Chaitan et Al v Attorney General et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Archie, J. |
| Judgment Date | 09 March 2001 |
| Neutral Citation | TT 2001 HC 37 |
| Docket Number | H.C.A. Nos. 3223 and 3224 of 2000 |
| Court | High Court (Trinidad and Tobago) |
| Date | 09 March 2001 |
High Court
Archie, J.
H.C.A. Nos. 3223 and 3224 of 2000
Dr. F. Ramsahoye Q. C., and Mr. A. Ramlogan instructed by Mr. D. Maharaj for William Chaitan
Mr. F. Hosein instructed by Mr. D. Maharaj for Winston Peters.
Mr. J. Guthrie Q. C., Mr. G. Armorer and Mr. J. Walker instructed by Mrs. M. Dean-Armorer for the 1st respondent.
Mr. A. Alexander S.C., Mr. R. Armour, Mr. D. Mendes, Mr. J. Jeremie, Mr. M. Quamina and Ms. Maxine Williams instructed by Ms. D. Shurland for the second respondents.
Practice and procedure - Election petition — Application for leave to be heard as to whether appellants were validly elected/ appointed to the Legislature under s. 52(1) of the Republican Constitution — Application dismissed — Whether this was a breach of s. 5 of the Constitution.
Citizenship - Whether 1976 Republican Constitution of Trinidad and Tobago disqualifies a citizen from election to the House of Representatives if he is also a citizen of another country — 1976 Constitution ss. 47 —49, Citizenship of the Republic of Trinidad and Tobago (Amendment) Act, s. 11.
Jurisdiction - High Court — Whether High Court had jurisdiction to determine a question of disqualification under section 48(1) of the 1976 Republican Constitution of Trinidad and Tobago.
Constitutional law - Elections — Whether Constitution makes distinction between election and nomination for election — Whether date for qualification for membership of the House of Representatives is date of election and not of nomination — Whether citizen of Trinidad and Tobago is disqualified from election to the House of Representatives under s. 48(1)(a) of the Constitution if he is also a citizen of another country.
Constitutional law - Fundamental rights and freedoms — Right to a fair hearing before an impartial tribunal — Whether contravened — Respondents brought election petitions challenging the election of the appellants on the ground that each was disqualified from election by virtue of the fact that he held in addition to citizenship of Trinidad and Tobago, citizenship of another country — Appellants filed constitutional motions contending that their rights were being infringed by the election petition — Motions dismissed and appellants appealed — Whether there was a s. 14(1) Constitution cause of action — Whether grant of leave to respondents to file petitions on ex parte application valid — Whether absence of rules made under s. 144 of Representation of the People Act made it impossible for High Court to hear and determine representation petition — Whether High Court had jurisdiction to determine whether person qualified for election to House of Representatives — Whether voluntary second citizenship disqualified citizenship of Trinidad and Tobago from election as member of House of Representatives — Whether any issue(s) involved interpretation of Constitution — Finding that issues were outside ambit of constitutional motion — Appeal dismissed with costs.
| 1. INTRODUCTION |
| - Background |
| - The Petitions |
| 2. THE CONSTITUTIONAL MOTIONS |
| - The Reliefs |
| - The Grounds |
| 3. THE ISSUES |
| 4. THE STATUS OF AN ELECTION COURT |
| 5. THE VESTING OF THE JURISDICTION TO TRY ELECTION PETITIONS IN THE HIGH COURT |
| - 1st Premise The failure to make Rules |
| - 2nd Premise The Alternative Sources of Procedural Rules |
| - The House of Commons Practices & Rules |
| - The Inherent Jurisdiction of the Court |
| - The Rules of the Supreme-Court |
| - 3rd Premise The time for making Rules |
| - 4th Premise The ‘Certainty’ of the Procedure under Part VI |
| - 5th Premise The need for Strict Compliance |
| 6. THE GRANT OF LEAVE - NATURAL JUSTICE |
| - The Nature of the Investigation |
| - The Opportunity for a Full Hearing |
| - Time Constraints |
| - The Possibility of Suffering Loss/Damage |
| - The Statutory Scheme |
| 7. THE AVAILABILITY OF AN APPEAL UNDER S 52 OF THE CONSTITUTION |
| 8. THE SCOPE OF THE JURISDICTION ()F THE ELECTION COURT |
| 9. THE RIGHT OF PRIOR ACCESS TO A'CONSTITUTIONAL COURT' |
| 10. THE NATURE OF THE FUNDAMENTAL RIGHTS' |
| - Liberty |
| - Due Process |
| - Protection of the Law |
| - Equality before the Law |
| - Sections 5(e) and 5(h) of the Constitution |
| 11. SUMMARY |
