By NATARIO McKENZIE
Tribune Staff Reporter
nmckenzie@tribunemedia.net:
THE court ruled that the five protest votes cast in favour of PLP candidate Leo Ryan Pinder in the February 16 Elizabeth by-elections be allowed.
The court also validated a sixth protest vote which had been cast in favour of Bahamas Democratic Movement leader Cassius Stuart. Senior Justices Anita Allen and Jon Isaacs heard the election court case.
Voter 'A'
In relation to voter A the court noted that the voter had produced a voter's card to the presiding officer which showed she was registered in polling division 4 but her name was not on the register.
It was noted in the judgment that the voter's address was described on that voter's card as South Pine Barren Rood, West Barn Close. That address is in the Elizabeth constituency. "The counterfoil however is not the counterpart of that voter's card and it is alleged that it was the counterpart of the replaced card. The counterfoil describes her address as West Academy Street North Pine Barren Road, which is not in the Elizabeth constituency but in the Fox Hill constituency. The form B shows the same address. The voter had told the court that when she had collected her voter's card she realised that she had been placed in the wrong constituency and visited the Parliamentary Registration department to have it corrected," the judgment stated.
"It was never suggested to the voter that the voter's card was not genuine or was obtained by fraud or other improper means and the second respondent did not suggest that it was. The court accepts that there were no inconsistencies between the voter's evidence and that of her husband and Michael Bullard as to the date the new card was issued and other matters we felt were peripheral. The voter testified that she lives with her husband on South Pine Barren Road," the judgment stated.
The court accepted that there were inconsistencies between the evidence of the voter and her husband as to when they moved to Pine Barren Road but also found that there was not sufficient evidence to refute the fact that the voter lived at the address on her voter's card since at least 2006.
"In our view, this voter acted responsibly and did all she could reasonably do, to bring the error to the attention of the second respondent (Parliamentary Commissioner) but we find the second respondent failed to do what was required, to ensure this voter's name as included on the relevant register. It is no answer that the second respondent did not know of this matter until after the election. In the premises we are satisfied that voter A was entitled to be properly registered and was entitled to vote in Elizabeth. We allow the vote and order that the register be rectified to include the voter accordingly," the judgment stated.
Voter 'B'
In relation to voter B it was noted that the voter had produced a voter's card and was included on the register for polling division 5. The voter's name and address were consistent on the voter's card the counterfoil and on the form of oath (form B) but the voter's date of birth although consistent on the voter's card and on forms B and D as June 15, 1963, was shown as January 15, 1963 on the register.
"The second respondent admits that he was in error and acknowledges his responsibility for it. The third respondent contends that there is no evidence as to which of the entrees is correct and his vote ought not to be allowed. However in light of the send respondent's admission and given that the counterfoil and the oath subscribed by this voter are consistent as to his date of birth we are satisfied that the correct entry is June 15, 1963. We allow the voter and order that the register be rectified to reflect the correct date of birth accordingly," the judges stated in the ruling.
Voter 'C'
It was noted in the judgment that, similarly, voter C's name was on the Elizabeth register, which showed that her date of birth as January 3, 1970. The date of birth on her voter's card however is January 3, 1970. That date is also on the voter's passport which was used as a source of identification when registering. "The second respondent admits the error both on the counterfoil and register and concedes this vote as does the third respondent. "In the premises we allow the voter and order that the register be rectified to reflect the correct date of birth," the judgment sated.
Voter 'D'
It was noted in the judgment that voter D's name was not on the Elizabeth register. "When presenting to vote the voter produced a voter's card, the counterfoil of which shows that Elizabeth was crossed out in red ink and Yamacraw inserted. The address of 152 West Commonwealth Boulevard South Malaysia Way was crossed out by in crossing out the S and inserting an N which consequently put the address out of Elizabeth. The same alterations are on the form B," the judgment stated. The court noted that the Parliamentary Commissioner had admitted that he had authorised the alteration.
"The second respondent also accepted that the voter was first put on the register on January 12, 2010. He testified that the register was deemed closed at 11pm on the day before the Writ of Election, which was January 20, 2010. Under section 25 of the Act, no name or entry can thereafter be removed from any of the appropriate parts of the register until after polling day," it was stated in the judgment.
The judgment further stated, "The second respondent admitted his obligation to correct the register and to his credit acknowledged that he cannot change the register unless he verifies the information or contacts the voter and if he is unable to do so the information must remain on the register. When the second respondent purported to remove this voter's name off the register on January 30, 2010, then, he could not lawfully do so. He is not competent to summarily remove persons off the register whether or no he had reasonable cause to believe the information on the register is wrong and they should not be on the register."
Voter 'E'
In relation to voter E, the court noted that that voter was on the register and according to the voter's evidence and that of the presiding officer, this voter was made to vote on a coloured ballot only because she was challenged by an agent for the third respondent (Dr Sands). "The respondents have conceded that this vote should be allowed and we agree," the judgment stated.
Voter 'F'
The judges stated that they found the vote of voter F to be the most difficult to determine. "This voter did not produce a voter's card and was not on the register for Elizabeth. She used a driver's license as her means of identification and the presiding officer must have been satisfied of its sufficiency but not of her right to vote," the ruling stated. The court noted that it was the evidence of this voter that she moved from an address in Yamacraw on May 27, 2006 to Kemp's Street off South Pine Yard Road. The court also noted that the voter had produced a lease showing that she was a tenant of the premises with effect from that date.
"It is not disputed that the whole of Pine Yard Road and all houses on the north and south sides of that road are within Elizabeth. The voter swore that she was entitled to be registered and to vote in Elizabeth and it is not suggested to her on cross-examination that she did not live there and was not eligible to vote in Elizabeth. We believe that it is incorrect to say that the validity of a persons vote depends on whether or not that person made an efforts to transfer to the relevant consistency. Indeed, the second respondent acknowledged that he had an obligation to continuously review the register and to make provisions for persons who need to transfer to do so. He acknowledged that the voter has no obligation to do so and we agree," the court stated.
The court further stated, "It is not in this court's power under section 69(4) of the Act to determine whether the presiding officer was correct in permitting her to vote. Our jurisdiction is to determine the validity of the vote not the validity of the presiding officer's decision. On the evidence and in the absence of any evidence to refute it, we are satisfied that this voter lived in Elizabeth since May 27, 2006 and was so entitled and we allow this vote."
"Again this process has exposed failures, omissions and errors on the part of the Parliamentary Commissioner an his staff which may, if not corrected, threaten the fairness of the electoral process and ultimately our democracy. It is not an answer to say that the Parliamentary commissioner did not have resources to do what he is mandated to do by the law to do. No court can accept that as an explanation from disenfranchising a voter. We say emphatically that the Parliamentary Commission must be provided with sufficient resources, both financial and human to ensure he is able to properly discharge the duties imposed on him by law," the judgment stated.
March 24, 2010
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