We are pleased that the Honourable Madame Justice Mira Dean Armorer today upheld our submission that the Election and Boundaries Commission acted unlawfully when they extended the voting hours.
The learned Madam Justice, in her judgement, held that:
“It is my view that there were breaches of the Election Rules at every polling station, where the election officers failed to close the polls as dictated by Rule 27(i). It is also my view that the directive of the EBC was not justified in law and did not operate to vindicate the breaches that were committed.”
The ruling of the Court clearly vindicates our decision to challenge the lawfulness of the elections as the Court has ruled that the Elections and Boundaries Commission acted illegally and unconstitutionally in extending the polling hours.
We challenged the results of the elections because we were of the view that the actions of the EBC were in breach of the election rules and that the election should be overturned. Today the Court by its ruling agreed that the EBC violated the law.
Madam Justice Dean Armorer further stated,
“Accordingly it is my view and I hold that the extension of the poll on September 7th 2015 was illegal and election officers who failed to close the poll at 6pm acted in breach of section 27(i) of the Election Rules obedience to which is required by Section 35 (i) of the Representation of the Peoples Act”.
Despite holding that the EBC acted illegally, the Court did not void the election results. We disagree with the Court and we serve notice today that we will be appealing that part of the decision where the Court held nevertheless that it would not void the election.
Our democracy is one that is built upon respect for the rule of law and respect for the decision of the Courts is an essential element of that concept. However, another fundamental norm of our democracy is the right to challenge the decision of the Court and to test the correctness of that decision. We will be asking the Court to hear this appeal as a matter of urgency having regard to the fact that the legitimacy of the government is being questioned.
Our Constitution recognises that men and institutions remain free ONLY when freedom is founded upon respect for moral and spiritual values and the rule of law. This is the bedrock upon which our democracy was founded and built. The democratic process by which we elect a government is one that is guaranteed by the Constitution and the law to be based upon the core principles of fairness and freedom.
The ruling of the Court clearly finds that the election of this government was in breach of the law. The Constitution declares that we are a sovereign democratic state and being such the electoral process must be transparently free and fair in order to pass the constitutional threshold of a democratic election.
We are firmly of the view that the electoral process by which the PNM was elected into office was fundamentally flawed and the Court has found such. The process by which they were elected lacked integrity and was not one that was conducted in accordance with the Election Rules, the Representation of the People Act and the Constitution. Such an electoral process cannot result in legitimately elected government.
So we in effect have an illegitimate Government with MPs squatting in constituencies.
The filing of these election petitions was done in the interest of the people of Trinidad and Tobago. We consider it our duty to file and prosecute these petitions and it is a duty that we do not take lightly because we understand that if you allow a government to command the reins of power by a undemocratic and unconstitutional process it would represent an undermining of the democracy that we have, as a people enjoyed, for the last 54 years. That is why we will now seek to test the correctness of the decision of the High Court that the election should not be voided, by an appeal to the Court of Appeal. We continue to hold the view that a flawed and illegal process cannot result in a democratically elected government.
The filing and prosecution of these election petitions has resulted in greater participation by our population in our democratic process. The population has become alive to the process by which our government is validly elected and the majority of the population hold the view that this present government ascended to the corridors of power by a process that was invalid and undemocratic. The ruling of the Court today supports this view. We as a responsible Opposition cannot and will not sit idly by and allow such a travesty on our democracy to continue.
These election petitions were seen by many as politically motivated but I want to say today that this is not a political challenge; it is a democratic challenge, one that is being pursued not to advance the political aspirations of a political party but to protect the democracy of Trinidad and Tobago. We of the Opposition would openly accept that the people of Trinidad and Tobago wish to have another regime hold the reins of power. That is the result of the democracy that is guaranteed to us by the Constitution. What we cannot and will not accept is that the machinery by which that is accomplished is manipulated in favour of one party by the body that is charged to ensure that the process must be free and fair and free from fear.
The view of the Opposition and that, which was advanced in the Courts to challenge the results in these five constituencies, was one that was vindicated by two Justices of the Appeal when this matter first reached the Court of Appeal. Justice of Appeal Jamadar when he responded to the argument that an election conducted in non-compliance with the laws should stand on the basis that the results would not change as an
“anathema to the core constitutional values that underpin the democracy intended in [Trinidad and Tobago]. Such a position elevates outcome as absolutely determinative of legitimacy, and discards process as of no or little consequence.”
We will again advance those arguments when this appeal is heard as we firmly believe that our view is support by the law and the constitution. It is a view which balances the twin concepts of outcome and process and places neither as more important than the other.
The ruling of the Court today has far reaching consequences for the democratic process and the way a government can be elected to govern our country. In this case the EBC extended the election by one hour in Trinidad and not in Tobago.
What stops the EBC in the next election from coming to the conclusion that one political party that they favour has not secured enough votes to form the government and they take a decision to extend the voting by another day to ensure that that party secures a victory in their favour and then claim that the election is valid because they substantially complied with the law.
There is nothing that stops the EBC now from shortening the voting hours in constituencies that are favourable to the Opposition and extending the voting hours in those that are favourable to the PNM to ensure that PNM remains in power and with the type of governance that we have experienced during the past 11 months we consider that such a move is not farfetched or distant.
The decision today will have the consequences of transforming the EBC as a law unto itself. This unfettered power that has today been legitimised by the Court makes the EBC more powerful than the Constitution itself. It transforms our electoral process from election by the people and of the people to election by the EBC for the EBC.
Up to today as we speak and after judgment has been delivered, we are still not told what was the reason for the extension of the polling hours from 6pm to 7pm and why was it only in Trinidad and not in Tobago. The ramifications of the Court’s decision are absolutely frightening and cannot be what the framers of our Constitution and the drafters of the Representation of People Act intended. It allows the EBC at its absolute discretion to change the laws that govern our electoral process and in so doing being accountable to no one.
So not only can the EBC change the rules it does not have to explain its reasons for doing so.
This can only and will only lead to the destruction of our democracy, anarchy and tranny. It will undo all that our forefathers fought for to ensure that we live in harmony and enjoy the freedoms guaranteed to us. It is incomprehensible to think that the Court will legitimise the EBC having such unfettered extensive powers. This is the antithesis of democracy. We say that the EBC must act in compliance with the law and the Constitution and we will accept nothing less. The electoral process must be untainted and cannot accommodate breaches of the rules.
While we accept the Courts decision we condemn the election of September 2015 as a sham and travesty and one conducted by a grave and unlawful departure from the rules. The Court today has so found by its finding that the election Rules were broken in every polling station in these five constituencies. At the same time we will challenge the decision today to the Court of Appeal as we consider it our duty to the people of Trinidad and Tobago.
When we take the oath to be members of Parliament we swear to uphold the law and the Constitution and it is in the discharge of that duty that we will ensure that any government elected to govern our country is elected lawfully, by virtue of the Constitution and in accordance with the rule of law and not otherwise.
Kamla Persad-Bissessar, SC, MP,
Leader of the Opposition & Political Leader of the UNC