The United National Congress (UNC) has lost its novel challenge over the dismissal of its election petitions for five marginal seats in the 2015 General Elections.
Delivering a 43-page judgement at the Hall of Justice in Port-of-Spain, this morning, Appellate Judges Justice Gregory Smith, Justice Mark Mohammed, and Justice Peter Rajkumar dismissed the appeal, in which the Opposition party was seeking to overturn the decision of another three-member appeal panel. That panel had upheld the decision of High Court Judge Mira Dean-Armourer to dismiss the petitions in October 2016.
Justice Rajkumar, who wrote the judgement, rejected the party’s contention that the issue of apparent bias arose in relation to Chief Justice Ivor Archie, who headed the panel, as there were allegations in the public domain that he allegedly spoke with Prime Minister Dr Keith Rowley about Housing Development Corporation (HDC) houses for persons he recommended.
Justice Rajkumar said: “Upon analysis, there is no basis to conclude that an application of the legal test for apparent bias, to the circumstances now within the knowledge of the fair-minded and informed observer, would cause him/her to consider that there was a real possibility of bias on the part of the CJ when he sat on the appeals.”
In his judgement, Justice Rajkumar analysed the Law Association’s investigative report into the allegations, which was rejected by Rowley as being insufficient to warrant impeachment under Section 137 of the Constitution.
PM Rowley’s decision is currently being challenged in a separate lawsuit, with Justice Vasheist Kokaram expected to deliver judgement on February 19.
“The fair-minded and informed observer, not being unduly suspicious, would be slow to conclude that the denial by the PM, of the receipt or issue by him of Whatsapp messages with the CJ in relation to housing, yet allowed the possibility that the CJ may have sent such messages,” Justice Rajkumar said.
“The fair-minded and informed observer could not be criticised as dismissing as fanciful such a suggestion and rejecting the mental gymnastics required to accept this possibility,” he added.
UNC members filed the petitions after the People’s National Movement (PNM) won the election by a 23-18 margin.
The party initially filed petitions for six constituencies—La Horquetta/Talparo, Toco/Sangre Grande, Tunapuna, St Joseph, San Fernando West, and Moruga/Tableland.
The petition for La Horquetta/Talparo was dismissed before the trial of the case as it was served on the successful PNM candidate, Maxi Cuffie, past the required deadline.
The petition filed by San Fernando West by defeated UNC candidate Dr Shevanand Gopeesingh was chosen as a test case that would decide the five remaining petitions.
While Justice Dean-Armorer agreed with the UNC that the Elections and Boundaries Commission (EBC) acted illegally when it extended the polls by an hour due to heavy rainfall, she ruled that its error did not materially affect the result of the election.
Justice Dean-Armorer’s decision was later upheld by Chief Justice Ivor Archie and Appellate Judges Allan Mendonca and Peter Jamadar.
The UNC was represented by Richard Clayton, QC, Anand Ramlogan, SC, Gerald Ramdeen, Che Dindial, and Douglas Bayley.
Russel Martineau, SC, Deborah Peake, SC, Ravi Heffes-Doon, and Alana Bissessar represented the EBC.
Reginald Armour, SC, Vanessa Gopaul, Ravi Nanga, and Michael Quamina represented San Fernando West MP Faris Al-Rawi.