Dr. Shevanand Goopeesingh v Faris Al-Rawi
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar JA |
| Judgment Date | 06 February 2020 |
| Neutral Citation | TT 2020 CA 5 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Docket Number | Civil Appeal Number: S 293 of 2016 |
| Date | 06 February 2020 |
IN THE COURT OF APPEAL
Port of Spain
Justice of Appeal Smith
Justice of Appeal Mohammed
Justice of Appeal Rajkumar
Civil Appeal Number: S 293 of 2016
Claim Number: CV 2015-03128
In the Matter of the Representation of the People Act, Chap. 2:01
and
In the Matter of a Parliamentary Election for the Constituency of San Fernando West Held on the 7th Day of September 2015
and
In the Matter of the Election Proceedings Rules, 2001
and
(Deemed to be a Respondent by Virtue of Sec 107 (2) of the Representation of the People Act)
Mr. R. Clayton Q.C, Mr. A. Ramlogan S.C, Mr. G. Ramdeen, Mr. Che Dindial, Mr. D. Bayley for the Appellant
Mr. R. Armour S.C, Ms. V. Gopaul, Mr. R. Nanga, Mr. M. Quamina instructed by Ms. Z. Haynes-Soo Hon for the First Respondent
Mr. R. Martineau S.C, Mrs. D. Peake S.C, Mr. R. Heffes-Doon, instructed by Ms. A. Bissessar for the Second Respondent
I have read the judgments of Smith JA and Rajkumar JA. I am in agreement with both and have nothing to add.
Mark Mohammed
Delivered by Rajkumar JA
On September 7 th 2015 an election was held. Six petitions (the petitions) were filed challenging the results in six constituencies, including one by the applicant. The petitions were dismissed by the High Court, with the applicant's petition being dismissed on August 19 th, 2016 1. His appeal was dismissed by the Court of Appeal on October 19 th 2016. The panel of the Court of Appeal included the Honourable Chief Justice (CJ).
In or around 2017 a series of articles began to be published in the daily newspapers containing various allegations in relation to the CJ (the allegations). Among those allegations were included some relating to recommendations made by the CJ in relation to housing provided by the Housing Development Corporation (HDC).
This application seeks a determination as to whether the fair-minded and informed observer would have considered that there was a real possibility of bias by the CJ when he sat and determined as part of a panel, the appeals in the election petitions (the appeals) by reason of circumstances relating to the HDC recommendations and alleged follow up communications thereafter (together the HDC allegations).
It was also contended, inter alia, that the CJ was required to disclose the HDC allegations to the parties to the election petitions and that the failure to disclose them would give rise to the perception of apparent bias.
An order is consequently sought that the Court of Appeal's earlier dismissal of the election petitions be set aside and they be heard by a new panel of the Court of Appeal.
The allegations, including the HDC allegations, were the subject of an investigation by the Law Association of Trinidad and Tobago (LATT). LATT's executive summary of the report produced on its behalf after that investigation and the legal opinions it received in relation thereto were forwarded to the Honourable Prime Minister (PM) by letter dated December 13 th, 2018 for his consideration as to whether proceedings under section 137 of the Constitution should be initiated by him 2. The PM by letter dated July 22 nd, 2019 (the PM's letter) declined any suggestion that he should initiate proceedings under section 137.
On October 3 rd, 2019 LATT initiated judicial review proceedings against the PM in relation to that decision (the judicial review proceedings or JR proceedings). Those proceedings are currently pending before the High Court. The applicant contends that those proceedings were relevant because some of
the material in the investigative report of LATT, as well as in the judicial review proceedings, related to the HDC allegations, and disclosures or non-disclosures relating thereto. We permitted reference to the documents filed in the JR proceedings, (filed as an attachment to a supplemental affidavit on behalf of the applicant), de bene esse. This was on the understanding that the issues in the instant matter were separate and distinct from those in the judicial review proceedings, and that extreme care needed to be exercised not to trespass upon the issues in those judicial review proceedings. Further, in these proceedings, which focus on the legal issue of apparent bias, no findings of fact are required to be madeThe applicant's complaint is summarized succinctly in counsel's outline submissions as follows:
“A's bias complaint in a nutshell
A fair minded and informed observer would conclude in the circumstances of this case that there was a real possibility that the CJ was biased by reason of (i) the undisputed facts, (ii) the proper inferences to be drawn from the material gathered by the Law Association, its executive summary and report and (iii) CJ's failure to dispel serious, specific and detailed allegations made against him and/or his failure to comply with his duty of disclosure”.
