Christie (in His Capacity as Leader of the Opposition) v Ingraham (in His Capacity as Prime Minister of the Commonwealth of the Bahamas)

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Hall, C.J.
• Judgment Date: 05 November 2008
• Docket Number: PUB/CON 34 of 2007
• Date: 05 November 2008

Supreme Court

Hall, C.J.

PUB/CON 34 of 2007

Christie (In His Capacity as Leader of the Opposition)

and

Ingraham (In His Capacity as Prime Minister of the Commonwealth of the Bahamas)

Appearances:

Hon Paul L Adderley, Mr. Damian Gomez with him, for applicant.

Mr. Loren Klein for respondent.

Constitution - Interpretation — Articles relating to appointment of Senators — Reliance on historical materials in an attempt to ascertain the intention of the framers of the Constitution.

Hall, C.J.

PRELIMINARIES

1 The substantive hearing of this application began on 18 August, the earlier fixtures having been used to dispose of a number of housekeeping and case management matters

2 Before I proceed to the substance of this judgment, I would highlight an issue which was never resolved to my satisfaction. However, as, in my view, the Court had no authority to impose a resolution, the case proceeded before me with what may have been a constraint on the presentation of the case for the first respondent.

3 After this matter had been filed in the Supreme Court the Registrar, at my direction, wrote to the attorney of record for the respondents as follows:

5 November 2007

Mr. Loren Klein

Office of the Attorney General

NASSAU

Dear Mr. Klein,

Perry Gladstone Christie v Hubert Alexander Ingraham and The Attorney General 2007/PUB/con/ 00034

I refer to your letter of 30 October requesting a date for the hearing of your summons filed on 11 October in advance of the date reserved for the hearing of the substantive matter on 19 November and am directed to inform you that the Chief Justice's calendar does not allow for the hearing of this summons at a date earlier than the said date of 19 November. The Chief Justice will, therefore, hear your application on that date in advance of the substantive case.

The Chief Justice has further directed that I alert you that, when you appear, you will be invited to address another question that has recently occurred to him (the Chief Justice). The court takes judicial notice of the fact that you are a legal public officer in the employ of the Office of the Attorney General. As this case involves a question of the interpretation of a statute, specifically, the Constitution, it is assumed that the discrete interest of the Attorney General, who is named as the second respondent, is confined to assisting the court, through yourself, on this question. On the other hand, the first respondent, Hubert Alexander Ingraham, although purportedly sued “(in his capacity as) Prime Minister”, appears, on the papers filed, to be challenged, not in his executive capacity within the intendment of Articles 71 and 72 of the Constitution, but as “the leader of the party which commands the majority of the members of [the House of Assembly] under Article 73 (1)(a)”.

Accordingly, you will be invited to address the question of whether it is appropriate for you to appear for the Prime Minister when the challenge is not to an executive decision but to a “political” one.

These preliminary issues will be dealt with in open court according to the existing fixture for 19 November.

Faithfully,

Ernie E Wallace

Deputy Registrar / Manager, Public Law Division

copy Hon. Paul L Adderley Attorney for the applicant

4 I heard Mr. Klein at one of the case management hearings, on 19 November, (Mr. Adderley having declined to take a position on the matter) and I ruled that:

While still not satisfied as to the position of Mr. Klein – as a legal public officer – appearing as counsel for the first respondent – the Prime Minister – in this application which Mr. Adderley has described as “very unique,” I do not assume the authority to make any definitive ruling on the question at this stage and direct the matter to proceed.

5 When the matter eventually came on for the substantive hearing, on the second day, it became apparent that Mr. Klein would have some difficulty in addressing the relevant “political” question of why the first respondent, the Prime Minister, had acted in the manner challenged by the applicant. Mr. Klein was permitted an opportunity to consult further with his principals in the Office of the Attorney General and returned to inform the Court that his “instructions” remained as they had been initially given and that the Prime Minister would not be separately represented. While I, again, made no formal ruling on the question, Mr. Klein accepted the admonition that he would only be heard on the issue of the interpretation of the Constitution.

