Woman challenging exemption process told: Go before full Appeal Court

AN East Dry River woman who unsuccessfully challenged the constitutionality of Government’s decision to close the borders and require nationals to apply for an exemption to return home has been told she has to take her appeal of a judge’s ruling to a full court.

Takeisha Clairmont’s appeal to have her matter heard as a procedural appeal was dismissed on Tuesday by Justices of Appeal Nolan Bereaux and Mira Dean-Armorer, who held the matter was not fit to be heard as a procedural appeal, since the judge who threw out the rolled-up judicial review and constitutional claim decided on the substantive issues raised in the challenge.

Clairmont is challenging the decision of Justice Eleanor Donaldson-Honeywell to refuse her leave to challenge the Government’s covid19 public health regulations, which allowed the closure of the borders and introduced an exemption process.

Although she did not grant leave, the judge heard the constitutional arguments raised by Clairmont and held the public health regulations were within the powers of the public health ordinance 1940 and were saved law, meaning they were not open to constitutional challenge.

In delivering the court’s unanimous decision at a virtual hearing, Bereaux said, “As for the correctness of her (the first instance judge's) decision, that is for a three-member panel to determine.

“Clearly this is not a procedural appeal,” he said, adding that Clairmont’s challenge “will take its place on the list of substantive appeals which will be listed for hearing in the ordinary way.”

The court also turned down an attempt by Clairmont’s attorney, Anand Ramlogan, SC, to have the matter deemed urgent after attorney for the State, Reginald Armour, SC, resisted it.

Ramlogan was told to file a separate application before a judge in the chamber court to have the matter deemed urgent, as is the normal procedure under the civil proceedings rules.

Clairmont was ordered to pay the State’s costs.

Last week, Armour raised, as a preliminary objection, the hearing of the appeal as a procedural appeal, saying the judge had gone on to hear the substantive constitutional claim although she refused to grant leave to Clairmont to pursue her claim on the basis of delay.

Armour also submitted that it would be improper for a two-member panel to hear an appeal which challenges the public health regulations.

In reply, Ramlogan had argued there was a constitutional aspect to the application for judicial review. He said the Supreme Court of Judicature Act frowns on separate claims being filed on the same issue, and in his client’s case, she sought the option to raise the constitutional aspects of her complaints in the judicial review application.

“You cannot get damages in a judicial review claim unless you expressly plead a breach of constitutional right.” He said it was only if leave was granted that the appeal would not be a procedural one, “but if leave was refused it falls squarely in definition of procedural appeal.”

In her lawsuit, Clairmont, the mother of eight, said her constitutional rights were breached by the closure of the borders under public health regulations for the pandemic since March 2020. She returned to Trinidad and Tobago in September after she received an exemption.

Also appearing with Ramlogan were attorneys Jayanti Lutchmedial, Renuka Rambhajan, Ganesh Saroop and Alana Rambarran. Appearing with Armour for the State are Vanessa Gopaul, Raphael Ajodhia, Savitri Maharaj and Kadine Matthew.