Attorney General Justin L. Simon QC On The Issue Of Elections In Antigua And Barbuda

Government of Antigua & Barbuda

Press Release

ST. JOHN’S, Antigua (GIS) — Citizens and Residents of Antigua and Barbuda:

Much has been said about the timing of the next general elections by both political parties. There has also been a call from the Opposition Labour Party for businesses to shut down as a means of forcing the Prime Minister to fix the date for the elections. On the radio call-in shows, members of the public have weighed in with their views and opinions. I recognize that in the world of politics, it is all about perception; but, against that background of frenzied talk I as Attorney General wish now to address you on the law and the facts which, hopefully, will inform your opinions and guide your actions.

Part 3 of the Antigua and Barbuda Constitution is headed “Summoning, Prorogation and Dissolution of Parliament”, and the sections which follow prescribe the timing for these events. Whilst two of the terms “Summoning” and “Dissolution” are self-explanatory, “Prorogation” occurs at the end of a parliamentary session (usually a year), and precedes the delivery of the Throne Speech by the Governor General which opens the new session and the delivery of the Budget which speaks to the proposed revenue and expenditure of government for the ensuing year.

Section 60 –(1) of the Constitution provides as follows: “Subject to the provisions of subsection (5) of this section, the Governor General, acting in accordance with the advice of the Prime Minister, may at any time prorogue or dissolve Parliament”.

What does subsection (5) say? I quote: “The Governor General in his discretion may dissolve Parliament if the majority of all the members of the House pass a resolution that they have no confidence in the Government and the Prime Minister does not within seven days of the passing of that resolution either resign from his office or advise a dissolution of Parliament”.

It is abundantly clear therefore (pellucid, some would say) that the dissolution of Parliament lies squarely in the hands and at the discretion of the Prime Minister, except where he fails to resign from his office within seven days of Parliament passing a vote of “no confidence” in his government.

The next obvious question is this: Is there any limit placed on the Prime Minister’s discretion? The answer is provided in section 60 Subsection (2) of the Constitution: “Subject to the provisions of subsection (3) of this section, Parliament, unless sooner dissolved shall continue for five years from the date of its first sitting after any dissolution, and shall then stand dissolved”. Dissolution in this instance is automatic once the time limit has been reached. But, I ask you to note that the five years does not begin to run until the first sitting of Parliament following an election – not from the date of the last election, or the date of the swearing in of the Prime Minister by the Governor General!

Subsection (3) referred to provides for the extension of the five-year period when Her Majesty is at war, but only for twelve months at a time and for a maximum of five years. Although we are an independent nation, Her Majesty the Queen is our Head of State and represented by the Governor General; hence the deference that is paid to Her Majesty.

The next logical question is this: Parliament having been dissolved, when must elections be held? Again the Constitution, which is our supreme law, provides the answer in section 61 (1): “A general election of members of the House shall be held at such time within three months after every dissolution of Parliament as the Governor General, acting in accordance with the advice of the Prime Minister, shall appoint.” Again, the election date is solely the Prime Minister’s call, but he MUST make that call within three months of the dissolution of Parliament.

It is of some interest to note the dates of the last seven general elections, and you may wish to record these for reference purposes:

Dissolution Election First Meeting of Parliament

5th April, 1980 24th April 1980

29th March, 1984 17th April, 1984 31st May, 1984

20th February, 1989 9th March 1989 20th March 1989

18th February, 1994 8th March, 1994 21st March, 1994

19th February, 1999 9th March, 1999 22nd March, 1999

26th February 2004 23rd March, 2004 29th March, 2004

9th February 2009 12th March, 2009 27th April, 2009

(Check the above against Delivery)

You would have noted, apart from the 1984 elections, which were held in the fourth year of the Parliamentary term, all subsequent elections were held in the fifth year, and our five more recent consecutive elections were held in the month of March; but that does not create a constitutional convention. Conventions are informal rules or practices which, over a long period, develop out of the practical realities of the day and may modify strict law.

In the words of one writer: “they provide the flesh which clothe the dry bones of the law”; the law is however abundantly clear in this case, and a preference by successive Prime Ministers to call elections in the third month of the fifth year of their term of office cannot be considered as establishing a binding practice. The first parliamentary meeting after the 2009 elections having been held on the 27th April 2009, the automatic dissolution of this current Parliament will not occur until the 26th April 2014 (the fifth anniversary of Parliament’s first sitting), unless the Prime Minister advises the Governor General to dissolve Parliament sooner. And, in any event, the Prime Minister has, by constitutional law, three months after the date of any dissolution to call elections.

It has been the practice that the Governor General issues the Writ of Elections addressed to the Returning Officer for each constituency within a day of the dissolution of Parliament; and general elections are, by law, to be held “not less than twenty one and not more than twenty eight clear days” after the day specified for the nomination of candidates.

Now, it is common knowledge that the Leader of the Opposition has appealed the High Court decisions which found in favour of the government in respect of his legal challenge to the Constituencies Boundaries Commission’s Report, and the Re-registration exercise. You may also recall that the Report was approved by Parliament, but a stay was, by consent of the parties, imposed by the Court against the Report being forwarded to the Governor General for implementation, as is required by the Constitution.

The Court of Appeal has heard both appeals, one in St. Kitts, and the other in St Lucia, as a matter of urgency at the request and on the application of the Leader of the Opposition. Both decisions are pending and it would be foolhardy to set a date for general elections before the two decisions are delivered. The outcome of these two decisions will determine whether the present constituency boundaries should be altered or not; and also whether the re-registration list of voters should be used during the elections. If a date for elections is fixed now, and the court decisions are delivered before the election date, depending on the outcome this may create serious constitutional issues, and may cause havoc or serious disruption to the election process, with possible subsequent legal challenges and uncertainties for stable governance.

Any responsible person can see the wisdom in awaiting the decisions of the Court of Appeal. And in any event, the appeals were not filed by the government. Can we now simply ignore the fact that both appeals have already been heard, and that the Justices of Appeal are now writing their judgments for delivery? What would that say for our respect for the Judiciary who are to stay independent of the legislative and executive arms of government and are charged with interpreting our Constitution and the laws of the land? And whose judgments are binding and effective to all intent and purposes unless and until the decisions are appealed to the Privy Council? One thing is clear: the decision of the Court of Appeal in these two cases will have to be implemented, in as much as time will not permit an appeal to the Privy Council.

Allow me to deviate a bit, and add here that while any judgment of a court can be criticized (and legal scholars do so all the time), one is not allowed to arbitrarily question the personal integrity or moral principles of a judge on the ground that this may undermine the administration of justice.

I have sought to give the legal perspective on the issues. A day in politics can seem like a lifetime, Sir Winston Churchill former Prime Minister of England once said. And today, more than ever, we recognize that politics is more about public perception and one party seeking an advantage over the other – this is called “strategy”.

But there comes a time when good sense should be allowed to prevail, particularly where it is in the national interest and for the common good of our institutions. The ultimate decision is yours, my dear countrymen. And I trust that I have provided sufficient information for your mature deliberations and reasonable consideration.

I thank you for your attention.

God bless!

Justin L, Simon, QC

Attorney General

March 26, 2014.

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