Derek Achong

The in­de­pen­dent body ap­point­ed to man­age elec­tions in T&T act­ed il­le­gal­ly when it took a de­ci­sion to ex­tend last Sep­tem­ber's gen­er­al elec­tion by one hour due to heavy rain­fall in Trinidad.

High Court Judge Mi­ra Dean-Ar­mor­er made the state­ment in the Port-of-Spain High Court yes­ter­day, as she dis­missed five elec­tion pe­ti­tions filed by the Unit­ed Na­tion­al Con­gress (UNC) chal­leng­ing the Elec­tions and Bound­aries Com­mis­sion's (EBC) de­ci­sion. How­ev­er, Dean-Ar­mor­er ruled that the UNC had failed to ad­duce suf­fi­cient ev­i­dence to war­rant the elec­tion re­sult be­ing in­val­i­dat­ed.

"The court is pro­hib­it­ed from de­clar­ing an elec­tion in­valid where the court finds the oc­cur­rence of 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," Dean-Ar­mor­er said as she not­ed that even if all the votes cast dur­ing the one-hour ex­ten­sion were to be de­duct­ed from the votes ob­tained by win­ning can­di­dates, the elec­tion re­sult would re­main the same.

"I have, in these pe­ti­tions, striv­en 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," she added.

The UNC now has 14 days in which to ap­peal the judg­ment. The Court of Ap­peal's even­tu­al de­ci­sion on the pe­ti­tions will be fi­nal as it and not the Privy Coun­cil, has ex­clu­sive ju­ris­dic­tion in elec­tion cas­es.

While in her 53-page judg­ment, she said the EBC went be­yond its con­sti­tu­tion­al and statu­to­ry re­mit in ex­tend­ing the poll, as it had no ex­press pow­er to do so, Dean-Ar­mor­er said she felt that the EBC act­ed out of "gen­uine con­cern" for vot­ers who it felt might be dis­en­fran­chised by the in­clement weath­er con­di­tions on elec­tion day.

"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 on 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," she said.

Apart from the EBC's un­law­ful ex­ten­sion, Dean-Ar­mor­er said it was in sub­stan­tial com­pli­ance with elec­tion rules and reg­u­la­tions.

"In my view, there is no ev­i­dence to sug­gest that the con­duct of the elec­tion was oth­er than free or fair.

"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," Dean-Ar­mor­er said.

She al­so re­ject­ed the UNC's claim that EBC of­fi­cials com­mit­ted cor­rupt prac­tices when they al­lowed vot­ers to cast their bal­lots af­ter the tra­di­tion­al 6 am to 6 pm pe­ri­od of vot­ing had elapsed. Dean-Ar­mor­er said they were act­ing on the di­rec­tives of the EBC and that the UNC could not prove that they act­ed with ma­li­cious in­tent.

In ad­di­tion, Dean-Ar­mor­er re­ject­ed the UNC's con­tention that it had been prej­u­diced by the de­ci­sion, as many of their elec­tion of­fi­cials had is­sues in re­ceiv­ing con­fir­ma­tion of the ex­ten­sion from the EBC.

"The ev­i­dence dis­clos­es, how­ev­er, that the op­pos­ing camp had a sim­i­lar­ly well or­gan­ised ma­chin­ery and be­cause of the late no­ti­fi­ca­tion of the ex­ten­sion and the un­cer­tain­ty, the PNM par­ty or­gan­is­ers them­selves aban­doned any ef­forts to at­tract sup­port­ers to make use of the ex­tend­ed time," she said.

Op­po­si­tion pays le­gal costs

Dean-Ar­mor­er crit­i­cised the UNC for ask­ing her to con­sid­er its sup­port­ers who failed to take ad­van­tage of the ex­ten­sion, as the UNC had failed to bring them to tes­ti­fy in court.

"In my view, this is ask­ing the court to em­bark on an ex­er­cise of pure spec­u­la­tion," she said.

She al­so ques­tioned the UNC's de­ci­sion to file pe­ti­tions on­ly in six mar­gin­al con­stituen­cies–La Hor­quet­ta/Tal­paro, To­co/San­gre Grande, Tu­na­puna, St Joseph, San Fer­nan­do West and Moru­ga/Table­land. The La Hor­quet­ta/Tal­paro pe­ti­tion had been dis­missed at a pre­lim­i­nary stage by Dean-Ar­mor­er and lat­er the Court of Ap­peal, as they ruled that it had been served on the PNM af­ter the time frame for do­ing so had elapsed.

"The or­di­nary man in T&T would recog­nise that the poll was con­duct­ed peace­ful­ly through­out the day and that the on­ly ob­sta­cle was pre­sent­ed by in­clement weath­er, over which the 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 39 con­stituen­cies in Trinidad, in spite of the fact that the very wide­spread mul­ti­ple breach­es took place through­out the is­land of Trinidad," she said.

As part of her de­ci­sion, Dean-Ar­mor­er or­dered that the UNC pay the PNM's le­gal costs for de­fend­ing the pe­ti­tions. How­ev­er, the judge ex­empt­ed it from the EBC's costs as Op­po­si­tion Leader Kam­la Per­sad-Bisses­sar, SC, point­ed out that the EBC was found to have act­ed il­le­gal­ly.