PNM FIGHTS BACK
By JADA LOUTOO Thursday, October 1 2015 (T&T Newsday)LEAVING nothing to chance, six successful People’s National Movement (PNM) Members of Parliament are fighting back as they seek to have the United National Congress’ (UNC) election petitions against them dismissed by the appellate court.The PNM parliamentarians who each won their respective seats in six disputed marginal constituencies of San Fernando West, La Horquetta/Talparo, Toco/Sangre Grande, Tunapuna, St Joseph and Moruga/Tableland, are now appealing the petitions filed against them by the United National Congress.
The election petitions, presented on September 22 by the UNC, seek to have the results in the six constituencies declared null and void by the courts.
The Opposition party, on September 18, received the permission of High Court judge, Justice Mira Dean-Armorer, to file the petitions on an argument that the Elections and Boundaries Commission had no power to extend September 7 General Election voting by one hour due to rainy weather.
However, in the notices of appeal filed by attorneys representing the six MP s, the six contend that the judge was wrong to grant leave. Her “presumed finding that the UNC candidates for the six marginals had presented sufficient evidence to justify the grant of leave” is being challenged by the PNM.
The six MPs — Attorney General Faris Al-Rawi (San Fernando West); Maxie Cuffie (La Horquetta/Talparo); Glenda Jennings-Smith (Toco/Sangre Grande); Esmond Forde (Tunapuna); Terrence Deyalsingh (St Joseph) and Dr Lovell Francis (Moruga/Tableland) say the judge erred in law when she granted leave to the Opposition party, “in the absence of any evidence that anyone joined the lines to vote after 6 pm and was allowed to vote, and/or the number of such persons, such as to suggest that the result of the election might have been materially affected by the alleged unlawful extension of polling hours to 7 pm.” The appellate court is also being asked to set aside the leave granted by Justice Dean-Armorer and have the petitions dismissed.
In the notices of appeal, the winning parliamentarians also mentioned that they were not properly served with all the documents relative to the petitions.
Their service of the notice of appeals were done by electronic means (via email) in accordance with the Civil Proceedings Rules 1998 which provides for same.
The UNC’s attorneys were given 24 hours to respond, failing which there is the assumption that service of the documents were accepted.
The issue of service of the election petitions turned ugly last week when Attorney General Faris Al- Rawi, the sitting Member of Parliament for the San Fernando West seat, was served with his election petition at the funeral service for former minister Errol Mahabir. The service was effected by a bailiff who later claimed he was verbally abused by Al-Rawi.
Attorney for the UNC Wayne Sturge defended the actions of the bailiff. Relative to the petitions, the ruling PNM have repeatedly maintained that the party was not overly perturbed by the court granting leave to the UNC to contest the results of the six constituencies.
The party’s chairman, Minister Franklin Khan has said that the Opposition was free to pursue whatever course of action it wants.
“Our lawyers have indicated that they do not stand a ghost of a chance of victory but it is law and due process has to take place. We are not overly perturbed by that,” he said at a general council meeting, one day after the leave was granted by the court.
He added then, “Obviously, once due process has started we have no comment to make. It is largely a matter between the EBC and the UNC, on whether the EBC acted within their remit and jurisdiction.” Senior Counsel Douglas Mendes and attorney Michael Quamina are also representing the PNM.
EBC ALSO APPEALS Also appealing the leave granted to the UNC is the Elections and Boundaries Commission (EBC).
A total of 12 grounds of appeal have been filed by the EBC’s lawyers Senior Counsel Russell Martineau, Deborah Peake and attorneys Ravi Heffes- Doon and Alana Bissessar.
The commission is also contending that the judge was wrong to grant leave to the Opposition to question the validity of the six successfully elected members of Parliament.
The EBC’s notice of appeal further takes issue with the failure of the UNC to establish that the election of the six MPs were invalid because of the decision to extend the hours of the poll by one hour. They also say the judge erred by granting leave in the absence of evidence that the extension of the polls had an effect on the results in the six constituencies.
The EBC also argues that the judge failed to consider that Section 35(3) of the Representation of the People’s Act states that no election shall be declared invalid by reason of any act by a Returning Officer if it appears to the court that the act did not materially affect the result of the election.
They also state that evidence that the election was affected was required for the granting of leave, so too verified facts as to the approximate number of votes cast between the hours of 6 pm and 7 pm and whether there was any material effect to the end results of the polls.
Also among the 12 grounds of appeal is a contention by the EBC that the election agent for the UNC, had by letter dated September 7, threatened the EBC with legal proceedings in the event it did not give notice to all presiding officers of the extended hours of the poll.
The Commission’s lawyers argue that the judge failed to consider this when she granted leave and as a result of her giving permission to present the petitions, erred in law.
The EBC is also seeking to have the judge’s order of leave set aside.
The UNC lost the election with 18 seats to the PNM’s 23 seats and is claiming that the EBC’s rules and the Constitution gave the EBC only the power to adjourn an election in instances of public violence and not the power to extend the traditional voting hours of 6 am to 6 pm.