The way was made clear on Tuesday by Dominica-born high court judge, Justice Wynante Adrian-Roberts for yesterday’s (Thursday) referendum on constitutional reform in Grenada to proceed in the face of an injunction filed by local attorney-at-law, James “Jimmy” Bristol.
In a ruling handed down just before 3.00 p.m Tuesday afternoon, the female judge ruled in favour of the arguments put forward by leading State lawyer, Dwight Horsford, who is the island’s Solicitor General along with Queen’s Counsel, Dr. Francis Alexis.
According to the ruling, the judge said she did not find any material breaches by Supervisor of Elections, Alex Phillip in publishing the bills and writs for the referendum in the two newspapers (Caribupdate and Grenada Advocate) to affect the process.
In addition, she said the balance of justice does not warrant her to grant an injunction to stop a referendum from taking place on the island.
Justice Roberts heard the matter Monday afternoon and handed down her ruling about 13 hours later.
There were smiles on the faces of the State-assembled team of lawyers as the judge’s ruling paved the way for the Referendum to take place as planned.
Attorney-General, Cajeton Hood was heard casting remarks against Bristol to reporters assembled outside the court.
Bristol has been a thorn in the side of Hood in recent months with victory against him in a high profile case in which a St. Lucian company, owed approximately $EC4 million by the State was victorious before the same Justice Roberts.
Bristol was able to get an order from Justice Roberts to target any of the government’s account in the bank to recover the monies owed to his client for services done for the State
Apart from Dr. Alexis, Horsford and Hood, the other lawyers appearing before the judge on the side of the State were Ruggles Ferguson and Maurisa Johnson, a junior in the Office of the Solicitor-General.
Bristol was assisted in putting forward his case by female attorney-at-law, Claudette Joseph of Amicus Attorneys.
Bristol filed papers before the court to obtain an injunction on the grounds that the Supervisor of Elections had committed 19 breaches in the Referendum Act to facilitate the holding of Thursday’s poll.
The case was filed by the lawyer on behalf of Valerie Thompson-Duncan, a retired Grenadian with Canadian citizenship.
THE NEW TODAY was able to obtain a copy of the submissions made by the Solicitor-General which seemingly moved the judge to rule in favour of the Supervisor of Elections.
The document reads:
NOTICE OF OBJECTION
No serious question to be tried with any real prospects of success.
The Claimant (Valerie Thompson-Duncan) by both Amended Fixed Date and Notice of Application seeks to obtain an injunction to restrain the Supervisor of Elections from proceeding to conduct the Constitutional Referendum pursuant to the Writs.
The proceedings instituted in this manner intend to challenge the validity of the Constitutional Referendum fixed for the 24th November, 2016 which involve the consideration by the Grenada electorate of seven (7) Bills, amongst which, is the Bill for Grenada’s accession to the Appellate Jurisdiction of the Caribbean Court of Justice (CCJ) replacing the Judicial Committee of the privy Council in London.
Both the Amended Fixed Date Claim and the Notice of Application predicate the challenge to the holding and conduct of the Constitutional Referendum on the 24th November, 2016 on the following grounds, alleged, namely,
(I) The Supervisor of Elections failed to comply with Section 5(2) of the Constitutional Referendum Act No. 25 of 2016 in that the Referendum Writs together with the relevant constitutional amendment bills were not published in two (2) issues of two (2) newspapers circulating regularly in the State of Grenada as is required by Section 5 of the Act. Therefore, the Claimant alleges, section 5(2) was not complied with rendering the conduct of the poll unlawful.
(ii) The Supervisor of Elections failed to comply with Section 10 (3) of the Act in that-
(a) ballot papers intended to be used a the Referendum scheduled for November 24th, 2016 contain both s distinct number and a distinct feature as opposed to one or the other as is required by the said Section; and
(b) the ballot paper intended to be used at the Referendum is dated the 27th October 2016 being the date of an aborted Referendum and not November, 24th 2016 as is required by Regulation 12 of SRO 52 of 2016 and form 3 thereof.
The Amended Fixed Date Claim, Amended Notice of Application and supporting affidavit nowhere contains, any averment that any legal right which the Claimant has or is entitled to is violated, infringed or interfered with by the alleged breaches of the Act or likely to be in jeopardy by the conduct of the Constitutional Referendum on the 24thNovember, 2016. No prejudice to any legal rights of the Claimant is therefore in issue.
The Constitution of Grenada requires that a referendum on a Bill to amend the Constitution, of needing the approval of the people, must be held in accordance with such provision as may be made in that behalf by Parliament:
*Parliament has made provisions and prescribed such procedures for the purposes of such a Referendum, in the Constitutional Referendum Act 2016, Act No. 25 of 2016.
The Act creates the concept of a Constitutional Referendum. Section 21 of the Act confers on the Court a special jurisdiction to hear and determine the validity of any – (a) Constitutional Referendum; or (b) statement or certificate concerning the conduct or results of a Constitutional Referendum in accordance with procedures as may be prescribed in regulations made by the Governor General pursuant to Section 23.
