Election petitions arose in the news last week when the Court of Appeal confirmed the leave granted to the UNC to proceed with their election petitions. In the draft constitution for independence that was serialised in the Trinidad Guardian over the period February 20 to 22, 1962, section 40 read as follows:
“40. (1) Any question whether –
(a) any person who has been validly appointed as a senator or validly elected as a member of the House of Representatives
(b) any person who has been validly elected as Speaker of the House of Representatives from among persons who are not senators or members of the House of Representatives, shall be determined by the High Court in accordance with the provisions of any law in force in Trinidad and Tobago.
(2) Proceedings for the determination of any question referred to in subsection (1) of this section shall not be instituted except with the leave of a judge of the High Court.
(3) No appeal shall lie from the decision of a judge of the High Court granting or refusing leave to institute proceedings in accordance with this section.” (Trinidad Guardian, Wednesday February 21, 1962, p. 10)
After publication, the Government invited comments on the draft that had been presented. The Office of the Leader of the Opposition submitted a memorandum dated March 30, 1962, signed by Ashford Sinanan for the DLP.
In respect of the above section 40, the DLP commented as follows:
“Section 40, Sub-sec (1) Provision should be made for testing whether a member of either chamber is entitled to continue to be a member to be included in the questions which may be determined by the High Court.
Subsec. (3) We think that an appeal should lie from the decision of a judge refusing leave to institute proceedings.
A new sub-section should be added to the effect that Parliament may make provisions or authorise the making of provisions with respect to such appeals.”
The position of the opposition DLP was one of having an appeal from the grant of leave by a High Court judge on the issue of determining membership of either House or determining the validity of the appointment of a Speaker from outside the House.
The DLP pursued this matter all the way to the Marlborough House Conference on independence that was held in London during the period May 28 to June 8, 1962. It was resolved on the final day of that conference. The record of the plenary session proceedings on June 8 state, inter alia, as follows:
“The conference discussed the question of appeals relating to membership of the legislature and it was recalled that the Legal Committee had agreed….that there should be appeal to the Court of Appeal but no further, and that their agreement had been endorsed by the conference in plenary session.
MR JULIEN said he was anxious that there should be the best possible provision for appeals on such matters as election petitions, but in view of the practical need to bring questions of membership to a speedy issue he did not press for further provision than had been agreed in the Legal Committee.
MR RICHARDS said that the Privy Council had disavowed jurisdiction in such cases and, in a recent instance, had ruled that the matter should be settled locally, as provided in the local law.
“MR ALEXANDER felt that matters to do with membership should properly come under the final authority of the legislature. It was also important to settle membership questions quickly, and the delays implicit in a system of Appeals to the Privy Council could not be accepted, from a practical point of view.
MR CAPILDEO said the Opposition would be much happier with the outcome of the conference if election matters could be referred on appeal to the Privy Council. This would have a salutory effect on the operations of the Elections Commission and would be by far the best safeguard for the fair conduct of elections. The existing Trinidadian law made no provision for appeals and the new proposal for appeals to the Court of Appeal only did not in his view go far enough.
“THE SECRETARY OF STATE said that even if the Privy Council had ruled that they had no present jurisdiction over election matters, this could no doubt be altered by law. On the other hand, he saw the practical difficulty which the delays of a protracted appeals procedure could cause.
After further informal consultation between the delegates the Conference finally—reaffirmed its approval of the recommendation on this subject by the Legal Committee….”
The people listed in the above record of proceedings are Senator Inskip Julien, (independent senator), Senator George Richards (Attorney General), Senator W J Alexander (Minister Without Portfolio), Dr Rudrunath Capildeo (Leader of the Opposition), and the Secretary of State for the Colonies, the Right Honourable Reginald Maudling.
The revised provisions for an appeal to the Court of Appeal only on the question of leave to file an election petition was agreed at Marlborough House and implemented at independence, and remains that way today.