The Caribbean Court of Justice (CCJ) on Tuesday heard oral submissions in the consolidated appeal of the Court of Appeal ruling that they have jurisdiction to hear arguments in the dismissal of Election Petition 99 of 2020 by the High Court for late, non-service, and improper service.
The proceedings started with Attorney-at-Law Kashir Khan, representing Shazam Ali of the Citizen Initiative, being denied the chance to enter oral submissions. This is because he did not send in written submissions within the stipulated time or an application for an extension of time.
According to Khan, however, he was quarantined at the time and thus, unable to follow the procedure. However, the court did not find favour with this explanation and as a consequence, Khan was barred from filing written submissions or making oral ones.
When proceedings got underway fully, Attorney General and Legal Affairs Minister, Senior Counsel Anil Nandlall argued that the matter could not be appealed because the petition does not meet the procedural threshold for an appeal.
“Our statutory code is clear with the added question of a constitutional right to a fair hearing. Now that does not arise here. So, Your Honours, do not necessarily have to burden yourselves with that matter, which is extraneous to this,” Nandlall said.
“Here is a pure question of whether the appeal lies or not. And I dare say, your honour, there is nothing on the record that establishes a right to appeal, as is being argued by the respondents, to allow for consolidation,” Nandlall added.
He further noted that if what the respondents argued was true, then there would have to be changes to the National Assembly (Validity of Elections) Act every time the High Court rules applicable to the elections were amended.
“The respondents have abysmally failed to establish that statutory right of appeal. They seek refuge in the ordinary Court of Appeal act. And that is not available to them. In fact, the policy of the Court of Appeal act itself prohibits the hearing of appeals that are not of a final nature.”
Meanwhile, Trinidadian Senior Counsel John Jeremie, who represents the petitioners Monica Thomas and Brennan Nurse, argued that there is a right of appeal in the circumstances. However, CCJ Justice Winston Anderson questioned exactly where in Article 163 of the Constitution allows for the right to appeal the procedural dismissal of an election petition.
Article 163 constitutes the complete code of how election petitions are to be determined, lists the types of issues that are to be raised by an election petition, and also limits the grounds upon which appeals flow from the determination of those issues. According to Anderson, it is not clear where in the article is justification for the right of appeal located.
“Just for my edification, where is it in 163 that you are proposing to locate the right of appeal. As you said the Court of Appeal did not see it your way. But you’re advancing that ground before us. So, where exactly are you referring us to?” Anderson questioned.
“Because when I look at the various items in 163 (1), it is not immediately obvious to me where it is you are proposing that the right to appeal resides… I can’t find the specific ground there. But as you say, you didn’t stress that too much,” Anderson said.
However, John noted that they argued that the language in Article 163 (3a), where Judges are empowered to grant or refuse leave to institute proceedings for determining questions related to the elections granted that leave. However, John admitted that they lost on this argument at the Court of Appeal.
“We lost on that. But the Court of Appeal found that notwithstanding that, there were a number of other routes available to them, which would allow them to have jurisdiction in this matter. And I recommend to your lordships the decisions of the Chancellor, in particular and Justice Gregory.”
“What they did was to look at the question by way of the jurisdiction of the Court of Appeal. First of all, they said ,admitted as they had to, that the jurisdiction of the court in election matters was a special one,” John said.
Ultimately, it was decided that the CCJ would send notice to the parties involved on what date it would issue its ruling.
The petition pursuant to Article 163 of the Constitution, which was dismissed on January 18, 2021, was filed on behalf of the A Partnership for National Unity/Alliance For Change (APNU/AFC) and challenged the results of the March 2, 2020 national elections with the intent of having David Granger declared the duly-elected President.
Acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory had ruled that to oust the Appeal Court from hearing the appeal against the acting Chief Justice’s ruling would defeat the purpose of Article 163 of the Constitution.
The acting Chancellor had noted that although she had considered all the precedents relied on by Nandlall, they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
In a dissenting judgement, however, Justice of Appeal Rishi Persaud had said that considering the unambiguous language of that constitutional provision, as well as the fact that Justice George did not dismiss the petition on its merits, but rather because of procedural errors, a right of appeal did not lie to the Court of Appeal.
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition.
Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.
