Packed courtroom hears Election Petitions Appeal Case
Friday, July 2nd, 2010By Martina Johnson
Opening arguments began with Senior Counsel Douglas Mendes who addressed the issues that stemmed from the flawed March 12, 2009 General Election, which led to Justice Louise Blenman upholding petitions by Antigua Labour Party (ALP) members who argued that the United Progressive Party (UPP) candidates were not duly elected.
At the start of his presentation, Mendes, the lawyer representing the UPP revealed a twist to the case stating he would first argue against “the counter challenges” made by the ALP respondents to the appeal.
Mendes disclosed that the ALP petitioners who won their challenges have filed cross appeals to parts of Justice Blenman’s rulings.
It was the first time that the public was hearing that the ALP members had problems, in part, with Judge Blenman’s decision.
According to Mendes, the ALP respondents disagree with Blenman’s findings that there was ample fulfillment of the electoral law.
They are further seeking clarification on the adjudicator’s ruling that persons who were already in line prior to 6 pm ought to be allowed to vote even after 6 pm would have passed.
Regarding whether the electoral law was sufficiently adhered to, the senior counsel said he agreed with Judge Blenman’s findings when she said there was substantial compliance with the laws governing polling.
Mendes said it is for that very reason he disagrees in law with her final decision to overturn the elections in the constituencies of St John’s Rural West held by Prime Minister Baldwin Spencer, St John’s Rural North controlled by Minister of Tourism John Maginley and St George, which is held by Dr Jacqui Quinn-Leandro, of the UPP.
Mendes contended that the trial judge did not have evidence that was sufficient enough to void the election because she, in her ruling, stated that she could not make a determination as to whether the late start of polling affected the elections result.
On the second issue, Mendes also agreed with Blenman’s ruling that it would be a breach of the rights of an elector if a person had been turned away from voting after 6 pm when the individual was in the line before that hour.
However, he said the ruling has no bearing on the case before the court because it was not an issue that the ALP petitioners argued.
“The judge should not have made any decision on that matter because the respondents (ALP petitioners) did not raise that issue in the trial. And, even when we sought clarification of it in August 2009 they never addressed it.”
Mendes continued, “Therefore, what we are saying is that since there was nothing even remotely that questioned voting after 6 pm it should not be considered here. If it were an issue at that time, then we would have been able to argue it but the time has passed. …”
While the ALP petitioners submitted to the court that there are witness statements to support the claim, Mendes countered, “How can they expect to correct it using the witnesses’ statements when they did not plead it nor applied to amend their petitions when they had the time to do so? The judge (Blenman) was wrong to say it was properly pleaded because it was not part of the petition.”
The senior counsel said the voter turnout in the constituencies that were challenged, as well as those unchallenged, was significant – around 80 per cent – a percentage higher than what is achieved in many countries even when there are no breaches of the election law.
Mendes concluded that it would be absurd or impractical for one to deduce that persons who take the necessary reasonable steps to vote should be turned away even if they are already in line when the clock strikes 6 pm.
Senior Counsel Russell Martineau, who represents the electoral officers and the Supervisor of Elections Lorna Simon, supported Mendes’ arguments.
His contention is that the Photo List, which was used at the 2009 polls, was not an illegal list as ruled by Justice Blenman.
Explaining his reasoning, Martineau said the list contained the same information as the Register of Electors, which was published in accordance with the electoral law.
In his brief presentation, Martineau also said that the Election Observers reported the 2009 election as free and fair.
He said the findings of the “experts” cement the view that the election was no sham and the delay at the opening of the polls did not impact the results. The lawyer said the errors on the part of the electoral officers were not so egregious to declare the elections void.
The hearing resumes today at 9 am when the ALP petitioners will respond.
The other lawyers representing the UPP appellants are Leon Chaku Symister, Kendrickson Kentish and Michael Quamina while Patricia Forde is working along with Martineau to represent the electoral officers and the Supervisor of Elections.
Attorneys for the ALP members are James Guthrie QC, Anthony Astaphan SC, Rika Bird and Samantha Marshall.
Members of the legal fraternity turned out in full, as did supporters of the parties involved. However, unlike previous hearings tension was notably absent in the courtroom.



