Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Elec­tions and Bound­aries Com­mis­sion (EBC) will have to make prepa­ra­tions to hold a by-elec­tion for the Lengua/In­di­an Walk dis­trict.

This af­ter Ap­pel­late judges Char­maine Pem­ber­ton, Vasheist Kokaram and Car­la Brown-An­toine yes­ter­day re­ject­ed an ap­peal from the Unit­ed Na­tion­al Con­gress (UNC) chal­leng­ing the dis­missal of its elec­tion pe­ti­tion by High Court Judge Maris­sa Robert­son in Jan­u­ary.

The ap­peal pan­el ruled that their col­league’s de­ci­sion could not be fault­ed.

“In our view, the tri­al judge was not plain­ly wrong in her in­ter­pre­ta­tion of rule 90(3) of the Elec­tion Rules,” Jus­tice Kokaram said in a writ­ten judg­ment.

Jus­tice Pem­ber­ton de­liv­ered her own views on the case, which were large­ly con­sis­tent with Jus­tice Kokaram’s judg­ment. Jus­tice Brown-An­toine agreed with their find­ings.

The Ap­peal Court’s rul­ing is fi­nal, as elec­tion pe­ti­tions can on­ly be con­sid­ered by lo­cal courts and not the coun­try’s high­est ap­pel­late court, the Unit­ed King­dom-based Privy Coun­cil.

Even if the UNC los­es the even­tu­al by-elec­tion, how­ev­er, it will still main­tain con­trol of the Princes Town Re­gion­al Cor­po­ra­tion, as it se­cured the nine re­main­ing dis­tricts in Lengua/In­dia Walk.

The elec­tion of a new cor­po­ra­tion chair­man was de­pen­dent on the out­come of the case, as the in­cum­bent re­mains in place un­til a coun­cil­lor for the dis­trict is de­ter­mined.

The pe­ti­tion was based on what tran­spired in two suc­ces­sive re­counts for the dis­trict af­ter PNM can­di­date Aut­ly Granthume was an­nounced the win­ner over UNC can­di­date Nicole Gopaul af­ter the Lo­cal Gov­ern­ment Elec­tions were com­plet­ed on Au­gust 14 last year.

Granthume ini­tial­ly re­ceived 1,430 votes com­pared to Gopaul’s 1,425. At the end of a first re­count, both can­di­dates were found to have re­ceived 1,428 votes.

How­ev­er, a spe­cial bal­lot in favour of Gopaul, which would have bro­ken the tie, was re­ject­ed by the Pre­sid­ing Of­fi­cer due to the fail­ure of the Re­turn­ing Of­fi­cer to place their ini­tials on it.

A sec­ond re­count yield­ed the same re­sult as the first, with the Elec­tions and Bound­aries Com­mis­sion (EBC) de­clar­ing that a by-elec­tion was re­quired.

Jus­tice Kokaram ruled the spe­cial bal­lot was not valid with­out the ini­tials and had to be re­ject­ed. He not­ed that the elec­tion rules un­der the Rep­re­sen­ta­tion of the Peo­ple Act (ROPA) did not give EBC of­fi­cials pow­er to cure the de­fect in a sim­i­lar man­ner as with nor­mal vot­ers.

“To hold oth­er­wise that such a vote is to be count­ed is in­con­sis­tent with the main ob­jects of the rules de­lib­er­ate­ly fash­ioned for spe­cial elec­tors and the pur­pose and pol­i­cy of the leg­is­la­tion,” Jus­tice Kokaram said.

“It is an in­cur­able de­fect un­der the ROPA and the bal­lot is sim­ply not in sub­stan­tial com­pli­ance with the leg­is­la­tion.”

Jus­tice Kokaram sug­gest­ed that Par­lia­ment could de­cide to amend the leg­is­la­tion to em­pow­er the EBC to cor­rect such er­rors.

“While cu­ra­tive mech­a­nisms could be im­ple­ment­ed to deal with oc­ca­sions of gen­uine hu­man er­ror for spe­cial elec­tors, this is a mat­ter for the rule-mak­ing body and not this court,” he said.

While Jus­tice Kokaram ruled that EBC of­fi­cials cor­rect­ly han­dled the ques­tion­able bal­lot, he still crit­i­cised the com­mis­sion for fail­ing to clear­ly ar­tic­u­late its rea­sons for do­ing so be­fore the UNC filed its pe­ti­tion.

“Its con­duct pri­or to the pe­ti­tion be­ing filed was a me­an­der­ing process which moved from am­biva­lence as to the rea­son for the ob­jec­tion to un­cer­tain­ty,” he said.

“There could be no sim­pler is­sue than this to re­ject a bal­lot, yet the EBC, for all of its trained of­fi­cials, was un­able to tele­graph its po­si­tion point­ed­ly to the ap­pel­lant un­til af­ter the elec­tion pe­ti­tion was launched,” he added.

Jus­tice Kokaram sug­gest­ed such con­duct could af­fect pub­lic trust and con­fi­dence in the de­mo­c­ra­t­ic process man­aged by the EBC.

“The EBC’s func­tion in this is clear. They must be trans­par­ent, hon­est, open and truth­ful. It must not en­gage in fil­i­bus­ter­ing, am­biva­lence or eva­sive­ness,” he said.

In her judg­ment, which main­ly dealt with the role of the court in elec­tion pe­ti­tions, Jus­tice Pem­ber­ton said it had to strict­ly ap­ply the elec­tion rules and leg­is­la­tion.

“In keep­ing with clear prin­ci­ples that gov­ern the role of an elec­tion court, nei­ther the tri­al judge nor this court has the ju­ris­dic­tion to deem a non-con­form­ing spe­cial bal­lot or put it an­oth­er way, a spe­cial bal­lot that did not sat­is­fy the re­quire­ments of the rules, as valid,” she said.

In a press re­lease yes­ter­day af­ter­noon, the EBC said it was pleased by the out­come.

“Fern Nar­cis-Scope, Chief Elec­tion Of­fi­cer, said notwith­stand­ing the ad­ver­sar­i­al na­ture of lit­i­ga­tion, the com­mis­sion ac­knowl­edges all po­lit­i­cal par­ties as im­por­tant stake­hold­ers in this coun­try’s de­mo­c­ra­t­ic process,” it said.

It al­so ac­knowl­edged the judges’ cri­tique of its con­duct in pro­vid­ing the rea­son for its de­ci­sion.

“With re­spect to state­ments made by judges in both the High Court and Court of Ap­peal re­gard­ing the EBC’s con­duct in this mat­ter, the com­mis­sion will re­view these com­ments in earnest and make the nec­es­sary ad­just­ments in its op­er­a­tions for fu­ture elec­tions,” it said.

The UNC was rep­re­sent­ed by Anand Ram­lo­gan, SC, Jayan­ti Lutch­me­di­al, Kent Sam­lal, Sad­dam Ho­sein, and Natasha Bis­ram. Deb­o­rah Peake, SC, and Ravi Heffes-Doon rep­re­sent­ed the EBC. The PNM was rep­re­sent­ed by Michael Quam­i­na, SC, Ravi Nan­ga, Ce­leste Jules and Adana Bain-Bertrand.