TWO judges of the Court of Appeal will rule on June 1 on whether an appeal by a woman who unsuccessfully challenged the constitutionality of closing the borders in a judicial review claim should be heard as a procedural appeal.
The appeal by Takeisha Clairmont came up for hearing at a virtual sitting on Monday before Justices of Appeal Nolan Bereaux and Mira Dean-Armorer.
Clairmont is challenging the decision of Justice Eleanor Donaldson-Honeywell to refuse her leave to challenge the Government’s covid19 public health regulations.
The regulations allowed the closure of the borders and introduced an exemption process.
Although she did not grant leave, the judge heard Clairmont's constitutional arguments and held the public health regulations were within the powers of the Public Health Ordinance (1940) and were saved law, meaning they were not open to constitutional challenge.
At Monday’s hearing, Senior Counsel Reginald Armour raised, as a preliminary objection, the hearing of the appeal as a procedural appeal, saying it should be properly listed as a substantive appeal “to be properly listed to come up in due course.”
He said even if the court decides to hear the appeal on the refusal of leave, the question of whether it was an arguable case had already been considered by the judge, who held it was, and who went on to hear the constitutional points raised.
In reply, Clairmont’s attorney Anand Ramlogan, SC, submitted there was a constitutional aspect to the application for judicial review. He said the Supreme Court of Judicature Act frowns on filing separate claims on the same issue, and in his client’s case, she sought the option to raise, in the judicial review application, the constitutional aspects of her complaints.
“You cannot get damages in a judicial review claim unless you expressly plead a breach of constitutional right.”
He said only if leave was granted would the appeal not be a procedural one, “but if leave was refused it falls squarely in the definition of procedural appeal.”
Armour also submitted that it would be improper for a two-member panel to hear an appeal which challenges the public health regulations.
After standing down the matter to confer, Bereaux said the judges wanted to reserve the matter for a week to consider the legal authorities Ramlogan referred to. They will give their decision next Tuesday.
In her lawsuit, Clairmont, 41, of East Dry River, the mother of eight, contended the Government acted illegally and breached her constitutional rights by closing the borders owing to the pandemic since March 2020.
She returned to TT in September after she received an exemption.
Also appearing with Ramlogan were attorneys Jayanti Lutchmedial, Renuka Rambhajan, Ganesh Saroop and Alana Rambarran. Appearing with Armour for the State are Vanessa Gopaul, Raphael Ajodhia, Savitri Maharaj and Kadine Matthew.
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