| Nevis Awaits Judge’s Decision in Election Petition Case |
| By Joy Napier |
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Onlookers outside fo the courthouse |
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Nevisians at home, in the Diaspora and further afield anxiously await the Judge’s decision now that the Election Petition trial has ended. Last Friday (Jan 27) saw the last of the closing submissions with Dr. Henry Stougumber Browne followed by a response from Douglas Mendes SC, lead counsel for the Petitioner, CCM’s Deputy Leader, Mark Brantley.
Dr. Browne told the court on Friday that election process is not perfect however presiding judge, His Lordship Justice Lionel Jones, should focus his attention elsewhere. Dr. Browne represented the first respondent, Hon. Hensley Daniel; there were eight other respondents including Premier Hon. Joseph Parry, Supervisor of Elections, Leroy Benjamin Sr. and Registration Officer Bernadette Lawrence.
In his closing remarks, which lasted for just over and hour and a half, Dr. Browne introduced several new angles to the case of the respondents, as well as disputed select submissions made Mendes in his closing arguments on Wednesday (Jan 25) .
Browne’s general line of reasoning invited the Court to closely examine the Constitution of St. Kitts and Nevis. With reference to constitutional law, Dr. Browne alleged that Brantley had in fact brought a certain amount of his pleadings, as outlined in the petition, before the wrong court.
“You cannot approach the threshold of the elections court with an election petition and then tack onto it allegations of contraventions of constitutional rights,” he said.
Dr. Browne went on to argue that according to his interpretation of the constitution, the Elections court and its presiding Justice did not have jurisdiction to hear pleadings of a breach of Brantley’s constitutional rights – namely a denial of his right to freedom of expression. This was in response to the portion of Brantley’s petition which spoke to the alleged absence of equal access to the state-owned TV station.
Dr. Browne also argued that the Petition itself had undergone several changes and amendments, which in fact changed its meaning.
He also contended that under his legal understanding, if an elector’s name is taken off the voting list, the matter cannot be brought to an election court unless a direct plea of bad faith on the part of the officer who removed the name is submitted.
“The election process is not perfect, but we are not here to dwell on its imperfections. We are here to apply the law,” he said as an explanation as to why he devoted such close attention to the Acts of the Constitution.
Mendes disputed Dr. Browne’s claims that the (election) court did not have jurisdiction over the pleadings of constitutional violation that were raised in the petition.
“When the court is seeking to interpret the National Assemblies Act, it must do so in conformance with the constitution,” said Mendes.
He went on to make the case that “constitutional underpinnings must not be set aside in favor of a narrow interpretation of the law”. While referring to Dr. Browne’s line of reasoning that called for strict adherence to legal clauses, Mendes submitted that Dr. Browne “has sought to deflect this court by tabulated legalisms”.
With regards to the claims made by both Browne and SC Anthony Astaphan, lead counsel for the respondents, that the pleadings of the petition were nonspecific, Mendes retorted that the petitioner was only able to structure the pleadings based on the information available to him at that time. He argued that an imprecise pleading “cannot relieve the court from contemplating the claimed bias of Registration Officer, Bernadette Lawrence. To do so would be elevating technicality above justice”.
A significant portion of Mendes’ presentation, however, included the introduction of a previously unaddressed case. Mendes argued that the resulting case law derived from this decision was key to his own arguments. The case itself dealt with an emigrant to the UK who had arrived in the country and applied for asylum. While the asylum application is ongoing, it is UK law that the applicant be provided with a small living stipend. A decision was made to deny the applicant asylum, and the stipend stopped. However the applicant was never notified of the decision.
The resulting precedent that was set when this case was brought before the court was that “notice of a decision is required before the decision can have the character of determination in effect”, Mendes explained.
Mendes submitted that this case paralleled that of the petitioner, referring to what he described as “absence of communication occurring after a long litany of violations of the law”. Following this line of reasoning, Mendes went on to further submit that the removal of names from the voter list could “have no legal effect” in the cases where voters were not notified of their removal.
Mendes concluded that, “With regards to the jurisdiction question raised, the jurisdiction of neither an election court nor a constitutional court can be engaged. No legal removal has even taken place.”
When asked by Justice Jones, what orders Mendes would like to see served, Mendes responded with the four following suggestions; a declaration that the election was invalid, a declaration that the names illegally removed must be replaced, a declaration that the petitioner’s right to freedom of expression was violated, and a declaration that the electoral office failed in its duties to the people of Nevis.
His Lordship Justice Jones has ordered that all written submissions must be received no later than February 10, 2012. |
