Friday, September 25, 2015
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!
Posted by Robin Montano at 10:19 AM
Tuesday, September 1, 2015
Let me start by stating the obvious: I am not a member of any political Party and have no interest, financial or otherwise, in the outcome of the general elections other than that of an interested observer. Secondly, I do not have crystal ball nor do I have access to the Oracle of Delphi.
If a person lives in Port of Spain or in the West he could be forgiven if he were asked today who is going to win Monday's poll if he answered the PNM. But a more discerning observer would pay attention to certain 'straws in the wind' that seem to suggest otherwise. For example, the Express newspaper has been virulently anti-Government until about the last two weeks. Why? You couldn't pick up the Express a mere three weeks ago without the first three or four pages carrying stories that were critical of the PP Government. I personally counted at least nine anti-Government stories in the Express about three weeks ago on the first three pages of a particular edition. Then, all of a sudden, the newspaper has adopted a more moderate stance and has been fairly neutral over the last two weeks. Why? What happened?
Further, for the last two Sundays in a row the Express has not published the results of any poll. Why? That newspaper normally employs the Nigel Henry polling firm Solutions by Simulation. So? Why hasn't the newspaper published the poll?
My information is that the Nigel Henry polls (which are generally regarded as the most accurate of all the public polling firms) are showing a PP/UNC victory and that the UNC is ahead with somewhere between 21 seats on the low side to 24 seats on the high side!
Could this be the reason for the apparent move to the centre by the Express? In other words, is the newspaper in possession of information that the PP/UNC is in reality ahead, but doesn't want to admit it but also doesn't want to end up with egg on its face if the PP/UNC does in fact win? If not, then why hasn't the newspaper published any polls for the last two Sundays in a row?
The next 'straw in the wind' was the behavior of Dr. Rowley and the PNM last week when they made a big fuss over some alleged criminal act of the UNC and reported it to the Acting Commissioner of Police. You see, normally, when somebody is winning he/she doesn't whine about some action of his/her opponent. Instead he/she focuses on the finish line and surges ahead. But Dr. Rowley isn't doing that. This, to me, lent credence to a report that I got that at a high level PNM meeting last week Dr. Rowley was complaining angrily that the PNM's internal polls were showing that the PP/UNC was surging ahead of the PNM and he was demanding answers as to how to stop this.
The next 'straw in the wind' is the body language of Mrs. Persad-Bissessar and her lieutenants. The Prime Minister looks tired, but she does not look as though she believes that she is losing. Quite the contrary. She carries herself like a winner.
Now, over the last five years I have observed Mrs. Persad-Bissessar very carefully. When she is under severe pressure (and there have been such moments in the last five years) you can see that she is feeling the strain and that she is not in complete control. But over the last two weeks, she hasn't looked as though she is not in control.
Look: I'll be the first to admit that everything that I have written here is not something to 'bet the farm' on. But over a lifetime in and out of politics I have learned to pay attention to little things ... 'straws in the wind'. And I also know that both political Parties run internal polls almost on a daily basis during election season and that these internal polls (which are never published) are much more accurate than those which are foisted upon us by the newspapers. Their internal polls have to be deadly accurate. No modern political Party can operate without a first class, reliable pollster. The pollster does not just give the information about who is winning or losing but also on what issues are resonating with the public, where the particular Party is weak and where it is strong. In these circumstances, I look very, very closely at the top 'bananas' on both sides (because only a handful on each side ever gets to see these polls) and see how they are behaving; what their body language is like. It tells a lot. And while I will admit that I am definitely not an expert on body language, as a very amateur student of the art I have found it to be very helpful in a myriad of situations such as this one now.
I am aware of the polls being published in the Guardian. But for reasons that are not relevant to this particular post I tend to discount them. Let me just say that the Guardian has its own reasons for wanting a PNM win, but has learned to be more discreet about it than its rival the Express.
So? What's my prediction for next Monday? PP/UNC by a nose! And I'll bet one dollar to one doughnut on that. (We can decide afterwards who pays the dollar and who pays the doughnut!) Am I certain about my prediction? Not at all! At the time of writing there are still six long days to go and this race is the tightest that I have ever seen in all my years on this planet in this twin island state. Any number can play, but if there are no more great surprises I will stand by what I have said and be absolutely prepared to admit that I was wrong ... if events prove me to be!
Posted by Robin Montano at 2:05 PM