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By Ben David
“… [O]n the 21st [of March], we would have a decision, one way or the other, as to the outcome of this court, and two, three years ago, a man [Supreme Court Justice Brian Cottle] said we were on a fishing expedition [for election irregularities], well, we catch a whale” (St. Clair Leacock, Vice President of the New Democratic Party and Member of Parliament, St. Vincent and the Grenadines (SVG).
The March 21 ruling by Eastern Caribbean Supreme Court Justice Stanley John dismissing the two election petitions arising out of the 2015 national elections because not even a minnow was caught in this wasteful fishing expedition should come as no surprise to any objective and informed observer of the proceedings and their underpinnings, both legal and political.
The backdrop for this decision is that like virtually every democratic country, St. Vincent and the Grenadines (SVG) has a representative (as opposed to participatory) system of government which means that citizens only occasionally vote to elect people to protect their interests and promote their concerns.
Because they are infrequent, national elections are seen as nearly sacrosanct: they represent the only opportunity, save for some rare legal action against the government or an even rarer referendum, for the citizenry to hold their elected representatives to account. Accordingly, it is seen as critical that these elections ensure that the will of the majority is guaranteed.
This guarantee is somewhat problematic because elections are usually held several years apart which means that many if not most of the appointed personnel conducting them are people with little or no previous experience doing so. Further affecting this guarantee is the complexity of election regulations as a reading of our own election legislation, the Representation of the People Act of 1982 (RPA), would instantly show.
The unfortunate result is that unintentional errors are as normal in our elections as they are in other countries with one notable exacerbating caveat. In a developing country like our own where the skill of election officials leaves much to be desired, such errors are compounded, as the evidence in the election petitions trial clearly and depressingly revealed.
To be sure, this has caused much anxiety among the supporters of the New Democratic Party (NDP) who have cried that the election was “wickedly stolen,” a claim reinforced by the sense of frustration and disappointment of yet another election defeat, the fourth in a row.
These features were well known to the framers of our 1982 RPA. Like its Caribbean counterparts, provision was deliberately made to make it very difficult to overturn the results of elections for the very reason already given: though mistakes are inevitable, the electoral will of the people must rule because of how limited it becomes once an election is decided. The worst possible outcome would be for some court or the other to overturn the results of an election that actually reflected the desire of the majority of the electorate.
This even extends to spoilt and rejected ballots because their disqualification, even if they did not alter the outcome of the election, could see the disenfranchisement of many citizens. This is why such ballots should be meticulously examined. The Act says that any impasse should be resolved by privileging the voter and her choice, within the context of the provisions of the Act.
The same overarching principle that what counts the most are the votes themselves, holds even for bribing voters with gifts on or before election day. While this illegal practice is subject to a fine and/or imprisonment, it could not be used as grounds for overturning an election unless there is concrete proof that it affected the result of the election.
This principle of voter supremacy holds even if many law-breaking errors occurred in the conduct of the vote and the tabulation of the results, keeping in mind the provision that election officials could be criminally prosecuted for breaches of the Act.
In effect, electoral law turns the notion of the appearance of justice that is the cornerstone of judicial decision-making in other areas on its head: even if the results appear to be biased according to mass public opinion, real bias and other massive irregularities that had the proven cumulative effect of reversed the true will of the people is what actually rules the day in electoral law.
This is crystal clear in the 1982 RPA which states:
“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.”
As the evidence at the trial showed and as Judge John’s verdict declares, none of the examples of “non-compliance” or “mistakes” offered by the petitioners, separately or in total, affected the result of the election.
The leadership of the NDP, an organization with several trained lawyers, fully aware of all these considerations, launched the petitions only to keep their base of voters energized until the next election seemingly indifferent to its huge legal and social costs for the country as a whole.
This assertion is proven by the pre-and post-trial opinions of NDP bigwigs and their lawyers. According to lawyer and Senator Kay Bacchus-Baptiste in a statement made seven months before the trial:
“As far as I am concerned, — let me speak politically — politically, we have already won in relation to what we set out to do for the petitions.”
Translation: “Politically, we have convinced our supporters that two seats were stolen even though this would be impossible to prove in a court of law.”
By terming Douglas Mendez, one of the respondent’s lawyers, the “Wizard of Oz” at a post-trial political rally purposely held before the Party received its dreaded but inevitable petition decision, the same Ms. Bacchus-Baptiste implied that if the Unity Labour Party’s side wins, it is only because Mendes performed black magic (obeah) at the trial, an idea that would appeal to those superstitious NDP supporters who claim the two elections in question were malevolently stolen.
More important, when Ms. Bacchus-Baptiste used the words, “Regardless of what happens on the 21st [of March], we have won those cases” at the same rally, she meant that ULP brass realistically expects a loss and are simply priming their base to keep on fighting because the verdict was obtained through Obeah.
When Stanley John, lead counsel for the petitioners, tried to use the abstract and unstated declarations of the Constitution to challenge the election results in Central Leeward — instead of the detailed requirements of the 1982 Act — he also reflected the hopelessness of the NDP’s case because he knows more than anyone how high a bar the Act has set for overturning elections.
The NDP long ago declared that its two failed 2015 candidates would appeal any negative decision. It has a legal right to do so. But the Party’s chances of a reversal of Judge John’s decision range between zero and none, as similar cases have shown. When it comes to election petitions, legal precedent is paramount.
The founder of the NDP, Sir James F. Mitchell, one of the most successful politicians the Caribbean has ever produced, warned the Party about how harmful these petitions were to its future electoral prospects. Don’t be perennial losers, move forward, not backward, he has repeatedly warned:
“But one thing I know, the courts can’t say is that ULP lost the seat [in Central Leeward] and when you are finished an election, in my book, number one, you have to concede defeat.”
His once glorious Party, lost in the wilderness since 2001, has stubbornly ignored this sage advice.