IN THE COURT OF APPEAL OF TRINIDAD AND TOBAGO CA NO. S 229-234 OF 2015 CA NO. S 235-240 OF 2015 RETURNING OFFICERS, THE CONSTITUENCIES OF: TUNAPUNA, ST. JOSEPH, LA HORQUETTA/TALPARO, SAN FERNANDO WEST, MORUGA/TABLELAND, TOCO/SANGRE GRANDE THE APPELLANTS and WAYNE MUNROE, VASANT BHARATH, BONIFACIO MAHABIR, SHEVANAND GOPEESINGH, CLIFTON DECOTEAU, BRENT SANCHO THE RESPONDENTS MAXI CUFFIE, GLENDA JENNINGS-SMITH, TERRANCE DEYALSINGH, ESMOND FORDE, FARIS AL RAWI, DR. LOVELL FRANCIS APPELLANTS THE and BONIFACIO MAHABIR, BRENT SANCHO, VASANT BHARATH, WAYNE MUNROE, SHEVANAND GOPEESINGH, CLIFTON DECOTEAU THE RESPONDENTS JUDGMENT DELIVERED IN THE WEST DIVISION, PORT OF SPAIN ON THE 30TH DAY OF NOVEMBER, 2015 Page 1 of 8
PANEL: CHIEF JUSTICE ARCHIE JUSTICE OF APPEAL MENDONCA JUSTICE OF APPEAL JAMADAR APPEARANCES: MR. R. MARTINEAU SC, MRS. D. PEAKE SC, MR. R. HEFFES-DOON, MS. K. WILSON, instructed by MS. A. BISSESSAR appeared on behalf of THE APPELLANTS AND SECOND RESPONDENTS (RETURNING OFFICERS) MR. T. D. STRAKER QC, MR. A. RAMLOGAN SC leads MR. G. RAMDEEN, MR. W. STURGE, MRS. J. LUTCHMEDIAL and MR. K. SAMLAL, instructed by MR. V. DEBIDEEN appeared on behalf of THE RESPONDENTS MR. D. MENDES SC, MR. J. JEREMY SC, leads MR. M. QUAMINA, MR. K. GARCIA, MR. R. NANGA, MS. V. GOPAUL, MS. C. JULES, instructed by MS. E. ARAUJO appeared on behalf of THE APPELLANTS/FIRST RESPONDENTS Page 2 of 8
The Court of Appeal, Trinidad and Tobago Civil Appeals: S229, S230, S231, S232, S233, S234, S235, S236, S237, S238, S239,S240 of 2015. EXTEMPORE EXECUTIVE SUMMARY: Release date, Monday, 30th November, 2015. What I would like to do this morning, is to explain in summary fashion my position in these matters and why I do not agree entirely with the Hon. Chief Justice on the disposition of these appeals, and I am grateful for this opportunity to do so. Justice Mendonca and I agree (albeit for partly different reasons) that none of the appeals should be allowed, and the leave to proceed with the respective representation petitions granted by the High Court upheld. I therefore do not propose in this summary to cover the ground already traversed by Justice Mendonca, who has explained in some detail by reference to the actual applications and arguments, the reasons for dismissing these appeals. It appears to me that the main reasons for the divisions in our opinions are based on and driven by fundamental ideological and jurisprudential differences. These are related to the issue of the core purposes and functions of parliamentary elections in the Republic of TT, on the purpose and function of representation petitions, as the only means by which parliamentary elections can be voided, as well as on the purpose and function of the leave requirements to present these six petitions. It appears to me that it is these differences that have shaped our approaches to these appeals and the choices we have made in relation to our interpretation, application and selection of the law and legal principles that we have considered relevant. In my opinion the purpose and function of parliamentary elections include both process and outcome imperatives in the context of the constitutional democracy that is TT. Thus Page 3 of 8
while I readily agree that the objective of unequivocally determining the will of the people in their choice of a candidate for a constituency (the outcome), is a fundamental purpose of parliamentary elections, I do not accept that it is either the only or primary purpose and function of elections. In my opinion, equally if not even more important than pure outcome, is the process by which elections are conducted, and in particular, that that process be seen and known by the citizenry to be free and fair and in conformity with the core constitutional values of equality, freedom and fair participation, values that underpin the constitutional vision of democracy in TT (see in this regard the Preamble to the 1976 Republican Constitution, which by section 11 of the Interpretation Act is to be read as a part of the Constitution and as an aid to understanding and interpreting it). In law it is said that Justice must not only be done, it must also be seen to be done. This idea points to the importance and value of a fair process as compared to simply a just outcome in the conduct of litigation. The same is equally true in TT for the conduct of parliamentary elections. Thus the appellants' contention that no degree of non-compliance with the Constitution, law or rules governing parliamentary elections can be the basis for invalidating an election, unless it is shown that the result (per se) of the election would be different, is in my opinion anathema to the core constitutional values that underpin the democracy intended in TT. Such a position elevates outcome as absolutely determinative of legitimacy, and discards process as of no or little consequence. In my opinion therein lies a path to un-democratic rule - the antithesis of legitimate representative democratic governance. Indeed, such a position can fundamentally undermine the rule of law, which is another core constitutional value in TT, and is in my opinion both unreasonable and unjustifiable in the context of representation petitions that seek to invalidate parliamentary elections. True representative democracies are built on at least one fundamental premise, the consent of the governed. In my opinion, the legitimacy of this consent is at least as dependent on the process of conducting elections as it is on the outcome. Indeed, where Page 4 of 8
