Fort Charlotte MP Dr. Andre Rollins and Montagu MP Richard Lightbourn yesterday filed an appeal against a Supreme Court judge's decision to deny their application for judicial review into the constitutionality of the Constituencies Commission's report, contending that the judge treated the application as though it were a full hearing for judicial review instead of considering whether there was a "realistic prospect of success" based on the report being produced outside the five-year provision of the constitution.
In documents filed in the Court of Appeal yesterday, attorney Michael Scott, who represents the applicants, said, "The learned judge, instead of concentrating upon either of the two main points relied upon by the applicants (the time and the gerrymandering points) wrongly approached the question before him as one merely involving his view as to whether the commission was right."
The attorney general, prime minister and the Constituencies Commission are named as the respondents.
"...The learned judge failed to apply Article 70(2) of the Constitution, which essentially directs the commission to decide proposed boundary changes by reference to the requirement of keeping constituencies approximately equal in size, and which by inference disallows purely party political advantage as a basis for proposing boundary changes: there was (and is) an inescapable inference from the evidence before the learned judge that the commission must have proposed the changes for party political reasons," read the appeal.
"At least there was a good arguable case to this effect.
"Had the learned judge correctly directed himself by reference to Article 70(2), he would have given the applicants leave to proceed to a full judicial review of the process which led to the report on this ground."
Last month, Justice Ian Winder said the failure to have the report completed in the five-year timeline was "regrettable and unfortunate", but he called it an administrative lapse, adding that the "only possible construction is...one validating and recognizing that the constitution provisions were clearly designed to ensure that the constitutional boundaries were reviewed from time to time and to not be permanently fixed should the report not be delivered timely".
Winder also said notwithstanding the lapse, the court could not hold that there is a realistic prospect of successful quashing of the commission's report on the basis of noncompliance with the five-year time limit.
Scott also argued that the ruling is "irreparably flawed", insisting that the judge misunderstood the time submissions within the meaning of Article 70(1).
As it relates to the claims of gerrymandering, Winder said it must be actual, rather than apparent.
But in an affidavit accompanying the documents filed in the appellate court, Lightbourn said Montagu is one such constituency that has been egregiously affected by the commission's report, pointing to its proposed name change to Free Town and the two polling stations - 13 and 14 - that are proposed to be absorbed by St. Anne's.
He said the loss of these polling stations, based on the 2012 voter register, provided his strongest support.
In fact, of the 615 people who voted in these polling divisions in the last election, 449 people cast votes for Lightbourn, who won the seat over the PLP's Frank Smith by 228 votes.
"I submit that the action of the commission was a blatant attempt at gerrymandering, and by this action, the commission has turned my margin of victory against the PLP candidate from 228 votes and converted it into a PLP victory by 139 votes, if the voters were all alive today and cast their ballots in the same way that they had in 2012," Lightbourn said.
He pointed to several other changes, which he said were purely politically motivated to sway seats in the PLP's favor.
Lightbourn also claimed the consequence of poor voter registration data as of early February, meant that no other information was available for the government to adjust the boundaries, "short of information contained in the 2012 register, and clearly the commission has used this information solely for the purpose of manipulating the boundaries on the basis of the political preference expressed by the public in the 2012 election".

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