DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

An elec­tion pe­ti­tion brought by the Unit­ed Na­tion­al Con­gress (UNC) over the Elec­tion and Bound­aries Com­mis­sion’s (EBC) han­dling of the Ari­ma North­east Dis­trict in last month’s Lo­cal Gov­ern­ment Elec­tions has been dis­missed due to a pro­ce­dur­al er­ror in fil­ing it. 

De­liv­er­ing a judg­ment on Mon­day, High Court Judge Frank Seep­er­sad up­held an ap­pli­ca­tion from the EBC to strike out the case due to the er­ror. 

In the ap­pli­ca­tion, the EBC con­tend­ed that the pe­ti­tion, pur­sued by UNC can­di­date Jairz­in­ho Rigs­by, should have named Peo­ple’s Na­tion­al Move­ment (PNM) can­di­date Kim Gar­cia, who was de­clared the win­ner af­ter a re­count and ver­i­fi­ca­tion ex­er­cise, as the re­spon­dent. 

In de­cid­ing the pre­lim­i­nary chal­lenge, Jus­tice Seep­er­sad had to con­sid­er the ef­fect of Sec­tion 107(2) of the Rep­re­sen­ta­tion of the Peo­ple Act (ROPA). 

The sec­tion states: “The per­son whose ap­point­ment, elec­tion or re­turn is com­plained of is here­inafter re­ferred to as the re­spon­dent; but if the pe­ti­tion com­plains of the con­duct of a Re­turn­ing Of­fi­cer or Elec­tion Clerk, the Re­turn­ing Of­fi­cer or Elec­tion Clerk shall for the pur­pos­es of this part be deemed to be a re­spon­dent.” 

Af­ter analysing the judg­ment and pre­vi­ous­ly de­cid­ed pe­ti­tions, Jus­tice Seep­er­sad ruled that the suc­cess­ful can­di­date must be named as re­spon­dent even though their con­duct is not be­ing chal­lenged. 

“This po­si­tion is ob­vi­ous, as any chal­lenge can have a ma­te­r­i­al and di­rect im­pact up­on the elect­ed in­di­vid­ual,” Jus­tice Seep­er­sad said. 

“This is ir­re­spec­tive of whether the chal­lenge con­cerns a na­tion­al elec­tion or a mu­nic­i­pal elec­tion and notwith­stand­ing the fact that the pe­ti­tion may not make any com­plaint with re­spect to the con­duct of the said elect­ed can­di­date,” he added. 

Jus­tice Seep­er­sad ruled that Rigs­by’s pe­ti­tion was “hope­less­ly flawed” due to the er­ror. 

How­ev­er, Jus­tice Seep­er­sad was care­ful to note that his find­ing did not mean that Rigs­by’s com­plaints were friv­o­lous.

“This court has open­ly ar­tic­u­lat­ed its ju­rispru­den­tial pref­er­ence to pri­ori­tise sub­stan­tive jus­tice, how­ev­er, giv­en the op­er­a­tive cir­cum­stances, hav­ing ac­cept­ed the unique and pe­cu­liar na­ture of elec­tion pe­ti­tions and hav­ing recog­nised the cir­cum­scribed and lim­it­ed ju­ris­dic­tion of the court when deal­ing with such pe­ti­tions, its hands are tied,” he said. 

He sug­gest­ed that the EBC should con­sid­er a crit­i­cal and com­pre­hen­sive re­view of its cur­rent process­es based on Rigs­by’s com­plaints. 

“Re­turn­ing Of­fi­cers and Elec­tion Clerks should un­der­go struc­tured screen­ing. Bias sen­si­ti­sa­tion and in­tense train­ing al­so need to be en­gaged so as to re­in­force the need for strict ad­her­ence to the elec­toral reg­u­la­tions and guide­lines,” Jus­tice Seep­er­sad said. 

“Those en­trust­ed with the sa­cred re­spon­si­bil­i­ty to con­duct elec­tions must do all with­in their pow­er to gain the pop­u­la­tion’s trust and its con­fi­dence in the im­par­tial­i­ty and in­tegri­ty of the elec­toral process. This so­ci­ety stands dan­ger­ous­ly close to a pre­cip­i­tous edge,” he added. 

As part of his de­ci­sion, Jus­tice Seep­er­sad or­dered Rigs­by to pay the EBC’s le­gal costs for the pe­ti­tion. 

The pe­ti­tion cen­tred around the EBC’s han­dling of a re­count, and a sub­se­quent re­view of queried bal­lots con­duct­ed af­ter an ini­tial count on elec­tion night (Au­gust 14) re­sult­ed in Rigs­by and Gar­cia each re­ceiv­ing 623 votes. 

The re­count took place on Au­gust 16 and re­sult­ed in Rigs­by be­ing de­clared the suc­cess­ful can­di­date hav­ing re­ceived an ad­di­tion­al vote.

Gar­cia was even­tu­al­ly de­clared the win­ner af­ter the re­view as two pre­vi­ous­ly re­ject­ed bal­lots were re­con­sid­ered and as­cribed to her. 

In the pe­ti­tion, Rigs­by’s lawyer Arif Rah­man took is­sue with the two bal­lots, which he con­tend­ed should not have been deemed valid. 

Through the pe­ti­tion, the UNC was ask­ing the court to dis­qual­i­fy both or ei­ther bal­lot. If one was suc­cess­ful­ly in­val­i­dat­ed, it would have meant that Rigs­by would be de­clared the suc­cess­ful can­di­date. 

A fresh elec­tion would have been re­quired if both were even­tu­al­ly in­val­i­dat­ed. 

Rigs­by was rep­re­sent­ed by Di­nesh Ram­bal­ly, Kiel Tak­lals­ingh, Ste­fan Ramkissoon and Kavi­ta Moonasar. The EBC was rep­re­sent­ed by Deb­o­rah Peake, SC, Ravi Heffes-Doon and Alana Bisses­sar. 

The UNC has al­so filed a pe­ti­tion in re­la­tion to the EBC’s de­ci­sion to or­der a fresh elec­tion for the dis­trict of Lengua/In­di­an Walk. 

That pe­ti­tion has been as­signed to High Court Judge Maris­sa Robert­son.