REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO

Claim No. CV 2015- 03107 IN THE MATTER OF

SECTION 52(2) OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO

AND

IN THE MATTER OF

THE REPRESENTATION OF THE PEOPLE ACT, CHAP. 2:01

AND

IN THE MATTER OF AN INTENDED ELECTION PETITION FOR THE CONSTITUENCY OF ST. JOSEPH

HELD ON THE 7TH DAY OF SEPTEMBER 2O15

AND

IN THE MATTER OF AN EX PARTE APPLICATION FOR LEAVE BY VASANT VIVEKANAND BHARATH TO

INSTITUTE PROCEEDINGS PURSUANT TO SECTION 52(2) OF THE CONSTITUTION AND RULE 6 OF THE ELECTION PROCEEDINGS RULES

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES Mr. Anand Ramlogan S.C., Mr. Kent Samlal, Mr. Wayne Sturge and Mr. Gerald Ramdeen, Attorneys-at-Law for the Applicant. Mr. Russell Martineau S.C and Ms. Alana Bissessar, Attorneys-at-Law for the Respondent.

REASONS

Introduction

1. On the 18th

September, 2015, the Applicant, Vasant Vivekanand Bharath sought the

Court’s leave pursuant to Section 52(2) of the Constitution of the Republic of Trinidad

and Tobago1 to file a Representation Petition under the Representation of the People Act

2.

1 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

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2. The Application for leave was ex-parte. However, the Election and Boundaries

Commission (“EBC”) sought and obtained the Court’s permission to be present at the

hearing. A team of four (4) attorneys-at-law appeared for the EBC. The team was led by

eminent Senior Counsel. Learned attorneys-at-law for the EBC however offered no

assistance to the Court.

3. After having read the written submissions and heard the viva voce arguments of Mr.

Ramlogan, Senior Counsel for the Applicant, I was satisfied that the Application was not

frivolous or vexatious. I granted leave as sought. My reasons for so doing are set out

below.

Procedural History

4. At the hearing of the Application for leave the Court was seized of the following

documents:

The Statement of Vasant Bharath filed on the 18th

September, 2015. By this

Statement, the Applicant sought the Court’s leave to file a Representation Petition to

seek these items of relief:

“a. that it be determined that Mr. Terrence Deyalsingh was not duly elected or

returned for the constituency of St. Joseph and that the election was void;

b. a declaration that the decision of the Returning Officer to extend the hours

of the polls is ultra vires, illegal, null and void and of no effect.

c. all necessary and consequential order [sic] and directions and such

further and/or other reliefs as the Court shall deem fit”

2 The Representation of the People Act, Ch. 2:01

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5. The Application for Leave was supported by two (2) affidavits:

the affidavit of Vasant Vivekanand Bharath

the affidavit of Davendranath Tancoo

6. The Applicant also filed Written Submissions and a Draft Petition.

Facts

7. The facts which engaged the Court’s attention were to be gleaned from the two (2) filed

affidavits. They are summarised below.

8. On the 7th

September, 2015, a general election was held in Trinidad and Tobago pursuant

to Section 69 of the Constitution3. On that day, the EBC extended voting time from 6:00

p.m. to 7:00 p.m. in the island of Trinidad because of inclement weather.

9. The Applicant, Vasant Bharath deposed that as a candidate in the 2015 General Election he

had received eight thousand, nine hundred and three (8903) votes in the constituency of St.

Joseph.

10. By his affidavit, the Applicant complained of the lack of information as to the extension in

polling time. He deposed that at 5:05 p.m. on the date of the election, the 7th

September,

2015, Mr. Jagdeosingh, one of the Applicant’s legal advisors informed him that he had

heard but could not confirm that the polling time had been extended to 7:00 p.m.4

11. The Applicant made enquiries at his Constituency Office and was told by his election

agent, Ms. Susilla Ramkissoon-Mark that his constituency office had received no notice of

the change in polling time.

3 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

4 See paragraph 11 of the affidavit of Vasant Vivekanand Bharath

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12. The Applicant gave instructions to his election agent to contact the EBC to verify the

information which he had received. He was informed by his election agent that she was

unsuccessful in contacting the EBC since all of their lines were busy5.

