Lawyers argue differing positions at petitions hearing

Stanley “Stalkey” John QC, lawyer for the New Democratic Party (NDP) in the election petitions case, told the High Court last Tuesday, that the ballots used in the election were defective and out of that arose palpable irregularities.

John made the claim while arguing a motion filed before High Court Judge Esco Henry to have all 15 of the ballot boxes used in the Central Leeward constituency in the December 2015 general elections inspected.

The motion for inspection stems from election petitions filed on December 31, 2015 by lawyers acting for NDP petitioners Benjamin Exeter and Lauren Baptiste, who say that Louis Straker and Montgomery Daniel should not have been declared the successful candidates in Central Leeward and North Windward, respectively.

The NDP in their election petitions have also accused Winston Gaymes, the returning officer for Central Leeward and supervisor of elections Sylvia Findlay-scrubb of engaging in unfair practices in the conduct of elections.

John said that in some instances hundreds of ballots were acknowledged by the returning officer to be invalid and on his own admission under oath in the face of this palpable irregularity, they were counted.

He said that in addition, the manner in which it appears that the official mark and the presiding officer’s initial were endorsed on thousands of the ballots that were used left a state of affairs whereby the presiding officer, unavoidably would have seen for whom voters voted.

“…hundreds of ballots did not have the official mark on them and the others that appeared to have them, they were not placed on the ballot papers in the manner that was prescribed,” stated John.

The QC said in order for the court to determine the extent to which ballots that were used by voters in the Central Leeward election on December 2015 are invalid, the court has no alternative but to order and have the opportunity of inspecting the ballots in all 15 polling stations.

He said that to be able to determine the extent of these allegations, given that there are actual ballots used in the election depicting these defects, inspection of all the ballot boxes is not too much for either of the parties in these proceedings to ask for.

John said there are sworn statements by election officials about the defects on the ballot paper that cannot be described in any other way than being incredible.

He said that the supervisor of elections and the presiding officer said in statements that the character and feature of the ballots were faulty and within days changed the statements by correspondence through counsel, to the court, and made additional sworn statements.

“The facts speak for themselves,” said John, noting that the court can look at all the allegations and see how they connect to one another.

John said the court should ask itself if the problems identified are sufficient to order an inspection to look for deficiencies that can be found, once an inspection is carried out.

“How can the court not consider that inspection?” asked John, who urged the court to look at the allegations and see how each of these allegations connect with the other to bring out the scenario the petitioners are asserting, which is the design of the ballot papers used was defective and forced a breach of the secrecy of the vote.

In response, lead counsel for the respondents, Douglas Mendez said that the petitioners are on a fishing expedition, have no evidence and are hoping to inspect the ballots to get evidence to support their case.

“They are on a fishing expedition to find evidence that is not presented because they don’t have it and they are trying to use the inspection to try to get evidence they do not have,” said Mendez, who added that the NDP’s case is based on a theory and not facts.

On the second day of the hearing, counsel for the respondents, Anthony Astafan, rose to present submissions with respect to the breach of secrecy, one of the two claims made by the petitioners.

Astafan started by making a submission that such a claim was an abuse of process, considering no new point of fact had emerged since the first judgement.

“We cannot continue to have multiple applications in relation to the same election and the same count, and merely because an application was refused does not give you the right to bring repeated applications,” he stated.

The petitioners are claiming that if in fact the ballot papers were folded improperly on the day of election, it would follow that there was a breach of secrecy.

Astafan pointed out that the use of ‘if’ supported Mendez’s submission the day before regarding a lack of evidence on the side of the petitioners.

“It begins with the word ‘if’, giving considerable strength to my learned friend’s argument about a theory, speculation, proposition, drama, theatre,” but also continuing to say that there was no evidence that this is what happened on the day of polling.

“We have had no evidence on the application from… Mr Exeter’s campaign manager raising any of the issues or the objections now being raised,” he stated. “There is not a shred of evidence from the preliminary count or of any objection to the following: (1) the manner in which the presiding officer folded the ballot violated the secrecy of the ballot, (2) there is nothing indicating any objection to any ballot counting.”

He continued that this was the evidence of not just any ordinary person, but the campaign manager of Exeter.

More evidence mentioned by Astafan was a report from observers from the Organization of American States(OAS) on the elections. The observers of the OAS stated that there were some discrepancies noted in the process, but there was nothing seen in the final count which may have disturbed the outcome of the vote.

“These are people, independent people, no political axe to grind, no political authority, no obligation to either political party,” he said, who observed no fraudulent activity which could affect the final result.

Astafan also claimed that not only in fact, but in law, there are no grounds for the petitioners to seek an inspection based on the outcome of the ballot boxes in the pleadings, citing cases which rule that if there is no effect to the result of the election because of the irregularities, the election cannot be declared invalid.

Addressing Judge Esco Henry, he concluded, “On what basis then would your ladyship permit an inspection of ballots on the alleged violation of secrecy?”

At the end of the submissions, Judge Henry decided to reserve her ruling to a date in either January or February of next year.

John, after the hearing ended, reaffirmed his belief in the petitioner’s submissions, stating, “I feel that the court will be inclined to order inspection; given the evidence etc, I think that.”

Also speaking optimistically to the media, Leader of the Opposition Dr Godwin Friday stated, “We look forward to the final resolution in this case. The people of St Vincent and the Grenadines deserve to know that the Government that is running the country is a government that is elected.”(LC/KR)