The decision by Madam Justice Mira Dean-Armorer two Fridays ago in the case of five election petitions brought by the UNC against the EBC and the victorious PNM candidates in St Joseph, Tunapuna, Toco-Sangre Grande, San Fernando West and Moruga-Tableland has provided some direction as to the future of Caribbean democracies.
In her judgment she essentially held that the EBC broke the law when they extended the polling time from 6 pm to 7 pm in Trinidad and that, because of substantial compliance by the EBC in other aspects of their polling day duties, there was no basis to disturb the results in those constituencies.
The debate that has since emerged is one between the recognition of illegality in the discharge of a public function by a public body and the tempering of the effect of that illegality by substantial compliance otherwise in the discharge of that function.
It appears that there was reliance on an Antiguan case of Quinn-Leandro v Jonas [2010] 78 WIR 216 which Justice Dean-Armorer cited at paragraph 164 of her judgment in which Rawlins CJ had this to say: “An election court would not invalidate an election on the ground that there was substantial non-compliance with electoral law, pursuant to section 32(4) of the Representation of the People Act, if the breach of elections procedure stipulated by law was trivial. There had to be such a substantial departure from elections procedure stipulated by law that would cause an ordinary person to condemn the election as a sham or travesty. A considerable departure was required. Accordingly, an election court would usually only invalidate an election on that ground if the judge was really satisfied that the breach was serious.”
The thinking in this Antiguan case has now been applied to elections in T&T and what is emerging is the spread of a doctrine of substantial compliance being greater that illegality in the performance of the public duty of conducting an election.
The next time a candidate seeks to challenge the actions of any election authority in another Commonwealth Caribbean jurisdiction, these two precedents may be advanced as a protection for the actions of the election authorities. This makes an appeal so vital in the current case.
There is a fundamental question of law to be determined here which may very well provide a road map for Commonwealth Caribbean democracies about the way in which their elections are to be handled. Are there any consequences at all for a public authority for breaking the law? Are there no consequences for breaking the law if there is substantial compliance with everything else despite the illegality?
In a letter to the editor of the Express last Thursday, Senior Counsel Douglas Mendes, who appeared for the PNM in the case, wrote to advocate that there was no politics in the judge’s ruling and to challenge the views expressed by some commentators who said that there was politics in her ruling.
Mendes, in his letter, said inter alia: “ . . . Recently in Antigua, for example, the Eastern Caribbean Court of Appeal refused to declare an election void even though voting hours were reduced substantially, creating the potential that some electors may have been deprived of the opportunity to vote. On the evidence, the court found that the reduction in voting hours did not affect the result and, given that the voter turnout was high in any event, the will of the electorate had been expressed . . .”
This was a description of the same Quinn-Leandro v Jonas case that the judge relied upon in her judgment. What is emerging in Commonwealth Caribbean jurisprudence is an attitude of elasticity towards illegality on the part of public authorities with regard to elections.
As described by Mendes, the Antiguan case involved a shortening of the polling time which was deemed to be tolerable by the court, while the Trinidadian case involved an extension of the polling time which was also deemed to be tolerable by the local court.
The fundamental issue involved here is whether Caribbean democracies are prepared to accept this kind of judicial elasticity in the holding of their elections regardless of whether it is an extension or a curtailment of the statutory polling hours. What other areas of elasticity exist for illegality to be trumped by substantial compliance ?
Would someone who holds the nationality of the country where he/she is contesting an election be deemed to have been properly elected because there was substantial compliance with election day procedures notwithstanding the fact that he/she may lawfully hold another nationality simultaneously?
Would the court be prepared to tolerate the fact that persons may be turned away from the polls during the period of an extension of time because the presiding officer was not aware that there was an extension?
Would the court be prepared to tolerate a repeat in either Antigua or T&T of these events as long as there is substantial compliance otherwise?
These are fundamental questions for the future of Caribbean democracies that must be answered.