The Constitutional Referendum Act does not know or recognise a Fixed Date Claim or the procedure by fixed Date Claim. The Act prescribed the procedure for challenging the validity of a Constitutional Referendum is by way of a petition.
Pursuant to Section 27(2)(c) of the Act, the Governor General has made the Constitutional Referendum (Petition) Regulations 2016, SRO No. 58 of 2016, which was Gazetted on the 18th November, 2016.
The Petition Regulations just referred to at paragraph 12 hereof came into operation on the day of its publication in the Gazette, that is 18th November, 2016, by virtue of Section 21 of the interpretation and
General Provisions Act Cap 153.
By virtue of the provisions of Section 4 of the Interpretation Act, the Petition Regulations shall be deemed to have come into operation immediately on the expiration of the day next preceding such day, that is, a minute midnight on November 2016:
Regulation 6(1) of the Petition Regulations requires that – “a Petition shall be presented within twenty-one (21) days after the report of the Supervision has been published”; which is a mandatory provision that provides exclusively for a procedure to move the Court by way of ‘Petition’ only after the conduct of the referendum in order to challenge the validity of the poll.
By Section 16 of the Act, the report of the Supervisor on a Constitutional Referendum is prepared ‘after the close of voting in a Constitutional Referendum’.
The Act itself having prescribed the use of a petition to challenge the validity of a Constitutional Referendum and, the Petition Regulations mandating the use of a Petition and that such Petition be used to invoke the Section 21 jurisdiction of the Court, only, post referendum, the procedure adopted by the Claimant is fatally defective.
The jurisdiction of the Court under the Act does not arise and is not at all invoked by the Fixed Date Claim filed on the 18th November, 2016.
In the result, this Court has no jurisdiction to hear or determine the proceedings purportedly instructed by the Fixed Date Claim Form even if Fixed Date Claim properly filed when no regulations exist.
Alternatively, and in any event, even if the Court were to treat the Amended Fixed Date Claim filed on the 21st November, 2016 (which is the claim and application that the Supervisor has been called to Court to answer) as being filed at a time when there were no Regulations existent under the Act (which, respectfully the Court cannot do because of Sections 21 and 4 of the Interpretation Act); the Claimant fails to invoke the jurisdiction of the Court to hear the matter, for in the absence of procedural law for the exercise of a jurisdiction under the Act, the practice and procedure relative to petitions in England should be adverted to and imported via Section 11 of the Supreme Court Act Cap 336 in order to invoke and operate the jurisdiction given under the substantive law:
Supervisor has complied with the requirements of the Act
On the facts as they relate to the publication requirements of the Act and those contained in section 10, the Supervisor has complied with the statutory requirements imposed on him by the Act.
The balance of justice (convenience) does not favour the grant.
Even if the Court is to find, that upon the papers and material disclosed to the Court at this stage, there is a serious question to be tried (which, respectfully is not accepted), the balance of justice does not favour any injunction against the Supervisor on the essential facts, for the reasons which shall now follow, namely:
(a) It is sufficient if an applicant for interim injunctive relief can show that there is a serious case to be tried. Once he establishes that, he has crossed the threshold and the Court is then to address whether it is just or convenient to grant an injunction in the circumstances;
(b) As a general rule in cases of this nature involving the public interest, it will be necessary for the Court to proceed directly to the issue of the balance of convenience or balance of justice. This is because the question arises as to whether it may be appropriate to impose upon the Crown the usual undertaking in damages as a condition for the grant of an injunction.
Moreover, there is no general right to damages for loss caused by invalid administrative action. A public authority acting in the public interest cannot normally be protected by a remedy in damages because it will itself have suffered none.
(c) In this context, particular stress should be placed on the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed on certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of justice.
So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law (or even the vires of the decision to enforce or apply that law), matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to render it just or convenient to restrain the authority for the time being from enforcing or administering it. In this case, that law is the Constitutional Referendum Act no. 25 of 2016.
(d) In the end, the matter is one for the discretion of the Court, taking into account all the circumstances of the case. Even so, the Court should not restrain a public authority by interim injunction from enforcing (or administering) an apparently authentic law (or policy) unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law (or decision to enforce or apply the law or policy in the public interest) is prima facie, so firmly based as to justify so exceptional a course being taken.
(e) In cases in which a party is a public authority performing duties to the public, the balance of convenience must be looked at widely and must take into account the interests of the public in general to whom these duties are owed.
(f). The interim injunction relief sought in the Amended Notice of Application is the same as that sought also in the purported substantive claim and, if the injunction is granted it would effectively have disposed of the entire substantive claim. Justice requires that the Defendant be entitled to dispute the substantive claim at a trial.
(g). The grant of an injunction would be to give the Claimant precisely what she seeks in the purported Claim; to stop the Constitutional Referendum on the 24th November, 2016.
(h). Where, as here in this case, there is no claim for damages and the grant of an interlocutory injunction would give the Plaintiff all that is sought in the substantive action, the Court should not grant such an injunction either in order that injustice be avoided or on a balance of convenience.
The Court should appropriately refuse the application for interim injunction against the Supervisor of Elections.