Derek Achong

Three of the coun­try's most se­nior judges have failed to come to an agree­ment over whether the Unit­ed Na­tion­al Con­gress (UNC) has con­clu­sive proof that its de­feat in Sep­tem­ber's gen­er­al elec­tion was due to a one-hour ex­ten­sion in vot­ing, in or­der to se­cure a re-elec­tion.

De­liv­er­ing its judg­ment in the ap­peal brought by the Elec­tions and Bound­aries Com­mis­sion (EBC) and the Peo­ple' Na­tion­al Move­ment (PNM) at the Hall of Jus­tice, Port-of-Spain, yes­ter­day, the ap­peal pan­el, led by Chief Jus­tice Ivor Archie, was split two to one, as it ruled that the UNC had met the re­quire­ments re­quired for pre­lim­i­nary ap­proval of the pe­ti­tions.

The judg­ment now clears the way for the pe­ti­tions to be heard in the High Court, with Archie as­sur­ing both par­ties that the Ju­di­cia­ry will take steps to en­sure their pe­ti­tions are heard and de­ter­mined ex­pe­di­tious­ly. A date for the hear­ing is yet to be set.

De­liv­er­ing their ma­jor­i­ty de­ci­sion, ap­pel­late judges Al­lan Men­don­ca and Pe­ter Ja­madar sug­gest­ed that qual­i­ta­tive is­sues need­ed to be con­sid­ered in de­ter­min­ing the im­pact of the EBC's de­ci­sion and not just the quan­ti­ta­tive con­se­quences on whether the PNM at­tained its ma­jor­i­ty in the six dis­put­ed mar­gin­al con­stituen­cies dur­ing this pe­ri­od.

"Such a po­si­tion el­e­vates out­come as ab­solute­ly de­ter­mi­na­tive of le­git­i­ma­cy and dis­cards process as of no or lit­tle con­se­quence. There­in lies a path to un­de­mo­c­ra­t­ic rule," Ja­madar said as he sug­gest­ed that the pur­pose of the pe­ti­tions was to en­sure pub­lic con­fi­dence in the elec­to­r­i­al process.

Ja­madar added: "It ap­pears to me the main rea­son for the di­vi­sions of opin­ion is based on fun­da­men­tal ide­o­log­i­cal dif­fer­ence on the core pur­pose of the rep­re­sen­ta­tion pe­ti­tions."

While Men­don­ca and Ja­madar came to the same de­ci­sion, Men­don­ca gave slight­ly dif­fer­ent rea­son­ing.

Stat­ing that the UNC would have had dif­fi­cul­ties gath­er­ing the ev­i­dence re­quired through Archie's analy­sis dur­ing the brief lim­i­ta­tion pe­ri­od al­lowed for fil­ing pe­ti­tions, Men­don­ca said the par­ty had pre­sent­ed suf­fi­cient de­tails to war­rant Dean-Ar­mour's de­ci­sion to grant leave.

"If an elec­tion has been con­duct­ed so as to not be in sub­stan­tial com­pli­ance with the laws of this coun­try it is im­pos­si­ble to say that the re­sult was not ma­te­ri­al­ly af­fect­ed," Men­don­ca said as he not­ed that the claims were not friv­o­lous or vex­a­tious.

Archie, who was in the mi­nor­i­ty, took a more nar­row view as he ruled that the par­ty's pe­ti­tions should have failed be­cause the UNC did not pro­vide the re­quired ev­i­dence to prove that the re­sult of the elec­tion was ma­te­ri­al­ly af­fect­ed by the EBC's de­ci­sion to grant the ex­ten­sion due to heavy rain in Trinidad.

Refer­ing to the sta­tis­tics on the mar­gin of vic­to­ry in the six con­stituen­cies and the ev­i­dence pro­vid­ed by the UNC, Archie de­scribed their claims as to the ef­fect of the elec­tion as "high­ly spec­u­la­tive and far-fetched.

"If the rules were bro­ken it does not fol­low that the re­sult was un­fair," Archie said.

While he dis­agreed with his col­leagues, Archie said their de­ci­sion would al­low for analy­sis of the EBC's pow­ers, which would as­sist in fu­ture polls it man­aged.

"I dis­agree but I am con­scious of the val­ue of know­ing de­fin­i­tive­ly what EBC can and can­not do for the con­fi­dence of pop­u­la­tion in the elec­tion pe­ti­tions," Archie said.

As part of the rul­ing the ap­peal pan­el or­dered that the EBC and the PNM pay the UNC's le­gal costs for de­fend­ing against its ap­peal.

The UNC was rep­re­sent­ed by Tim­o­thy Strak­er, QC, Anand Ram­lo­gan, SC, Ger­ald Ramdeen, Wayne Sturge and Kent Sam­lal.

The EBC's le­gal team in­clud­ed Se­nior Coun­sel Rus­sell Mar­tineau and Deb­o­rah Peake. Se­nior Coun­sel Dou­glas Mendes and John Je­re­mie and at­tor­neys Ele­na Arau­jo and Ce­leste Jules rep­re­sent­ed the PNM.

THE IS­SUE

The UNC filed the pe­ti­tions af­ter its 23-18 de­feat, claim­ing that the EBC's rules and the Con­sti­tu­tion give the EBC on­ly the pow­er to ad­journ an elec­tion in in­stances of pub­lic vi­o­lence and not the pow­er to ex­tend the tra­di­tion­al elec­tion time­frame of 6 am to 6 pm.

The par­ty is seek­ing to have the court de­clare the re­sults in six mar­gin­al con­stituen­cies null and void, paving the way for re-elec­tions in those con­stituen­cies.

The dis­put­ed con­stituen­cies are San Fer­nan­do West, La Hor­quet­ta/Tal­paro, To­co/San­gre Grande, Tu­na­puna, St Joseph and Moru­ga/Table­land. Three cit­i­zens–Ravi Bal­go­b­in Ma­haraj, Ir­win Layne and Melis­sa Syl­van–have al­so filed pri­vate law­suits chal­leng­ing the EBC's de­ci­sion.

Ma­haraj, an ac­tivist who at­tempt­ed a hunger strike to con­vince en­vi­ron­men­tal­ist Dr Wayne Kublals­ingh to end his, is chal­leng­ing the EBC's pow­er to grant an ex­ten­sion.

Layne and Syl­van, both from To­ba­go, are claim­ing that the EBC's breached their con­sti­tu­tion­al rights by on­ly ex­tend­ing the poll in Trinidad. The pe­ti­tions, and both law­suits have been as­signed to Jus­tice Mi­ra Dean-Ar­mour­er. The first hear­ing of Layne and Syl­van's case is sched­uled to take place this af­ter­noon.