Supreme Court
Action No. 390 of 1983
22nd December, 1983
Moe, C. J.

Messrs. H. Elrington, P. Goldson and Dean Barrow, for the Applicants.
Messrs. V.H. Courtenay S.C. and D. Courtenay S.C., for the Respondent.

Order for mandamus - Statutory interpretation - Election case - Interpretation Ordinance (No. 18 of 1980) - The word "shall" to be construed as imperative - The word "may" to be construed as discretionary - Meaning of "as soon as may be" - Representation of the People Registration Rules - Whether right to inspect the binders of registration record cards enables a taking/making of copies.

J U D G M E N T

This is an application for an Order for Mandamus commanding the Respondent, Mr. Roy Young, the Chief Elections Officer to permit the Applicants Derek Aikman, Ramon Vasques and Mark Vergo to inspect and take copies of the records relating to the registration and identification of voters kept by them in the form of binders. The Applicants seek to have the Respondent comply with Rules 67 and 70 of the Representation of the People Registration Rules 1978 (hereinafter referred to as the principal rules) contained in Schedule II to the Representation of the People Ordinance No. 2 of 1978 (hereinafter referred to as the Ordinance).

It was necessary to determine first what are the applicable rules. The Applicants have relied on provisions contained in the Representation of the People Registration (amendment) Rules published as Statutory Instrument 73 of 1981, which purport to amend the principal rules. The Respondent put before me an Affidavit from the Clerk of the National Assembly, which I accept, that the rules contained in Statutory Instrument 73 of 1981 were not laid before the National Assembly.

The Statutory Instrument 73 of 1981 sets out that it was made by the Minister of Home Affairs on the 28th August, 1981 by virtue of section 69 of the Ordinance. I therefore turn to sub-section (3) thereof which provides "(3) Any rule made pursuant to this section shall be laid before the National Assembly as soon as it may be after the making thereof and if the Assembly by resolution request that such rule be rescinded such rule shall be rescinded by the Minister but without prejudice to the validity of anything done thereunder."

Counsel for the Applicants submitted that omission to lay the rules as stated in section 69 (3) (supra) does not invalidate the S.I. 73 of 1981. Reference was made to certain cases in which, it was submitted, similar provisions were held to be directory only.

Bayley v. Williamson (1899) L.R. 8 Q.B. 118
Starey v. Graham (1899) 1 Q.B. 406
Springer v. Doorley (1950) L.R.B.G. 10
Jones v. Robison (1901) 1 K.B. 673

I think it sufficient to hold that any principles of construction enunciated in those cases are subject to the specific stipulations of the Interpretation Ordinance of Belize No. 18 of 1980 the Title of which tells us it is "An Ordinance to consolidate and amend the law relating to the construction, application and interpretation of laws ----- to define terms and expressions in law and public documents -----". In section 2 (1) it provides "Save where the contrary intention appears either from the context of this Ordinance or any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force whether such other Ordinance comes or came into operation before or after the commencement of this Ordinance and to any instruction made or issued by virtue of this Ordinance."

I am fortified in this by the decision of the Supreme Court of Barbados in Ronald Biggs v The Commissioner of Police Supreme Court Action No. 16 of 1981. In that case the question arose as to whether the failure to lay the Designated Commonwealth Countries Extradition Order 1980 S.I. No. 74 of 1980 made under the Extradition Act 1979, naming the U.K. as a country to which persons could be extradicted, invalidated the Order. At the time, it was sought to extradite Biggs from Barbados pursuant to those provisions ten months after the Order had been made. Chief Justice Sir William Douglas held inter alia that while Springer v Doorley (supra) had held that the affirmative laying requirement was directory and Bayley v Williamson (supra) had held that the negative laying requirement was directory, those cases were decided in relation to interpretation provisions which differed from the present interpretation Act of Barbados. Consequently any principles laid down in those old cases must be read subject to the specific provisions of the Interpretation Act of Barbados.

Section 59 of the Interpretation Ordinance of Belize provides as follows: "In an enactment "shall" shall be construed as imperative------". By virtue of this section and section 2 (supra), the Interpretation Ordinance has expressly laid down that the requirement, in an ordinance or instrument which it applies, that an instrument (such as is S.I. 73 of 1981) shall be laid, is imperative. This duty to lay could only be other than mandatory if there is a contrary intention in the words of the respective ordinance or instrument. No such contrary intention appears in section 69 (3) of the principal rules nor the Ordinance.

The sections 69(3) further requires the duty to be performed "as soon as may be." That expression is interpreted to mean "within a reasonable time having regard to the care and dispatch with which parliamentary business should be conducted." (See again Biggs v Commissioner of Police (supra). I hold that two years is not such a reasonable time.

Counsel had also referred to section 21 (h) of the Interpretation Ordinance which provides as follows: "Where an Ordinance confers power on any authority to make subsidiary legislation the following provisions shall, unless the contrary intention appears have effect with reference to the making thereof-

"(h) All such instruments shall be published in the Gazette and shall, upon such publication or form such date as may be mentioned therein, have the force of law". Counsel submitted that the rules as set out in the Statutory Instrument having been published in the Gazette have the force of law and consequently failure to lay the rules does not affect the validity of the Statutory Instrument. The submission seems to mean that despite what may have been laid down as preconditions for making a particular piece of subsidiary legislation, even if those preconditions are not satisfied, publication in the Gazette gives the instrument the force of law. I cannot accept the submission. The section 21(h) does two things: (a) mandates publication of subsidiary legislation and (b) stipulates the effective date of such legislation. But this is clearly with reference to properly made and valid subsidiary legislation. The sub-paragraph has to be read along with other provisions of the Ordinance. One such being for example section 21(b) which provides that subsidiary legislation is not to be inconsistent with the Ordinance under which it is made, and another is section 59.

