The NDP’s fake election appeal news

Editor: There is yet another contrived sense of angst from the New Democratic Party (NDP) in its latest press release concerning the outcome of the 2015 national elections.

This time it is the Party’s feigned dismay that Justice Stanley John has presented “supplemental reasons” for his decision to dismiss the Party’s election petitions (‘‘Supplemental reasons’ from judge give rise to serious questions – NDP,” Searchlight, June 28). This baseless consternation should amuse anyone with even a passing understanding of Eastern Caribbean Supreme Court (ECSC) appeal rules.

Almost as amusing is that the respondents for the Unity Labour Party (ULP) were the ones who asked for this addendum to Justice John’s March 22 written decision. What they requested was his ruling on two issues regarding the vote raised at the trial by petitioner Lauron Baptiste who had contested (unsuccessfully) the North Windward seat. Supposedly, ULP lawyers did so only to preclude the very remote possibility that a new trial would be ordered based on this omission by the ECSC acting in its appellate jurisdiction.

That the NDP may have been unnecessarily cautious is suggested by a previous appellate decision which said:

“… [T]his Court [of Appeal of the ECSC] has repeatedly pointed out that it is not acceptable for an appellant to challenge a judge’s exercise of a discretion without placing before the Court of Appeal in the appeal bundle any of: (i) the judge’s written reasons or, (ii) in the absence of such written reasons, a transcript of the hearing, or, (iii) in the absence of a transcript, a copy of the judge’s notes; or, (iv) in the last resort, an affidavit of what transpired in the court below. Only then is there such compliance … that an appeal court can properly engage in the exercise of assessing whether the court below acted properly in exercising its discretion” (see https://www.eccourts.org/peter-thomas-v-desireen-douglas/).

In other words, even if an appendix had not been submitted by Justice John, the learned Justices of the Court of Appeal are obliged to examine all of the evidence presented to them in reaching a decision, in this case the transcripts of the hearing, the judge’s original opinion, the contents of the appeal (which include concerns about the two neglected issues), and the responses to the appeal by the other side. In doing so, there is no reason to believe that they would come to a different conclusion about the two issues than the one contained in Justice John’s supplementary opinion.

The same holds true even if his earlier verdict had contained only two words: “Petitions dismissed.”

More laughable still about the vacuity of the NDP’s concern is the following well established appeal procedure, also contained in the judgment above: “Where a judge does not give reasons for his or her decision, the reasons should be requested. If no reasons are forthcoming following the request, the appellant should provide other material such as a transcript or an affidavit of what transpired in the court below. If the appellant cannot, with due diligence and reasonable efforts, provide other material, and the Court of Appeal cannot glean the reasons from the documents in the record, the appeal may be allowed without further consideration. However, if the reasons are not requested, and the appellant does not take any other step to put material before the Court of Appeal that the Court can use to assess how the judge exercised his or her discretion, the appeal may be dismissed.”

By implication, this must surely also apply to the respondents who also have the right, even legal obligation, to request exactly why Justice John rejected the two vote-counting concerns of the appellants in North Windward.

Their legal team quickly did so. Justice John responded as soon as he was legally allowed to reply, namely upon his reappointment as a Supreme Court Justice.

That the NDP petitioners did not pre-empt their foes in asking for clarification of the two vote tabulation issues says it wanted the failure of Justice John to address them used as grounds to ask the Court of Appeal to order a new trial.

The carefully reasoned contents of the supplemental decision, if accepted by the Court of Appeal, as is likely, would surely be the last nail in the Party’s electoral coffin.

At the end of the day, Justice Brian Cottle, who was wrongly accused of “apparent bias” against the respondents in a 2016 hearing of the same issues, will be vindicated in absentia for presciently, albeit injudiciously, opining that the NDP’s election petitions were doomed to fail.

C. ben-David