Re Representation of the People Act

 
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Supreme Court

Wolfe, C.J., Walker and Langrin, JJ.

No. M001 of 1998

Re: Representation of the People Act
Appearances:

Patrick Robinson, Deputy Solicitor General, Lackston Robinson, Miss Nicole Foster and CordellGreen for the applicant.

Miss Ruby Walcott, Abe Dabdoub and Phillip Forrest for Andrew Holness.

Dudley Thompson, Q.C., Miss Norma Lipton, Walter Scott and Richard Rowe for Warren Blake.

Wentworth Charles for Steve Daley.

Constitutional law - Elections — Applicant sought a declaration that the taking of the poll in the general election of members of the House of representatives in some constituencies are void — Court found sufficient irregularities to grant declarations sought.

WOLFE, C.J.
1

December 18, 1997, was declared as the day for General Elections in Jamaica to elect members for the lower house of Parliament. Three political parties, viz, the People's National Party, the Jamaica Labour Party and the National Democratic Movement (hereinafter referred to as the P.N.P., the J.L.P. and the N.D.M., respectively) contested the elections. The island of Jamaica is divided into sixty (60) constituencies for purpose of electing members to the House of Representatives. West Central St. Andrew is one of the designated constituencies. Three persons contested the election in this constituency, Dr. Warren Blake of the P.N.P., Mr. Andrew Holness of the J.L.P. and Mr. Steve Daley of the N.D.M.

2

The constituency of West Central St. Andrew is divided into seventy-four polling divisions. The seventy-four polling divisions are served by eighty-eight polling stations. Each polling division is divided into polling stations. The number of polling stations in a polling division is determined by the number of electors in the polling division. It is recommended that a polling station should have assigned to it not more than two hundred and fifty (250) to three hundred (300) voters.

3

Mr. Andrew Holness of the J.L.P. was declared duly elected as the of Member of Parliament for the constituency, defeating the P.N.P's Warren Blake by 153 votes.

4

The Constituted Authority, established pursuant to section 44(A)(1) of the Representation of the People (Amendment) Act, 1997, on the 2nd day of January, 1998, filed a Notice of Motion in the Supreme Court seeking to have declared void, the taking of the poll in the constituency of West Central St. Andrew.

5

Section 44(A)(1) enacts as follows:

“There shall be established on the issuing of an election notice by a returning officer under section 22(1), a body to be known as the Constituted Authority which shall continue in force for a period ending six months after the day referred to in section 22(2)(b)”

6

Section 52A(1) of the said act stipulates:

“Where after the taking of a poll the Constituted Authority or a candidate is of the opinion that during the taking of the polling circumstances existed which could constitute grounds as specified in section 37 of the Election Petitions Act, the Constituted Authority may, on its own motion or at the request of the candidate, make an application under that section to the Election Court to have the taking of the poll declared void.

7

Section 37 of the Election Petitions Act states:

“The Constituted Authority may, subject to section 38, apply to the Election Court for the voiding of the taking of a poll on one or more of the following grounds -

  • (a) that the total number of votes cast in a constituency or electoral division exceeds the number of electors on the official list for that constituency or electoral division;

  • (b) that ballot boxes have been stolen or destroyed or have in any manner been tampered with and the number of electors on the list of electors for the polling stations is more than the difference in the number of votes cast for the candidate declared the winner and the candidate who is not declared the winner;

  • (c) that a presiding officer has, under duress, signed ballots and that the number of ballots so signed is sufficient to cast doubt on the majority of votes counted for, the candidate declared elected;

  • (d) that votes have been polled by persons who are not bona fide electors thereby casting doubt on the integrity of the votes counted for the candidate declared elected;

  • (e) that there is an upsurge in violence or any irregularity during election day in one or more polling stations or polling divisions or in any electoral division or constituency which would lead to a substantial distortion or subversion of the process of free and fair election.”

Section 38 of the said Act stipulates the time within which an application made pursuant to section 37.

“Where under section 37 the Constituted Authority makes an application to the Election Court, the application shall be made within fourteen (14) days of the taking of the poll.”

The Notice of Motion seeks the following declarations:

  • (A) That the taking of the poll in the general election of members of the House of Representatives held on the 18th day of December, 1997, is void in respect of polling divisions 23, 49, 56, 57, 58, 60, 64, 71, 72 in the constituency of West Central St. Andrew.

  • (B) That the taking of the poll in the general election of members of the House of Representatives held on the 18th day of December, 1997, is void in respect of West Central St. Andrew.

The grounds on which the declarations are sought are set out below:

  • (1) That ballot boxes were stolen and/or destroyed and/or tampered with and the number of electors on the list of electors for the polling stations in polling divisions 49, 64, 71 and 72 is more than the difference in the number of votes cast for the candidate declared the winner and the candidates who were not declared the winner.

  • (2) That votes were polled by persons who were not bona fide electors thereby casting doubt on the integrity of the votes counted for the candidate declared elected.

  • (3) That there was an upsurge of violence and/or irregularities during election day in one or more polling divisions in the constituency and/or in the constituency which led to a substantial distortion or subversion of the process of free and fair election.

An affidavit by Owen Dustin Marsh, retired Judge of the Supreme Court and Chairman of the Constituted Authority, at paragraph 7 thereof states:

“That the Constituted Authority has pursuant to section 52A(1) of the representation of the People Act determined on its own motion that an application ought to be made to the Election Court to have the taking of the poll in polling divisions 23, 47, 56, 57, 58, 60, 64, 71 and 72 and in the Constituency of West Central St. Andrew declared void:”

The notice of motion is supported by some eighteen (18) affidavits by Dr. Warren Blake of the P.N.P., one of the unsuccessful candidates in the election of December 18, 1997.

Andrew Holness of the J.L.P., the declared winner, on the 27th day of February, 1998, filed a notice of motion to dismiss the application of the Constituted Authority. The grounds to dismiss are:

  • (1) That Andrew Holness was on the 17th day of February, 1998, the member elected for the constituency of West Central St. Andrew, as having received the majority of votes lawfully given and has been sworn as a member of parliament of that constituency.

  • (2) That section 4(d) of the election petition act has not been complied within (sic) that security for the payment of all costs, charges, and expenses that may become payable has not been given nor notice thereof served on behalf of the applicant and that the provisions of the section is mandatory, and;

    • (i) That the Constituted Authority as established is not exempt by this section;

    • (sic) (iii) Therefore non-compliance is fatal and no further proceedings may be held on the application.

  • (3) That the composition of the Constituted Authority is ill considered, inoperative and unworkable by the inclusion by law of the three selected members of the Electoral Advisory Committee clothed with the power to decide whether or not to refer an application to the Election Court to void an election in a particular constituency on the grounds;

    • (i) The Electoral Advisory Committee is an integral component of the Electoral process and charged with the responsibility to put machinery in place to prevent any malpractices such as the Constituted Authority complains of; -

    • (ii) that the Electoral Advisory Committee were active participants in the election process on election day;

    • (iii) that the Electoral Advisory Committee must take responsibility for their contribution which intended or not facilitated any (sic) irregularities on election day;

    • (iv) that the Electoral Advisory Committee including its Director of Elections has by its confusion and...

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