DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

The Unit­ed Na­tion­al Con­gress (UNC) will now have to pur­sue its elec­tion pe­ti­tion for the dis­trict of Lengua/In­di­an Walk be­fore the Court of Ap­peal.

On Wednes­day af­ter­noon, High Court Judge Maris­sa Robert­son dis­missed the pe­ti­tion, which was filed by the par­ty af­ter the Lo­cal Gov­ern­ment Elec­tions on Au­gust 14, last year.

Guardian Me­dia un­der­stands that the par­ty’s le­gal team was draft­ing the ap­peal up to late yes­ter­day.

Un­der the Rep­re­sen­ta­tion of the Peo­ple Act, elec­tion pe­ti­tions are on­ly heard by the lo­cal courts with no pos­si­bil­i­ty of a fi­nal ap­peal be­fore the coun­try’s high­est court, the Unit­ed King­dom-based Privy Coun­cil.

The pe­ti­tion was based on what tran­spired in two suc­ces­sive re­counts for the dis­trict that oc­curred when PNM can­di­date Aut­ly Granthume was an­nounced as the win­ner over UNC can­di­date Nicole Gopaul on elec­tion night.

Granthume ini­tial­ly re­ceived 1,430 votes com­pared to Gopaul’s 1,425.

At the end of the 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.

The pend­ing pe­ti­tion meant that the in­cum­bent chair­man of the Princes Town Re­gion­al Cor­po­ra­tion re­mained in of­fice as a new chair­man could on­ly be elect­ed af­ter the coun­cil­lor for the dis­trict was de­ter­mined, de­spite the UNC se­cur­ing the nine re­main­ing dis­tricts which make up the cor­po­ra­tion.

In the event that the par­ty does not suc­cess­ful­ly chal­lenge Jus­tice Robert­son’s de­ci­sion be­fore the Court of Ap­peal, a by-elec­tion will have to take place.

In de­ter­min­ing the case, Jus­tice Robert­son ruled that the EBC prop­er­ly fol­lowed the pro­vi­sions of the Elec­tions Rules in re­ject­ing the bal­lot.

“Col­lec­tive­ly, these pro­vi­sions speak to the im­por­tance of the ex­is­tence of the ini­tials of the Re­turn­ing Of­fi­cer to ver­i­fy that the bal­lot as be­ing the one which was pre­vi­ous­ly is­sued by the Re­turn­ing Of­fi­cer for the elec­tion in ques­tion,” she said.

While Jus­tice Robert­son con­sid­ered the fact that the State­ment of Poll sug­gest­ed that all bal­lots is­sued were nu­mer­i­cal­ly ac­count­ed for, she not­ed that such ac­count­ing could not con­firm that the dis­put­ed bal­lot was ini­tial­ly is­sued by the Re­turn­ing Of­fi­cer.

She al­so re­ject­ed sub­mis­sions from the par­ty that the Re­turn­ing Of­fi­cer could have cor­rect­ed the is­sue.

“This Court has de­ter­mined that there is no cor­rec­tive pro­ce­dure in the Elec­tion Rules to treat with a spe­cial bal­lot which does not con­tain the ini­tials of the Re­turn­ing Of­fi­cer,” Jus­tice Robert­son said.

“A Court can­not cure a de­fect which the Rules them­selves do not con­tem­plate,” she added, as she not­ed that on­ly Par­lia­ment could ad­dress the is­sue by amend­ing the leg­is­la­tion.

Crit­i­cism for the EBC

De­spite the find­ings, Jus­tice Robert­son did crit­i­cise the EBC for al­so claim­ing that the UNC did not prop­er­ly chal­lenge the re­ject­ed bal­lot on elec­tion night when it first re­spond­ed to the pe­ti­tion.

Stat­ing that the EBC did not clear­ly out­line the rea­sons for its de­ci­sion, Jus­tice Robert­son said: “In this re­gard, the com­mis­sion ought to have pre­sent­ed its rea­sons with a greater de­gree of pre­ci­sion to pro­vide not on­ly the en­quir­ing can­di­date with a fair op­por­tu­ni­ty to con­sid­er their op­tions but al­so for greater trans­paren­cy in the elec­toral process.”

“Such stan­dards are re­quired to be main­tained even when the time­lines are strin­gent,” she added.

Jus­tice Robert­son not­ed that the EBC’s fail­ure did not prej­u­dice the pe­ti­tion.

An­oth­er le­gal blow

The UNC al­so filed a pe­ti­tion over the EBC’s han­dling of the Ari­ma North­east dis­trict.

How­ev­er, that pe­ti­tion was dis­missed at a pre­lim­i­nary stage by High Court Judge Frank Seep­er­sad over claims by the EBC over pro­ce­dur­al er­rors in fil­ing it.

In the ap­pli­ca­tion, the EBC con­tend­ed that the pe­ti­tion, pur­sued by UNC can­di­date Jairz­in­ho Rigs­by, should have named PNM can­di­date Kim Gar­cia, who was de­clared the win­ner af­ter a re­count and ver­i­fi­ca­tion ex­er­cise, as the re­spon­dent.

Al­though Jus­tice Seep­er­sad ruled that that pe­ti­tion was hope­less­ly flawed as a re­sult of the er­ror, he was care­ful to note that his find­ing did not mean that Rigs­by’s com­plaints were friv­o­lous.

He sug­gest­ed that the EBC should con­sid­er a crit­i­cal and com­pre­hen­sive re­view of its cur­rent process­es based on Rigs­by’s com­plaints.

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 Adan­na Bain.

Al-Rawi: Mat­ter in PM’s hands now

In a state­ment last night, Lo­cal Gov­ern­ment Min­is­ter Faris Al-Rawi said the tim­ing of an elec­tion is a mat­ter up to the Prime Min­is­ter.

Al-Rawi said the PNM ac­knowl­edged the judg­ment which dis­missed the UNC’s pe­ti­tion.

“In ac­cor­dance with our de­mo­c­ra­t­ic prin­ci­ples, the PNM abides by the court process and due process and wel­comes the de­vel­op­ment...our coun­try has a well es­tab­lished and un­blem­ished his­to­ry of con­duct­ing elec­tions and we are con­fi­dent that un­der this Gov­ern­ment, this prece­dent shall pre­vail,” he said.

Al-Rawi didn’t com­ment on what would oc­cur if the UNC de­cid­ed to ap­peal the judg­ment.

Soon af­ter the rul­ing, Moru­ga MP Michelle Ben­jamin post­ed on Face­book, “Based on the judg­ment hand­ed down by the judge, it sig­nals a vic­to­ry for the peo­ple of Lengua/ In­di­an Walk; there­fore, let us keep fo­cused and al­low jus­tice to take its course.

“We look ahead and em­brace this on­ly as a pil­lar of strength to test our faith and re­silience. Our pe­ti­tion has been re­ject­ed by the courts, rest as­sured the fight has now be­gun!”

In­di­an Walk dis­trict feel con­fi­dent that we will con­tin­ue the fight un­til vic­to­ry is se­cured. Jus­tice de­layed, is not jus­tice de­nied; we will pre­vail! Whether it be at the polls or in court, vic­to­ry will be ours!!!”