‘BYE ELECTIONS

It was a bitter-sweet victory for the United National Congress, which, in presenting the petitions on September 22 of last year, alleged that it was an illegal decision by the Elections and Boundaries Commission to grant an additional hour for voting in Trinidad at last September 7 general elections because of bad weather conditions.

The UNC’s political leader, Kamla Persad-Bissessar, who was among the team of attorneys who argued the petitions before Justice Mira Dean-Armorer in June, claimed victory in the court’s decision yesterday, while so too did Attorney General Faris Al Rawi, whose San Fernando West constituency was also challenged in the courts.

The UNC intends to appeal Justice Dean-Armorer’s decision and will lodge its appeal after its legal team has had an opportunity to digest the court’s ruling.

In her 53 page decision, the judge found, “Torrential rains and flooding on the 7th September 2015, may have impelled the EBC to issue the directive which they did. Nonetheless, the uncontrollable weather conditions did not confer the EBC the power to direct that the law be broken. The EBC, itself a creature of statute, ought at all times to abide by the clear dictates of the law and ought not to purport to dispense with those dictates even if faced with an apparently insurmountable problem. Accordingly, it is my view and I hold that the extension of the polls on the 7th September 2015 was illegal and election officers who failed to close the poll at 6 p.m. acted in breach of section 27 (1) of the Election Rules.” She further contended, “In my view, an examination of the authorities suggest that, in assessing whether or not there was substantial compliance, the Court should have regard not only to the number of polling hours but to what was achieved in the given time, that is to say how many persons were permitted to cast their votes.” “In my view there is no evidence to suggest that the conduct of the election was other than free or fair according to the first Woodward test. There was no allegation of intimidation or of the unavailability of election material such as ballot paper or ink. There was no evidence of trickery or fraudulent counting of votes or false declaration by election officers.” In the five constituencies being challenged, all won by People’s National Movement candidates, the margin of victory were: 1,633 votes (St Joseph); 3,615 (Tunapuna); 2,822 (La Horquetta/Talparo); 533 (Moruga/Tableland); 3,310 (San Fernando West) and 3,904 (Toco/ Sangre Grande).

In their defence of the petitions, the PNM’s attorneys urged the judge to reject the petitions, saying that the UNC had failed to prove the extension materially affected the outcome of the election.

The PNM’s attorneys said the five candidates would still have won the election even if all the votes cast during the extension were subtracted from their totals and elections were only invalidated in circumstances where persons intentionally attempt to pervert their outcome.

Lawyers for the Elections and Boundaries Commission argued that the commission had no choice but to extend last year’s general election by one hour to ensure that citizens were able to exercise their democratic right to vote.

In her ruling yesterday, Justice Dean-Armorer said while it was her finding that there was “undoubtedly a breach of the Election Rules” which pervaded the entire island of Trinidad, the consequence of such was not sufficient to invalidate the results.

She noted that Section 35(3) of the Representation of the People’s Act did not “positively empower the court to invalidate the election.” “By its plain and ordinary meaning, it is a saving provision.

This subsection prohibits the court from declaring an election invalid where the court finds the occurrence at a breach or breaches of an official duty or of the election Rules and it appears to the court that the breach did not materially affect the election,” she held.

The judge also noted that although the UNC asked that the court look beyond ‘the number game’ and give regard to the evidence, she said it would have left the court having to speculate on how many persons were affected by the extension and how many would have turned out to vote.

“I have, in these petitions, strove to hold the balance to protect the will of the majority while ensuring that the patent mistakes have not reduced the election of 2015 to a mere sham. For reasons stated, it has been my view that the election of 2015 in Trinidad and Tobago was substantially in accordance with the prescribed law and does not appear to me that the breaches affected the results.

It is therefore my view and I hold that the petition should be and is hereby dismissed.” She also cited a lack of evidence on the part of the petitioners to show where supporters of the losing party had dashed their hopes of taking advantage of the extended polling hour.

“In my view, an examination of the authorities suggest that, in assessing whether or not there was substantial compliance, The Court should have regard not only to the number of polling hours but to what was achieved in the given time, that is to say how many persons were permitted to cast their votes. The Courts have also placed great weight on whether a majority of voters were disenfranchised,” she noted.

According to the judge, it was clear that the majority of voters had exercised their franchise before the illegal extension and no one was prevented from voting.

“I hold that there was substantial compliance with election laws,” she said, as she added that she would not be justified in declaring the election void under the common law of Parliament.

Dean-Armorer observed that, in performing the test of the ‘ordinary man’, it was recognised that the poll was conducted peacefully throughout the day and the only obstacle presented was that of inclement weather, “over which election laws had no control.” “My assessment of the view of the ordinary man is strengthened by the reflection that the election was challenged in only six of the 34 constituencies in Trinidad, in spite of the fact that the very widespread multiple breaches took place through the island of Trinidad. From this undisputed fact, I have inferred the electors in 28 out of 35 constituencies were satisfied that the election was not a sham or travesty.” Speaking yesterday, PNM Tunapuna MP Esmond Forde said he was happy that the petition was no longer hanging over his head.

Vocal UNC supporters, who were at the Hall of Justice in Portof- Spain, were heard expressing their bewilderment with the court’s ruling. “How can the race be wrong but the outcome right?” They were, however, supportive of the party: Even when they lose, they win.” The UNC was ordered to pay the PNM’s cost of defending the petitions while no orders were made against the party for paying the EBC’s costs.

A sixth petition, challenging the results in the La Horquetta/ Talparo constituency, held by Public Administration and Communications Minister Maxie Cuffie, was thrown out by the appellate court in May.

The petition challenging Cuffie’s seat, which he won by 2,822 votes, was struck out and as there is no right of appeal to the Privy Council on election matters, there was no challenge of the results in that constituency.

The UNC petitioners were represented by Timothy Straker QC, former prime minister Kamla Persad-Bissessar, SC, Anand Ramlogan, SC, Kent Samlal, and Jayanti Lutchmedial while while Russell Martineau, SC, Deborah Peake, SC, and Ravi Heffes-Doon appear for the EBC’s Returning Officers.

Appearing with Douglas Mendes, SC, for the five PNM MPs are John Jeremie, SC, Michael Quamina, Ravi Nanga, Celeste Jules, Vanessa Gopaul and Elena Araujo.