The lead lawyer for the respondents in the December 2015 petitions case says that the developments in the Appeal Court that saw the petitions being reinstated on Tuesday, was one of the worst days in his decades-old legal career.
“Let me make a confession on public radio for the first time in my life: in my 30-something years of practice, with the very successful record I have, that appearance in court on Tuesday was one of my most disappointing, deflating and depressing days that I’ve ever had as a professional,” Dominican Senior Counsel, Anthony Astaphan said Thursday on Boom FM.
“It was one of these cases where you felt that there was nothing you could say or do. Because the court, in the middle of the submissions, was asking us — and I am not criticising the court, I am merely stating the fact — well, assuming that you find bias, what order should the court make? And I am very troubled, that in, at least in, the oral decision of the court that the court did not indicate what its position was on the issue of waiver because it may well require us to revisit that question on the application before another court of appeal. I don’t know,” he further stated.
The Court of Appeal on Tuesday ruled that High Court judge, Justice Brian Cottle, showed apparent bias in his handling of the petitions, which he threw out last June, as improperly filed.
The main opposition, New Democratic Party, is challenging the results in Central Leeward and North Windward. And with an 8-7 margin in Parliament, the outcome of the petitions could determine if the ruling Unity Labour Party must call a fresh election in either or both of those districts.
The Appeal Court sent the petitions back to the High Court for hearing by a different judge and awarded costs to the petitioners.
The respondents had asked the High Court to throw out the petitions as improperly filed.
Their position is that a valid recognisance (security) is a condition precedent to a valid petition and that the petitions do not meet that condition.
With Tuesday’s ruling, the High Court may have to consider, again, that application by the respondent.
“We are saying that in this case, it was the petitioners who gave the recognisance and not sureties and there is nothing on the document to reflect that the sureties acknowledged or pledged any security to the crown,” Astaphan said, adding that Cottle had ruled twice in the respondents’ favour on that point.
The respondents had first made, in chambers, the application to strike and Justice Cottle said he had no jurisdiction to hear it, but went on to hear full argument.
After hearing full arguments, Justice Cottle said that if the applications were made in open court and the same arguments were presented, the respondents were bound to succeed.
The petitioner successfully argued before the Court of Appeal that Justice Cottle displayed apparent bias.
Astaphan, in his radio conversation, noted that Cottle did not strike out the respondents’ application at the time on the grounds that they should have waited for it to be heard in open court.
“Now, I think that was fundamentally wrong but we could not appeal that judgment because it was not a final judgment in accordance with the election law. So we then had to file a petition again.”
He pointed out that, in June 2016, both the petitioners and respondents went before the High Court with the understanding that they were going to deal with the motion to strike out the petitions, noting that the day before the hearing, lawyers for the NDP filed a pre trial memorandum.
Astaphan said that the judge said he was going to deal with the motion to strike and during the hearing, there were written and oral submissions from Queen’s Counsel Stanley John, the lead lawyer for the petitioners, and the judge again ruled.
The first time the issue of bias was raised was in the Court of Appeal, Astaphan said.
Astaphan said there are transcripts where the judge indicated that either side could object to him continuing on the matters.
“And quite apart from there being any objections, there was none and we have interpreted the word of counsel in the transcript to mean they had no problems with the judge continuing to hear the matter.”
He said the petitioners, however, argued before the Court of Appeal apparent bias based on Justice Cottle’s statement, and that they didn’t get a chance to file any objections or applications for recusal because they were taken by surprise.
“All sort of arguments, which, surprisingly, the Court of Appeal found very attractive,” Astaphan said.
“We argued, on the other hand, there was no bias. But, assuming Justice Cottle’s words could give rise to the appearance of bias, we had said that there were ample opportunities to object and it is wrong, absolutely wrong to sit down, make submission, participate fully and say nothing and then — I said, ambush the judge on appeal.
“Well, the Court of Appeal would have none of it. The Court of Appeal said there was a powerful case of appearance of bias. I don’t know what that meant.”
He said the respondents referred to their submissions on waiver but the judges did not say whether waiver is permitted in election matters of if the evidence was insufficient.
“So when the learned president [of the court] completed his oral judgment, I got up. I said, ‘Well, my lord, what precisely has this court decided on the issue of waiver. Is it as Mr. Keith Scotland says, whatever may be occurring before the election court, you have to sit there, put on your seatbelt and your helmet and tek the blows ‘til the judgment come out? Or is it that the evidence was insufficient? Because unless the Court of Appeal clarifies that, they have opened a tremendous and inconvenient Pandora’s Box in the election jurisdiction of the court.
“I think they accepted that and decided they were going to give written ruling.”
Astaphan said the respondents also invited the Court of Appeal to hear the substantial matter of whether there was any recognisance, but the appellants (the petitioners) objected, saying it should go back to a trial judge.