No petition required to hear case of Charrandass’ nomination to house

—-Court of Appeal rules

Though it will have no effect on the failed No-Confidence Motion against the Government, the Court of Appeal ruled on Friday that the vote cast by recalled Member of Parliament Charrandass Persaud was valid as it upheld the High Court’s decision in part in the case of Compton Reid v Speaker of the National Assembly.

However, by a majority decision, it ruled that contrary to the decision of the Chief Justice, the High Court had jurisdiction to hear the case with respect to Persaud’s nomination to the National Assembly on the basis of the constitutional issues that arose.

In the ruling with spanned close to three hours before a packed courtroom, the Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud delivered their findings and decisions in the case with treated with the issues of jurisdiction, the effect of voting against one’s list, and sitting in the Parliament as a dual citizen.

In handing down her decision, the Chancellor established that based on a number of local and regional cases, the Chief Justice was correct in her ruling that some of the declarations sought by Reid ought to have been filed by way of an Elections Petition, however, she said based on the Constitutional implications, consideration should have been given to them.

Justice Cummings-Edwards said the contention by Senior Counsel Neil Boston and Attorney-at Law Roysdale Forde that fraud had been committed on the Constitution by Persaud raised critical issues. “I prefer to say that there being no jurisdictional bar in this instance and giving the finding of the learned Chief Justice on the nomination issue, the court ought to uphold the rule of law and the constitutional provisions,” the Chancellor explained.

Based on evidence submitted to the Court, Persaud, in contravention of Article 155 of the Constitution, held dual citizenship status while being a member of the National Assembly. In handing down her decision, Justice Gregory, like the Chancellor found favour with the submissions made by Senior Counsel Boston and Forde on the issue of jurisdiction. “I am persuaded by the submissions of Mr. Boston, S.C, and Mr. Forde, that the court did have the jurisdiction to decide on the consequences and effect of Charrandass Persaud’s disqualifications as found by the Chief Justice,” she told the parties in the matter.

According to her, the court could have considered the constitutionality and the lawfulness of two questions proposed by Reid, in the particular circumstances of this case with respect to being a dual citizen in the House and voting against one’s list.
Justice Persaud, however, upheld the decision of the Chief Justice in the High Court, stating that the questions relating to Persaud’s nomination to the National Assembly ought to have been brought by way of an Elections Petition, and as such, the Court had no jurisdiction to deliberate on those particular questions or declarations sought.

However, on the issue of whether Persaud’s vote on the night of December 21, 2018, the Appellate Judges agreed that his vote was saved by Article 165 (2) of the Constitution. The Chancellor, in detailing her decision, said Persaud had informed the Speaker of the National Assembly, Dr. Barton Scotland or his List Representative, he would have ceased to be a member of the House but that did not happen on December 21, 2018.

“As I see it, if one declares in writing that he or she will not support the list from which his name is extracted, that persons ceases to be a member. Likewise, if one declares his support for another list that person ceases to be a member…If one votes for another list without intimating to the Speaker or his Representative of the List that he will not support the list or that he is supporting another list, that vote is still valid,” Justice Cummings-Edwards explained.

The Chancellor noted that the Constitution provides a penalty for such action, as well as provisions for the recall of that member by the Representative of the List as outlined in Article 156. As such, she ruled that his vote was valid and was counted among the 33 were in favor of the No-Confidence Motion.

Justice Gregory’s positions were similar in this regard. Like the Chief Justice and the Chancellor, Justice Gregory ruled that Persaud’s ‘yes’ vote was valid. “I agree with this on the proper construction of Article 156 (3), Charrandass Persaud seat was not yet vacant when he voted, and although the spirit and intent of Article 156 was to prevent voting for against one’s list and voting for another list, when the constitution is viewed as a whole, I am not satisfied that his vote was a nullity,” Justice Gregory concluded.

Senior Boston had argued that Persaud could not have voted against his own list, by Justice Gregory pointed to Article 179 and Article 180 which allow members to vote against their list in circumstances.
“My finding is that his vote was valid and effective, and was properly ruled to have been cast, and the 33rd of the vote cast in favour,” she concluded.

On the question of dual citizenship, she also upheld the decision of the High Court. “Although it was found that Mr. Persaud was disqualified I find that Article 165 (2) applied to his participation in the proceedings on December 21, 2018, and I view the proceedings, including the debates and the subsequent vote, having being extracted from his Party’s list, and seated as a Member of the National Assembly and participated in the proceedings, his participation was saved and the entire proceedings were saved including his vote,” Justice Gregory concluded.

She ruled that the appeal was dismissed except in relation to the finding on jurisdiction. As in the previous issues, Justice Persaud fully with the analysis and conclusion of the Chief Justice. On the issue of dual citizenship, he said there was a lack of evidence to suggest that Persaud knew that he was not qualified to be elected to the National Assembly by virtue of his dual citizenship.

“It seems that other members of the National Assembly were similarly unaware of their own status prior to the definitive pronouncements by your honour Chief Justice,” he posited.