The United National Congress (UNC) has been granted last minute permission to extend the scope of its election petitions challenging the Election and Boundaries Commission’s (EBC) decision to extend last September’s general election by one hour due to heavy rainfall.
The Opposition party yesterday emerged winner of a special sitting of the Court of Appeal to clarify two major pre-trial evidential issues, which had to be determined to allow for the start of the trial of the five petitions this morning.
The UNC’s legal team had appealed a decision by trial judge Mira Dean-Armorer to strike out hearsay evidence from its witnesses which she felt was irrelevant to their case against the EBC.
Delivering an oral judgment yesterday, Appellate Judges Allan Mendonca, Peter Jamadar and Judith Jones ruled that Dean-Armorer had construed the UNC’s petitions too narrowly and should have considered her power to admit the evidence. The three-member panel sent the issue back to Dean-Armorer for her reconsideration.
In a secondary appeal, the EBC had challenged Dean-Armorer’s decision to allow the UNC to refer to EBC documents, including polling station diaries and records of roving EBC officials, which included information on the closing time of individual polling stations and the number of people who voted during the extended period.
Presenting submissions yesterday, EBC lawyer Russel Martineau, SC, claimed that Dean-Armorer’s decision on the issue, last Friday, was unfair, as it did not give them enough time to respond before the start of the trial.
“It is impossible to deal with this. Judges have to be realistic,” Martineau said as he claimed his team would be required to analyse over 1,000 documents and respond whilst preparing for the trial.
Responding to claims from the UNC that the EBC should have already inspected the documents because they were in possession of them, Martineau claimed election legislation forbids the EBC or its lawyers from handling the documents in the absence of a court order.
While the head of the People’s National Movement’s (PNM) legal team Douglas Mendes, SC, agreed with the EBC that the documents should have been excluded from the case, he said his client could not agree to a deferral of the trial to accommodate the EBC.
“These important matters must be determined sooner rather than later, because a cloud is hanging over the results of the election,” Mendes said.
In dismissing the EBC’s appeal, the judges ruled that Dean-Armorer had “taken into account all relevant considerations” when she gave her ruling last Friday and instituted a short timeline for responses. However, the panel felt that due to yesterday’s lengthy procedural appeals, the EBC should be granted a one-day extension to respond.
The UNC is being represented by Timothy Straker, QC, Anand Ramlogan, SC, Kent Samlal and Douglas Bayley.
The PNM’s legal team includes John Jeremie, SC, Michael Quamina, Kerwyn Garcia, Terrence Bharath and Celeste Jules. Senior Counsel Deborah Peake is also part of the EBC’s legal team.
ABOUT THE CASE
In its petitions, the Opposition is claiming the EBC’s returning officers acted illegally when they followed the EBC’s directive to extend the poll, as the commission did not have the power to adjust the 6 am to 6 pm time period for elections. It contends its defeat in the constituencies was marginally affected by the EBC’s decision to extend the polling hours.
The UNC initially filed petitions for six marginal constituencies—La Horquetta/Talparo, Toco/Sangre Grande, Tunapuna, St Joseph, San Fernando West and Moruga/Tableland. In March, however, the petition for La Horquetta/Talparo was struck out by Dean-Armorer due to an administrative error by the UNC in filing it. Besides the petitions, Dean-Armorer has also been assigned two cases in which three private citizens are challenging the EBC’s decision.
Social activist Ravi Balgobin Maharaj has filed a judicial review seeking the court’s clarification on whether the EBC had the constitutional power to make the decision and Irwin Lyne and Melissa Sylvan are claiming that the EBC breached the constitutional rights of Tobagonians by not allowing them an extension.
Both cases have been deferred as they would be directly affected by the outcome of Dean-Armorer’s decision on the petitions.