A great mistake

Nor was it the PNM. It was the Elections and Boundaries Commission (EBC), the independent constitutional body in charge of conducting the processes which form the heart of our democracy.

On September 7, 2015, the commission made a great mistake.

The people are the real winners of this case.

An election is the foundation of our political society. All of the fundamental rights of our Constitution come in the context of section one of the supreme law which states, “The Republic of Trinidad and Tobago shall be a sovereign democratic State.” The EBC’s unilateral extension of the voting hours opened a Pandora’s box. It shifted the goalpost mid-game, threatening the interests of the UNC, PNM, COP, ILP and any other political party that may one day come into being. It set a precedent introducing crippling uncertainty. Political parties could, at any election thereafter, be caught off guard and thereby disadvantaged according to the discretion of the unelected EBC chairman.

Freedom of political expression – which must include voting – is meaningless without freedom to mobilise under a political party and its machinery. They are limbs of the same tree. Therefore the EBC’s simple action, even if well-intentioned, was a threat to the rule of law and our free society.

This was no frivolous matter. It dealt with an important question which goes to the heart of our system of government. Opposition Leader Kamla Persad-Bissessar is correct to claim victory. At the same time, she cannot ignore the implications of her own argument that the entire election process was irreparably tainted. If this were really the case, all the seats of Parliament in Trinidad would have to be declared vacant. We would have to call a fresh general election.

Justice Dean-Armorer deployed sound reasoning. She followed policy, logic and legal precedent. The ruling does not frustrate the will of the majority. At the same time, it calls a wrong a wrong.

Importantly, the judge also followed the will of Parliament. The Representation of the People Act limits the circumstances in which an election can be declared void.

Section 35 (3) makes it plain that even if an unlawful act is committed, the election is invalidated only if it can be shown that the action materially affected the result.

The EBC evidence was to the opposite effect. The quantum of voters who went to polling stations in the disputed hours was not large enough to swing the outcome.

At the same time, it is true the EBC’s version of events are hard to disprove given its sole authority.

But no party appears to have expressed disquiet on this point in court. And the judge deemed the evidence reliable.

While there have been calls for the EBC commissioners to resign, we do not find this necessary for several reasons. There is no evidence in the case that the EBC acted with malice or corruptly. Rather, the judge found the EBC acted in good faith. This distinguishes the case from that of the Integrity Commission which resigned in 2009 after the court found it guilty of acting in bad faith against Dr Keith Rowley.

When all is said and done, this case is not the best epilogue to the career of Dr Norbert Masson, the former EBC chairman who made the fateful call last September. His tenure had begun in 2006 with Opposition allegations that he was linked to the PNM and ends with a finding of well-intentioned illegality.

Whatever the chairman’s legacy, the gaps in the law must be plugged. Because of this case, it is now established that the EBC can act only in strict accordance with the written law. It is for Parliament to cure the defect of the Representation of the People Act. It must do so urgently in the event of another rainy election day.