ST JOHN’S, Antigua – Attorneys for Opposition Leader Lester Bird yesterday withdrew an application for an injunctive order to prevent the Antigua & Barbuda Electoral Commission (ABEC) from meeting and going about its normal course of business pending the determination of a constitutional matter now before the court.
Bird, who is head of the Antigua Labour Party (ALP), challenged recent amendments to the Representation of the People (Amendment) Act, which was passed by the Senate on November 21, 2011.
The former prime minister is hoping that the court will rule that the section of the act dealing with the establishment and composition of the Electoral Commission is unlawful, null and void.
Among other things, he wants the court to declare the act unlawful because it was passed and enacted into law by a majority of Parliament in violation and contravention of the rule of law and separation of powers doctrine.
Bird wanted the court to make the interim order yesterday. However, based on questions posed by the court and submissions made by Attorney General Justin Simon QC, who is a respondent/defendant in this matter, Bird’s attorney John Fuller conceded to arguments made by Simon on the issue of a balance of convenience.
Fuller told the court that having reviewed the original Representation of the People Act and the amended act, which created ABEC, the commission, the supervisor of elections and registration officers are “all inextricably linked” and therefore the process (registration of electors and the like) would come to a halt if the commission were to cease work.
Under the original Representation of the People Act, the supervisor of elections was the administrator of the entire operation of the elections office.
Fuller had argued that if the commission were allowed to make decisions and constitute them it would be extremely confusing, affecting the future administration of elections in Antigua & Barbuda.
Simon and Patricia Simon-Forde, attorney for the other respondents/defendants; Chairman of the ABEC Juno Samuel; Deputy Chairman Nathaniel “Paddy” James; and ABEC members Jack Kelsick, Anthonyson King, Glendina McKay, E Ann Henry and Paula Lee were opposed to the application.
Both attorneys relied upon part 36-11 of the Civil Procedure Rules (CPR) that allows the presiding judge to give directions on the case in terms of the filing of statements and affidavits and other pre-trial instructions.
Simon argued that section 67, subsection 2 of the Constitution provides the supervisor of elections with such powers provided by law and that Parliament is entitled to provide those powers.
Simon-Forde, in objecting to the interim relief being granted, said one of the main functions of the commission is the preparation of the Register of Elections through an on-going process of continuous registration of persons seeking to get onto the register.
The attorney said that the commission was also responsible for reviewing and hearing claims and objections which forms part of the registration process as well as publish preliminary registers and the final Register of Elections.
Simon-Forde argued that if the commission were to be restrained from functioning for any length of time the entire registration process would be affected.
Fuller, who replied to both submissions, disagreed with the attorney general’s claim that Parliament has the powers to legislate the powers of the supervisor of elections.
Fuller said that under the constitution there is an impenetrable wall around the office of supervisor of elections and added that what the act (Representation of the People Amendment Act) has done is to “wrench” the supervisor’s powers from the constitution and emasculate him/her.
Fuller called the current amendments to the Act an assault on democracy.
The claim, filed in March, was heard before High Court Judge Justice Mario Michel, who gave both sides deadlines by which to file statements, affidavits, exhibits and replies.
A pre-trial review of the matter is set for June 28 when a date for the trial is expected to be fixed.
(More in today’s Daily OBSERVER)