By Kenton X. Chance
Senior Counsel for the respondents in the elections petitions, Anthony Astaphan, has outlined to the High Court the matters on which his side would like it to pronounce as part of the respondents’ argument that the petitions are invalid.
At the end of his two-hour submission before Justice Esco Henry on Thursday, Astaphan said that he wanted the court to determine whether the security given on behalf of the petitioners are in strict conformity with the relevant section of the election law.
The court is hearing arguments in the petitions brought by the main opposition New Democratic Party (NDP), challenging the results in Central Leeward and North Windward in the December 2015 general elections.
The respondents have argued that the petitions are not valid because the petitioners themselves, rather than their sureties, signed the recognizances.
They are, therefore, arguing that the petitions should be dismissed as invalid.
Astaphan told the court to determine whether an ambiguity has arisen in view of what he said was an admission by Ben Exerter — who is challenging the Central Leeward results — and what Astaphan said was a concession by lead counsel for the petitioners, Queen’s Counsel Stanley “Stalky” John, of a valid complaint.
The petitioners have presented affidavits indicating that the sureties – Daniel Cummings and Curtis Bowman — understood what they were committing to when they signed the recognisances.
Astaphan, however, asked the court to determine if the petitions are entitled to rely on evidence of the intent of the securities.
The senior lawyer said that the respondents deny that any such ambiguity has arisen in the case, but wanted the court to pronounce on the matter.
“We say no, but in the event your ladyship rules to admit the affidavit evidence, does it disclose any independent objective fact, as in background fact … that shows that Cummings and Bowman in fact acknowledged the undertaking, including the liability to have assets levied and forfeited to the crown before the registrar.”
In their affidavits, Cummings and Bowman outlined their experience in signing education bonds to support their arguments that they understood their undertaking in the petitions matter. Astaphan asked the court to pronounce on this. He also wanted the court to say what is the constitutional mandate given to Parliament on election petitions and whether Parliament provided for security for cost.
“Are the provisions mandatory? Can a petitioner be a surety under Section 58 of the Representation of the People Act?” Astaphan said.
He also asked the court to determine whether these provisions require strict compliance and whether the failure to provide prescribed security for cost renders the petitions invalid.
The court has also been asked to determine whether the Chief Justice can, by rules, derogate from the mandatory provisions of the act.
John began to respond to Astaphan’s submission just before court was adjourned for the lunch break until 2 p.m.
In his opening statements, he argued that the respondents motion was an abuse of the process, saying that the motion to dismiss was not discontinued when it was first heard during an interlocutory proceeding before Justice Brian Cottle last year.
The Court of Appeal on March 7 reverted the case to the High Court for hearing before a different judge, having ruled that Cottle showed apparent bias in his decision to throw out the petitions as improperly file.
The new hearing commenced on Tuesday and is continuing today, while parties have been asked to reserve Friday morning for further deliberations, if necessary.
Astaphan said on radio on Wednesday that regardless of the outcome of the current proceeding, the case would again end up before the court of appeal for final determination, because the losing party will appeal.