Questions! Questions!

EDITOR: Is it still true that election petition rules are mandatory? If the answer is yes, can a court condone partial compliance of a mandatory provision/rule?

Does the peculiar and special law making power for election matters still belong to the Parliament? Can the court usurp what was clearly stated by Sir Vincent Floissac to be essentially a parliamentary jurisdiction?

In Stevens v Walwyn at the OECS Court of Appeal, Justice H Rawlins said that the provisions that relate to security for costs are peremptory and condition precedent. Also in Drew and Others v Scott and Others (1993), the Supreme Court of Bermuda held that failure to give security for costs within three days as required rendered the petition void. How then can sureties (which function as security for costs) be amended out of time?

In Browne v Francis- Gibson and Another (1995) Sir Vincent Flossac highlighted five fundamental differences between the civil and election jurisdictions. One of them is as follows: “the legislature must have envisaged that the parliamentary questions would be determined either on their merits or purely on procedural grounds and without hearing evidence”. Procedural issues are therefore just as important as the merits in an election petition.

N.B. Sir Vincent served on a number of occasions as a member of the Judicial Committee of the Privy Council and was given the esteemed privilege to write the judgment in: Michael Freemantle v The Queen (1994). He was therefore no ordinary judge.

If election laws or rules permit the amendment of sureties out of time, why did the lawyers for the petitions not apply to the court for that facility after they recognized the defect? Were they negligent? What happen to the maxim: Equity aids the vigilant not the indolent. Should the court be condoning indolence?

If sureties were properly given, why the remedy? Since when do we fix something that is not defective or broken?

How is it possible that two judges can come to two diametrically opposite interpretations of the same laws and facts?

Should a court resurrect a petition that is a nullity, after Lord Denning (of Privy Council fame) proclaimed that anything before the court that is a nullity is not just bad, but incurable bad?

Are judges in the sub-region rewriting the jurisprudent?

Concerned Vincy