Fern Nancis-Scope –
On Monday, a High Court judge will decide if an election petition filed by the losing candidate in the Arima Northeast district should be thrown out.
On Monday, Chief Elections Officer Fern Narcis-Scope filed a motion to dismiss the petition because it was not served on the seat’s winner, Kim Garcia.
On Tuesday, Justice Frank Seepersad ordered the filing of submissions on the EBC’s motion and said he would give his decision on September 18.
“This point will revolve around the interpretation of the act and the rules,” he said.
In the application, the CEO said the election rules and the Representation of the People (ROP) Act required the petition to be served on the person whose election was complained of and it was not.
“The settled law is that the ROP Act and the election proceedings rules provide a comprehensive and exclusive statutory scheme with mandatory procedural rules for challenging the validity of an election or the return of a candidate as the elected representative in an election.
“Time limits set in election legislation are to be strictly adhered to and adherence is regarded as a prerequisite to the advancement of a petition.
“Representation petitions must therefore be brought strictly in accordance with the requirements of the statute.
“Failing this, a petition is a nullity and will be dismissed or struck out.”
The motion said the petitioner, Jairzinho Domingo Gustav Rigsby, who was the UNC’s candidate in the August 14 local government election, did not serve Garcia with notice of the petition nor was she named as a respondent as required by section 110 of the act and rule 8(1) of the election rules.
The EBC contends that the petition, filed on September 1, should have been served on Garcia on or before September 7, within five days of the presentation of the challenge.
Garcia was the PNM’s candidate.
“Having regard to the nature of the petition and the relief which it seeks which concerns not only the petitioner and the respondents but the electorate of the electoral district of Arima Northeast, it is in the public interest and consistent with the overriding objective for the respondents’ motion to dismiss the petition.
Rigbsy’s attorney, Dinesh Rambally, insisted that non-service of the petition on Garcia did not nullify it.
He expressed concern that the EBC did not, on September 5 when the matter was first called, raise the issue.
He said it was not Garcia’s conduct which was being complained of but that of the chief election officer and the returning officer who are the named defendants in the petition.
However, the EBC’s lead attorney, Deborah Peake, SC, said the petitioner has accepted that the candidate who won the election was not served, then it was clear that the petition should be struck out.
She also said section 107(2) of the act was “pretty clear” as it requires the service of the petition on the person whose election is complained of.
The Arima Northeast election petition is the second challenge to the results brought by the Opposition UNC; the other being the Lengua/Indian Walk district.
The petition is based on what transpired after a recount and review of that recount for the Arima Northeast district and Rigsby has taken issue with two ballots which he contends should not have been deemed valid.
On election night, a tally of the votes saw the UNC and the PNM receiving 623 votes each.
On August 15, the UNC requested a recount which led to the Opposition party receiving one more vote.
The EBC then accepted a request from the PNM for a check of that recount.
It issued a statement on August 24 that the PNM candidate, Kim Magdalene Garcia, received two additional votes when that check was done.
It said, “This result overturns the outcome of the recount, which was conducted during the period August 16-17, 2023 and saw the UNC candidate Jairzinho Domingo Gustav Rigsby being declared the winner.”
The result of the second recount gave the PNM 625 votes and the UNC 624.
It is the counting of these two votes in the final tally that Rigsby is contending came from questionable ballots and should not have been allowed or deemed valid or even counted in Garcia’s favour.
In support of his petition, Rigsby said, “I believe that were it not for these blatant irregularities, I would have been the candidate with the highest number of votes cast and hence be declared the successful winner.”
He said the two impugned ballots should be struck out and declared null and void by the court.
It is also his contention that at the very least, fresh elections should be held for the district.
In his petition, Rigsby has asked the court to scrutinise and review the two questionable ballots which were deemed valid by the EBC in favour of the PNM’s Garcia.
“If these impugned ballots are declared null and void by the court, would have a material effect and/or change of the election results,” the petition says.
Rigsby is represented by attorneys Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkisson, Rhea Khan, Kavita Moonsar and Arif Rahman.
Attorneys Deborah Peake, SC, Ravi Heffes-Doon and Alana Bissessar represent the EBC.
As with all election petitions, if the petitioner is unsatisfied with the High Court’s decision, it can appeal only to the Court of Appeal as the United Kingdom-based Privy Council has no jurisdiction over such electoral litigation.