By Kenton X. Chance
The lead counsel for the main opposition New Democratic Party (NDP) in the election petitions case said Thursday evening that the respondents’ motion to have them thrown out is standing on “wobbly” pillars.
Queen’s Counsel Stanley “Stalky” John suggested to reporters that lead counsel for the respondents, Senior Counsel Anthony Astaphan, was taking from the Representation of the Peoples Act (RPA) and the Election Petitions Rules, the elements that he thinks supports his case, but was, in so doing, undermining the premise of his motion.
The respondents are arguing that there is no valid recognisance and, therefore, the petitions are invalid.
They have hinged their motion on an argument that the petitioners, rather than the sureties, have signed the recognisances.
“The foundation of their case is that the law (RPA) and the regulation and the statutes (Election Petitions Rules) must be interpreted strictly and there is a form in which recognizance is proscribed under the rules,” John told reporters.
“They say that you can’t use the rules to deviate from the Act in any way: neither add to it nor vary it in any way. They say you have to follow the act and the Constitution. But they say that in so far as the form for the recognizance, that is strict, like the act.”
He accused the respondents of conveniently choosing from the rules what they say are strict, even though they are saying that the rules are not part of the law.
“That is the foundation of their case,” John told reporters.
“Then, they say in relation to how the recognizance should be, you must go strictly according to the act.”
John said he took the court through the elements and provision of the Act that ordain how the recognizance should be.
“And there is nothing in the act to confirm with some of the things they are saying should be in the act. So, the two pillars of their case, the act must be strictly interpreted and the form must be strictly followed, are a little wobbly now. But, no doubt, they will straighten it out by the time we come back next time and restore the soundness of their challenge.”
John’s comments came after addressing the court for almost two hours Thursday afternoon in response to submissions by Astaphan on Thursday morning.
The Crown Counsel is slated to conclude his arguments Friday morning.
He told reporters that it cannot be, as he said the respondents are arguing, that you can’t rely on the election petition rules for most things but that parties must rely on the act, which is strict.
The petitioners are arguing that the motion to strike out the petitions is, in and of themselves, an abuse of the process.
Regarding the argument in that regard, John remained tight-lipped, telling reporters, “Oh, that? Come tomorrow (Friday).”
The court is hearing arguments in the petitions brought by the main opposition NDP after the December 2015 general elections.
The NDP is challenging the results in the Central Leeward and North Windward constituencies that were won by the ULP as it secured a fourth consecutive term in office by a one seat-majority in the 15-member Parliament.
The Court of Appeal, on March 7, reverted the case to the High Court for hearing before a different judge, having ruled that Justice Brian Cottle showed apparent bias in his decision last June to throw out the petitions as improperly filed.
The respondents had initially made their application to have the petitions struck out during a hearing in chambers before Cottle.
The petitioners say that among the issues to be addressed are whether the court has jurisdiction to hear the respondents’ motion to strike out the petition and if so, is it an abuse of the process of the court.
The petitioners are arguing that the motion to strike is an abuse of the process, given that the notice of application to strike out in chambers on similar grounds is still subsisting on the record, because it has not been concluded by judgment, withdrawal, and dismissal nor has it been struck out.
They also want the court to say whether a proper construction of the recognizance within the context the Representation of the People Act (RPA), the House of Assembly (Election Petition) Rules 2014 [EPR] and the background against which the sureties signed.
Alternatively, the petitioners want the court to determine whether the respondents’ objections are out of time because they were obliged to make them within 10 days of service on them of the notice of presentation of the petition and nature of the security.