A release from the Government on Wednesday indicated that the Eastern Caribbean Court of Appeal will be asked to interpret that section of the St. Kitts and Nevis Constitution in relation to the appointment of an Attorney General, who is not firstly appointed a senator in the St. Kitts and Nevis National Assembly.
On Thursday 28th February, Justice John Benjamin QC ruled in favour of Richards and Condor who had argued that the wrong procedures were followed to appoint Mr. Jason Hamilton as a Senator in the Assembly. Benjamin also ruled that Hamilton’s appointment as Attorney General was in contravention of the constitution and that a Bill that he voted on, to increase the number of senators in the legislature, was null and void.
“The Government has been advised to appeal the matter, firstly, on the question as to whether the interpretation that has been given by the Learned Judge, whether that is the only interpretation that exists,” stated Prime Minister Dr. Denzil Douglas in a recent radio presentation.
He promised that his government will appeal the decision “because as I said in my own Broadcast last week Friday, that twice before we had used the very same procedure in appointing the fourth senator to the Parliament of St. Kitts and Nevis.”
However, opposition parliamentarians have reacted to that statement claiming that what it reveals is that the constitution was also breached on two other occasions when Delano Bart QC and Dr. Dennis Merchant were appointed in the position.
“As I recall, the Law and the Constitution, specifically states that where there are three senators and one of those three is in fact the Attorney General, then the number of senators increases by one and so in our opinion, we had interpreted that to mean exactly as it says. When there are three senators already sitting and one of those senators is the Attorney General, then we simple appoint another senator. We felt that in a situation where there were in fact 3 senators and at the end of the day, one of those eventually would be the Attorney General, then we had the constitutional support in making that kind of appointment,” Prime Minister Douglas explained.
Section 26 of the constitution speaks to the matter of the appointment of Senators and it states as follows, under the heading National Assembly:
26. – (1) The National Assembly shall consist of-
a) such number of Representatives as corresponds with the number or constituencies for the time being established in accordance with section 50; and
b) such number of Senators as is specified in subsection (2), who shall be appointed in accordance with section 30.
(2) The number of Senators shall be three or such greater number (not exceeding two-thirds of the number of Representatives) as may be prescribed by Parliament:
Provided that at any time when a person who is a Senator holds the office of Attorney General the number of Senators shall be increased by one.
(3) If a person who is not a member of the National Assembly is elected to be Speaker they shall be a member of the Assembly.
(4) At any time when the office of Attorney-General is a public office the Attorney-General shall, by virtue of holding or acting in that office, be a member of the National Assembly.
(5) Any person who sits or votes in the National Assembly knowing or having reasonable grounds for knowing that he is not entitled to do so shall be guilty of a criminal offence and liable to a fine not exceeding one hundred dollars or such other sum as may be prescribed by
Parliament, for each day on which he so sits or votes in the Assembly.
(6) Any prosecution for an offence under subsection (5) shall be instituted in the High Court and shall not be so instituted except by the Director of Public Prosecutions.
Douglas stated that back in 2006 and even before 2006, (perhaps 2002), his government had appointed new Attorneys General following the same procedures that they did recently. He said that this was done when the sitting Attorney General had become a senator. “At that time we did have 4 senators in our Parliament. Then in 2006 the sitting Attorney General and senator had resigned and Dr. Dennis Merchant became a senator and Attorney General. We used the very same thing. We didn’t have to have one senator first resigning and then appointing the senator as the Attorney General and then bringing back another senator after that,” Dr. Douglas said.
“And that is what the Court from our interpretation said on Friday that we should do. That where we had 2 senators sitting on the Government side, and we need to appoint a senator as the Attorney General; we have to ask one of those 2 sitting senators to resign, appoint the Attorney General as the Senator and then of course becoming Attorney General, and then re-appoint the person who would have resigned to another senatorial position,” said Dr. Douglas.
For Douglas this is not an acceptable requirement. He said “It sounds quite ridiculous to us. We believe that the procedure is not specifically outlined in the Constitution. What is outlined in the Constitution is that we are able to have 4 senators and that is exactly what we were seeking to do.”