A High Court judge is expected to rule, on Wednesday, on an application to postpone the PNM’s internal election for 21 days as one of its contenders for the post of political leader, Karen Nunez-Tesheira, and two members of her slate, challenge changes to the party’s electoral process.
At a virtual hearing on Monday, Justice Devindra Rampersad heard submissions on the preliminary application for interim relief.
After a little over two hours of submissions, the judge said he will give his decision on Wednesday at 3 pm.
In their breach of contract lawsuit, Nunez-Tesheira, Dr Kenneth Butcher – who is vying for the post of chairman, and Bishop Victor Phillip – who is contesting the post of election officer, are claiming the party's central executive breached the party's constitution by deciding the election should be contested on three separate days over a nine-day period – November 26, 27, and December 4 – instead of on one day.
In his submissions, attorney Egon Embrack, who represents Nunez-Tesheira and the others, said the only body which can change the party’s constitution was the annual convention which was not done here.
He referred to article 18(1) of the PNM’s constitution, saying it spoke of an election day.
“It doesn’t say the days of the election. Even a general election is held on one day. To change that one day to a nine-day period should have been put to the annual convention to effect the amendment.” This, he said, has been the practice since 1956 to present.
“The only way the constitution can be changed is through the annual convention.”
Embrack said the constitution names the convention as the “supreme authority of the movement” in article 17(4).
“Dr Eric Williams, the party’s founder, designated the annual convention as the governing body of the movement.” He also said one example of this type of change to the constitution was when the party’s annual convention adopted the one-man, one-vote system.
Embrack said these decisions breached the party’s contract with its members, and it was because of this “unconstitutional decision,” there was an avalanche of issues.
“The elections are skewed and flawed and the claimants do not have a fair chance.”
In his opposition to the application, Senior Counsel Russell Martineau, who represents PNM’s general secretary Foster Cummings, said there were issues with some of the orders being sought.
Martineau raised what he said was a “procedural flaw” with the naming of Cummings as the defendant in his capacity as general secretary and a representative of all members of the PNM, except the three.
He also said by their challenge of the alleged decision to change the election day to election days, they were “shooting themselves in the foot” as they were suing the membership that could correct what they are complaining of.
Martineau also took issue with the order being sought for the PNM to provide settled final membership lists to candidates.
“It is not right to be disclosing people’s personal information.
“...This is a party that tries to get it right.”
Martineau said postponing the election had serious consequences and the “most disturbing part” of the lawsuit was asking for the postponement of the election by 21 days.
He complained of the delay in filing the challenge – three months after the notice was given of the change – and seven days before voting begins.
Martineau spoke of the expense involved in holding an election and in postponing it. He said the election was spread out over a period of time to allow members the luxury to vote when it was convenient to them, as the party now has over 100,000 members.
“The PNM has invested a lot in getting the election on these days,” he said. “Balance of justice is in favour of keeping the election on these days. One would have thought this decision was a commendable one as one day is more restrictive.
He also said the constitution did not refer to the election being held on one day.
On the security aspect of guarding the ballot boxes on the days of voting, Martineau said the PNM had an independent election committee in whom the members put their trust.
“They can make their domestic decisions and the views of the party’s members have to be respected.”
The PNM internal election is scheduled for December 4. However, November 26 and 27 are also voting days which, the lawsuit said, was decided on by the party’s central executive and ratified by the general council on August 10, but not approved by the annual convention.
The lawsuit said the party’s central executive does not have the power to make this decision.
“The decision to change the election from the time-honoured 'election day' to span a nine-day period is a fraught exercise, more so since no justifiable reasons have been proffered to the membership for such a change, which is without precedent anywhere in the Commonwealth or in jurisdictions throughout the world that observe and adhere to democratic conventions and practices and to the observance of the rule of law,” the lawsuit contended.
Also representing the three is attorney Peter Taylor, while Anthony Bullock and Adana Bain-Bertrand also appeared for the party.