Petitioners reject consent order to inspect ballots

by Katherine Renton

After two days of contemplation in the High Court, the draft order for consent of inspection of ballot boxes from the Central Leeward constituency has been unexpectedly rejected.

The application for the inspection of the ballot boxes from the Central Leeward constituency in the 2015 general elections had been filed in the High Court on June 29, 2017, the second time the matter has been heard since the General Elections of 2015.

Tuesday, October 24 was supposed to see the beginning of the trial with regard to the matter, but attorneys for the respondents in the case, which

include the supervisor of elections, the Attorney-General, successful Unity Labour Party (ULP) candidates Montgomery Daniel and Sir Louis Straker, among others, indicated to the Court that the parties to the case had drafted a consent order.

This agreement, according to Kendrickson Kentish, attorney for one of the respondents, would facilitate the “inspection of the unused ballot papers contained in the ballot boxes related to the election held in constituency of Central Leeward on

the 9th day of December 2015 and the ballot papers and counterfoils in ballot boxes CLF, CLF1, CLB and CLB1,” these being four of the ballot boxes in the Central Leeward constituency.

The Court procedure, which was supposed to conclude on October 24, with the inspections taking place the next day, Wednesday, October 25, were stalled when Judge Esco Henry said she wished to clarify the precise intention of the consent order.

A decision was taken to hold off conclusion of the consent order until Wednesday, when there would be input from lead counsel for the respondents Douglas Mendes, who was arriving on a Liat flight that afternoon. Justice Henry said the delay would also allow counsel the time to consolidate their positions and to finalize any changes proposed to the draft consent order.

The second day of court saw Stanley John QC, attorney for petitioner Bejamin Exeter, the New Democratic Party (NDP) candidate in Central Leeward, in his representations stating that, “The petitioner is extremely sensitive about avoiding a situation where as a result of participating in this consensual order, he will be precluded absolutely going forward from seeking the inspection or further inspection of documents.”

John continued that the attorneys for the petitioners had wished for the draft order to reflect, “a consensus that we will take it step by step and that we will agree to the inspection of the unused ballots in all of the 15 ballot boxes and of the used ballots in the four ballot boxes which are specified in the motion.”

Further, John said his team wanted to reserve the right to have all 15 ballots boxes of the constituency, and not just the four ballot boxes in the consent order, fully inspected in the future.

Lead counsel for the respondents, Mendes, in response to the petitioners’ express wish to reserve the right to inspect the remaining ballot boxes

at a later date, stated, “No one can prevent someone from making an application to the Court…but I wish to make it clear that I reserve my position to oppose it on the ground Res Judicata.”

This means that if the inspection of the four ballot boxes was sufficient to satisfy the Court, then the petitioners would not be able to file a motion to seek to inspect further, having forgone this in law.

After the Court returned from break, John, the lead counsel for the petitioners, indicated that owing to the miscommunication relating to future inspection of the ballots, the petitioners would no longer consent to the inspection order as drafted.

Due to the sudden and unexpected conclusion that had been arrived at, counsel for the respondents indicated that they were unable at the time to formulate arguments for a trial.

The matter was then adjourned to December, 2017 or January, 2018, depending on the schedule of the participants in the matter.

On December 28, 2015, the High Court dismissed the first application filed by Exeter, which asked, among other things, to have the ballot boxes placed in the custody of the Registrar of the High Court, for the ballot boxes to be opened by the Registrar in the presence of Exeter and also for Exeter to be allowed to inspect the ballots. The application also asked that the sealed packets containing counterfoils be opened by the Registrar in the presence of Exeter and he be permitted to inspect the counterfoils.