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Friday, 11 November 2011

Free and fair elections in Jersey?

On Friday 11th November 2011, I presented my representation to the Royal Court of Jersey. There will be no fanfare, it is not going to be a landmark day, for it is the start of a long, laborious, process which will take months, if not years to complete.

The representation contends initially, that the Royal Court cannot convene in a manner which is compliant with the Human Rights (Jersey) Law 2000 to hear matters relating to the Jersey Senator elections 2011.

Article 3, Protocol 1 of the European Convention on Human Rights
guarantees the right to free and fair elections,
 but do we have them in Jersey?
The Royal Court has been asked to decide
This is for reasons of being unable to provide the appearance of independence or being able to show objective neutrality and indeed subjective neutrality, which would constitute a breach of Article 6 of the Convention were such a hearing to proceed:
  • All 12 jurats performed the role of adjointe or returning officer in the election but two are required to sit in judgement on their own actions
  • Both the Judicial Greffier and Attorney General in this election, or in previous elections within the statute of limitation, have performed the role of adjointe.
  • A number of persons owing their position, directly, to the patronage of one of the candidates in the election, the former Bailiff, Sir Phillip Bailhache would be required to sit in any hearing, including any judge.
As you may be aware a Court, under the Royal Court Rules 2004 and Part 9A of the Human Rights (Jersey) Law 2000, must consist of a Judge, two Jurats, the Judicial Greffier and the Attorney General or persons in their stead who are responsible to them.

In the circumstances, as a result of the lack of separation of powers, I have asked to be given leave to present an application direct to the European Court of Human Rights and that a declaration of incompatibility under Article 13 of the Convention be made as there is no effective domestic remedy.

I have not entered a pleading at this stage as to how the election breached my Convention rights under Article 3 of Protocol 1 of the Convention, the right to free and fair elections, although I have provided a bullet point list of 22 alleged breaches identified to date.

My application that the Jersey Evening Post, who will be a party to the action, be prevented from (mis)reporting the case, whilst it is ongoing was turned down at this stage.

The first step is to set a date for a pre-trial directions hearing; this is a hearing which will determine the ground rules between the parties, it is at this stage that the constitution of the Court will need to be considered.

I have had limited discussions with the Attorney General and the Judicial Greffier, who whilst are prevented from providing me with legal advice, have been able to clarify some procedural matters. They have given no indication at this stage that they will be seeking the matter to be struck out on the grounds that the Representation is trivial, frivolous or vexatious.