A comment by former Prime Minister Sir James regarding the options open to the judge hearing the election petitions case, is not supported by the law.
Speaking on Boom FM on Tuesday, the retired politician, who is founder of the main opposition New Democratic Party (NDP), said:
“If NDP wins, is there a by-election to take place? The judge cannot order a by-election. The judge can only give judgement on the petition before him about irregularities”.
The NDP has brought two election petitions challenging the results of the 2015 general elections and a ruling is slated for March 21.
However, contrary to Sir James’ comment, the Representation of the People Act and the Constitution both explicitly say that a judge can order a fresh election after hearing an election petition.
Section 59 of the RPA says:
59. (1) Every election petition shall be tried before the High Court in the same manner as a suit commenced by a writ or summons.
(2) At the conclusion of the trial, the judge shall determine whether
the member of the House whose return or election is complained of or any and
what other person was duly returned or elected, or whether the election was
void, and shall certify such determination to the Governor- General, and the
return shall be confirmed or altered, or a writ for a new election shall be
issued, as the case may require, in accordance with such determination.”
The issue is also addressed by the Constitution, at Section 49(5), which says:
(5) Whenever it has been determined under section 36 of this Constitution that the election of any person as a Representative is invalid the Governor-General shall issue a writ for the election of a Representative to fill the vacancy returnable within ninety days of the final decision of the High Court or, if the determination was by the Court of Appeal, within ninety days of the decision of the Court of Appeal.
Sir James’s comments came as he discussed the implications of the possible rulings that acting High Court Judge Stanley John can hand down.
He said that Prime Minister Ralph Gonsalves would win, regardless of the court ruling, noting that only Gonsalves has the power to decide the exact date when a by-election or general elections is held.