Judge says special court would have to hear claims against President

The High Court has dismissed an application for an injunction to postpone Tuesday’s general elections, clearing the way for Barbadians to go to the polls.

Madame Justice Cicely Chase, after nearly eight hours of submissions and deliberations, declared the court had no jurisdiction to adjudicate on the matter.

Philip Catlyn who filed the application described the result as a “slap in the face” for thousands of citizens, while his attorney Lalu Hanuman said the judgment was “dubious”.

The applicant contended that the rights of Barbadians under Section 6 of the Representation of the People Act were being trampled. He also accused President Dame Sandra Mason of acting unreasonably when she accepted Prime Minister Mia Mottley’s request for an election, in circumstances where thousands of people could be disenfranchised.

Hanuman, a human rights lawyer, was referring to the exclusion of the eligible voters who are among the over 6,000 COVID-19-infected people who, by law, are required to isolate.

However, Justice Chase declared that the claims against Dame Sandra raised a controversy pursuant to the Election Offences and Controversies Act Cap 3.

According to the Act, such issues can only be heard by a special election court comprising three judges.

“This court is a High Court and it is not an election court to hear election petitions. While it can hear applications of judicial review, this is a controversy which must be properly commenced under Cap 3,” she said.

“The action has been incorrectly filed in the High Court – that is the opinion of this court –, it being a fully blown controversy as to whether the COVID-19 patients who are in isolation should be able to vote in a normal manner.”

The judge added that challenges over the incorrect exercise of the president’s prerogative powers cannot be addressed or determined by the court.

“The application for judicial review, therefore, cannot be entertained nor determined. The court has no jurisdiction to hear this matter and, accordingly, no order for injunctive relief in any application can be granted by this court,” Justice Chase declared.

She also considered the issue of timing of the application and the fact that the challenge could have been made once the election had been called and, particularly, before voting for special categories had already been completed.

The judge said: “Elections are in full swing, to use the colloquial Bajan expression. Who is to say that there were citizens in this category who were unable to vote at the point in time due to COVID-19. No application was even considered to vote at that point in time. They are electors too, just like the other electors on the electoral register who are expected to vote tomorrow.”

Also present in court were Attorney General Dale Marshall and Chairman of Electoral and Boundaries Commission Leslie Haynes Q.C.

Speaking with reporters on the outside of the Supreme Court, Hanuman declared that the assertion that the matters needed to be heard by a special court was “a little dubious”.

“I seem to remember that Sir Marston Gibson, when he was Chief Justice, dealt with a number of applications by people who were left off of the 2018 election register after the 2018 election was called,” said Hanuman.

Catlyn, meanwhile, said he accepted the judge’s verdict, although he was not happy with it.

“I think it’s a slap in the people’s faces. I think all of those people are disenfranchised that will not be allowed to vote based on a snap election that is not necessary, at a time that is not the best,” he added.
kareemsmith@barbadostoday.bb