By AZARD ALI
September 15, 2015 – newsday.co.tt
A British-based attorney yesterday, said the Opposition United National Congress’ (UNC) election petition could cut both ways, as the ruling People’s National Movement (PNM) could claim it also lost votes due to the extension of voting time in the election held two Mondays ago.
Attorney Anand Beharrylal, who specialises in constituional law, however supported the UNC’s petition on the basis that the courts need to lay down the law on the powers of the Elections and Boundaries Commission (EBC) relating to extending the time for voting, without consulting political parties.
Trinidad-born Beharrylal was asked to comment on the UNC’s petition, which seeks to challenge the EBC’s decision to extend voting in Monday’s general election by an hour, due to heavy rains, especially across the East-west Corridor.
The UNC contends that it was in the lead in certain marginal constituencies by 6 pm.
Beharrylal told Newsday that Rule 56 of the Representation of the People’s Act, provides that the only circumstance that would permit the presiding officer to suspend or adjourn voting, is if it is interrupted by riot or open violence.
Beharrylal said the EBC’s media release in which it purports to rely on Section 71 of the Constitution that does not make the EBC subject to any person or authority, is insufficient grounds to extend the voting from 6 pm to 7 pm.
“This does not exempt the EBC from acting within the law laid down by the Act,” Beharrylal said.
He explained that extending voting due to rain, is inconsistent with the only other instance in Trinidad and Tobago’s history, when on December 4, 1961, voting was extended due to problems with the voting machines.
Notably, this was only done after an emergency session of the then PNM Cabinet.” On the issue of a court hearing, such a petition, Beharrylal said it is his view, the UNC has serious evidential challenges to overcome, pointing out that the court would have to determine which party candidate was likely to win the particular seat or seats, by determining which party voters voted for, during the extended period from 6 pm to 7 pm.
Asking such a question of the voter, Beharrylal added, is prohibited.
The attorney went on to state that while Section 35 of the Act, requires an election to be conducted in accordance with election rules, it also makes it clear that no election shall be declared invalid, even if there is a breach of election rules. Beharrylal questioned why the UNC did not raise its objection at the time when the EBC made the decision to extend the voting time.
Despite these and other hurdles, the British-based attorney said whatever evidence is adduced, the UNC’s petition is not frivolous or vexatious, because where there is a situation in which the EBC can be deemed to have not abided by the election rules, a challenge of such action is in the public interest, to ensure that it does not happen again.
He maintained the EBC ought to have consulted with political parties before extending the time of voting.
He concluded, “If they have defied any requirement to consult with the political parties, it is in our interest for this to be determined by our courts to ensure it does not happen again.”