The Tribune

By KHRISNA VIRGIL

Deputy Chief Reporter

kvirgil@tribunemedia.net

OFFICIAL Opposition members of Parliament yesterday filed a motion in the Court of Appeal to reverse Supreme Court Justice Ian Winder’s previous decision to reject their application to start judicial review proceedings over the Constituencies Commission’s report on constituency boundaries citing several issues where they believe the judge erred in his ruling.

In new documents filed in the appellate court, Montagu MP Richard Lightbourn and Fort Charlotte MP Dr Andre Rollins argued that Justice Winder did not apply the correct test for deciding whether the judicial review should be granted on February 21. The men said the judge treated their initial application as if it were a full hearing or a judicial review, when he should not have. Attorney Michael Scott is representing them.

Last month Justice Winder ruled that the applicants had poor prospects for success and failed to provide sufficient evidence to show they had an arguable case.

At the time, the judge said they suffered from “several fundamental challenges,” leading Mr Scott to insist that the Official Opposition MPs would take the matter to the Privy Council in London if necessary.

“The learned judge failed to apply the first rule of statutory or constitutional construction, namely to give meaning and effect to all parts of a section or clause: in particular he failed to give meaning and effect to the time provision in Article 70 of the Constitution: the learned judge ought to have held that since the commission’s report was not produced within five years of the previous report, the report was not one within the meaning or contemplation of Article 70,” the motion said.

“The learned judge applied the wrong test to the application before him. Instead of directing himself to consider whether there was an arguable ground for judicial review with a realistic prospect of success (the test for leave), he treated the application as though it were a full hearing for judicial review, which was a procedural error causing disadvantage to the applicants.

“The learned judge, instead of concentrating upon either of the two main points relied upon by the applicant (the time and the gerrymandering points) wrongly approached the question before him as one merely involving his views as to whether the commission was right.”

The motion continued: “The learned judge failed to apply Article 70 (2) of the Constitution, which essentially directs the commission to decide proposed boundary changes by reference to the requirement of keeping constituencies approximately equal in size, and which by inference disallows purely party political advantage as a basis for proposing boundary changes: there was and is an inescapable inference from the evidence before the learned judge that the commission must have proposed the changes for party political reasons.

“At least there was a good arguable case to this effect. Had the learned judge correctly directed himself by reference to Article 70 (2), he would have given the applicant leave to proceed to a full judicial review of the process which led to the report on this ground.

“The learned judge rejected the time submission made by the appellants on the basis that if it were correct, there could never again be a valid commission report - the absurdity argument - but this was wrong and failed to give meaning and effect to the use of the word ‘interval’ in the Constitution.

“On the true construction of Article 70 (1), if a report is not produced within five years, then a new five year interval commences.

“The respondents argued that the report was a valid report within the five year interval (plainly wrong as a fact) and it cannot be a valid report in the second five year interval because it would be an abuse to produce a report so long before the end of the second interval, for an election in 2022 and this would be an act which no reasonable Boundary Commission could perform. This is the inevitable or flawed consequence of upholding the report.”

The MPs added that paragraph 16 of the previous ruling was “irreparably flawed,” saying Justice Winder completely misunderstood the appellants’ time submission on the meaning of Article 70 (1).