By Martina Johnson
“The appellants have not come within one hundred miles of showing that the judge exceeded the margin of appreciation given to her and that her findings are clearly, blatantly or palpably wrong.”
That was how Senior Counsel Anthony Astaphan, who appeared on behalf of the Antigua Labour Party (ALP) petitioners described the appeal submissions of Senior Counsel Douglas Mendes who argued on behalf of the three United Progressive Party (UPP) candidates whose election to Parliament was invalidated by a High Court judge.
The historic elections appeal case wound up in the Court of Appeal of the Eastern Caribbean Supreme Court (ECSC) yesterday and no date has been fixed for the announcement of the decision.
The case stems from problems at the polls of March 12, 2009, which the ALP members said was in contravention of the Representation of the People Act.
As a result, they challenged the victory of the three UPP candidates and also asked the court to rule that the returning officers and supervisor of elections breached the election law.
High Court judge, Justice Louise Blenman overturned the results in all three constituencies controlled by Prime Minster Winston Baldwin Spencer, and two of his MPs Dr Jacqui Quinn-Leandro and John Maginley.
The judge also found the election officers were incompetent in managing the election.
The UPP members appealed the judge’s decision and the electoral officers joined the fight.
Astaphan rebutted Mendes’ arguments as to whether persons who were in the line before 6 pm should be allowed to vote after that hour had passed.
“There is nothing in the Constitution that says if I am in the line to vote before 6 pm the electoral officers must exercise that discretion of allowing me to vote after 6 pm. The law says the electoral officers must observe the rule of fair play and must not act in favour of anyone,” Astaphan said.
He quoted the electoral law which states “Polling shall take place between 6 am and 6 pm. …” and he said the law is explicit and mandatory.
The lawyer argued that if the law shows that it requires precision and clear demarcation to allow people who were still in line to vote at 6 pm then Parliament must make that determination.
“The court should not make that decision. Where will it get the guidance or the expertise to do so? That is inherently a political matter for Parliament to decide. Where the court is unable to decide whether the election result was affected because of late opening of the polls or late polling, that uncertainty goes to the heart of the democratic process and its validity,” Astaphan said.
According to Astaphan, the hours of polling, 6 am to 6pm, cannot be held invalid because it does not conflict with any provision of the Constitution.
He posited that Antigua & Barbuda’s Constitution does not confer an unqualified right to vote because that right is creature of the statute, which must be exercised in accordance with the law passed by Parliament.
The senior counsel said there is no dispute on whether polling started late, continued after 6 pm and that persons were disenfranchised.
He added that the real issue is the extent of the disenfranchisement and this, he said, is undetermined.
“One cannot determine, under the guise of using statistics or analogy, with any degree of certainty whether the number of persons affected was greater than the margin of victory.
“If the court is uncertain as to whether the election result was affected how could it then be sure that the result reflected the will of the people?” Astaphan queried rhetorically.
Queen’s Counsel James Guthrie, Astaphan’s colleague, argued on a number of issues, including that the recent amendment to the Representation of the People Act cannot be used to legitimise something that was already wrong.
“We know that steps are afoot to change the laws in Antigua in which section 1 (8) is to be added to the Representation of the People Act. It now says that if a person is in line before 6 pm he is entitled to vote, if, at 6 pm, he is in line, at the polling station, in the constituency in which he is to vote … this is to remove any doubt to the rule in the electoral law,” Guthrie said.
The Queen’s Counsel noted that he has no issue with Parliament revisiting the law, but the problem he identified is that the policy makers “could not try to do it retroactively.”
Guthrie also responded to Mendes’ submission that the ALP petitioners should not be allowed to argue on the issue of whether voting after 6 pm is legal because they did not highlight this in their petition.
The lawyer for the ALP petitioners said, “The court ought not to close its eyes on evidence that may not be in the pleading case because the law in Antigua does not permit a petitioner to file a complaint with such specificity.
“Antigua’s law sets out a timeline which is seven days within which one has to file a complaint and that time is not sufficient (especially) when most of the evidence would have been obtained after that time would have passed, “ Guthrie stated.
The lawyer said he led evidence on the issue through witnesses for the petitioners during the trial before Blenman and the UPP candidates replied with evidence of their own.
Guthrie then added, that even if he did not argue on the issue, it is an undisputed fact that polling continued after 6 pm, therefore, the court (Justice Blenman) would have been bound to consider it and “she rightly did so.”
Referencing briefly the issue of the number of persons disenfranchised, Guthrie said, “We regard it as absurd if in an election petition we are asked to give the names and addresses of all the persons affected. We would not and need not be able to call all as witnesses. What we needed was to identify a number of persons.”
Another point that Guthrie strenuously argued was where there is a situation like what transpired at the polls in Antigua in which an indeterminate number of people was disenfranchised, the judge had an obligation to set aside the election.
He added that it would not be correct for the UPP appellants to apply the test which says that the election result must be affected.
The ALP members, who had the overall victory, had also cross-appealed two aspects of Blenman’s ruling where she said there was substantial compliance with the election law and that persons who were in line by 6 pm should be allowed to vote even if they hadn’t by the time it reached or passed that hour.
After the ALP petitioners’ lawyers closed their case, Mendes countered their submissions.
He surmised that though polling started as late as midday at some polling stations, the voter turnout was around 80 per cent, which was high, and that no one presented any evidence to show the number of persons who were affected.
The QC said that if the respondents are of the view that the election law cannot be reviewed then they are misguided, because the Constitution is the supreme law and he knows of no principle that exempts any law from review.
He reiterated that electors have the right to vote and anyone who acts reasonably to exercise that right should be allowed to do so.
The parties involved in the case ended their submissions at about 4:30 pm and the appeal judges, Chief Justice Hugh Rawlins, Justice Ola Mae Edwards and Justice Janice George-Creque gave them seven days to address two issues, one of which relates to costs.
The other issue, which was put only to the ALP lawyers, was the question of “Whether a rebuttable question on the validity of the election exists and, if so, what would be the outcome?”
Once the parties address the two issues by July 9, the judges could render a decision any time thereafter, which could be within days, weeks or months.
At the close of the hearing PM Spencer said, “I think our lawyers did an excellent job. They made the case we think was pertinent to the issue but, of course, the three judges have reserved … I am reasonably comfortable.”
Asked what happens meanwhile, he said the UPP administration will “continue to govern,” while UPP the party will continue to “mobilise the bases. We have been doing that, but not publicly” in the event that the High Court ruling voiding the three seats is upheld. (Antigua Observer)
