The main lawyer for the respondents in the election petitions filed by the opposition New Democratic Party has put into context the implication of the Appeal Court’s decision on Tuesday to reinstate the petitions.
“We are, unfortunately, and, regrettably, back, literally, to square one, where we have to go back to another judge and argue, largely, the same issues all over again to decide whether or not the petitions should be struck out,” Dominican Senior Counsel, Anthony Astaphan said on radio on Tuesday after the ruling.
He said that celebrations by the opposition after the court decision are premature.
“There is no basis yet, for them to celebrate because the petitions are still liable to be struck out on the hearing of the next application,” Astaphan said Tuesday on the ruling Unity Labour Party’s radio station, Star FM.
“And all that the judgment of the court today (Tuesday) decided was that the matter must go back to a different judge for the hearing as to whether or not the petitions should be struck. There is nothing said today or decided today that has led to the petitions being granted or an order for by-elections of general elections, we are a hundred miles away from that still,” he said.
At a sitting in St. Lucia on Tuesday, the Court of Appeal ordered that the June 2016 decision by High Court judge, Justice Brian Cottle to throw out the petitions as improperly filed, be set aside.
The court said that Justice Cottle showed apparent bias in his handling of the matter and ordered that the petitions be tried before a different judge.
The NDP is asking the court to declare its candidates, Ben Exeter and Lauron Baptiste winners in Central Leeward and North Windward or order fresh elections in those constituencies, which electoral officials say the ULP won in the Dec. 9, 2015 general elections.
The ULP were declared to have won a fourth consecutive term in office after taking eight of the 15 parliamentary seats while the remaining seven went to the NDP, in a repeat of the 2010 election results.
Astaphan said that the respondents have asked the Court of Appeal, in so far as the issues before Justice Brian Cottle were all issues of law and no argument of facts were heard, that the appellate court should hear the submissions on the merits themselves, notwithstanding their findings on Cottle’s appearance of bias.
“And, of course, the appellants, Stanley John and Keith Scotland objected to that. They said no, they want it to go back to the trial judge. So, the process has to start over again.”
John, a Queen’s Counsel lawyer, is the lead barrister for the petitioners, while Scotland, a Trinidadian attorney, is also a member of the NDP’s legal team.
Astaphan said that Tuesday’s court decision was a surprise to the respondents.
“To be honest with you, I am extremely disappointed. I did not expect it to turn out that way. I am not criticising the court or the judgement. I’ve been in this business too long, but, I think, being human, I am entitled to express my disappointment and reflect on what else we could have done.”
In hearing the respondents’ application to strike out the petitions, Justice Cottle had said that the respondents were bound to win the petitions, triggering the allegation of bias.
Justice Cottle, in June 2016, agreed with the respondents that the petitions were improperly filed and threw out the petitions and the NDP appealed that ruling.
Astaphan said that regardless to what the parties may wish to say about Justice Cottle’s statement, everybody knew that he had made them, but proceeded to the hearing, made submissions and waited on the judgment “without objections”.
“And it is only when the notice of appeal was filed we saw for the first time the question of bias. And, in the subjection, on the very narrow ground about being bound, if it comes back to me again, bound to succeed,” Astaphan said.
Astaphan said that, in Tuesday’s court hearing, the petitioners attempted to try to expand the argument to suggest that they did not know that the motion to strike was coming up.
“I was just flabbergasted by all of that. Couldn’t be further from the truth,” Astaphan said, adding that the correspondence and meetings before the judge are there and the judge had repeatedly refused to give direction for the trial unless and until he heard the motion to strike.
“As I said to the court today (Tuesday), it wouldn’t be that the law is that we must spend a considerable amount of time, resources and money preparing for trial, only at the end of day to have it struck out on the basis that recognisances were not provided.
“It’s mindboggling. I am very troubled by the decision and in terms of not because I have lost but the precedence is set for future practice within the election jurisdiction of the court.”
He said that the court did not comment on the trial and he had to rise at the end and ask the president of the court what precisely was its ruling on waiver and whether it applied to the election jurisdiction of the court or was the evidence insufficient.
“We need to know and the people of St. Vincent and the Grenadines need to know and lawyers need to know. Because, if it is left like that without a written judgment, the court has created a Pandora’s Box within the elections jurisdictions of the High Court.”
Astaphan said that it means that one can sit in an election court and listen to a judge make “far more prejudicial statements, even tantamount to misconduct, don’t object, don’t ask him to recuse himself, take the chance on him winning the case and when I lose, appeal and then succeed.
“I am sorry, I have a problem with where the direction of the judgment went, particularly, as the main argument was, that because this was the election jurisdiction of the court and affecting the right of people to choose a government and so on, that there was no basis, the issue of waiver never arose. That there was nothing they could have done, they just had to sit there with their seatbelts on and go through the motion.”
He said that while all members of his legal team are disappointed they are not going to be critical of the court.
“It is our court. You win some, you lose some, c’est la vie. That’s life. But we are particularly disappointed with the outcome of that one…” Astaphan said.