by Garth Patterson Q.C.
In his article entitled, “Voting During a Pandemic”, which appeared in another section of the press, Peter Wickham described as “dubious” any suggestion of a court challenge to “the exclusive and constitutional right of the Prime Minister to call elections at the time of her choosing.”
As a statement of general principle, this may have some merit. But in the context of this general election, which is being held during a global pandemic, where several thousands of qualified electors will be denied the opportunity of voting, his statement misapprehends or ignores the important role that the courts, as the bastions of the public interests, must play in safeguarding the rule of law generally and ensuring the strict adherence by the various branches of Government with the provisions, precepts, tenets, and policies of the Constitution and any applicable law.
A constitutional challenge may be made to the courts where any person complains that his fundamental rights – those guaranteed to him under the Constitution – are being infringed.
There, the claim is brought to vindicate some constitutional right that he is personally entitled to enjoy, for example, the right to free speech, the right to free movement, the right to liberty.
In addition to vindicating constitutional rights, a person may seek to challenge, through the courts, the actions of the Government or any public official or authority in a public law challenge.
This is usually done by way of an application for judicial review under the Administrative Justice Act (“AJA”), which entitles any person whose interests are adversely affected by an administrative act or omission, or any other person who satisfies that Court that his application is justifiable in the public interest, to make an application to the court.
The essential characteristics of a public interest challenge are that it raises public law issues which are of general importance, where the applicant doesn’t necessarily have a private interest in the outcome of the case.
The AJA applies to any decision, determination, advice, or recommendation made under a power or duty conferred or imposed by the Constitution or by any enactment; and the Government bodies or persons whose actions are subject to review include Ministers, public officials, tribunals, boards, committees, or other authorities of the Government of Barbados exercising, purporting to exercise, or failing to exercise, any power or duty conferred or imposed by the Constitution or by any enactment.
Most judicial review challenges do not fall into the category of public interest challenges because, even if they do raise issues of general importance, they are usually cases in which the applicant is seeking to protect some private interest of his or her own. But the AJA confirms that applications may be made by anyone acting in the public interest.
Public interest challenges are not “ordinary litigation” between adverse parties.
It is now recognised by the courts that the true nature of the court’s role in public law cases is not to determine the rights of individual applicants, but to ensure that public bodies do not exceed or abuse their powers.
Lord Diplock in one case said: “It would, in my view, be a grave lacuna in our system of public law if a pressure group …, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped”
Any public-spirited citizen of Barbados, therefore, has a right to speak up if he believes that the Government is acting in a manner that is incompatible with the rule of law; or that it is acting unlawfully, unreasonably or abusing its powers.
A qualified elector who is being prevented from voting because of infection with the COVID-19 virus may have a legitimate basis for complaining to a court that, in all the circumstances, his right to vote has been unlawfully infringed.
But the complainant does not have to be some-one whose voting rights are likely to be, or are being, infringed.
The Caribbean Court of Justice has held that every person or institution in Barbados functions under the Barbados Constitution, being the supreme law of the land, and is duty bound to act rationally, reasonably, and fairly.
The power and duty to dissolve Parliament is conferred by the Constitution upon the President, who must act in accordance with the advice of the Prime Minister.
The President and every Prime Minister – in discharging that constitutional responsibility of advising the President must exercise those powers and duties in a manner that promotes the rule of law and is consistent with the letter and policy of the Constitution and applicable electoral laws.
Both the President and the Prime Minister are bound to act rationally, reasonably, and fairly in discharging those solemn constitutional duties.
The Government’s decision to dissolve Parliament and to hold elections during a pandemic are, therefore, amenable to judicial review, provided that the applicant can establish that, by doing so, the Government breached its constitutional duty of rational, fair, and reasonable decision-making and/or contravened the substance or policy of any applicable law or constitutional provision.
No Government can freely ignore the law; and the right to vote is enshrined in the Representation of the Peoples Act (“ROPA”), which the Constitution mandates must make provision for every qualified voter to have a reasonable opportunity of voting in a general election. This, necessarily, includes every otherwise qualified COVID-positive voter.
The President dissolved Parliament at a time when over a thousand voters were in isolation or quarantine, and when it was reasonably foreseeable by the Government that many thousands more would, in the very near term, become infected by the Omicron variant of the COVID-19 virus.
As at the time of writing, the number of persons in isolation/quarantine has nearly tripled since the dissolution of Parliament – and that is only according to public statistics; the real number is likely considerably higher.
It is certainly arguable, therefore, that, in the absence of overriding national interests or some other compelling reason for doing so, the decision of the President, acting on the advice of the Prime Minister, did not satisfy the tests of rationality or reasonableness.
Nor was it fair to the several thousands of voters who will likely be deprived of a reasonable opportunity of voting, the protection of which was the underlying policy behind the Constitution and the ROPA.
One of the express bases on which the court may grant judicial review under the AJA is that the impugned act or decision is in conflict with the policy of an Act of Parliament, including the Constitution.
There is an indisputable, overarching public interest in ensuring that general elections are conducted freely, fairly and in accordance with the law, and the courts are well equipped to vindicate the interests of the public.
To the extent, also, that the existing electoral law, the ROPA, fails to make adequate provision for voting other than by in-person voting at a polling station (e.g., voting by mail) during the pandemic, the ROPA itself may be vulnerable to constitutional challenge.
It was certainly open to the Government to change the existing law, in anticipation of elections during a pandemic, to facilitate these other forms of voting. A court, in these circumstances, has jurisdiction to stop the elections from proceeding under a law that is, ex facie, unconstitutional.
Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St. Lucia in 1990 and 2011 respectively.
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