Sampson v Panday
| Jurisdiction | Trinidad & Tobago |
| Judge | Perberton, J. |
| Judgment Date | 27 July 2007 |
| Neutral Citation | TT 2007 HC 173 |
| Docket Number | CV 01034 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 July 2007 |
High Court
Pemberton, J.
CV 01034 of 2007
For the petitioner: Mr. R. Armour S.C. leading Mr. S. de la Bastide, and Ms V. Gopaul instructed by Ms. E. Araujo.
For the Respondent: Mrs. K. Persad-Bissessar, Mr. V. Maharaj and Mr. A. Ramlogan instructed by Ms. S. Gopeesingh.
For the Attorney General: Mr. I. Benjamin and Ms N. Sawh instructed by Ms N Bansee.
Constitutional law -Sections 48 and 49 of the Constitution — Parliamentary procedure — Whether seat held by member of parliament fell vacant on his conviction from a criminal offence — Member was absent from the house — Speaker of the house could not grant any further extensions — House failed to resolve to extend the period.
I place on record my deep gratitude to all Counsel in this matter for the research and assistance extended to the Court.
The Applicant, Ms Jacqueline Sampson (Ms Sampson) is the Clerk to the Lower House of Parliament, The House of Representatives (“the House”). The respondent, Mr. Basdeo Panday (Mr. Panday) is a member of The House of Representatives.
Mr. Panday fell into difficulties with the law. He was arrested and charged for offences under the Integrity In Public Life Act (Act No. 83 of 2000). He was tried, convicted and sentenced to a term of two years' imprisonment. His sentence was pronounced on 24th April 2006. Mr. Panday appealed the conviction and sentence.
The Honourable Speaker upon being informed confirmed the information with Mr. Panday. The Honourable Speaker confirmed as well that Mr. Panday was pursuing an appeal of his conviction and sentence.
Correspondence between The Honourable Speaker and Mr. Panday or a representative resulted in Mr. Panday's seat remaining his until 24th October 2006. On 27th October 2006, The Honourable Speaker informed the House that Mr. Panday's seat was declared vacant with effect from 24th October 2006. The Honourable Speaker based his advice to the House on the Constitutional provisions at section 49(2), (3) and (4).
On March 20th 2007, the Court of Appeal rendered its decision. The conviction and sentence were set aside and a re-trial ordered. At a sitting of the House on March 26 2007, the House passed a resolution authorising the referral of certain questions on the issue to the Court.
The House referred the following questions for determination:
-
(a) notwithstanding the decision of the Court of Appeal on Tuesday March 20 2007 in Magisterial Appeal No. 75 of 2005 the Respondent has vacated the seat of Couva North in the House of Representatives under section 49(2) of the Constitution;
-
(b) consequent on the decision of the Court of Appeal … the Respondent may resume the performance of his functions as the Member for Couva North in the House of Representatives.
On April 3rd, 2007, I granted leave to Ms Sampson to institute proceedings by way of Petition to the Court to determine the question at paragraph (a) (The leave was granted pursuant to Section 21 of the Election Petition Rules, 2000). The Petition contained the following prayers:
That following upon the determination by this Honourable Court of the said question referred as aforesaid, that it may be ordered:
(i) That the seat of Couva North in the House of Representatives is vacant;
(ii) In the alternative that the seat of Couva North in the House of Representatives is not vacant.
Shortly before the date for hearing, Mr. Panday caused a Motion to dismiss the Petition to be filed. This was accompanied by written submissions. I decided to hear the Motion on the same day as the day set for hearing the substantive proceedings. The judgment therefore will address the following:
- Whether it was necessary for Mr. Panday to file the Motion to dismiss the Petition? 2. In deciding whether Mr. Panday has vacated his seat of Couva North, there are two main questions which are to be answered: A. What is the interpretation to be placed on Sections 48 and 49 of the Constitution of Trinidad and Tobago? And B. Did the decision of the Court of Appeal whereby Mr. Panday's conviction and sentence were set aside and a re-trial ordered alter the true meaning and consequences of Sections 48 and 49?
1. THE MOTION TO DISMISS THE PETITION WAS UNNECESSARY AND IS THEREFORE DISMISSED WITH COSTS
The formulation of the issue to be determined by the Court did not meet with Mr. Panday's favour. He caused a Motion to dismiss the petition to be filed (The Motion was filed pursuant to THE ELECTION PETITION RULES 2000 Rule 15). This came up for hearing on the same day set for hearing the substantive matter. Both sides submitted on the issue.