13. At approximately 5:25 p.m., the Applicant made enquiries of Dr. Moonilal, who indicated

that no one from the EBC had informed their political party, of the change in polling time6.

The Applicant received a similar response from Mr. Tancoo, the General Secretary to the

United National Congress (UNC)7.

14. The Applicant deposed further that Dr. Moonilal indicated that he was not aware whether it

was only a rumour and that agents should proceed on the assumption that the poll would be

closed at 6:00 p.m.

15. Fifteen (15) minutes later, Dr. Moonilal confirmed the extension of the polling time. The

Applicant then directed that all polling agents be contacted and informed of the extension

of time from 6:00 p.m. to 7:00 p.m.8

16. According to the Applicant, because of the late notice, he was faced with the impossible

task of contacting sub-agents in all forty-three (43) polling stations in his constituency9.

The Applicant was then informed that there were polling stations which were being closed

at 6:00 p.m. and persons were being prevented from voting. Two (2) such polling stations,

according to the evidence of the Applicant, were Aranguez North Secondary School and

Cipriani Labour College10

.







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17. At this time, the Applicant instructed his election agent to write to the EBC. This letter

was exhibited as “V.V.B.1”. The letter bears no date. However it was represented in the

affidavit of Mr. Bharath that it had been despatched to the EBC by fax on the 7th

September, 2015.

18. The Applicant referred to a Facebook post on the page of the People’s National Movement

(PNM), the then Opposition Party. This was exhibited as “V.V.B.2” in the application for

leave. By the Facebook post all subscribers were informed of the extension of time. The

post is extracted below:

“PNM – The People’s National Movement

Sep 7 at 5:15pm.

Voting extended to 7pm!!!!! Official from EBC.

SPREAD THE WORD! – with Camille Robinson-Regis and 3 others.

Elections & Boundaries Commission announced

Polls extended to 7:00pm

Due to inclement weather”

19. The Applicant stated that by the time he was able to confirm that there had been an

extension of time, his election day machinery and mobilization team had shut down11

.

20. According to the Applicant, since the election, he has received reports from members of

his former constituency that they would have voted, had they been aware of the extension

of time12

. The Applicant did not state the numbers of such persons.

11

See paragraph 20 of the affidavit of Vasant Vivekanand Bharath 12

See paragraph 22 of the affidavit of Vasant Vivekanand Bharath

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21. The Applicant exhibited a report in the Trinidad Guardian of the 8th

September, 2015. The

report which is exhibited as “V.V.B.4” stated that the extension was granted at the request

of the then opposition party.

22. The Court also considered the affidavit of Davendranath Tancoo, filed on the 18th

September, 2015. Mr. Tancoo made his statement in his capacity as General Secretary of

the UNC. Mr. Tancoo deposed that the UNC placed a management team in each

constituency. The team according to Mr. Tancoo was an essential part of the election day

machinery, since from past experience, challenges and problems would arise on election

day. The purpose of the management teams was to address the issues that might arise on

the day. According to Mr. Tancoo, there was a system of communication between the

party headquarters and the management team for each constituency.

23. Mr. Tancoo told the Court, at paragraph 7 of his affidavit, of a separate structure at the

campaign headquarters under the direction of Dr. Andy Ali, Chief Operations Officer of

the party. This separate machinery was assigned the same tasks as the management team

and

“operated as a check and balance for the party on election day…”13

24. According to Mr. Tancoo, the UNC had prepared its election day machinery on the basis of

a 6:00 a.m. to 6:00 p.m. election day.

25. Mr. Tancoo deposed that the UNC received no communication from the EBC as to an

extension of polling time, and Mr. Tancoo indicated that at 5:30 p.m. on the 7th

September,

2015, he saw the post on the website of the Opposition Party and stated that he eventually

confirmed from media personnel that there had been a press release confirming the

extension of time due to inclement weather.

13

See paragraph 7 of the affidavit of Davendranath Tancoo

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26. At paragraph 10 of his affidavit, Mr. Tancoo stated further that the entire party machinery

would have been winding down in the expectation that polling would end at 6:00 p.m.

