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Of 37 the REPUBLIC of TRINIDAD and TOBAGO in the COURT OF THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL CIVIL APPEAL No. 250 of 2009 BETWEEN BASDEO PANDAY OMA PANDAY APPELLANTS AND HER WORSHIP MS. EJENNY ESPINET 1ST RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS 2ND RESPONDENT APPEARANCES : Mr. A. Beharrylal and Ms. M. Panday for the Appellants Mr. N. Byam for the 1st Respondent Mr. D. Mendes, S.C. and Mr. I. Benjamin for the 2 nd Respondent PANEL: Mendonça, J.A. Soo Hon J.A. Stollmeyer J.A. DATE OF DELIVERY: May 11 th 2011. I agree with the judgment of Mendonça J.A. and have nothing to add. A. Soo Hon Justice of Appeal I too agree. C.V.H. Stollmeyer, Justice of Appeal Page 1 of 37 JUDGMENT Delivered by A. Mendonça, J.A. 1. This is an appeal from the judgment of Kokaram, J. dismissing the Appellants’ judicial review application in respect of the decision of Magistrate Espinet, the First Respondent, not to recuse herself on grounds of apparent bias from hearing committal proceedings involving the Appellants. 2. It would not be an exaggeration to say that every person above the age of majority and many below that, know of the Appellants Basdeo Panday and his wife, Oma Panday. Mr. Panday, the First Appellant, up to the date of the hearing of the application giving rise to this appeal was a fixture in the political landscape of this jurisdiction. At the time the matter was heard before the Judge it was not in dispute that the First Appellant was the chief political opponent of the People’s National Movement (PNM), the political party then in power. He was the leader of the opposition and the leader of the United National Congress Alliance (UNC-A) which he formed in 2007. This party was the successor to the United National Congress which he had founded in 1991. He had been a member of the House of Representative since 1976 and was Prime Minister of this country from 1995 to 2001. He was also prior to that, from 1986 to 1988, a member in the national government. Mrs. Panday, the Second Appellant, it was also not disputed, was politically active in support of her husband, the First Appellant. 3. Within the last year approximately and certainly since this matter was decided in the Court below, the Appellants have retreated from the political spotlight. The First Appellant is no longer the leader of the UNC-A or leader of the opposition. He did not run for re-election in the last general election held on May 24 th , 2010. He, therefore, is no longer a member of Parliament. Further, he may no longer be regarded as the chief political opponent of the PNM. That party was defeated in the last general election and no longer forms the government. I will come to the relevance, if any, of these changes later in this judgment. Page 2 of 37 4. The Appellants, however, are also defendants in certain committal proceedings pending before Magistrate Espinet (the Magistrate). The Appellants are charged under section 3(1) of the Prevention of Corruption Act. It is alleged that in 1998 they corruptly accepted a bribe of £25,000 from Ishwar Galbaransingh and Carlos John, who are co-defendants in the committal proceedings, as a reward for favouring a particular company in relation to the construction of the then new Piarco International Airport. At the close of the evidence for the prosecution a no case submission was made on behalf of the Appellants. The Magistrate however, rejected the submission and enquired of the Appellants whether they intended to call any witnesses. The immediate response of the First Appellant was that the charges were politically motivated. 5. Subsequent to that the Appellants obtained information that the Magistrate was a trustee and the treasurer of the Morris Marshall Development Foundation (the Foundation). In the light of that information on March 12 th , 2008 they made an application for the Magistrate to recuse herself from hearing the committal proceedings on the ground of apparent bias. It was the contention of the Appellants that the Foundation was set up to promote the work of PNM politicians and of the PNM and since the Magistrate was the Trustee and an officer of the Foundation and was trying the Appellants, who were the political enemies of the PNM, a fair-minded and informed observer would consider there was sub-conscious bias in the mind of the Magistrate. The Appellants also placed reliance on the failure of the Magistrate to disclose to the parties her involvement in the Foundation. 6. The Magistrate however on March 19 th , 2008 refused to recuse herself and dismissed the application. In her reasons she stated, inter alia, that an allegation of bias is “a serious one”. There is however “no basis here established for bias and there is nothing for the Court to disclose”. 