Shireene Mathlin-tulloch v The Chief Electoral Officer

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Sir Marston C.D. Gibson K.A.
• Judgment Date: 15 December 2018
• Neutral Citation: BB 2018 HC 31
• Docket Number: CV 1649/2017
• Date: 15 December 2018

Between:

Shireene Mathlin-Tulloch

First Applicant

Michelle Melissa Russell

Second Applicant

Sharon Juliet Edgecombe Miller

Third Applicant

and

The Chief Electoral Officer

First Respondent

The Attorney General

Second Respondent

Electoral And Boundaries Commission

Third Respondent

Between:

Eddy David Ventose

Claimant

and

The Chief Electoral Officer

Respondent

Before

the Honourable Sir Marston C.D. Gibson K.A., Chief Justice

CV 1649/2017

CV 27/2018

SUPREME COURT OF BARBADOS

IN THE HIGH COURT OF JUSTICE

Constitutional Law — Subsubject: Judicial review — Right of commonwealth citizens to vote in Barbados elections — Statutory duty — Fetter of discretion by Electoral and Boundaries Commission — Abuse of power — Whether there was locus standi to bring application for judicial review — Existence of administrative act or omission — Whether there was exhaustion of alternative remedies — Declaratory relief — Mandamus.

Mr. Wilfred Abrahams in association with Mr. Brian L. Weekes for the First Applicant

Mr. Wilfred Abrahams in association with Ms. Alexandra Daniel and Mr. Gregory Nicholls for the Second and Third Applicants

Ms. Anika Jackson in association with Mrs. Deidre Gay McKenna and Ms. Kaila Headley for the Respondents

Mr. Elliot D. Mottley Q.C. in association with Ms. Faye Finisterre for the Applicant

Ms. Anika N. Jackson in association with Ms. Alison Burke for the Respondent

DECISION

Introduction

1 In 1951 in Barbados, under the leadership of then Hon. Premier, later The Right Excellent Sir Grantley Adams, universal adult suffrage was finally ushered in. The process was begun by the enactment of the Representation of the People (Amendment) Act 1950–40, which was signed into law on 23 October 1950, and which itself amended the Representation of the People Act 1901, and completed by the enactment of the Special Registration of Voters (General Assembly) Act 1951–1, which became law on 16 February 1951. The long title of the 1951 Act was “An Act to make provision for the division of the Parishes and the City of Bridgetown into Registration Districts for the purposes of the preparation and revision in relation to each such parish and the City of Bridgetown as voters at an election of a member of the General Assembly for such parish and the City of Bridgetown for purposes connected therewith and incidental thereto.”

2 Just over twenty years later, on 18 May 1971, while introducing for debate in the House of Assembly the Representation of the People Bill, which forms the substratum of our current law, the then Rt. Hon. Prime Minister, and later The Right Excellent Errol W. Barrow, described 1951 as “...a very significant year in the legislative history of Barbados, because in that year it was the very first election in which every man and woman over the age of 21 who was registered as a voter had the right to exercise his or her democratic privilege”, although, with characteristic bluntness, he also observed that

“Barbados regrettably, [was] the very last territory in the whole of the Commonwealth, even after St. Lucia, to introduce universal adult suffrage. Even though we had boasted of a common Parliament from 1629, it took us in our own slow, methodical way some 321 years before we could introduce universal adult suffrage, when we trusted the masses of this country sufficiently to do what was called at the time of the great Reform Act, 1848 ‘to take the leap in the dark to give the masses the vote.’”

(See, Official Report of the House of Assembly Debates, Hansard, Third

Session 1966–1971, at p. 3041; emphasis added)

3 These two consolidated captioned actions do not involve the right of Barbadian citizens to vote but, rather, the right of Commonwealth citizens to vote in elections in Barbados and the conditions under which they can exercise this right. The four Applicants in these two matters claim that their qualification, and their eligibility, to be registered as voters, has been denied by the Respondent Chief Electoral Officer (“CEO”). As a result they have applied to this Court seeking relief pursuant to the provisions of the Administrative Justice Act, Cap. 109B of the Laws of Barbados (“the AJA”).

4 They seek judicial review of the alleged “long standing” administrative policy or determination that the Electoral and Boundaries Commission (“EBC”), is only authorised to register as voters, Commonwealth citizens who are either citizens of Barbados or who are in possession of a permanent resident permit or an immigrant status permit.

5 Since both actions raise the same issues against, essentially, the same respondents, for the sake of efficiency and in the interest of judicial economy, the actions are consolidated (see, Supreme Court ( Civil Procedure Rules) 2008, Rules 26.1(2)(a) “the CPR”). CV 1649/2017 will be referred to as Action 1 and CV 27/2018 as Action 2.

