Trinidad and Tobago Courts
Port of Spain, Trinidad, Oct 28, CMC – A High Court judge has said she granted leave to the main opposition United National Congress (UNC) to challenge the results of the September 7 general elections in six constituencies based on the evidence the party presented to the court.
Justice Mira Dean-Armorer in a 17-page reason for granting leave to the UNC, also noted that based on the evidence and submissions presented to the court, the case advanced before her, could not have possibly been classified as ‘frivolous or vexatious or having no chance of success”.
The Court of Appeal will meet next Monday to hear the appeals filed by the Elections and Boundaries Commission (EBC) as well as six successful candidates of the People’s National Movement (PNM), who are seeking to have the petitions against them dismissed.
The UNC is challenging the results in the San Fernando West, La Horquetta/Talparo, Toco/Sangre Grande, Tunapuna, St Joseph and Moruga/Tableland constituencies, which they lost and considered marginal.
The UNC wants the Court to declare the results of the six constituencies null and void.
Justice Dean-Armorer had on September 18 given the UNC leave to file the petitions based on the argument that the EBC had no power to extend the September 7 general election voting time by one hour, due to inclement weather.
In listing her reasons for granting the leave, the judge said she considered the affidavit of UNC St Joseph candidate and former communications minister Vasant Bharath, as well as additional evidence presented to the court, that the EBC was motivated to extend the time by a request from the then opposition PNM party.
Attorneys for the UNC had presented a newspaper report to bolster their allegation of unfairness and possible collusion between the PNM and the EBC.
In his affidavit, Bharath claimed that it was only at approximately 5.40 pm (local time) on September 7 that the UNC party was informed of the extension of the polling time, when it appeared that the PNM knew at 5.15 pm of the decision to extend the voting to 7 pm, based on a post on its official Facebook Page.
“The undisputed affidavit evidence painted a picture of the members of the UNC and its election machinery becoming aware of rumours of the extended time, at the metaphorical eleventh hour.
“According to the evidence, their awareness of the rumours led them to a virtual scrambling for information with the consequence of being unable to inform their faithful of the change. When the information was finally obtained they were faced with polling booths being closed because the presiding officers were apparently unaware of the extension,” Justice Dean-Armorer wrote.
She said “the evidence was also buttressed by further evidence that the then opposition party, in contrast to the party of the Applicant, was aware of the extension of time, and that its supporters were so informed through a post on a Facebook page.
“From this evidence, the Court inferred that there was evidence that the EBC had acted illegally and in particular, contrary to Section 3 of the Representation of the People Act which requires it to enforce, on the part of the Election Officers, fairness, impartiality and compliance with the Act,” the judge said.
She also said that it was in her view that based on the affidavit evidence and the written and oral submissions mounted by the UNC’s attorney and former attorney general Anand Ramlogan SC, that it was ‘not possible to classify this case as frivolous, or vexatious, or having no chance whatever of success.’
Justice Dean-Armorer also noted that it was clear from the evidence presented that at 6.00 pm voters were being turned away from at least two polling stations in the St Joseph constituency.
“The affidavit evidence therefore painted a picture not of a simple breach of the Election Rules, but of a decision which was taken by the EBC which created confusion in the relevant constituency, and elicited varying reactions by different polling stations according to, whether or not, they were aware of the extension,” she said.
She also said the evidence painted a second picture of the aftermath of the election as Bharath’s supporters complained and protested that had they known of an extension they would have voted.
“From this evidence it appeared to the Court that there were many persons who would have voted for the Applicant (UNC’s Bharath) had they known of the extension,” she said.
According to the judge, it was clear to her that Bharath had not given exact numbers, but said that alone was, “not a good reason for withholding leave.”
“It was my view that despite the lack of particulars as to the exact numbers of persons who would have voted for the UNC, had they known of the extension, there was evidence that there were many such complaints. Moreover, it was my view that exact numbers would become available when the matter became inter partes and the Court had the benefit of full evidence not only from the Applicant, but also from the EBC,” Justice Dean-Armorer said.
Justice Dean-Armorer said while the EBC, under Section 71 (8) of the Constitution is vested with power to regulate its own procedure, “it was however questionable whether an alteration in polling times was a matter of procedure or whether the times were established, so as to ensure certainty as to voting times.
“I also considered whether the allegation that the EBC had omitted to alert the Applicant’s party of the extension in a timely manner may have further exacerbated the illegality. In my view, it was arguable that this factor may have taken the extension of time beyond a mere breach of Election Rules 46,” she said, adding that they were issues which ought to be ventilated at a full hearing.
