Chaitan et Al v Attorney General et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | de la Bastide, C.J.,Sharma, J.A.,Nelson, J.A.,Rolston F. Nelson |
| Judgment Date | 31 July 2001 |
| Neutral Citation | TT 2001 CA 36 |
| Docket Number | Civil Appeal Nos. 21 and 22 of 2001 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 31 July 2001 |
Court of Appeal
de la Bastide, C.J.; Sharma, J.A.; Nelson, J.A.
Civil Appeal Nos. 21 and 22 of 2001
F. Hosein, A. Ramlogan and D. Maharaj for the appellant.
J. Guthrie, Q.C., J. Walker and. G. Armorer and Ms. M. Dean-Armorer for the first respondent.
A. Alexander, S.C., D. Mendes, G. Armorer J. Jeremie, Ms. Williams and D. Shurland for the added respondent.
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.
On the 11th December, 2000, the appellants were elected to Parliament. The appellant Chaitan won his seat in the constituency of Point-a-Pierre and the appellant Peters won his in the constituency of Ortoire/Mayaro. The respondents Farad Khan and Franklin Khan (whom I shall refer to together as ‘the second respondents’) were the defeated candidates in Point-a-Pierre and Ortoire/Mayaro respectively. There was no other candidate in either constituency. Our concern in this appeal is exclusively with questions of law, so although the facts are for the most part undisputed, I do not intend to set them out at any length. They may be found in the judgment of Archie, J. from whom this appeal is brought. Suffice it to say that on the 20th December, 2000, the second respondents applied ex parte for leave to bring election petitions (or to give them their proper name ‘representation petitions’) challenging the election of the appellants on the ground that each was disqualified for election by virtue of the fact that he held in addition to citizenship of Trinidad and Tobago, citizenship of another country, Canada in the case of the appellant Chaitan, and the United States of America in the case of the appellant Peters. Leave was granted and the representation petitions were thereupon filed. Two days later, on the 22nd December, 2000, the appellants filed constitutional motions under section 14(1) of the Constitution complaining that their constitutional rights were being infringed by the representation petitions. As required by section 14(3) and the State Liability and Proceedings Act, Chap. 8:02, the respondent to these motions was the Attorney-General, but the second respondents applied to be added as respondents as well and were so added without objection by the other parties, on the 8th January, 2001. I will detail presently the several grounds on which it was contended in the notices of motion that the appellants’ constitutional rights were being infringed. They were all fully argued before Archie J. but were not all decided by him. The learned Judge dismissed the motions (which were by consent heard together) in a reserved judgment delivered on the 9th March, 2001. The appeals filed against his decision were given an expedited hearing and were again by consent heard together, though no formal order for consolidation was made.
Before addressing the issues which arise for our decision, I shall deal first with the notices of motion, the Judge's decision, the notices of appeal and respondent's notice and the frame of statutory provisions in which these issues are raised.
The principal relief sought in the constitutional motions is a declaration that the proceedings commenced by way of representation petitions by the second respondents, contravene the appellants’ fundamental human rights guaranteed by sections 4 and 5 of the Constitution. The appellants also sought to have the court declare that the representation petitions were incapable of terminating their membership of the House of Representatives, were null and void and of no effect, and were a contravention of the “subordinate legislative powers of the Rules Committee and of the President”. Their notices of motion went on to claim for each appellant a declaration that he “is duly qualified to be, and is entitled to remain, a member of the House of Representatives duly elected and to enjoy the emoluments and privileges thereto appertaining until his term comes to an end by the dissolution of the House or otherwise in due course of law”. The appellants therefore sought by their constitutional motions not only to have the election court declared incompetent to pass on the validity of their election but also to have the constitutional court determine in their favour the issue of their qualification to be elected to the House of Representatives, that is, the same issue which the second respondents had sought to raise by their representation petitions. The grounds on which the appellants sought the declaration relating to the representation petitions were:-
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(a) that leave to bring the petitions was obtained ex parte, and
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(b) the failure of the Rules Committee to make Rules of Court prescribing the several matters relating to the bringing of a representation petition which are left by the Representation of the People Act Chap. 4:01 (the “RPA”) to be ‘prescribed’.
The claim to the declaration that the appellants were duly qualified to be elected as members of the House of Representatives, was supported by a number of grounds which included the following:
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(a) that since the Constitution was amended to permit a person to acquire voluntarily a second citizenship without losing his Trinidad and Tobago citizenship, the acquisition of a second citizenship does not on a proper construction of sections 47, 48 and 49 of the Constitution, disqualify a citizen of Trinidad and Tobago from election to the House of Representatives;
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(b) that the qualification of the appellants to be elected to the House of Representatives has to be considered at the time when they were elected and not at the time when they were nominated, and by the date of their election both appellants had renounced their second citizenships, and
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(c) that the element of certainty was lacking from the provisions of the Constitution which were relied upon as disqualifying the appellants for election.
Two contentions which were pleaded under ‘Particulars’ of the grounds advanced in the notices of motion and were vigorously pursued both in the court below and before us, were that:-
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(a) the Judiciary in attempting to fill the gaps left by the absence of Rules of Court governing election petitions, would be usurping the functions of the Executive and breaching the principle of the separation of powers, and
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(b) the representation petitions constituted a threat that the appellants would be deprived of “property” consisting of the emoluments attaching to their office as Members of Parliament without the benefit of due process.
The appellants also claimed under ‘Particulars’ the right to have the provisions of the Constitution which relate to their qualification for membership of the House of Representatives, interpreted by a “Constitutional Court” prior to the hearing and determination of the representation petitions. In support of their claim of this right, the appellants invoked sections 108(a) and 109(1)(c) of the Constitution which give a right of appeal to the Court of Appeal and thereafter to the Privy Council in proceedings in which a question of interpretation of the Constitution is determined.
The appellants also claimed by an amendment of their notices of motion (somewhat inconsistently in the light of the declaration sought as to their entitlement to be elected) that the High Court lacked jurisdiction to determine “an issue of legal or constitutional disqualification of a member at his election”. They contended that the right to determine this issue remained vested in the House of Representatives.
As I have already mentioned, the Judge did not decide all the issues that were raised by the notices of motion although they were all argued at length before him. He declined to decide the questions of interpretation which arose with regard to section 48 of the Constitution, on which the substantive issue of the appellants’ qualification for election depended. He held that those questions were properly to be determined by the election court when it heard the representation petitions. He rejected the contention of the appellants that the leave given to bring the representation petitions was a nullity because it was obtained on an ‘ ex parte’ application. He also rejected the appellants’ contention that they were entitled to have these provisions interpreted in proceedings in which they had a right of appeal to the Privy Council, before they were applied in election proceedings in which they had no such right of appeal. He also held that the objection to the election court's jurisdiction based on the failure of the Rules Committee to make rules under section 144 of the RPA, should also have been made before the election court as that court was competent to decide it. The Judge nevertheless dealt very fully with that objection on its merits and held that the failure of the Rules Committee to make Rules of Court under section 144 of the RPA prescribing the matters which were left to be prescribed in Part VI of the RPA, did not prevent the election court from hearing and determining representation petitions. He held that such procedural gaps as were left by this failure, could be filled by resort to the Rules of the Supreme Court, 1975, and the inherent jurisdiction of the High Court as well as to the principles, practices and rules which the Committees of the House of Commons followed when they used to decide election petitions. The judge held that the courts did have power to decide whether a person was disqualified for election to Parliament. He rejected the contentions that:
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(a) the alleged uncertainty as to whether or not a voluntarily acquired second...
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