For­mer Ca­lyp­so Monarch Du­ane O’Con­nor has suf­fered a sec­ond de­feat in his le­gal bat­tle over fac­ing a dis­ci­pli­nary charge for seek­ing to con­test the lo­cal gov­ern­ment elec­tions in 2019. 

De­liv­er­ing a judg­ment yes­ter­day, Ap­pel­late Judges Char­maine Pem­ber­ton, Gillian Lucky, and James Aboud dis­missed O’Con­nor’s ap­peal, in which he claimed that a High Court Judge was wrong to have re­ject­ed his ju­di­cial re­view and con­sti­tu­tion­al mo­tion law­suit chal­leng­ing the dis­ci­pli­nary ac­tion tak­en against him. 

The ap­peal pan­el ruled that the de­ci­sion of their col­league, Jus­tice Robin Mo­hammed, could not be fault­ed. 

If O’Con­nor fails to suc­cess­ful­ly mount a fi­nal ap­peal be­fore the Unit­ed King­dom-based Privy Coun­cil, he would be forced to sub­ject him­self to the dis­ci­pli­nary process that was ini­ti­at­ed a lit­tle over five years ago. 

The law­suit cen­tred around dis­ci­pli­nary pro­ceed­ings that were in­sti­tut­ed by for­mer po­lice com­mis­sion­er Gary Grif­fith af­ter O’Con­nor ap­peared be­fore a Peo­ple’s Na­tion­al Move­ment (PNM) screen­ing com­mit­tee be­fore the elec­tions. 

At the time, O’Con­nor had been a po­lice of­fi­cer for over a decade and was as­signed to the Com­mu­ni­ty Polic­ing Unit Sec­re­tari­at as a li­ai­son of­fi­cer with the Pat­na/Flat Riv­er Es­tate Youth Club. 

Al­though O’Con­nor, who won the Ca­lyp­so Monarch com­pe­ti­tion in 2012, was not se­lect­ed to con­test the elec­tion, he was still charged with “par­ti­san­ship” un­der Sec­tion 139 of the Po­lice Ser­vice Reg­u­la­tions. 

The reg­u­la­tion states: “An of­fi­cer shall not make any pub­lic ex­pres­sion of po­lit­i­cal and sec­tar­i­an opin­ions, and shall bear him­self with strict im­par­tial­i­ty in all mat­ters.” 

The pro­ceed­ings be­fore a dis­ci­pli­nary tri­bunal were put on hold as O’Con­nor pur­sued the law­suit chal­leng­ing the de­ci­sion to prof­fer the charge and claim­ing that his con­sti­tu­tion­al rights were in­fringed by it (the de­ci­sion).

While O’Con­nor’s lawyers, led by Anand Ram­lo­gan, SC, of Free­dom Law Cham­bers, did not claim that the reg­u­la­tion was un­con­sti­tu­tion­al, they al­leged that it was mis­in­ter­pret­ed to pros­e­cute him as he nev­er ad­ver­tised his bid to seek to con­test the elec­tion. 

In No­vem­ber 2022, Jus­tice Mo­hammed dis­missed O’Con­nor’s claim. 

He ruled that the law­suit was in­ap­pro­pri­ate as O’Con­nor was en­ti­tled to raise the is­sue of the in­ter­pre­ta­tion of the reg­u­la­tion be­fore the tri­bunal and that any de­ci­sion he made on the is­sue could prej­u­dice the tri­bunal’s work. 

In de­ter­min­ing the ap­peal, Jus­tice Lucky, who wrote the judg­ment on be­half of the pan­el, not­ed that the con­ces­sion in re­la­tion to the con­sti­tu­tion­al­i­ty of the reg­u­la­tion was fa­tal to the case. 

Jus­tice Lucky ruled that the law­suit could not be used to seek to sub­vert the role of the dis­ci­pli­nary pro­ce­dure for po­lice of­fi­cers, es­tab­lished by Par­lia­ment un­der the Con­sti­tu­tion, the Po­lice Ser­vice Act and as­so­ci­at­ed reg­u­la­tions. 

Jus­tice Lucky al­so found that the tri­bunal was com­pe­tent enough to prop­er­ly con­sid­er O’Con­nor’s de­fence. 

“Be­ing spec­u­la­tive about the abil­i­ty of the tri­bunal to per­form its role, with­out giv­ing them an op­por­tu­ni­ty to pro­ceed with the mat­ter, is tan­ta­mount to bring­ing their com­pe­tence in­to dis­re­pute. And that would not be fair,” Jus­tice Lucky said. 

Jus­tice Lucky al­so ruled that O’Con­nor failed to prove any ex­cep­tion­al cir­cum­stances to war­rant the case. 

“O’Con­nor has pre-empt­ed a process, which was specif­i­cal­ly de­signed to deal with the dis­ci­pli­nary charge brought against him,” Jus­tice Lucky said. 

Jus­tice Lucky al­so re­ject­ed O’Con­nor’s claim that the judge was wrong to have or­dered him to pay 75 per cent of the le­gal costs in­curred by the Po­lice Com­mis­sion­er’s Of­fice and the Of­fice of the At­tor­ney Gen­er­al to de­fend the law­suit. 

O’Con­nor was al­so rep­re­sent­ed Jodie Black­stock and Ganesh Sa­roop. The com­mis­sion­er’s of­fice was rep­re­sent­ed by Rishi Dass, SC, and Vanes­sa Gopaul, while Rus­sell Mar­tineau, SC, and Keisha Pros­per rep­re­sent­ed the AG’s Of­fice.