ELECTION APPEAL CASE ADJOURNED AFTER ‘GRAVE’ SUBMISSIONS BY LAWYERS FOR AG, PRESIDENT
The lawyer representing a citizen’s challenge of the conduct of the January 19, 2022 general election has been given additional time to respond to submissions that Chief Justice Sir Patterson Cheltenham said could “bomb his application out of existence”.
Lalu Hanuman will return to the Court of Appeal on April 11 to defend his case against what Cheltenham on Wednesday described as “quite grave” submissions by Alrick Scott, KC who is representing President of Barbados Dame Sandra Mason and Roger Forde, KC, appearing on behalf of the Attorney General who is also named in the action.
Hanuman is representing Philip Catlyn of the Barbados Sovereignty Party in appealing Justice Cicely Chase’s January 18 decision to dismiss his last-minute application for an injunction to postpone the polls. The application had been filed on the grounds that thousands of people who were required to self-isolate during the COVID-19 pandemic were disenfranchised by not being able to vote.
However, Justice Chase ruled that the court had no jurisdiction to hear the matter and it would have to be heard by an elections court.
Hanuman subsequently filed a notice of appeal but the respondents have asked the Court of Appeal to strike it out.
During Wednesday’s virtual sitting of the Court of Appeal panel that also comprised Justices Margaret Reifer and Jefferson Cumberbatch, Scott argued that Hanuman’s three grounds of appeal were “no grounds of appeal” because they did not comply with criteria outlined in the Court Procedure Rules (CPR). He argued that non-compliance was “serious and substantial, justifying a strike out order”.
The grounds submitted by Hanuman were that Justice Chase’s decision was erroneous on a point of law and erroneous on a point of fact, and that the matter raised fundamental public interest issues.
The latter ground, the King’s Counsel contended, was “nothing more than the appellant’s opinion of the public interest element or importance of the case” while the first two grounds were “vague and general”.
When asked by the Chief Justice if he knew the point of law on which Hanuman claimed the High Court judge had erred, Scott replied that he did not.
“That is why we brought the application to strike out because it doesn’t identify the error of law committed by the learned judge,” he said.
The Court of Appeal agreed that “public interest” did not qualify as a ground for appeal. Additionally, Scott submitted that “there is no authority that the court can preemptively enjoin an election on a matter involving the process or the fairness and, thus, the validity of a general election”.
“If you are seeking to enjoin the election, it can only be on the basis that it is either unlawful or it is invalid. There is no other reason for challenging a general election,” the lawyer submitted.
“The various grounds set out in the claim form are challenges to the validity of the election. Therefore, those matters must be tried by an elections court.”
Forde, meanwhile, argued that the Constitution of Barbados prohibits the President from being sued and that any claim against her would, therefore, be directed at the wrong party.
He dismissed Hanuman’s claim that the President acted ultra vires – beyond her legal power and authority – by dissolving Parliament on December 27, 2021, and issuing election writs; and that she failed to ensure that those in quarantine were not disenfranchised.
Forde pointed out that Section 41(c) of the Constitution places the responsibility for the conduct of the election on the Electoral and Boundaries Commission (EBC).
“The President has nothing to do with the elections. The conduct of the elections happened to be the duty of the EBC. So to say that the President had to ensure that people who were in quarantine were not disenfranchised places a duty on the President which she does not have,” Forde argued.
The King’s Counsel also agreed with the Chief Justice that the appellant should have enjoined the EBC in his application rather than singling out the President.
The senior lawyer said that was “a fatal mistake”.
“He cannot get judicial review against the President for doing something she is not obliged to do and she has no authority to do,” Forde contended.
“The President is not obliged under the Constitution to ensure that electors who are in quarantine are not disenfranchised.”
After hearing the submissions, the Chief Justice gave Hanuman a chance to reflect on what he was up against and to decide his next step.
“A lot has been thrown at you and if you want to, I would certainly be prepared to give you a chance to reflect and come and shoot afterwards,” Sir Patterson told him.
After some discussion with the Chief Justice, the lawyer responded: “I won’t mind having some time to reflect on what you have said. On the other hand, I don’t want to be wasting judicial time, so I’m in the hands of the court.”
The Chief Justice stressed that the Court of Appeal was very concerned with procedural fairness.
“There were two lawyers on the other side who made submissions and the submissions are quite grave. There are attempts to derail completely . . . scuttle, and to bomb your application out of existence. Therefore, I want to give you a chance, in the interest of procedural fairness, to be able to respond fully,” he said.
The matter was then adjourned until April 11 at 11 a.m. when Hanuman will be given 90 minutes to make his submissions. [email protected]
Read our ePaper. Fast. Factual. Free.
Sign up and stay up to date with Barbados' FREE latest news.
Barbados Today firmly discourages any commentary or statements that are libelous, disruptive in nature or incites others to violate our Terms of Use. Any submissions made on our comment section, are solely the views of the individual and not Barbados Today.