27. At paragraph 11, Mr. Tancoo had this to say:

“I do not know how many people discovered this extension or knew about it...”

28. Mr. Tancoo corroborated the evidence of the Applicant that the extension was granted at

the request of the PNM, the then opposition party. Mr. Tancoo stated further that he

examined subsequent newspaper report in search of a denial by the EBC and that he had

found no such denial.

Submissions

29. Submissions were made orally and in writing. By his written submission, learned Senior

Counsel Mr. Ramlogan alluded to the extension of polling time on the 7th

September, 2015

and argued that:

“if they [electors] learnt of the extension at all, they learnt of it at different times

and in different ways.”

Mr. Ramlogan, S.C. argued:

“To use a sporting metaphor, the rules were purportedly changed whilst the ball

was in play…”

30. Mr. Ramlogan referred to four (4) English cases:

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Sanders and Younger-Ross v. Chichester and Palmer [1994] WL 1062074

Maureen De Beer and Others v. the Returning Officer for the London Borough

of Harrow [2002] EWHC 670

Kenneth Anthony Edgell v. Ivan Glover [2003] EWHC 2566

John Phillip Considine v. Jan Didrichson [2004] WL 2653469

31. Mr. Ramlogan referred as well to Sections of the Constitution14

and the Representation of

the People Act15

and argued that the case before the Court was not frivolous. Learned S.C.

argued further

“…to engineer a change in the hours of the poll…is a most serious matter…”16

32. In the course of his oral submissions, Mr. Ramlogan, S.C. again referred to Sections 70-73

of the Constitution17

, to the Representation of the People Act18

and the subsidiary

Election Proceedings Rules19

.

33. Mr. Ramlogan, S.C. referred in particular to Rule 56 of the Election Proceedings Rules20

,

as a rule which provided for a change in polling times. Mr. Ramlogan, S.C. observed that

Rule 56 provided for polling to be adjourned. Mr. Ramlogan, S.C. noted however that

even where polling is adjourned polling times remain the same. It was the argument of

learned Senior Counsel that the mischief behind preserving the polling times was to ensure

a level playing field. Mr. Ramlogan, S.C. asked rhetorically whether the power of the

14

The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 15

Representation of the People Act, Ch. 2:01 16

See paragraph 47 of the Submissions 17

Ibid 18

Ibid 19

The Election Proceedings Rules, Ch. 2:01 20

Ibid

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EBC, as conferred by Section 70(1)(8), to regulate its own procedure enabled the

Commission to alter polling times, which appeared by the Rules21

to be strict.

34. Mr. Ramlogan argued that the issue to be tried, though narrow had deep ramifications. Mr.

Ramlogan identified this as the central question:

“...whether sub-sections s. 71(8) and (11) of the Constitution gives the EBC a

power to override or supplement or complement the Election Rules…” (emphasis

mine)

35. Ultimately, learned Senior Counsel argued that the Rules22

strive for certainty and that they

constitute a detailed and precise code for the conduct of elections. Mr. Ramlogan, S.C. by

his submissions linked the need for certainty with the objective of achieving a level playing

field.

36. Learned S.C. continued:

“There is no uncertainty. There is no arbitrariness and there is no room for

capriciousness…”

37. Ramlogan, S.C. identified as the “nub” and “the crux” of the matter whether Sections

71(8) and (11) can operate or be interpreted to invest the EBC with power to act in “a

manner that is in conflict with or contrary to the Elections Rules…”

21


Ibid

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Law

38. Section 69 of the Constitution of the Republic of Trinidad and Tobago23

provides for the

conduct of a general election of members of the House of Representatives in Trinidad and

Tobago. General elections are conducted according to the provisions of the

Representation of the People’s Act24

.

39. By Section 3 of the Representation of the People Act25

, the EBC is required to exercise

general direction and supervision over the administrative conduct of elections. The EBC is

required to enforce on the part of all Election Officers fairness, impartiality and

compliance with the Representation of the People Act26

.

40. By Section 71(8) of the Constitution27

, the EBC is empowered to regulate its own

procedure.

