Senior Counsel, Douglas Mendes, lead lawyer for the respondents in the petitions case. (iWN file photo)

The lead lawyers for the government in the election petitions case has urged the court to reject the argument that in deciding whether to overturn the result in Central Leeward, the number of defective ballots should be deducted from the margin of victory.

Electoral officials say that the Unity Labour Party’s Sir Louis Straker won the seat by 318 votes.

However, if the petitioner’s argument is accepted, the number of defective ballots will exceed that margin.

The respondents have invited the court to take the approach of deducting the defective ballots for each of the candidates, accordingly.

If this is done, Straker’s election would still stand.

Senior Counsel Douglas Mendes made the point on Wednesday as he delivered closing submissions in the trial of the two petitions.

The main opposition New Democratic Party (NDP) has brought the petitions, challenging the results of the Dec. 9, 2015 general elections, which electoral officials say the ULP won by an 8-7 margin.

Mendes also urged the court to reject the argument that it was not possible to verify the official marks in Central Leeward without violating the secrecy of the ballots.

The design of the ballots used in that constituency has become a central point of the petition as the space for the initials and official mark of the presiding officer was on the counterfoil, rather than on the ballot.

The petitioner, the NDP’s Benjamin “Ben” Exeter, has argued that in the instances where the presiding officer placed the authenticating marks on the ballot — where no specific space was provided for them – the election officials had to violate the secrecy of the ballot in order to verify the authenticity of the ballot returned by the voter.

But Mendes told the court on Wednesday that in order to prove such violation, the petitioners would have to prove that the presiding officers folded the ballots right up to the mark that say “do not fold beyond this line”.

He maintained that the petitioner has not presented any evidence that this was the case.

Mendes told the court that the premise of the petitioner’s case was that all ballots in polling station CLF and 99 CLF1 did not have the initials and stamp on the ballot themselves but on the counterfoils. 

The court, he said, has to resolve the issue of fact of whether the ballots in CLB had initials and stamp on the counterfoils. 

The lawyer told the court that the petitioner had pleaded that 90 per cent of the ballots had the initials and stamp below the line and that the secrecy of all of those ballots was infringed.

Mendes, however, argued that the petitions cannot ground their case on a premise without proving the premise. 

“If you could have seen is not evidence that you saw and, therefore, it is not evidence that you invaded the privacy of the vote,” Mendes said.

“More than that, it is not evidence to support my learned friend’s grandiose theory that in every one of the 90 per cent of the case, the presiding officer folded up to the line so that you could only see the initial and the stamp by pulling it back, and therefore, his case collapses on this point for lack of evidence,” he further said in response to the submission by Queen’s Counsel Stanley “Stalky” John, who is Exeter’s lead lawyer.

“My lord, I must confess that the way the pleading and the way the evidence was presented was very, very clever. If you didn’t pay attention to exactly what was being said, and more particularly, what was not being said, you might come away with the impression that there is some evidence there, but there is none.”

John is asking the court to overturn the election results on the grounds of defective ballots, unavoidable breach of the secrecy of the ballot, failure of the returning officer, Winston Gaymes to respond to allegations against him, and the absence of important election documents.

Mendes said that assuming the worst as regards the evidence of Esla Sam and Chester Charles — two NDP agents who accused the presiding officer of violating the secrecy of the ballots — there was one occasion in CLA and several in CLH where the presiding officer saw how the voter voted.

 “What is the consequence of that?” Mendes said, adding that the result is a breach of section 54 of the election law.

“What is the consequence of that for an election? … You do not invalidate an election on that basis. The remedy is you prosecute the persons who invaded the privacy of the ballot. 

“In any event, the bottom line is this, the question that arises in any event, … is it sufficient to invalidate an election that two presiding officers, one on one occasion, the other on several occasions, pulled back the ballot sufficient that you could have seen how one or two persons voted? Does that make it not a real election? Does that make it a sham election?

“That is the only evidence. But has it affected the results of the election?”

Mendes said that no one has been disenfranchised.

“… the point about it is there is no evidence of breach of secrecy in relation to those cases, but, I repeat, if there was, you don’t invalidate an election…” he told the court.

13 replies on “PETITIONS TRIAL: Lawyer urges court to reject petitioner’s numbers proposal”

  1. Finally, great legal jurisprudence!!!!

    I did say the case will be decided on one simple point: Did the procedural errors affect the form or substance of the election i.e. did any error negate the intention of the constituents in such a way that they were disenfranchised?

    Legally, this has not been proven.

    What is clear is that there is a dire need for electoral reform starting with the archaic act, training of electoral officers and a general education drive for constituents.

    It’s one judgment that I cannot wait to read, as it will be based on law and not the plethora of opinions, hearsay and unsubstantiated comments, being disguised as “evidence.”

    1. C. ben-David says:

      I totally agree with your position. The petitioners in their many media and public pronoucements have argued that they have already won the case in the court of public opinion, a court that exists only their minds and is composed only of their supporters.

