THOSE (PESKY) ELECTION PETITIONS

A lot of people have criticized the UNC and former Prime Minister Kamla Persad- Bissessar for filing those six election petitions. The criticism, in essence, is that it is felt that the UNC shouldn't be a sore loser and should accept the results. The people have spoken, therefore the UNC should put up and shut up. Certain people like former Attorney General Ramesh Lawrence Maharaj have weighed in and said that in his considered legal view the petitions will fail and that the Elections and Boundaries Commission (EBC) had every right to extend the voting hours if it so chose to do.


But then, a High Court Judge gave permission to the UNC to file the petitions showing in effect tat there is at least something there in the argument that ought to be looked at. This has left a lot of people confused. Dos the UNC have a case after all? Is this really just a big waste of judicial time? What exactly is the point of this? And if the UNC is successful what happens next? What will happen in the meantime?


Let's start with the easy questions first: unless and until a Court of law overturns any result declared by the EBC, that result stands. In other words, all six of the persons declared as the winners in the disputed constituencies remain the winners unless and until a Court says otherwise.


Next, assuming (though certainly not admitting) that the Court upholds (agrees with) the UNC's allegations and sets aside the results then by-elections will have to be held in those constituencies in which the results were successfully challenged. Assuming (though again not accepting) that the challenges are successful then while in theory there would only have to be by-elections in those six seats, the Government would probably lose a no confidence motion in the Lower House which would be brought immediately by the Opposition. This would trigger a General Election! As to who would win that ... well, that is a whole other story.


Those who believe that the UNC petitions are frivolous are hanging their hats on sections 70(11) and (12) of the Constitution which say
"(11) The registration and the conduct of elections in every constituency shall be subject to the direction and supervision of the Commission (The EBC).
(12) "In the exercise of its functions under this section the Commission (The EBC) shall not be subject to the direction or control  of any other person or authority."


Seems pretty clear, doesn't it?


But enter the Representation of the People Act (the ROP) which was proclaimed (made law) in 1967. The Constitution came into being in 1976 and although it is the supreme law it is generally recognized that all laws that were valid before the Constitution remained valid after its proclamation. In other words, you have to look at the ROP to determine issues such as these being raised right now.


Now, the ROP says in section 35(1) that
"The proceedings of an election shall be conducted in accordance with the Election Rules."
And sections 27(1) and (2) of the Election Rules say that
"(1)Subject to subrule (2), the taking of the poll at each polling station shall be between six o'clock in the morning and six o'clock in the afternoon of the same day.
"(2) If at the hour of the closing of the poll there are any electors within the polling station who have not cast their votes, the poll shall be kept open a sufficient time to enable them to vote."


And section 34 of the ROP says in essence that if at any time between the issue of the election writ and polling day there is an emergency of any kind then if the President is satisfied that there is an emergency that the President may order a postponement of the polls. In other words, The EBC has no authority to postpone the polls or alter the Election Rules.


But before we all jump on the bandwagon,there is one more piece of law to look at: section 35(3) of the ROP which says
"No election shall be declared invalid by reason of any act by a Returning Officer or any other person in breach of his official duty in connection with the election or otherwise or of the Election Rules if it appears to the Court having cognizance of the question that the act did not materially affect the result of the election." (Emphasis mine.)


So, what do I think? I think that the petitions are serious and ought to be litigated. On the face of it, it certainly appears that the EBC was wrong to extend the opening time of the polls in Trinidad, i.e., that it had no legal authority to do so. And you have only to look at it to see why this is important. Either we are a nation of laws or we are not, and to me, at least the law on this point is clear. Issues like this need to be crystal clear so that our democracy can flourish and move forward.


But the more thorny problem for the UNC is that contained in section 35(3). We'll have to wait and see how the arguments go in court, but speaking only for myself I can't see how the UNC is going to be able to prove that there could have been a different result in the six seats under challenge. And there, as the poet might say, is the rub!