UNC back in court over election petition loss

FOUR years after the United National Congress (UNC) lost the San Fernando West parliamentary seat to the ruling People’s National Movement, its application to set aside a Court of Appeal ruling in its election petitions challenge has come up for hearing.

Three days have been set aside for the hearing before Justices of Appeal Gregory Smith, Peter Rajkumar and Mark Mohammed.

The UNC filed the application on April 15, seeking to have the court’s ruling in the election petition matters set aside on the ground of the apparent bias of the Chief Justice.

The CJ is being accused of failing to disclose he corresponded with the prime minister on recommendations he made to the Housing Development Corporation (HDC) for several people.

This comes more than two years after the dismissal of the party’s original legal challenge to PNM wins in six parliamentary constituencies.

Lawyers for San Fernando West voter Dr Shevanand Gopeesingh, a UNC member, filed the 514-page application complaining of allegations against CJ Ivor Archie, who sat on the panel of judges which dismissed the election petitions in October 2016.

The UNC had previously challenged the results in the constituencies of San Fernando West, Tunapuna, St Joseph, Toco/Sangre Grande, Moruga/Tableland and La Horquetta/Talparo. All the challenges were dismissed.

Gopeesingh said had the petitions succeeded on appeal, the litigation had the potential to alter the election results by unseating the PNM.

The party won 23 of the 41 seats in the Lower House in the September 7, 2015 general election.

British Queen’s Counsel Richard Clayton, along with Anand Ramlogan, SC, Che Dindial and Ganesh Saroop, represents Gopeesingh.

He spent most of Monday going through the “facts” to support his contention of apparent bias, including the CJ’s response to a pre-action protocol letter sent to him by attorney Gerald Ramdeen, then a UNC senator, who questioned the request Archie made of the prime minister while also choosing to sit on the panel of appellate court judges to hear the UNC’s petitions.

It also included the Prime Minister’s response to the allegation that he received WhatsApp correspondence from the Chief Justice relating to the housing requests contained in his reply to the Law Association’s request to have him invoke impeachment proceedings against Archie.

In July, Rowley – who disclosed he chose not to invoke the Section 137 impeachment clause of the Constitution because of advice he had been given – said he neither received from nor sent messages to the Chief Justice on housing and had no records from or to Archie on the issue.

He also suggested some of the alleged WhatsApp communication could be a fabrication and raised the possibility of someone wanting to falsely implicate Archie.

In his response to Ramdeen, Archie said there was no need for him to disclose that he had made recommendations to the HDC for state housing for “needy and deserving persons,” and insisted he did not engage in any “lobbying” of the HDC. He also disclosed that he had publicly said he made recommendations to the HDC in 2015 and previously in 2013.

In response to Ramdeen’s request for messages or communications with the prime minister, Archie said he had changed phones and was unable to access any messages or communications on the device. He did disclose a letter he sent to then HDC managing director Jearlean John, and the names and contact information of the people he recommended for housing.

During his submissions, the judges asked Clayton several questions. Rajkumar asked what Archie should have disclosed when the election petition matters were being heard in 2016 if he did not think it was relevant.

He said the CJ’s correspondence with the prime minister was relevant because of the question the court is being asked to determine on the issue of apparent bias.

“The facts of this case are complicated,” he said, but submitted that the court had to determine if, today, the fair-minded and informed observer would conclude that there was a real possibility that the Chief Justice may have been biased and that justice was seen to be done.

Clayton said Archie never addressed the allegations fully.

“The answers were not framed to alleviate concerns. One would have expected the Honourable Chief Justice to be candid and transparent but the Honourable Chief Justice simply chose not to address it.

“That is surprising,” he said.

Earlier, Clayton read out several portions of the code of conduct for judges, many of which, he said, Archie had breached, particularly when he made recommendations for people for public housing.

“It was obvious he ought to have disclosed that and he chose not to. His level of disclosure was imply inadequate,” Clayton submitted, while acknowledging that the code was simply guidelines for judges, and not law.

“But, the guidelines are important to maintain public trust and confidence,” he maintained.

He added that because the election petition case had the capacity to change the results of the 2015 polls, the fairness of the court hearing the matter was important.

Clayton insisted that the appellate court did not have to determine if there was evidence of a judge approaching the Executive, but whether that approach should have been disclosed.

“Then what should have been disclosed if there was a denial by one party?”Rajkumar asked. Clayton said disclosure and candour were particularly important where grave allegations have been raised, adding that failure to do so could give rise to apparent bias.

In the application, Gopeesingh alleges that the allegations against Archie, which he said the latter was yet to fully address, gave rise to "real and substantial concerns of apparent bias and/or apparent unfairness in relation of the Honourable Chief Justice’s participation in decisions affecting the election appeals.”

The application urged the court to take the “exceptional course” of reopening proceedings, as the final arbiter of electoral petitions – which are of pivotal political and legal importance – to determine a complaint of bias against any of the judges who participated in its earlier ruling.

Election petitions cannot be appealed to the Privy Council.

Representing San Fernando West MP Faris Al-Rawi, who is named as the first respondent in the matter, are Reginald Armour, SC, Ravi Nanga, Michael Quamina and Zelica Haynes-Soo Hon.

Senior Counsel Russell Martineau and Deborah Peake, along with attorneys Alana Bissessar and Ravi Heffes-Doon, are representing the returning officer for the San Fernando West constituency, who is deemed a respondent by virtue of the Representation of the People Act.