  2. C ben-David says:

    I am convinced that the judge will rule that although some unintentional errors occurred the sum total of these did not alter the fact that the majority of voters in Central Leeward chose Sir Louis Straker to be their representative in December 2015.

    Case dismissed.

    1. C. Ben will work overtime to smear the NDP. Although he often criticizes policy and decisions from the ULP, has anyone ever witnessed him writing anything positive about anyone or anything about the NDP? This is to make him appear unbiased but clearly his purpose is to be a troll for getting people to vote ULP as a lesser of two evils. Nearly everything bad he says about the NDP is based on hypothetical guesses or the bad policies of the long ago James Mitchell, who is now clearly a ULP supporter because apparently the present leadership of the NDP refuses to allow him to control the party.
      Too bad we cannot move all these negative complaining arrogant cry babies to a country of thier own and let Ralph continue running them into unsustainable debt and poverty while they all compete on telling eachother how great and intelligent they are.

  3. Regardless of the particular outcome in this case, one of our most sad and enduring problem, being as dunce as we undisputable truly are, is that we will sure continue to get the Government that we full well deserve!

    Blind Bats leading pliable and dunce sheep off to hell in a handbasket!

  4. Veneza Edwards says:

    The ballots have in it votes from dead people as well as individuals who were residing out of the country and did not vote but their name showed up as voted

  5. According to the two big pro-ULP commenters that rushed to comment on this article (Vincy “lawyer” and C. Ben David) it is fine to let anything at all happen before and during the election regardless of it being against the rules (Law). Our Vincey Lawyer makes up new laws as he goes along and C. Ben attempts to say that although so much was done wrong, it should all be allowed anyway. That is coming from the same guy that complains about so much being wrong in SVG. How contradictory can you get? These two guys are bigger tricksters than the lawyers themselves.

    1. IF I MAY ……RULES ” ARE ETHICAL ………LAWS” ARE CRIMINAL , AS FAR AS VIOLATIONS . BIG DIFFERENTIATION BETWEEN THE TWO .
      FURTHERMORE IF THE CASE WAS AS SIMPLE AND STRAIGHT FORWARD AS YOUR SUMMARY , i GUESS THE PETITIONERS SHOULD FEEL VERY CONFIDENT TO PREVAIL AND THE CHIEF JUDGE WILL VERY EASY TIME RULING IN THEIR FAVOR .

    2. C. ben-David says:

      I am certainly the furthest thing from being a “pro-ULP commentator” on this or any other issue.

      I am a commentator for only one thing — the truth — and the truth is that the sum total of all the errors made by election officials, and there were many, as is common in elections all over the world, they did not materially affect the results in the two constituencies, the issue that the Representation of the People Act describes as being preeminent when it says:

      “Notwithstanding anything contained in the provisions of this Act, no election shall be declared invalid by reason of non-compliance with the provisions of this Act or of the rules thereto or of the regulations made thereunder, or any mistake in the use of the forms prescribed under this Act, if it appears to the court having cognizance of the question that the election was conducted in accordance with the principles laid down in this Act, and that such non-compliance or mistake did not affect the result of the election.”

      The various examples of non-compliance in this case were clearly shown to not affect the result of the elections in the two constituencies.

      This is no way precludes criminal charges being laid against any and all electoral officials or other individuals who breached one or more of the many electoral regulations in this Act.

  6. YOU CANNOT WIN LEGAL CASES WITH COMESS !!!!

    THE TIME, EFFORT AND MONEY SPENT ON THIS CASE BY THE PETITIONERS AND THE OPPOSITION WAS NOT SMART , TO SAY THE LEAST .
    AS I HAVE REPEATEDLY SAID FOR TWO YEARS NOW ,,,,,,,,THE TIME AND MONEY WOULD HAVE BEEN MUCH MORE EFFECTIVELY USE TO CONSTRUCT A POLITICAL CAMPAIGN STRATEGY TO WIN THE NEXT ELECTIONS .
    WHAT ARE YOUR JOB CREATIONS PLANS …….
    COMMITMENTS ON FOREIGN POLICIES……..
    EDUCATION PLANS…..
    HEALTHCARE
    SOLUTIONS AND COMMITMENT TO FIGHTING / REDUCING CRIME
    TAX REFORMS
    BUSINESS INVESTMENTS ………ETC.
    ????????????

  7. I don’t think that the petitioners are crazy people. There were many discrepancies and illegal things done by the electoral supervisors. This certainly would have affected the elections. There should be stiff fines given for those oversights. The rules were transgressed throughout. I don’t put it past the still that ULP to have stolen the elections. You people are not to be taken seriously you accept with half ass hack work as if it doesn’t matter.

  8. MR MODERATOR WHY COMMENTS POSTED AFTER MINES ARE POSTED AND MINES ISNT ………..I SMELL A BIAS LOL ….
    OR SIMPLY AN OVERSIGHT ……

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