“How can the Constitution grant exclusive jurisdiction to 2 courts on 1 issue?”– CCJ President asks

…as court examines ambiguities in defences from APNU/AFC lawyers

Lawyers who appeared on behalf of A Partnership for National Unity/Alliance For Change (APNU/AFC) Campaign Manager Joseph Harmon and coalition supporter Eslyn David found themselves in the hot seat as the Caribbean Court of Justice (CCJ) jurists grilled their respective defenses.

The case of Mohammed Ifraan Ali et al v Eslyn David et al came up for hearing on Wednesday before the CCJ.
One such lawyer was Trinidad and Tobago Senior Counsel Reginald Armour, who was hired by APNU/AFC Campaign Manager Joseph Harmon. In submitting his arguments, Armour emphasised that the CCJ does not have unlimited jurisdiction, but rather it presides over sovereign states and thus must temper its jurisdiction based on these treaties.
“This application, having regard to the Treaty, cannot be entertained, and must be disregarded. Were this court to set aside the decision of the Court of Appeal, you would have to satisfy yourself that the Court of Appeal was plainly wrong. The Court did nothing more than interpret the Constitution,” Armour said.

However, he soon found himself under questioning by CCJ President Justice Adrian Saunders, who questioned Armour’s grounds for arguing that the Court of Appeal had jurisdiction in the first place.
The claim by APNU/AFC that the Court of Appeal has exclusive jurisdiction to rule on David’s case rests largely on Article 177(4) of the Constitution, which states that, “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”

Contradiction
The judge pointed out that there is an inherent contradiction, since Article 163 of the Constitution grants the High Court the exclusive jurisdiction to determine any question regarding the qualification of someone as a member of the National Assembly, and also jurisdiction to determine the legality of an election.
“If 177(4) can be triggered when no one knows who is the individual whose election is being challenged as being invalid, then it must mean you are applying 177(4) not to a person, but to a process. The problem is, it is that same process that is necessary for membership of the National Assembly. The Constitution says the High Court has exclusive jurisdiction to interrogate questions relating to that process in relation to membership of the National Assembly,” the Judge said.
“Once you decouple Article 177(4) from the interrogation of a particular person, then you are saying that 177(4) also gives the Court of Appeal an exclusive jurisdiction to interrogate that same process as 163 gives to members of the National Assembly. How can a constitution provide exclusive jurisdiction to two different courts to interrogate the same process?” Saunders asked.

In response, Armour said the language of the Constitution must be construed in a way to avoid inherent contradictions. According to him, the framers of the Constitution inserted both clauses in the Constitution, and they must have intended them to serve different purposes.
Armour also went on to urge the court to limit itself to what the Court of Appeal ruled on. He noted that the Court of Appeal did not grant the coercive orders that had been sought, and that moreover, based on the material before it and Article 177(4), the CCJ cannot say that the Court of Appeal was plainly wrong.

Counter-productive
Also in the lineup was Senior Counsel John Jeremie, who represents David. He sought to rebut the arguments made by Senior Counsel Douglas Mendes, who represents the applicants, People’s Progressive Party (PPP) Presidential Candidate Dr Irfaan Ali and the party’s General Secretary Bharrat Jagdeo.
In the middle of telling the Court that Mendes cannot tell him what an election is, Justice Saunders interjected to ask whether “he was able to cite any case where a question as to the validity of the election of some governmental official was heard and determined by the courts before the official was elected.”
To this, he admitted that he had not been able to cite such a case. It was not until 16:25h, more than five hours later, that Jeremie was able to cite his precedent, a Mauritian case from 2011 that the Privy Council decided on.
Even worse, Jeremie cited the case of Narayan Khare, a case which CCJ Justice Maureen Rajnauth-Lee pointed out is actually counter-productive to his position. While Jeremie sought to use it to bolster his arguments that a candidate does not have to be elected before triggering Article 177(4), the Judge noted that according to the ruling “the petition was seen as premature…that power in the Supreme Court to enquire into the election of the president can be exercised only after the candidate is elected.”
At the end of the hearing, the court decided on next week Wednesday, at 15:00h to make its ruling on the issue of jurisdiction and the substantive appeal.