I hold that the requirement in section 69(3) that any rule made thereunder shall be laid is imperative with the result that failure to lay the Rules as contained in S.I. No. 73 of 1981 made under Rule 69 (3) unvalidated the Statutory Instrument. I cannot command the Chief Elections Officer to comply with provisions which are not law and the application thus fails. That is sufficient of the application thus fails. That is sufficient to dispose of the application.

However with great respect for the submissions made and anticipating that the respective rules do become law I have deemed it worthwhile to consider the matter on the basis that the rules are applicable. They read as follows: Rule 67 "Where a document is made available for inspection any person may make a copy of, or take extracts from such document." Rule 70 (2) "Any person who is authorized in writing by the Chairman of any political party which is represented in the National Assembly may, by prior arrangement with the Chief Elections Officer, inspect the binders of registration record cards maintained by the Chief Elections Officer in the presence of the Chief Elections Officers or a person authorized by him."

In this case Mr. Dean Lindo, Chairman of the United Democratic party, a party represented in the National Assembly issued a letter appointing the Applicants and some other persons to inspect the binders of registration record cards maintained at No. 38 Queen Street, Belize City. The Chief Elections Officer made arrangement for the Applicants to inspect the binders and to photograph the record cards in the presence of the Assistant Records Officer. The Chief Elections Officer discovered that a video camera was being used and that the Applicant Mr. Aikman was dictating into a tape recorder, information and particulars on the record cards. The Chief Elections Officer refused to allow any further process as just mentioned. But he has allowed inspection of the binders by two of the Applicants in the presence of the Records Officer.

The Applicants maintain that by a combination of Rules 67 and 70(2) the Respondent is obliged to permit them to take copies of the records. They contend firstly that Rule 70(2) confers a right on a person duly authorized to examine the records at his option. The right is subject only to the Chief Elections Officer's power to make stipulations as to convenience for exercising the right. Secondly by application of Rule 67, with the right to examine goes the right to copy, which right includes the right to copy by video camera.

The Respondents contended that Rule 70 (2) is only an enabling provision and that three conditions must be satisfied for the privilege thereunder to be exercised. Secondly, that the privilege of inspection provided for by Rule 70 (2) does not carry with it any right to copy by virtue of Rule 67, which rule applies to circumstances in which documents are made available for inspection by the general public and not to circumstances where documents are made available for inspection to a limited class of persons as in the instant case.

By application of section 59 of the Interpretation Ordinance (supra) the use of the expression may in Rule 70(2) is directory. The Rule 70(2) is therefore an enabling one. It enables or gives power to persons authorized to inspect. The power to be exercised under certain conditions namely: - (1) by prior arrangement with the Chief Elections Officer and (2) in the presence of the Chief Elections Officer or person authorized by him.

The Applicants were persons authorized as provided by the rule; prior arrangement for the exercise of their power under the rule was made with the Chief Elections Officer and that the power would be exercised in the presence of a person authorized by him.

The question I then turn to is whether in the exercise of the power under Rule 70(2) there is any power to take copies of the documents concerned. As I understand the Applicants, since they rely on Rule 67, their contention is that the provisions of Rule 70(2) having been satisfied and the binders of registration cards having been made available for inspection, Rule 67 comes into play and therefore the persons inspecting may make copies or take extracts. It may seem pedantic to have to interpret the expression "any person" appearing in Rule 67. By giving the words their ordinary meaning, they clearly mean anybody, any member of the public. Thus a construction of the rules in the way for which the Applicants have contended would amount to this, that the binders of records made available for inspection by persons authorized may be copied by any person i.e. any member of the public. That is clearly not the purpose of Rule 67.

The meaning of the words "any person" just indicated shows as counsel for the Respondent has rightly argued, that Rule 67 applies where provisions is made for inspection of documents by the world at large. Counsel referred to the Scheme of Rules and pointed to Section 2 (3) of the Ordinance which provides "where any register, notice, or other document is by or under this Ordinance required to be published, it shall be done, in the absence of any provision in this Ordinance to the contrary by - (a) publishing it in the Gazette; or (b) making copies thereof available for inspection at the office of the Chief Elections Officer and that of the Registrar; or (c) by affixing such register, notice or other document to the Courthouse or Courthouses in the district to which the register, notice, or other document relates, or such other conspicuous place in that electoral division as the person publishing considers necessary; (d) by advertising it in a newspaper circulating in the area to which such register, notice or other document relates, or by specifying in such an advertisement the places at which such register, notice or document is available for inspection; or (e) by placards or handbills; or (f) by such other manner approved by the Commission as the person publishing thinks is best calculated to afford information to the persons who should receive such information.

The section sets out alternative ways of publishing a document i.e. giving it to the world at large. One of those ways is "making copies available at the office of the Chief Elections Officers or Registrar." Thus in this interpretation section where the Ordinance speaks of making documents available for inspection it is speaking of documents required to be published i.e. putting it to the world at large.

I hold that by the Ordinance or Rules, binders of Registration cards are not documents such as are required to be published or in other words the contends of which are to be given to the world at large and consequently Rule 67 does not apply to them. On the basis that the Rules were in fact valid, the Applicants claim to have the right to make copies of or take extracts from binders of registration cards would still fail.

Application is according refused and the Respondent is to have his costs fit for two counsel.

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