The Parties

Action 1

6 The First Applicant, Mrs. Shireene Ann Mathlin-Tulloch (“the First Applicant” or “Mrs. Mathlin-Tulloch”) was born in Guyana on 9 February 1968 and is a citizen of Guyana. She is also a citizen of Grenada by descent and has resided and worked in Barbados for sixteen years. She is a Commonwealth Citizen, as will become clear shortly.

7 The Second Applicant, Ms. Michelle Russell, (“the second applicant” or “Ms. Russell”) is also a Commonwealth Citizen having been born in Jamaica on 9 April 1980, and she has resided and worked in Barbados for a period of fourteen years. The Third Applicant, Mrs. Sharon Edgecombe Miller, (‘the third applicant” or “Mrs. Edgecombe-Miller”) was born on 6 November 1974 in the British Overseas Territory and Island of Montserrat. She is married to a citizen of Barbados and has two children who are also citizens of Barbados. Mrs. Edgecombe Miller has resided and worked in Barbados for seventeen years.

8 All three Applicants possess Barbados Identification Cards with National Registration Numbers the last four digits of which demonstrate the fact that they are non-nationals.

9 It should be noted that, initially, the action was commenced by Mrs. Mathlin- Tulloch, and later Ms. Russell and Mrs. Edgecombe Miller sought to be joined as applicants.

10 The First Respondent is the CEO of the EBC, Ms. Angela Taylor, who was appointed on 1 September 2007. She is also the Chief Registering Officer by virtue of section 12 of the Representation of the People Act Cap 12 of the Laws of Barbados (“the ROPA”).

11 The Second Respondent is the Attorney-General of Barbados and the Third Respondent is the EBC and is established under section 41A of the Constitution of Barbados. The EBC is responsible for the direction and supervision of the registration of voters and the conduct of elections in every constituency.

Action 2

12 The Applicant, Prof. Eddy Ventose, is a Citizen of St. Lucia. He is over the age of eighteen years, having been born in the island of Martinique on and has resided and worked in Barbados for the last eleven and a half years. He has been employed at the University of the West Indies since 2006 where he is a professor of law with some expertise in Public Law and Intellectual Property.

13 The First Respondent in this action is Ms. Taylor, the CEO of the EBC who, as noted before, is also the Chief Registering Officer, pursuant to section 12 of the ROPA having been appointed on 1 September 2007.

Background

Action 1

14 The facts in relation to this action are gleaned from (i) the Affidavit in Support of the Application for Judicial Review sworn to by Mrs. Mathlin-Tulloch on 2 November 2017; (ii) the Affidavit in Support of the Application for Judicial Review and Joinder as a Party sworn to by Ms. Russell and filed on 10 November 2017; (iii) the Affidavit in Support of the Application for Judicial Review and Joinder as a Party sworn by the Third Applicant filed on 10 November 2017; (iv) the Affidavit in Response to that of the First Applicant sworn by the First Respondent filed on 1 December 2017; (v) the Affidavit in Response to that of the Second Applicant sworn by the First Respondent filed on 1 December 2017; (vi) the Affidavit in Response to the Affidavit of the First Respondent sworn by the First Applicant filed on 4 December; and (vii) the Supplemental Affidavit of the Third Applicant filed on 8 December 2017.

15 Mrs. Shireene Mathlin-Tulloch stated that she went to the office of the EBC on 23 August 2017 and indicated that she was desirous of being registered as an elector. She presented her Barbados National Identification Card to the officer present, but was informed by the registering officer that she was not entitled to be registered as an elector, as she currently resides in Barbados under the status of CARICOM Skilled National. She was further advised that in order to qualify for registration she would need to hold the status of Immigrant, Permanent Resident or Citizen of Barbados.

16 She thereafter sought the advice of Mr. Wilfred Abrahams, attorney-at-law, who sent a letter addressed to the Chairman of the EBC, dated 28 August 2017. Mr. Abrahams' letter indicated that on the afternoon of the 23 August 2017, the same day on which Mrs. Mathlin-Tulloch had visited the office of the EBC, he had called and spoken to the Deputy Chief Electoral Officer (“DCEO”) to whose attention he had drawn the provisions of section 7 of [ ROPA] and highlighted the fact that Mrs. Tulloch had resided in Barbados for over 16 years, “was a citizen of Grenada and as such a Commonwealth Citizen and qualified under [ROPA] to be registered to vote.” The letter continued that the DCEO had informed Mr. Abrahams “that the Department was only authorised to register, as voters, persons holding the status of Citizen, Permanent Resident and Immigrant and that the Department did not have the authority to do otherwise without the permission of the [EBC].”

17 After “advis[ing]” that “denying qualified applicants on the basis of the fact that they hold the status of a...