George Kirnon has lost a court case in which he challenged the rejection of his nomination for Montserrat’s upcoming general election.
The newly declared United Alliance nominee took the matter to court after being told that his application was not valid because he did not meet constitutional requirements.
Having spent only 94 days on the island in the past five years, he fell short of the minimum 12-month residency requirement for prospective candidates.
Kirnon asked the court to set aside the returning officer’s decision, arguing that it was not fairly reached, but his request was denied.
He was the only one of 34 nominees who did not meet the relevant criteria, leaving his party with just eight candidates on poll day.
Two days to respond
Acting high court judge Brian Cottle oversaw the matter in Montserrat High Court on 15 October and delivered a written ruling the same day in which he outlined the case.
He said that on nomination day, 10 October, Kirnon completed and submitted the required paperwork and paid the statutory deposit.
At the time, the claimant was concerned that the Constitution of Monserrat might be interpreted a way that rendered him ineligible to stand for election, the judge said.
Consequently, Kirnon asked the returning officer if there was any procedure for addressing objections to a nomination.
She explained that upon any such objection he would be allowed 48 hours to respond.
Three days later, on 13 October, the returning officer told Kirnon that his nomination had been rejected as it did not meet the constitutional requirements.
Ex parte application
The following day, Kirnon approached the court and made an ex parte application – a legal request to a court by one party without the presence or participation of the other party.
“He wished to have the court declare that the decision of the returning officer was tainted with procedural impropriety,” the judge wrote.
“He pointed out that he had been afforded no opportunity to be heard before the returning officer made her decision.”
Kirnon requested that the court set aside the returning officer’s decision, but it was unclear what the effect of doing so would be, Cottle wrote.
After reviewing the application, the court decided against allowing the application to proceed ex parte.
Kirnon was ordered to notify the attorney general, and the hearing was scheduled for 15 October.
Interim relief
At the hearing, Kirnon stressed that the application was for interim relief, that he had shown there was a serious issue to be tried and that damages were not an adequate remedy.
He argued that the balance of convenience was in favour of granting his application, the judge said.
In court, Kirnon said that if he were allowed to contest the election and succeed, the state could always challenge this by way of bringing an election petition.
He explained that the merits of the decision of the returning officer were not in issue, but that her decision was not fairly arrived at and should not be allowed to stand, Cottle wrote.
Not unfair
The judge outlined several reasons why the court could not grant Kirnon’s application.
He said the claimant was asking the court not just to say that the returning officer’s decision cannot be allowed to stand as it was arrived at in a procedurally unfair manner.
“He is asking the court to mandate the returning officer to register him as a candidate for the elections and to include his name on the ballot paper,” Cottle wrote.
The judge said that is not the function of a court upon an application for judicial review, and the court cannot substitute its decision for that of the returning officer.
In judicial review cases, the court examines how a challenged decision has been arrived at and whether the process adopted was fair.
“In this case the specific complaint is that the claimant was not afforded an opportunity to be heard before the returning officer decided that his nomination paper was not valid.”
Cottle concluded that he could not say that the returning officer was unfair to Kirnon.
No election delay
The judge clarified that he was not commenting on the correctness of the returning officer’s interpretation of the constitution.
“In the circumstances of this case it was not unfair of her to arrive at her decision without first allowing the claimant to make representations to her,” Cottle wrote.
He said Kirnon is not deprived of an opportunity to have his interpretation of the relevant section of the constitution, which has been in place since 2012, tested in the proper forum.
However, no one has approached the court to seek a ruling on the interpretation of that section, the judge said.
Kirnon had expressed to the court his belief that there ought to be qualitative assessment and a purposive and mature approach to that section.
However, the judge asserted that the fact Kirnon has raised this issue so close to the general election should not delay the election while it is litigated.
