By KRYSTEL ROLLE ~ Guardian Staff Reporter ~ krystel@nasguard.com:
The Election Court yesterday rejected an application filed on behalf of Free National Movement candidate Dr. Duane Sands to throw out the petition of the Progressive Liberal Party's Ryan Pinder on the basis that it is "fundamentally flawed".
Sands' lead counsel Thomas Evans, QC raised that argument yesterday as the Elizabeth challenge got underway before Senior Justices Anita Allen and Jon Isaacs.
Evans contended that Pinder's petition is deficient as it does not set out what he is hoping to gain at the end of the process and thereby places the respondents at a disadvantage.
Pinder, who was the PLP's candidate in the recent by-election in Elizabeth, wants the court to rule that five protest votes cast in his favor are valid. If at least three of those votes are approved, he would be declared the winner of the election.
The respondents in the case include Sands, Parliamentary Commissioner Errol Bethel and Returning Officer Jack Thompson.
Evans said the basic principle of the case requires the respondents to know what the case is.
He noted that Pinder wants the court to exercise its jurisdiction under Section 69 (1) of the Parliamentary Elections Act.
This section of the act allows a candidate to petition the court to consider the protest votes cast if the margin of victory by his opponent (in this case Sands) is less than the number of his (Pinder's) protest votes.
"A petitioner who is seeking to avail himself of the jurisdiction of the court ought to say what he is seeking," Evans said.
"In this case one would expect that he would reveal exactly what it is that he seeks to receive from the court. If he does not do that he puts the respondents in a position of not knowing what case they have to meet, not knowing what they have to respond to."
Evans said the petitioner (Pinder) must assert that the voters were properly registered and entitled to vote.
"The petition contains no prayer in his favor. There are no grounds given for finding that the voters were properly registered and entitled to vote," Evans said. "A petition has particular characteristics, one of which [is] the petitioner must set out the brief facts. Notwithstanding the discreet nature of the petition, the court must deal with it in the same manner as it deals with any other petition."
Evans argued that the defect in the petition cannot be cured by an amendment.
Attorney David Higgins, who represents Bethel and Thompson, adopted that position. Higgins said the petition ought to be able to stand on its own.
Additionally, Evans argued that it would be an abuse of the court process if the petition is allowed in court.
However, Pinder's lead counsel Philip "Brave" Davis argued that it would be an injustice to strike out the petition.
He said respondents should know exactly what the petitioner is seeking to gain.
Davis said he was surprised that the justices would even allow such submissions to be made.
"I do not know what else they want to know. I have given them our complete written submissions," Davis said.
"I think the parties have all that they require. To suggest that we should strike out the petition is an alarming proposition."
After a 10-minute break to decide whether the petition was in fact fundamentally flawed, Senior Justice Allen announced that the application to strike out the petition was denied.
Evans then sought an application to stay the case so that he could appeal the justices' decision, but Davis objected.
He said it would be a "total waste of time" and urged the justices to refuse the request.
The justices took a short break to decide if they would allow the stay. However, after about 15 minutes, Allen announced that that request was also rejected.
She said it is imperative that the will of the electorate be determined as soon as possible.
Allen also noted that costs would be awarded to the petitioner for two attorneys.
Evans then requested the court to grant him a conservatory stay until Monday so that he could approach the Court of Appeal. However, that request was also denied.
Davis noted that Evans has the option of approaching the Court of Appeal before the start of today's proceedings, which are set to begin at 10 a.m.
It is unclear whether Evans will still attempt to appeal the justices' decision.
Allen said the proceedings will continue today with Davis presenting his submissions.
The Elizabeth by-election, which took place February 16, ended with Sands receiving 1,501 regular votes and Pinder receiving 1,499 regular votes.
If the court only accepts two of the protest votes for Pinder, a re-election would be ordered.
Friday March 12, 2010
thenassauguardian
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