Three of the country's most senior judges have failed to come to an agreement over whether the United National Congress (UNC) has conclusive proof that its defeat in September's general election was due to a one-hour extension in voting, in order to secure a re-election.
Delivering its judgment in the appeal brought by the Elections and Boundaries Commission (EBC) and the People' National Movement (PNM) at the Hall of Justice, Port-of-Spain, yesterday, the appeal panel, led by Chief Justice Ivor Archie, was split two to one, as it ruled that the UNC had met the requirements required for preliminary approval of the petitions.
The judgment now clears the way for the petitions to be heard in the High Court, with Archie assuring both parties that the Judiciary will take steps to ensure their petitions are heard and determined expeditiously. A date for the hearing is yet to be set.
Delivering their majority decision, appellate judges Allan Mendonca and Peter Jamadar suggested that qualitative issues needed to be considered in determining the impact of the EBC's decision and not just the quantitative consequences on whether the PNM attained its majority in the six disputed marginal constituencies during this period.
"Such a position elevates outcome as absolutely determinative of legitimacy and discards process as of no or little consequence. Therein lies a path to undemocratic rule," Jamadar said as he suggested that the purpose of the petitions was to ensure public confidence in the electorial process.
Jamadar added: "It appears to me the main reason for the divisions of opinion is based on fundamental ideological difference on the core purpose of the representation petitions."
While Mendonca and Jamadar came to the same decision, Mendonca gave slightly different reasoning.
Stating that the UNC would have had difficulties gathering the evidence required through Archie's analysis during the brief limitation period allowed for filing petitions, Mendonca said the party had presented sufficient details to warrant Dean-Armour's decision to grant leave.
"If an election has been conducted so as to not be in substantial compliance with the laws of this country it is impossible to say that the result was not materially affected," Mendonca said as he noted that the claims were not frivolous or vexatious.
Archie, who was in the minority, took a more narrow view as he ruled that the party's petitions should have failed because the UNC did not provide the required evidence to prove that the result of the election was materially affected by the EBC's decision to grant the extension due to heavy rain in Trinidad.
Refering to the statistics on the margin of victory in the six constituencies and the evidence provided by the UNC, Archie described their claims as to the effect of the election as "highly speculative and far-fetched.
"If the rules were broken it does not follow that the result was unfair," Archie said.
While he disagreed with his colleagues, Archie said their decision would allow for analysis of the EBC's powers, which would assist in future polls it managed.
"I disagree but I am conscious of the value of knowing definitively what EBC can and cannot do for the confidence of population in the election petitions," Archie said.
As part of the ruling the appeal panel ordered that the EBC and the PNM pay the UNC's legal costs for defending against its appeal.
The UNC was represented by Timothy Straker, QC, Anand Ramlogan, SC, Gerald Ramdeen, Wayne Sturge and Kent Samlal.
The EBC's legal team included Senior Counsel Russell Martineau and Deborah Peake. Senior Counsel Douglas Mendes and John Jeremie and attorneys Elena Araujo and Celeste Jules represented the PNM.
The UNC filed the petitions after its 23-18 defeat, claiming that the EBC's rules and the Constitution give the EBC only the power to adjourn an election in instances of public violence and not the power to extend the traditional election timeframe of 6 am to 6 pm.
The party is seeking to have the court declare the results in six marginal constituencies null and void, paving the way for re-elections in those constituencies.
The disputed constituencies are San Fernando West, La Horquetta/Talparo, Toco/Sangre Grande, Tunapuna, St Joseph and Moruga/Tableland. Three citizens–Ravi Balgobin Maharaj, Irwin Layne and Melissa Sylvan–have also filed private lawsuits challenging the EBC's decision.
Maharaj, an activist who attempted a hunger strike to convince environmentalist Dr Wayne Kublalsingh to end his, is challenging the EBC's power to grant an extension.
Layne and Sylvan, both from Tobago, are claiming that the EBC's breached their constitutional rights by only extending the poll in Trinidad. The petitions, and both lawsuits have been assigned to Justice Mira Dean-Armourer. The first hearing of Layne and Sylvan's case is scheduled to take place this afternoon.