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.