By RASHAD ROLLE

Tribune staff Reporter

rrolle@tribunemedia.net

SUPREME Court Justice Ian Winder yesterday refused an application by Official Opposition members seeking to start judicial review proceedings over the Constituencies Commission’s report on constituency boundaries, ruling that the applicants had poor prospects for success and failed to provide sufficient evidence to show they had an arguable case.

However, Justice Winder said it was “regrettable and unfortunate” that the Constituencies Commission failed to produce its report in the time laid out by the constitution.

Michael Scott, the attorney representing Montagu MP Richard Lightbourn and Fort Charlotte MP Dr Andre Rollins, said he will appeal Justice Winder’s ruling within a week, adding that they will take the matter to the Privy Council in London if necessary.

Their application suffered from “several fundamental challenges”, Justice Winder said.

With respect to the claim that the boundaries report was late and should therefore be declared void so that the 2012 order on

constituencies could be made extant, Justice Winder sided with the government, saying that the “simple failure” to comply with a procedural requirement like time limits does not necessarily invalidate any executive action.

Courts approach such matters by looking at the totality of circumstances that lead to a failure to comply with such procedural requirements, including making a determination of whether non-compliance was intentional or not, he said.

Justice Winder said the logical conclusion of the applicants’ submissions is that having exceeded the five-year threshold, “the commission can no longer ever report as the delay already occasioned will only continue to grow”.

“It would be an absurd result for the entire Constituencies Commission to become inoperative as a result of the exceeding of the period laid down in Article 70, resulting in our boundaries becoming permanently fixed to its 2012 state,” he said.

“It is indeed both regrettable and unfortunate that this commission, charged with such an important constitutional duty, would permit the constitutional limits imposed by Article 69 of the Constitution to be exceeded. Notwithstanding this lapse, however, the court cannot hold that there is a realistic prospect of successfully quashing the commission’s report on the basis of non-compliance with the five-year time limit,” the judge said.

Justice Winder said the purpose of the constitutional provision on constituency boundaries is to ensure that boundaries are reviewed from time-to-time, not to make boundaries permanently fixed should a report be submitted outside the time limit.

As for the MPs’ claims of gerrymandering, Justice Winder said the evidence they provided did not support the accusation.

Although a controversial letter from St Anne’s MP Hubert Chipman - in which he alleged that the report he signed as the Official Opposition’s representative on the Constituencies Commission differed from what Prime Minister Perry Christie later tabled in Parliament - was submitted to the court, Justice Winder said he was not satisfied that this letter permitted him to “look behind the unanimous report”.

He noted that Mr Chipman never specified in his letter the ways in which the report he signed differed from what Mr Christie tabled.

Justice Winder said although a hearing for leave for judicial review is not the same as a substantial hearing of the case, “the more serious the allegation or the more serious the consequences if the application is approved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities”.

A key element of establishing a case for gerrymandering, that of intent, is difficult to establish based on the facts of the case, Justice Winder said.

“Can it be shown that the commission so altered the boundaries with the effect of weakening the opposition and strengthening the governing party’s position? Can it be said that the commission, consisting of not only the government, but a justice of the Supreme Court and an appointed opposition member would unanimously and intentionally alter the boundaries to strengthen the incumbent government?

“In fact there’s no evidence of deliberations of the commission at all or anything to demonstrate this necessary element of intent. Having regard to the make-up of the commission and the fact that the report was unanimously signed by all of its members, (this) demonstrates that the changes to the boundaries which have been proposed by them was not done with the intent of gerrymandering.

“On the evidence before me, there’s no realistic prospect, therefore, of the applicants successfully arguing that a judge ... and the opposition member Mr Chipman, together with the government members, unanimously and intentionally altered the boundaries to strengthen the incumbent party.”

Outside court yesterday, Mr Scott, Mr Lightbourn and Dr Rollins said Justice Winder’s ruling was disappointing but not unexpected.

Mr Scott said if necessary, he would have provided the court with additional evidence. He said he believed such would not have been required during a hearing for an application for leave to begin judicial proceedings.