‘Late does not mean it’s invalid’
Guardian Staff Reporter
Published: Feb 17, 2017
Even if the court accepts the contention that the boundaries report was not drafted on time, that would not be enough to make it invalid, attorney Loren Klein, who represented the Office of the Attorney General in a legal challenge against the document, argued in court yesterday.
Montagu MP Richard Lightbourn and Fort Charlotte MP Dr. Andre Rollins submit that the report violates Article 70 of the constitution, which requires a report to be completed “at intervals of not more than five years”.
They are seeking a judicial review into the matter.
Supreme Court Justice Ian Winder is expected to hand down his decision at 2 p.m. on Tuesday.
Klein argued that there is nothing that impugns the legitimacy of the report.
The last report was completed on November 16, 2011.
The new one is dated February 8, 2017.
Attorney Michael Scott, who represents Lightbourn and Rollins, was seeking an injunction to prevent the report from being debated and agreed to in Parliament.
However, House Speaker Dr. Kendal Major allowed debate despite the legal challenge and the report was approved in the House of Assembly on Wednesday night.
Rollins and Lightbourn, who were present in court yesterday, also submit that the report is void and “infected with bias” because of gerrymandering, particularly regarding the way in which the boundaries were rearranged in the Montagu constituency.
They noted that the report recommends a change to Montagu, to be renamed Freetown, which has been redrawn to take in an area which is a stronghold for the opposition party, and which will materially promote the electoral prospects of the government’s candidate in the election.
They also argue that there is no justification for the addition of the St. Barnabas seat.
Scott submitted that the addition of the seat is further evidence of an attempt by the government to manipulate the electoral roll in order to increase the possibility of a favorable result at the election for the current government.
This cannot be correct procedure only three months before the election when barely 50 percent of Bahamians entitled to vote have registered, he contended.
But Klein submitted that the complaints of gerrymandering and voter apathy raise none of the traditional grounds on which a party might invoke the supervisory jurisdiction of the court.
He submitted that the only semblance of a legitimate complaint lodged is the allegation that it was not tabled within a five-year period indicated in Article 70(1).
”Even if that is the case, this does not necessarily give rise for a sustainable ground for judicial review…It’s beyond doubt that the simple failure to comply with a procedural requirement, not a substantive requirement, does not necessarily invalidate an executive action taken, appointment made or legal result attained,” Klein said.
Klein used an example, “If you say to your daughter ‘you must be home by 11 p.m.’, you don’t mean to say to her you must be home by 11 p.m. or not at all.”
Scott rebutted that there is no legitimacy in procedural slackness.
Given that the House approved a resolution to adopt the report on Wednesday night, the report will now be sent to the governor general who will bring it into effect by way of gazette proclamation.
Scott said at the next sitting he intends to request an injunction against the governor general preventing her from doing so.
There is nothing preventing the governor general from placing the report on gazette between now and then.
Scott told reporters outside Ansbacher House that is a real concern for him.
“If we end up being stuck with this register, the whole validity of this election could be called into question,” he said.
“In other words, if the courts rule that this register is void - whether it offends the constitution, or because it was rigged because of gerrymandering…then you will have an election, whenever it is called, that is suspect.
“If it is suspect, no Bahamian can have any confidence in the outcome of the election and that should cause all of us concern. You will end up with a flawed, tainted and bogus election result.”