7. The Appellants applied for and retained leave for judicial review of the Magistrate’s refusal to recuse herself. The relief sought by the application for judicial review included, inter alia: a) a declaration that the decision of the Magistrate to recuse herself from conducting the committal proceedings is unlawful void and of no effect; b) an order of certiorari to quash the Magistrate’s decision; c) a declaration that the committal proceedings are vitiated by apparent bias and accordingly are unlawful, null and void and of no effect; Page 3 of 37 d) an order of certiorari to quash the committal proceedings. 8. The application for judicial review was initially grounded on the Magistrate’s involvement with the Foundation. However prior to the hearing of the application before the Judge, the Magistrate in response to a request for disclosure confirmed that her father is Alexander Chamberlain Alexis, a former PNM Member of Parliament and a Cabinet Minister in a PNM government. She could not however say when or for how long this was. This admission and the failure to disclose it during the course of the committal proceedings were also relied on by the Appellants in the Court below as grounds for judicial review and the application was accordingly amended. 9. The grounds for judicial review as set out in the Appellants’ application are somewhat lengthy. I do not propose to set them out in detail. However a closer look at them would help to illuminate the background to this appeal. 10. In the grounds the political history of the Appellants is outlined, and reference is made to the fact that the Appellants have been politically opposed to the PNM throughout their entire public lives. It is mentioned that the PNM since its formation in 1956 to the present has formed the Government of Trinidad and Tobago for the vast majority of that time. On the occasions on which it did not do so the First Appellant was very instrumental in their defeat. The Appellants also state that the charges against them were contained in information sworn by Acting Inspector Telesford of the Anti-Corruption Bureau. The charges were laid after the PNM regained power, defeating the UNC led by the First Appellant, and when John Jeremie was the Attorney General under which office the Anti-Corruption Bureau was formed. 11. With respect to the Foundation it is set out in the grounds that: 1) the Magistrate is a trustee and treasurer of the Foundation; 2) the Foundation is situated in the constituency of Laventille West which is within the geographical area of Laventille, a stronghold of the PNM; 3) the Foundation is specifically dedicated to the enhancement and empowerment of the community of Laventille; 4) past trustees of the Foundation have included the said John Jeremie, Martin Joseph, who at the time of the hearing before the Judge was a PNM Senator and a minister of Government, and Carlston Clark who, inter alia, was a former director of the National Housing Authority during the 1991 to 1995 PNM administration; 5) the Foundation bears the name of Morris Marshall who was a PNM Page 4 of 37 member of the House of Representatives for the electoral constituency of Port of Spain East, which included much of the geographic area of Laventille, from 1986 to his death in 1994. From 1991 to the date of his death Morris Marshall was the Minister of Public Utilities in a PNM administration. He was very active socially and politically in his constituency and in Laventille generally. 6) the Foundation is an organization with links to the central government; 7) the Foundation discriminates in the provision by it of assistance to members of the Laventille community by requesting, through its personnel, whether persons seeking assistance are PNM members, and refusing assistance if they are not. It has permitted the use of its premises and personnel by the PNM for obvious political purposes. The Magistrate is consequently connected to and involved in a voluntary association which, while ostensibly charitable in nature, is intimately connected to the PNM and used by the PNM for the provision of social assistance to its supporters and for electoral campaigning. 12. The Appellants also refer to the fact that the Magistrate’s father is Alexander Chamberlain Alexis. 13. The Appellants in those circumstances contend: 1) They cannot have a fair and impartial hearing before the Magistrate, who is the daughter of their political opponent and that the fair-minded and informed observer would consider that there was a real possibility of bias, i.e. sub-conscious bias, and/or would perceive the Magistrate as being biased against the Appellants. 2) The fair-minded and informed observer, made aware of the fact that: (i) the prosecution of the Appellants emanated from the Anti-Corruption Bureau which is under the direction, control and/or supervision
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