there is public trust and confidence in the process, outcomes are more readily accepted, even when they go against one's wishes or hopes. Relative peace and stability are the usual consequences of this acceptance. It is in this context of the consent of the governed, freely and fairly polled, that elections in democracies have true legitimacy. It is this idea of consent, freely given and fairly obtained, that underpins the notion that: "The will of the People shall be the basis of the authority (legitimacy) of government" - Article 21 of the Universal Declaration of Human Rights. Thus the constitutional premise on which I judge the purpose and function of parliamentary elections and as a consequence the purpose and function of representation petitions, as well as the requirements for leave to present such petitions, is both outcome and process based. It is this jurisprudential, or if you prefer ideological, constitutional position that drives my interpretation and application of the law in these matters. I explicitly state my position, because no interpretative exercise is free of elements of jurisprudential bias. Ultimately, it is these core constitutional value judgments that inform and influence our interpretation and application of the law, as is indeed mandated by section 2 of the Constitution: "This Constitution is the supreme law of TT, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency." That is to say, there is a juridical imperative to read and interpret all laws, when permissible, through the lenses of relevant and applicable constitutional values. This then gives the core underpinning of and explains essentially my analysis and outcomes in these appeals. For the purpose of this summary, my positions on the following discrete issues in so far as they relate to the applications for leave are as follows: 1) Whether there is a subsisting and operative common law basis upon which parliamentary elections in TT can be invalidated. In my opinion it is not frivolous and vexatious to argue that there is such a basis. I am provisionally of the view that there is such a basis. Page 5 of 8
2) Whether sub-section 35(3) of the ROPA incorporates both qualitative and quantitative evaluative imperatives in the analysis of whether it appears that the acts constituting breaches of official duty did not materially affect the result of the election. In my opinion it is not frivolous and vexatious to argue that the sub-section does incorporate both qualitative and quantitative aspects. I am provisionally of the view that the sub-section does incorporate both qualitative and quantitative aspects. 3) What is the role and function of the court considering the ex parte applications for leave to present representation petitions and whether the legal threshold and test for leave to issue a representative petition, is whether the application for leave is frivolous and vexatious, or is it the judicial review test enunciated by Lord Bingham in Sharma v. Brown-Antione, that a realistic prospect of success must be shown. In my opinion it is the former. All that must be shown is that the application is not frivolous and vexatious, that it is not hopeless, or put positively, that it has some chance of success. The role and function of the court at this stage of the process is simply to weed out hopeless cases - per de la Bastide C.J. and Nelson J.A. in Chaitan v. Peters, a decision of the final court on election petitions (section 52 (4) 1976 Constitution), which in my opinion is highly persuasive on this point. 4) Whether the sufficiency requirements for stating material facts in the Statement in support of the applications for leave were met in these applications (rule 6a of the Election Proceedings Rules 2001). In my opinion they were met, both with respect to the challenges under the common law and under the statute (ROPA). 5) Whether the sufficiency/cogency requirements for verifying the material facts in the Statement in support of the applications for leave were met in these applications (rule 6b of the Election Proceedings Rules 2001). In my opinion they were met, both with respect to the challenges under the common law and under the statute (ROPA). I would therefore dismiss the appeals and direct that the following primary question, whether the returned candidates have been validly elected as members of the House of Page 6 of 8
Representatives (section 52 1976 Constitution & section 106 ROPA), shall be determined in the Representation Petitions presented by the six petitioners (sections 106 & 107 ROPA), by the court asking and answering, inter alia, the following questions (within the parameters of the grounds and material facts relied on): (i) Whether in light of the Constitution, the ROPA, the ROPA Election Rules and any other laws and by reason of any acts by a Returning Officer or any other person there have been breaches of official duty in connection with the election or otherwise or of the Election Rules; (ii) Whether in light of any such acts and breaches it appears to the court having cognizance of the primary question aforesaid, that the said acts and breaches did not materially affect the result of the election (sub-section 35 (3) ROPA), or otherwise constitute a statutory basis for declaring the election void (for example, sections 149 (4); 146; 108 (8)); and (iii) Whether in light of the Constitution, the ROPA, the ROPA Election Rules and any other laws and by reason of any acts or omissions by any Election Officer, or any other person, or in light of any other relevant and material occurrences, the election held was so irregular and/or outwith the Constitution, the ROPA, the ROPA Election Rules and any other laws, that it did not truly constitute a democratic election as the same is understood and known in TT. Thus I agree with Mendonca JA in his analysis and reliance on both qualitative and quantitative aspects of sub-section 35 (3) ROPA as the justifiable legal framework for granting leave. Clearly, I have gone further in my own analysis in so far as I am willing to accept that the common law principle of a 'non-election' is also a basis upon which leave can be granted in these petitions. All of these matters will be expanded upon in due course when the full judgment in these matters is handed down. Page 7 of 8
I should add in conclusion, that even though there is a quasi-inquisitorial jurisdiction conferred on the court at the hearing of these petitions, the leave granted in these petitions is not a permission to embark on an unfettered roving commission of inquiry. The only legitimate parameters are those circumscribed by the grounds and material facts contained in the petitions in light of the relief sought and the relevant law. Peter Jamadar JA 30th November, 2015 Page 8 of 8