41. By Rule 27 of the Election Rules28

, the taking of the poll for a general election is required

to be held between 6:00 a.m. and 6:00 p.m. Rule 27(2) requires that the polling station be

kept open, if at the time of the closing of the poll, there are electors in the polling station

who had not cast their vote.

42. Rule 56 of the Election Rules29

states:

“s. 56 (1) Where proceedings at a polling station are interrupted or obstructed by

riot or open violence, the Presiding Officer shall suspend the

proceedings and report the matter to the Returning Officer. Where

23


The Representation of the People Act, Ch. 2:01 25

Ibid 26

Ibid 27


The Election Rules, Ch. 2:01 29

The Election Rules, Ch. 2:01

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the poll is not reopened by 6:00 p.m. it shall be adjourned until the

following day.

(2) Where the poll is adjourned at a polling station under this rule –

(a) the hours of the poll on the day which it is adjourned shall be

the same as for the original day’ and

(b) references in this Act to the close of the poll shall be construed

accordingly.”

43. Section 52 of the Constitution of the Republic of Trinidad and Tobago30

states:

s. 52 (1) “Any question whether:-

a) Any person has been validly appointed as a Senator or validly elected

as a member of the House of Representatives;

.....

Shall be determined by the High Court

s. 52 (2) Proceedings for the determination of any question referred to in sub

section (1) shall not be instituted except with the leave of a Judge of the

High Court.

44. Section 52(2) of the Constitution31

is echoed in Section 106 of the Representation of the

People Act32

Chapter 2:01 which provides:

30

The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

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“The following questions shall be referred to and determined by the High Court in

accordance with sections 106 to 129:

a) Where leave has been granted under section 52 (2) of the

Constitution, any question whether any person has been validly

appointed as a Senator or validly elected to the House of

Representative and;

......

(2) Every such reference shall be by a petition, in this Act referred to as a

Representation Petition.

(3) A petition complaining of no return or an insufficient return shall be deemed to

be a representation petition.”

45. Sections 107 and 108 of the Representation of the People Act33

identify the proper persons

who may present representation petition as well as the time lines for such presentation.

46. According to Rule 6 of the Election Proceedings Rules34

, an application for leave to the

High Court must be made ex parte. Rule 6 provides:

“An application for leave to institute proceedings pursuant to section 52 of the

Constitution shall be made ex parte and be supported:

a) By a statement setting out the name and description of the applicant,

the relief sought and the grounds on which it is sought; and

31



Ibid 34

The Election Proceedings Rules, Ch. 2:01

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b) By an affidavit verifying the facts relied on.”

47. Chief Justice de la Bastide in Re the Constitution of Trinidad and Tobago, William

Chaitan; Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin

Khan and Farad Khan35

explained the purpose of granting leave under Section 52(2) of

the Constitution36

. According to de la Bastide, C.J., the requirement for leave in election

proceedings serves the same purpose as it is intended to serve in Judicial Review

proceedings that is, to prevent the launching of actions that are frivolous and vexatious and

plainly have no chance whatever of success. Chief Justice de la Bastide had this to say:

“While election proceedings may be regarded as “sui generis”, they are more akin

to civil than criminal proceedings... whenever leave is required before civil

proceedings are commenced, it is the invariable practice that such leave is may be

applied for and granted ‘ex parte’. The most common case in which such leave is

required is for the institution of judicial review proceedings... the requirement for

leave in these cases serves the same purpose as it is intended under section 52,

namely to prevent the launching of actions that are frivolous and vexatious or

plainly have no chance whatever of success.”37

(emphasis mine)

35

William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001. 36


Per Chief Justice de la Bastide in C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001 re Constitution of Trinidad and Tobago, William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan at pg. 16 of 40

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Reasoning and Decision

48. In deciding whether or not to grant leave under Section 52(2) of the Constitution38

, the

Court considered whether the case as presented appeared to be frivolous or vexatious, or

whether it plainly had no chance whatever of success.