6 At a preliminary stage in this matter, counsel for the respondent had filed a summons seeking to strike out large portions of the affidavit (and accompanying exhibits) of the applicant. He was persuaded to abandon that course in the interests of the timely and efficient disposal of the action. I reminded counsel of the views that I had expressed in McMillen Trust v Rawat. Equity No. 1407 of 1990 where, after consideration of the relevant authorities, having cited the views of Roskill, L.J. in Alfred Dunhill v Synoptics SA [1979] FSR 337, 352 that:–

Affidavits are designed to place facts, whether disputed or otherwise, before the tribunal for whose help they are prepared. They are not designed as a receptacle for or as a vehicle for legal arguments. Draftsmen of affidavits should not, as a general rule, put into the mouths of the intended deponents legal arguments of which those deponents are unlikely ever to have heard. Legal arguments … should come from the mouths of those best qualified to advance them and not be put into the mouths of the deponents,

and Phipson on Evidence 13th edition paragraph 34-02

It is important to observe that, unless there is a specific provision excepting the rule, the contents of affidavits must be confined to such matters as are admissible by the rules of evidence,

I had summarised the principles as follows:–

• (a) an affidavit must comply with the ordinary laws of evidence;

• (b) an affidavit must not contain matter which is scandalous and/or irrelevant and/or oppressive. “Irrelevant” material includes opinions, conclusions and submissions;

• (c) where an affidavit which is filed contains any matter which it ought not to contain, the court need only ignore the offending matter unless the breach is egregious;

• (d) where an objection is taken by a party to material contained in an affidavit filed by another party, the court may instead of proceeding as at (c), order the offending material to be struck out, but should only do so in “plain and obvious” cases. If, the matter objected to is inconsequential the court would still proceed as at (c),

  and I determined that I would simply ignore matters which ought not to appear in an affidavit (Re J [1960] 1 W.L.R. 253, 257) bearing in mind that evidence is contextual and, while it could only be tendered serially, it is absurd for an opposite party to take an item of evidence in isolation and scrutinise it in total disregard of how that item of evidence is linked to other material in the case.

7 The determination of the preliminary applications resulted in Mr. Klein accepting (upon the persuasion of the Court without my having to make a formal ruling) that counsel for the applicant would be able to rely on certain historical materials, documents generated at the time of and in the months that followed the conference that preceded Independence on 10 July 1973. Counsel arrived at common ground that this was not a Pepper v Hart [1993] A.C. 593 scenario, where the Court, in an attempt to interpret the meaning of primary legislation that is ambiguous, might under certain circumstances consider the legislative history and have recourse to the departmental and parliamentary papers that preceded the legislation in order to resolve an ambiguity or uncertainty in the statutory text.

8 As Mr. Adderley, in my view correctly, submits, a constitution is the product of political consensus and evidence of that consensus is of particular importance to giving the terms of the Constitution the generous purposeful interpretation that is required. He cites in support the judgment of the Judicial Committee of Her Majesty's Privy Council in Attorney General of Trinidad and Tobago v Whiteman [1991] 2 A.C. 240 where Lord Keith of Kinkel opines, at 247:– The language of a Constitution falls to be construed, not in a narrow or legalistic way, but broadly and purposively, so as t give effect to its spirit…

9 On the approach to be adopted with respect to constitutional interpretation, Mr. Klein accepts as well settled in the Commonwealth Caribbean that, even when courts are not considering the fundamental rights provisions of the Constitution, a “generous and liberal” approach to interpretation has been acknowledged. Two years before the decision in Whiteman, Gonsalves-Sabola, J. (as he then was) in the Supreme Court of The Bahamas, in Whitfield v Attorney General (1989) 44 W.I.R. 1 had observed, at pages 19ff

“A Constitution is the organic law of a country. It sets the parameters within which the country will be governed. It establishes the institutional structures of Government and either expressly, or by necessary implication, their inter-relationship, and spells out the basic rights of citizens and the obligations of the executive. Because a Constitution is drawn in such large outlines to satisfy its peculiar purpose, it has come to be treated in a special way. In Minister of Home Affairs v Fisher [1980] … Lord Wilberforce (at page 113) preferred adopting a more radical approach in construing a Constitution and treating it as –

‘sui generis, calling for principles of interpretation of its own, suitable to its character … without necessary acceptance of all the presumptions that are relevant to legislation of private law.’

The actual formulation of Lord Wilberforce's approach may arguably have been influenced by the particular aspect of the Bermudian...