IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO IN THE MATTER OF SECTION 52(2) OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO IN THE MATTER OF SECTION 52(2) OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO AND IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT, CHAP. 2:01 AND IN THE MATTER OF A PARLIAMENTARY ELECTION PETITION FOR THE CONSTITUENCY OF SAN FERNANDO WEST HELD ON THE 7 TH DAY OF SEPTEMBER 2O15 AND IN THE MATTER OF THE ELECTION PROCEEDINGS RULES 2001, BETWEEN SHEVANAND GOPEESINGH Petitioner AND FARIS AL RAWI First Respondent AND THE RETURNING OFFICER OF THE CONSTITUENCY OF SAN FERNANDO WEST (deemed to be a respondent by virtue of Sec 107(2) of the Representation of the People Act) Second Respondent BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Mr. Anand Ramlogan S.C., Mr. Kent Samlal, Mr. Wayne Sturge and Mr. Gerald Ramdeen, Attorneysat-Law for the Applicant. Mr. Russell Martineau S.C and Ms. Alana Bissessar, Attorneys-at-Law for the Respondent. REASONS Page 1 of 10

2 REASONS Introduction 1. On the 21 st September, 2015, the Applicant, Mr. Shevanand Gopeesingh sought the Court s leave pursuant to Section 52(2) of the Constitution of the Republic of Trinidad and Tobago 1 to file a Representation Petition under the Representation of the People Act The Application of Dr. Gopeesingh followed the hearing of the Application of Vasant Vivekanand Bharath 3 ( the Related Matter ) for leave to file a Representation Petition. 3. During the course of the hearing of the Related Matter, learned Senior Counsel, Mr. Ramlogan disclosed that there were five (5) other Applications which were substantially the same as the Related Matter. Mr. Ramlogan, S.C. also highlighted urgency of all six (6) Applications, since according to him, the Applicants were required to file their Petitions according to strict time lines stipulated by Section 108 (2) of the Representation of the People Act The Court therefore perused the Statement of Dr. Gopeesingh as well as his affidavit, both of which were filed on the 21 st September, 2015, and considered these in the light of submissions which had been made in the Related Matter. 5. The Application of Dr. Gopeesingh differed from the Related Matter, in that Dr. Gopeesingh had not been a candidate in the general election. Dr. Gopeesingh applied for leave to file a Representation Petition not as a person who had been validly nominated to 1 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 2 The Representation of the People Act, Ch. 2:01 3 The Application of Vasant Vivekanand Bharath CV The Representation of the People Act, Ch. 2:01 Page 2 of 10

3 contest an election, but as one who had a right to vote at the election pursuant to Section 107(b)(i) of the Representation of the People Act Having considered the evidence as presented together with the submissions which Mr. Ramlogan, S.C. had made in the Related Matter, I was of the view that the Application was neither frivolous nor vexatious and I granted leave as sought. My reasons for so doing are set out below. Procedural History 7. The following documents were filed: The Statement of Dr. Shevanand Gopeesingh filed on the 21 st September, The affidavit of Dr. Shevanand Gopeesingh filed on the 21 st September, By his Statement, Dr. Gopeesingh sought the following relief: a. that it be determined that Mr. Faris Al Rawi was not duly elected or returned for the constituency of San Fernando West and that the election was void; b. a declaration that the decision of the Returning Officer to extend the hours of the polls is ultra vires, illegal, null and void and of no effect. Facts 8. The Applicant deposed that he had lived in San Fernando West for the past forty-two (42) years. His entitlement to vote in the Constituency of San Fernando West was stated at 5 Ibid Page 3 of 10

4 paragraph 1 of his Draft Proposed Petition the contents of which, this Applicant verified by paragraph 7 of his affidavit. 9. Dr. Gopeesingh by his affidavit referred to the salient facts which had emerged in the Related Matter, that is to say that a General Election which had been held on the 7 th September, 2015 and that the Election and Boundaries Commission ( the EBC ) had extended voting time from 6:00 p.m. to 7:00 p.m. 10. Dr. Gopeesingh referred as well to the article which had been published on the 8 th September, 2015 by Gail Alexander. 6 In her article, Ms. Alexander had this to say: Inclement weather throughout all of Trinidad and Tobago marred yesterday s exercise...rains which began midmorning and continued late into the evening prompted the PNM to seek to have the EBC extend the close of poll time from 6:00 p.m. to 7:00 p.m. in Trinidad though not in Tobago. 7 Submissions 11. In this Application, Mr. Ramlogan, S.C. relied on Submissions made in support of the Application of Vasant Vivekanand Bharath. 8 Law 12. Section 69 of the Constitution of the Republic of Trinidad and Tobago 9 provides for the conduct of a general election of members of the House of Representatives in Trinidad and 6 Exhibited as S.G.1 to the affidavit of Dr. Shevanand Gopeesingh 7 Ibid 8 Application of Vasant Vivekanand Bharath CV The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 Page 4 of 10

5 Tobago. General elections are conducted according to the provisions of the Representation of the People s Act By Section 3 of the Representation of the People Act 11, the EBC is required to exercise general direction and supervision over the administrative conduct of elections. The EBC is required to enforce on the part of all Election Officers fairness, impartiality and compliance with the Representation of the People Act By Section 71(8) of the Constitution 13, the EBC is empowered to regulate its own procedure. 15. By Rule 27 of the Election Rules 14, the taking of the poll for a general election is required to be held between 6:00 a.m. and 6:00 p.m. Rule 27(2) requires that the polling station be kept open, if at the time of the closing of the poll, there are electors in the polling station who had not cast their vote. 16. Rule 56 of the Election Rules 15 states: s. 56 (1) Where proceedings at a polling station are interrupted or obstructed by riot or open violence, the Presiding Officer shall suspend the proceedings and report the matter to the Returning Officer. Where the poll is not reopened by 6:00 p.m. it shall be adjourned until the following day. (2) Where the poll is adjourned at a polling station under this rule 10 The Representation of the People Act, Ch. 2:01 11 Ibid 12 The Representation of the People Act, Ch. 2:01 13 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 14 The Election Rules, Ch. 2:01 15 Ibid Page 5 of 10

