Defeated candidate in the 2022 General Election, Philip Catlyn, was not disenfranchised by any delay in the hearing and adjudication of his election matter by the Court of Appeal.
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This was the finding of Justice Dr H. Patrick Wells who, however, found that the delay in hearing the matter, which was brought under a certificate of urgency, breached Sections 11(c) and 18(8) of the Constitution.
“In my view, with the General Election having been held, and there is no claim that [Catlyn] himself was disenfranchised from being a voter in the election, I cannot fathom any damage or harm or injury that a delay has caused to [him],” the judge said.
“Considering that [Catlyn] was not included in the persons in quarantine during the COVID-19 pandemic, at the time of the elections, which was the focus of his application for judicial review, and further, that the elections have already passed almost four years now, I hold that there is no damage or injury or harm to [him] that warrants or deserves compensation.”
Catlyn, a former leader of the Barbados Sovereignty Party, through his attorney Lalu Hanuman, had originally challenged Justice Cicely Chase’s decision which paved the way for elections to be held in January 2022.
He filed a constitutional motion against the poll being held at the height of the COVID-19 pandemic.
The unsuccessful civil suit challenged President The Most Honourable Dame Sandra Mason’s dissolution of Parliament on December 27, 2021, and the issuing of election writs, saying the act was unauthorised, contrary to law and illegal; arbitrary, unreasonable, irrational, irregular and an improper exercise of discretion; that it was capricious, erroneous, an excess of jurisdiction, ultra vires and an abuse of power; and that it was in conflict with Section 6 of the Representation of the People Act.
Justice Chase, however, declared that since the main issue related to the action of the President in following the recommendation of the Prime Minister to dissolve Parliament, it represented a controversy as outlined by Section 36.1 of the Election Offences and Controversies Act.
She said, as a result, the matter ought to have been properly presented to the Election Court for determination.
The judge then held that the action had been incorrectly filed and refused to order any injunctive relief.
Catlyn and Hanuman appealed the judge’s decision and attorneys argued their case before the Court of Appeal.
Subsequently, Hanuman filed a constitutional motion in the wake of an alleged delay in the hearing of the “urgent” appeal, as well as a delay in the rendering of a decision in respect of an interim interlocutory application by the respondents in the appeal after a hearing which concluded in April 2023.
He claimed the delay in hearing the “urgent” appeal breached Sections 11(c) and 18(8) of the Constitution, while the delay in rendering a decision on the interlocutory application was a breach of the sixmonth timeline in Article 84(3)(c) of
the Constitution.
Justice Wells found that Catlyn’s declaration under Section 84(3) (c) was “not only a futile prospect as it relates to no right that he can claim as a personal right under the Constitution, but further, and equally important, his action before the court has nothing to do with challenging any conduct on the part of the first defendant (the Chief Justice), relative to the exercise of his discretion within the constitutional framework or scheme set out as a whole in Section 84 of the Constitution”.
The judge said although the Chief Justice was a defendant in this matter, Catlyn’s allegation was not that the Chief Justice had done anything to him, but that he was sued because “[The Chief Justice] is the head of the Judiciary of the Supreme Court”.
The judge further noted the Court of Appeal partly attributed the delay in the matter to the death of Justice of Appeal Jefferson Cumberbatch who had been sitting on the panel.
He added the application was eventually determined on June 16, 2024, but the substantive appeal had not progressed beyond that.
“In light of the reason which was given on the facts for the delay in the rendering of the decision in that interlocutory application, I am not persuaded to include any period between the hearing of the application to strike out, and the delivery of the decision on that application, to be unreasonable,” he said.
“As such, I will not include that portion of the delay which concerned the delivery of the striking out ruling, in my assessment of the section 18(8) delay as a whole,” the judge noted.
However, Justice Wells said considering that the appeal has still not been heard, and a certificate of urgency was filed, he found that there had been a breach of Section 11(c) of the Constitution.
“I also hold that the delay of 17 months on an urgent application is a violation of Section 18(8) of the Constitution,” he said.
Catlyn polled 98 votes to winner Cynthia Forde’s 2 971 in the St Thomas constituency. The Democratic Labour Party’s Roderick Hinds received 625 and Independent Samuel Maynard 88. (HLE)