On December 11th, 2000 a poll was conducted for a general election in Trinidad and Tobago. Nomination day was November 20th, 2000. Two candidates filed nomination papers for each of the Electoral Districts of Pointe-a-Pierre and Ortoire/Mayaro. In Pointe-a-Pierre, Mr. William Chaitan (UNC) and Mr. Farad Khan (PNM) contested the poll. In Ortoire/Mayaro, Mr. Winston Peters (UNC) and Mr. Franklin Khan were the contestants. It is not disputed that both Mr. Chaitan and Mr. Peters (‘the applicants’) had voluntarily acquired citizenship of foreign countries long before nomination day. In the case of Mr. Chaitan, he had acquired citizenship of Canada on 14th February 1978 and in the case of Mr. Peters, he had acquired citizenship of the United States of America on 3rd July 1996. This state of affairs came to the attention of Messrs. Farad and Franklin Khan (‘the second respondents’), who took vigorous exception to the nomination of Messrs. Chaitan and Peters respectively. The second respondents formed the view that their opponents were disqualified from election to the House of Representatives (and therefore could not validly be nominated), by virtue of section 48(l)(a) of the Constitution of Trinidad and Tobago. Section 48(l)(a) is in the following terms:
“48.(1) No person shall be qualified to be elected as a member of the House of Representatives who:–
(a) is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country;…”
At the time of their nomination, candidates for a general election are required to make a statutory declaration confirming, inter alia, that they are not, by virtue of their own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state. The applicants did subscribe to declarations in those terms.
It is not disputed that the process of voluntary acquisition of citizenship in the United States involves the taking of a public oath renouncing and abjuring absolutely and entirely, all allegiance and fidelity to any foreign state of which the applicant was formerly a citizen, and undertaking to support and defend the Constitution and laws of the United States and to bear true allegiance to same. The process of acquisition of Canadian citizenship does not apparently involve any similar renunciation. However, a positive oath or affirmation to be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second her heirs and assigns and to faithfully observe the laws of Canada and to fulfill one's duties as a citizen is required.
The second respondents took the position that the applicants' nominations were invalid since they were based on declarations which were demonstrably false. They wrote to the Chief Elections Officer objecting to the validity of the second respondents' nominations. During the week before the poll, they caused advertisements to be printed in several newspapers widely circulated in the country informing their respective constituents of the reasons why they were of the opinion that the second respondents were not duly qualified to be elected and announcing their intention to mount a court challenge to the second respondents' nominations. They also cautioned the electors that any votes given for the second respondents would, by reason of their disqualification, be wasted. The matters referred to in the advertisements were also broadcast from political platforms during the campaign.
In the meantime, both Mr. Chaitan and Mr. Peters had taken steps to renounce their foreign citizenships. Mr. Chaitan obtained a certificate of renunciation from the Canadian immigration authorities dated December 6th, 2000 under cover of a letter from the Canadian High Commission which indicated that it was effective from that date. The Embassy of the United States of America has confirmed that Mr. Peters renounced his American citizenship on December 4th, 2000 and his certificate of loss of nationality was approved by the Department of State on December 6th, 2000. It is therefore common ground that on the date of the poll, the second respondents were citizens of Trinidad and Tobago only. One of the central issues raised by this turn of events is whether the applicable date on which candidates must satisfy the qualification requirements under the Constitution is nomination day or the date of the poll.
The poll was conducted on December 11th. On December 13th, 2000, the returning officer declared Mr. Chaitan to be the winner in the Pointe-a-Pierre constituency by a margin of 11,124 votes to 6,847. On December 12th, 2000, Mr. Peters was declared to be the winner in Ortoire/Mayaro by a margin of 10,516 to 9,710.
Rule 101 of the Election Rules requires the Returning Officer, if there is no request for a recount, to declare elected in writing the candidate who is found to have the most votes, on the day following the closing of the poll. Rule 108 requires the returning officer on the seventh day next following the day on which he declared the result of the poll, to transmit or deliver his return to the Chief Elections Officer. Section 108(2) of the Representation of the People Act (1967) (“the R.P.A.”) requires any petition questioning an election or return to be presented within eight days after the return of the member to whose election the petition relates. There appears to have been some uncertainty whether the expression ‘return of the member’, which is not defined in the R.P.A refers to the declaration of...
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