49. In so doing, the Court was guided by the test to be employed at an application under

Section 52(2) of the Constitution39

, as expounded by de la Bastide C.J., in the well-known

and landmark decision in Chaitan and Peters v. AG40

, where the learned Chief Justice

compared the Section 52(2) application to applications for leave for judicial review. The

purpose of leave in both kinds of cases was “to prevent the launching of actions that are

frivolous and vexatious or plainly have no chance whatever of success…”

50. When I considered the affidavit evidence together with the written and oral submissions, it

was my view that it was not possible to classify this case as frivolous or vexatious or

having no chance whatever of success. In my view, the Applicant had surmounted the very

low threshold provided by the law and could proceed to the inter partes stage, where the

merits of his application could be fully ventilated and assessed.

51. The undisputed affidavit evidence painted a picture of the members of the UNC and its

election machinery becoming aware of rumours of the extended time, at the metaphorical

eleventh (11th

) hour. According to the evidence, their awareness of the rumours led them to

a virtual scrambling for information with the consequence of being unable to inform their

faithful of the change. When the information was finally obtained they were faced with

polling booths being closed because the presiding officers were apparently unaware of the

38


Ibid 40

William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001.

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extension. Accordingly, it was the clear evidence of the Applicant that polling stations at

Cipriani Labour College and Aranguez North Secondary School were closing polling at

6:00 p.m. and that persons who wished to vote were being turned away. The affidavit

evidence therefore painted a picture not of a simple breach of the Election Rules41

, but of a

decision which was taken by the EBC which created confusion in the relevant

constituency, and elicited varying reactions by different polling stations according to

whether or not they were aware of the extension.

52. The uncontroverted evidence also painted a second picture of the aftermath of the election.

By the Applicant’s evidence, his supporters complained and protested that they would have

voted had they known of the extension. From this evidence it appeared to the Court that

there were many persons who would have voted for the Applicant had they known of the

extension.42

53. It was clear to me that the Applicant had not particularized numbers. In my view however

this was not a good reason for withholding leave. It was my view that despite the lack of

particulars as to the exact numbers of persons who would have voted for the UNC, had

they known of the extension, there was evidence that there were many such complaints.

Moreover, it was my view that exact numbers would become available when the matter

became inter partes and the Court had the benefit of full evidence not only from the

Applicant but also from the EBC.

54. The evidence also provided another dimension which further removed the case from the

classification of frivolous and vexatious. This was the allegation that the EBC was

motivated to extend time by a request from the then opposition party. This evidence,

41


See paragraph 21 of the affidavit of Vasant Vivekanand Bharath

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although by way of a newspaper report only, introduced the element of unfairness and the

possibility of collusion. The evidence was also buttressed by further evidence that the then

opposition party, in contrast to the party of the Applicant, was aware of the extension of

time and that its supporters were so informed through a post on a Facebook page. From

this evidence, the Court inferred that there was evidence that the EBC had acted illegally

and in particular contrary to Section 3 of the Representation of the People Act43

which

requires it to enforce, on the part of the Election Officers, fairness, impartiality and

compliance with the Act44

.

55. I proceeded to apply the law to the facts which emerged from the sworn evidence. The

threshold which the Applicant was required to cross was as low as that in judicial review

proceedings.

56. By Section 71(8) of the Constitution45

, the EBC was invested with power to regulate its

own procedure. It was however questionable whether an alteration in polling times was a

matter of procedure or whether the times were established, so as to ensure certainty as to

voting times. I also considered whether the allegation that the EBC had omitted to alert

the Applicant’s party of the extension in a timely manner may have further exacerbated the

illegality. In my view, it was arguable that this factor may have taken the extension of time

beyond a mere breach of the Election Rules46

. These were in my view, issues which were

not frivolous and which ought to be ventilated at a full hearing.

57. It appeared to be arguable that the action of the EBC constituted a serious illegality, which

could arguably have had the effect of rendering the poll null and void. In my view, it was

43


Ibid 45


The Election Proceedings Rules, Ch. 2:01

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arguable that such illegality, if established inter partes could not be described as a mere

breach of the Election Rules, where such breach only became relevant if it materially

affected the outcome of the election.

58. It was therefore my view that it was appropriate to grant leave so that the entire matter

could be ventilated with full evidence and arguments from the EBC.

Dated this 22nd

day of October, 2015.

M. Dean-Armorer

Judge47

47

Ms. Joezel Williams & Ms. Aleema Ameerali, Judicial Research Counsel (JRC)

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