Mr. Ramlogan stated categorically and quite correctly that the Court's jurisdiction derived from the Constitution. I commend him. The question posed for deliberation by the House could neither restrict nor enlarge the jurisdiction and that must guide me. He was dear that “the intent of the question was to refer to the court the issue of whether Mr. Panday has vacated his seat in the context of the conviction and sentence being quashed by the Court of Appeal” (Submissions by Mr. A. Ramlogan on 27ih June 2007). Even though Mr. Ramlogan ended by saying the he relied on his written submissions, I do not think that I shall refer to them since his oral address brought a proper perspective to the value of the motion and he did not belabour his client's position. I do not intend to say more on this.
COSTS ON THE MOTION TO DISMISS THE PETITION
The only real contention therefore as far as I can see is the issue of costs. Both Mr. Armour and Mr. Benjamin were of the view that Mr. Panday should bear the costs of this motion to dismiss the petition, as it was wholly unnecessary. I incline towards that view. To my mind the question posed for the Court to deliberate was clear in its terms, extent and meaning. There was nothing ambiguous. A reading of the question would neither leave anyone in doubt as to the exercise the court is being asked to perform nor could it be said to be outside of the Court's reach.
In that regard, I am of the view that Mr. Panday should pay Ms Sampson's costs fit for Senior Counsel and the Attorney General's costs in this matter. Those costs are to be assessed in accordance with Part 67. 12 CPR 1998. The assessment shall give full regard to the sensible stance taken by Mr. Ramlogan at the hearing.
2.THE PETITION
The interpretation and true construction of Sections 48 and 49 of the Constitution OF TRINIDAD AND TOBAGO leads one to the conclusion that Mr. Panday vacated his seat of Couva North on October 24th 2006. By that time the Honourable Speaker had exhausted his ability to grant any more extensions to stave off the operation of section 49(4). It was left to the House to act by way of Resolution. The House did not resolve to extend the period so that the seat fell vacant. By the time of the Court of the Appeal decision on March 20th 2007, the seat was vacant.
B. THE DECISION OF THE COURT OF APPEAL WHEREBY MR PANDAY'S CONVICTION AND SENTENCE WERE SET ASIDE AND A RE-TRIAL ORDERED DID NOT ALTER THE TRUE MEANING AND CONSEQUENCES OF SECTIONS 48 AND 49.
To my mind the sections were clear and unambiguous. The arguments raised by Mr. Ramlogan do not alter the position at all. The short reasons for my conclusions on each of the issues raised by Mr. Ramlogan are now stated.
(i) THIS COURT CANNOT TAKE INTO ACCOUNT THE “INTERESTS OF JUSTICE” TO DETERMINE WHETHER THE EFFECT OF THE COURT OF APPEAL DECISION CAN SET ASIDE AS FAR AS POSSIBLE THE OPERATIONS OF SECTION 48 AND 49 OF THE Constitution IN THE FACE OF CLEAR LEGISLATIVE PROVISIONS.
One of the bases of the decision in the Jones (Attorney General v. Jones [2000] Q.B. 66) decision, which was decided in a totally different legislative context, was that the court could take into account the ‘interests of justice” when deciding whether Ms Jones’ seat was vacant or not at the time that her conviction and sentence were quashed so as to allow her to return to it. In the first case, Parliament is supreme in the United Kingdom. The Constitution is the supreme law of the land in Trinidad and Tobago. The Court's jurisdiction is derived from that instrument.
The “interests of justice” argument while relevant in some circumstances is circumscribed in its effect by legislative provisions, in this case, our Constitution. Kennedy, L.J. recognised that this consideration in the JONES case could not be of universal application. It is my view that this case and the principles derived from it cannot be of application in Trinidad and Tobago in the face of clear constitutional provisions on the circumstances in which a member shall vacate his seat.
(ii) THE CONVICTION AND SENTENCE IMPOSED BY THE MAGISTRATE'S COURT MUST BE TREATED AS VALID UNTIL SET ASIDE BY THE COURT OF APPEAL. IN THE PREMISES THE COURT OF APPEAL DECISION DOES NOT HAVE RETROSPECTIVE EFFECT.
The Court of Appeal on the basis of the finding of apparent bias set aside the conviction and sentence imposed by the Chief Magistrate. A decision of this nature renders the decision of the lower court voidable and not void. This means that it is valid until pronounced against on appeal. This was clearly stated by Warner, J.A. and concurred with by both Archie, J.A. and Weekes, J.A. in the Panday (Basdeo Panday v. Wellington Virgil Mag. App. 75 of 2006) matter. I can go no further. Mr. Panday's conviction and sentence remained valid until set aside by the Court of Appeal on March 20th 2007.
(iii) THE PENALTIES IMPOSED BY THE CONVICTION AND SENTENCE WOULD BE ERASED AS OF THE DATE OF THE COURT OF APPEAL DECISION. THAT DECISION DOES NOT SERVE TO...
To continue reading
Request your trial