Dominican senior counsel, Anthony Astaphan, will be replaced as lead counsel for the government in the petitions matter in which the government has already suffered two stinging defeats.
Astaphan made the announcement on radio on Friday but denied that he was fired.
“… I told my clients … that I could not be of assistance because the fact is, … from September to February, I was on medical leave and I have had a tremendous backlog, especially in Dominica and elsewhere and I cannot go back to the court again and ask for an adjournment and in addition to that, I have some personal matters I have to deal with that makes it impossible for me to come to St. Vincent right now,” he said hours after the high court ruled in favour of the NDP in a number of preliminary matters.
“So, before people start calling and asking whether I have been fired, I have not been fired. I am still on the cases, but I recommended someone to assist my comrades and brothers there, because I could not give them the attention that they and the case deserve,” Astaphan said.
On Friday, High Court judge, Justice Esco Henry, ruled that while the sureties given in support of the two petitions the opposition New Democratic Party has filed challenging the results of the December 2015 general elections are insufficient, they are valid.
She gave each petitioner until July 7 to deposit EC$5,000 with the High Court so that the case can proceed, or have the petitions dismissed.
“It’s a rather disappointing thing. I can tell you at the time the case was over, we were very confident and based on what was reported to me this morning, it seems as if our confidence has somewhat evaporated,” Astaphan said in a call to Shake Up, a pro-Unity Labour Party programme on WE FM.
Electoral officials say that Gonsalves’ Unity Labour Party secured a fourth consecutive term in office, winning the December 2015 vote by an 8-7 margin.
However, the opposition New Democratic Party has filed the petitions, contending that the results were flawed and is contesting the ULP victories in North Windward and Central Leeward.
The petitions were given a new lease on life when the Court of Appeal ruled in March that Justice Brian Cottle, who had initially presided over the matters, showed apparent bias in his June 2016 decision to dismiss the petitions as improperly filed.
Astaphan said he has been very troubled by the Court of Appeal decision that waiver could never apply to election petitions.
He said the court had said this was the case, even when, according to him, the appellants, who were represented by Queen’s Counsel Stanley “Stalky” John, had said clearly that they recognised the invitation of Cottle to object but did not do so
Astaphan said that the lawyer for the petitioners had reposed confidence in Cottle “and then blindside him with an appeal on the basis of bias”.
The lawyer said that he has told the Court of Appeal that in their decision, they have “created an unruly horse that is going to cause havoc”.
Astaphan said his team recently received a copy of the Court of Appeal judgement and has filed an application, which has been acknowledged by the court, inviting them to reopen the appeal on the question of waiver.
“And we have to file submission on Monday,” Astaphan said.
He said the respondents had asked the court to reopen the proceedings “without prejudice to the application, the motion to strike and the [then] pending judgement of the judge (Justice Henry).
“Now that the judge has ruled, I think we are going to impress on the court that we would like to be heard before this matter moves on.”
‘not just an ordinary procedural fight’
Astaphan said that there are a number of issues about the judgment, adding that while he respects the decision of the court, he disagrees fundamentally with some of the reasons that were given for the decision.
“What we are fighting here today is not the right for an election or the right to have the petitions tried. It’s whether the judges are getting it right as to whether there are lawful petitions before the court to enable a trial. That is the fight we have…
“The fight that we have is not just an ordinary procedural fight. It is not a fight over particulars or disclosure. It’s a fight as to whether or not the court had jurisdiction to hear it.”
He said that Justice Cottle, on two occasions, said that the petitions were bad because they requirement was one of mandatory law and when the petitioners themselves signed the recognisances, that was mandatory law.
“This judge has taken a completely different position.”
Astaphan said this means that the respondents are going into the trial “with one side believing that the petitions are in fact bad, but not in law bad, and another side believing that the petitions are in fact good, because the judge ruled in their favour today.
“That quagmire needs to be resolved, as a result of which, … we need expedition in making a decision as to whether an appeal is open to us.”
Astaphan said that as a result, he recommended that Trinidadian senior counsel Douglas Mendez — who has fought against in several election petitions, and election law is “absolutely superb” — immediately start representing the Supervisor of Elections to make a decision on the question of appeal or on moving the way forward.
Astaphan said he has spoken to his clients and members of the legal team.
He said the application before the Court of Appeal could be heard before a hearing of the petitions on their merits.
He further said that there is the question that Mendes, after consultation with his Vincentian counterparts, may decide there is the possibility of an appeal and perhaps file an appeal or ask for expedition on the first matter or both.
“I don’t know how it is going to work out yet but I think we are all firmly of the view that these skirmishes, these contradictory findings, these difficult findings on the questions of waiver and bias and now, the validity of the petitions, need to be resolved. I think we need to at least try to have them resolved before we go to a trial. Otherwise, all of us are going to bed in a trial saying what if these petitions were truly bad.”
Astaphan said the Court of Appeal could decide to open the appeal, uphold the earlier decision, or find that waiver does apply, or that and the conduct of respondents’ lawyer constitute waiver.
“I have a crushing problem with that judgment. I intend to work with the new counsel, who has been one of my fiercest combatants over the last five to eight years. He’s a platinum quality barrister,” Astaphan said.