6 (a) the hours of the poll on the day which it is adjourned shall be the same as for the original day and (b) references in this Act to the close of the poll shall be construed accordingly. 17. Section 52 of the Constitution of the Republic of Trinidad and Tobago 16 states: s. 52 (1) Any question whether:- a) Any person has been validly appointed as a Senator or validly elected as a member of the House of Representatives;... Shall be determined by the High Court s. 52 (2) Proceedings for the determination of any question referred to in sub section (1) shall not be instituted except with the leave of a Judge of the High Court. 18. Section 52(2) of the Constitution 17 is echoed in Section 106 of the Representation of the People Act 18 Chapter 2:01 which provides: The following questions shall be referred to and determined by the High Court in accordance with sections 106 to 129: 16 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 17 Ibid 18 The Representation of the People Act, Ch. 2:01 Page 6 of 10

7 a) Where leave has been granted under section 52 (2) of the Constitution, any question whether any person has been validly appointed as a Senator or validly elected to the House of Representative and;... (2) Every such reference shall be by a petition, in this Act referred to as a Representation Petition. (3) A petition complaining of no return or an insufficient return shall be deemed to be a representation petition. 19. Sections 107 and 108 of the Representation of the People Act 19 identify the proper persons who may present representation petition as well as the time lines for such presentation. 20. According to Rule 6 of the Election Proceedings Rules 20, an application for leave to the High Court must be made ex parte. Rule 6 provides: An application for leave to institute proceedings pursuant to section 52 of the Constitution shall be made ex parte and be supported: a) By a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and b) By an affidavit verifying the facts relied on. 21. Chief Justice de la Bastide in Re the Constitution of Trinidad and Tobago, William Chaitan; Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin 19 The Representation of the People Act, Ch. 2:01 20 The Election Proceedings Rules, Ch. 2:01 Page 7 of 10

8 Khan and Farad Khan 21 explained the purpose of granting leave under Section 52(2) of the Constitution 22. According to de la Bastide, C.J., the requirement for leave in election proceedings serves the same purpose as it is intended to serve in Judicial Review proceedings that is, to prevent the launching of actions that are frivolous and vexatious and plainly have no chance whatever of success. Chief Justice de la Bastide had this to say: While election proceedings may be regarded as sui generis, they are more akin to civil than criminal proceedings... whenever leave is required before civil proceedings are commenced, it is the invariable practice that such leave is may be applied for and granted ex parte. The most common case in which such leave is required is for the institution of judicial review proceedings... the requirement for leave in these cases serves the same purpose as it is intended under section 52, namely to prevent the launching of actions that are frivolous and vexatious or plainly have no chance whatever of success. 23 (emphasis mine) Reasoning and Decision 22. The Application of Shevanand Gopeesingh was different from the Related Matter. This Applicant approached the Court under Section 107 of the Representation of the People Act 24 not as a person validly nominated as a candidate 25, but as a person who had a right to 21 William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 23 Per Chief Justice de la Bastide in C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001 re Constitution of Trinidad and Tobago, William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan at pg. 16 of The Representation of the People Act, Ch. 2:01 25 Section 107(1)(b)(ii) of the Representation of the People Act, Ch. 2:01 Page 8 of 10

9 vote at the election. 26 Dr. Gopeesingh provided evidence that he stood within Section 107(1)(b)(i) of the Representation of the People Act 27 by paragraph 1 of his Draft Petition, which was verified by paragraph 7 of his affidavit. 23. Dr. Gopeesingh s Application differed also in that it lacked evidence, which was present in the Related Matter, of the frantic search for information concerning the extended voting time. His Application was also devoid of any evidence of complaints by potential voters that they had been unaware of the extension. 24. Nonetheless, I examined the Application in order to determine whether it satisfied the low threshold which had been authoritatively prescribed by C.J. de la Bastide in Chaitan and Peters v. AG 28. In particular, I considered whether the Application was frivolous or vexatious or lacking in any chance of success. 25. The Applicant had alluded to the general election and to the extension of voting time from 6:00 p.m. to 7:00 p.m. In extending voting time in Trinidad, the EBC had acted contrary to the times stipulated by Rule 27 of the Election Rules 29. This factor canvassed the secondary issue as to whether voting times, as specified in the Election Rules 30, were designed to provide certainty, fairness and the absence of arbitrariness and whether a change in voting times fell beyond the pale of the EBC s power to regulate its own procedure. 26 Section 107(1)(b)(i) of the Representation of the People Act, Ch. 2:01 27 The Representation of the People Act, Ch. 2:01 28 William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of The Election Rules, Ch. 2:01 30 The Election Rules, Ch. 2:01 Page 9 of 10

10 26. Accordingly, it was my view that the Application of Dr. Gopeesingh raised the issue as to the effect of the extension of voting times, that is to say, whether it was a breach and if so, whether it was so fundamental that it affected the legality of the entire voting process. 27. It was therefore my view that this Application could not be described as frivolous or vexatious or lacking in any chance of success. It was my view that it had surmounted the low threshold prescribed by de la Bastide, C.J. and it should be allowed to proceed to an inter partes hearing where all issues could be properly ventilated. Dated this 27 th day of October, M. Dean-Armorer Judge Ms. Joezel Williams & Ms. Aleema Ameerali, Judicial Research Counsel (JRC) Page 10 of 10