requirements under the law, were eligible to be registered as voters.
Nonetheless, Brathwaite still requested that Sir Marston’s ruling be quashed by the three-member panel comprising justices Andrew Burgess, Kaye Goodrige and Margaret Reifer.
The Crown’s representative argued that the trial judge erred in law when he ruled that Grenadian Mathlin-Tulloch, Jamaican Michelle Melissa Russell, Montserratian Sharon Juliet Edgecombe-Miller and St Lucian Professor Eddy Ventose, who took the EBC and the CEO to court for failing to put them on the official voters’ list, had legal standing to pursue “administrative remedies”.
Brathwaite charged that certain principles were not satisfied, and as such there was no refusal on the part of the CEO or the EBC to register the applicants. She explained that when seeking judicial review of a matter, there must be “notice of refusal” and that was not the case in this matter.
According to her, when the matter was heard in the High Court, three of the applicants did not submit the mandatory Form 1 that must be used when registering.
In fact, Brathwaite stated that the letter sent to Abrahams “could not be deemed as a refusal” by the ECB to register Mathlin-Tulloch.
“There has never been a refusal and there having never been a refusal, how is it that . . . [there is] a judicial review application? There is no act, there is no omission and we believe that the application for judicial review in the lower court was premature,” the EBC’s attorney said.
Brathwaite also argued that the parties had failed to “exhaust all existing remedies” before coming for judicial review as “there are certain remedies available within the Representation of the People Act”.
In Ventose’s case, the Crown’s representative said he had only submitted the mandatory form “three business days” before the case for a judicial review was filed.
“The time limit to process the application was too short . . . and that respondent was in fact extremely premature in filing his application for judicial review,” she maintained.
Brathwaite also stated that the mandatory order issued by the judge to “register [Ventose] with dispatch” within 14 days was “not appropriate” in this case.
“We believe that [the judge] by the order of mandamus incorrectly took a power that was invested in the Chief Electoral Officer from that person into the hands of the court itself,” Brathwaite argued.
However, in response, Weekes said the acknowledgement by the Crown that the ECB’s policy was in fact contrary to the country’s laws “should be fatal to the appeal”.
He however pointed out that all applicants had now filed the ECB’s mandatory application form.
Meantime, Gregory Nicholls, who is representing Russell and Edgecombe-Miller, described the policy as “ultra vires”.
He also stated that today’s appeal was an “attack” on the judgment of the learned Chief Justice over whether or not he ought to exercise his discretion and not on the substantive arguments of the case.
At the same time, Ventose’s lead attorney Leslie Haynes, QC, maintained that his client had met and satisfied all the requirements stated under the law and had also filled out all the necessary forms. Yet still “he has not been registered”.
Before the appeal, Brathwaite made a submission for the stay of execution of Sir Marston’s ruling in respect of Ventose, which was granted by the appeal judges, pending judgment, which was reserved by the justices.
Therefore, if elections were called tomorrow, Ventose still may not be eligible to vote.