It was also contended that on the same factual basis there will also arise i. a breach of the right to a fair trial before an independent tribunal ii. a breach of the right to equality before the law and the protection of the law iii. a deprivation of procedural protections necessary for securing the aforementioned rights.
This application is solely concerned with an issue of law, namely, whether or not the decision in the election petitions before the Court of Appeal were vitiated by apparent bias on the part of the CJ arising from the HDC allegations.
Accordingly, in the instant proceedings no finding is made in relation to any issue in the judicial review proceedings. We are not required to make, and indeed must strenuously avoid making, any findings of fact in relation to the issues in that matter. Additionally, the instant proceedings are not a rehearing of the election petitions or the appeals therefrom.
Upon an application of the legal test for apparent bias, to the circumstances now within the knowledge of the fair-minded and informed observer, there is no basis for him or her to conclude that there was a real possibility of bias on the part of the Chief Justice when he sat on the appeals.
In those circumstances the appeal is dismissed.
The test for apparent bias was considered in the case of Panday & Anor v Espinet Civ. App. No. 250 of 2009 delivered May 11, 2011 per Mendonça JA at paragraph 25
25. In Porter v Magill, the House of Lords approved an adjustment to the common law test of bias that had been enunciated in R. v Gough [1993] UKHL1. The question now is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The reference to the tribunal in that formulation would of course include magistrates.
The test for apparent bias was also considered extensively in the decision of the Court of Appeal in Panday v Virgil Mag. App. 75 of 2006. See for example the judgment of the Honourable Warner JA at paragraph 12 (adopted from the case of Porter & Anor v Magill [2002] AC 357) as follows (all emphasis added):
“whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. See also paragraph 24 3
See also the Honourable Archie JA, (as he then was), in Panday v Virgil at paragraph 1, who described it as whether:
“ a fair-minded and well informed observer would conclude that there was a real possibility that the Chief Magistrate, before whom he [the appellant] had been tried, was biased”.
As stated by Warner JA in Panday v Virgil at paragraph 26 of her judgment.
“An allegation of apparent bias does not involve a finding of judicial impropriety or misconduct, or breach of the judicial oath. It involves a finding that circumstances exist from which a reasonable and informed observer may conclude that there was bias in the conduct of the proceedings. Except where actual bias is alleged, it is not useful to investigate the individual's state of mind. The courts have recognised that bias operates in such an insidious manner that the person alleged to be biased may be unconscious of the effect. It is trite law that if a reasonable apprehension of bias arises, the whole proceeding becomes infected. Credibility issues no longer arise; the
reasonable apprehension of bias remains and the proceedings cannot be saved.”
In Panday v Virgil Warner JA also made the following observations at paragraphs 45, 46, 59, 60
The Judicial Oath
45) In the context of allegations of apparent bias against members of courts or tribunals, weight must be placed on the judicial oath of office and the fact that professional judges are trained to judge and to judge objectively and dispassionately; (per Ward LJ in Jones v Das Legal Expenses Insurance Co. Ltd. [2003] EWCA Civ 1071, at para 28 (vi), where he cites a passage from a judgment of the Constitutional Court of South Africa in President of the Republic of South Africa and others v South African Rugby Football Union and others BLCR CC 725 at 753 and where he later said that courts must be assiduous in upholding the impartiality of judges.
46) There is a presumption that judicial officers, mindful of the oath they have taken, carry out their duties impartially. Despite the strong presumption, they will nevertheless be held to stringent standards regarding bias. (See Blanchette CIS Ltd. [1973] SCR 833 at 842–843) (All emphasis added)
The Honourable Warner JA summarized the principles that she extracted from the cases examined as follows:
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59) I would summarise the general considerations...
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