PNM political leader contender Karen Nunez-Tesheira has been unsuccessful in her attempt to stall the party’s internal election until her lawsuit over the changes to the electoral process is determined.
On Wednesday, Justice Devindra Rampersad dismissed an injunction application by Nunez-Tesheira and two members of her slate.
He said he was not minded to grant the interim relief sought, as the greater risk of prejudice in doing so lay with the party.
Rampersad also held the application was devoid of evidence, saying an election should not be stopped or altered on the basis “only on fears without cogent evidence.”
The judge added, “Whereas the defendant has indicated facts which the court has to consider and to take into account, the claimants have not.
“Of course, the upshot of any unfair election could be that officers are elected for four years, thereby depriving the unsuccessful candidates of the chance to have so been elected. During that next four-year period, the court can also take judicial notice of the fact that there would be national general elections so that the impact of the appointment of persons to any of these relevant offices would have an even greater lasting effect.”
Rampersad said there was no actual evidence of the potential for an unfair election.
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, claim 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. Their lawsuit said the party’s central executive does not have the power to make this decision.
They also raised concerns about the security of the ballot boxes.
The PNM’s election committee chairman Anthony Roberts, in his evidence, said the ballot boxes on the days of the election would be secured and transported by the police to a “secure secret location” and an independent accounting firm, Pannell Kerr Forster, will secure the boxes.
The judge said, “Should these things be shown to be otherwise later on when there has been comprehensive disclosure and discovery, then the claimants may have other recourse should the process be found, in fact, to be tainted. Even though it is a more onerous task to correct an election after the fact, evidence of actual illegality and unfairness would be grounds to set it aside.”
Rampersad also agreed with the PNM’s complaint, advanced by its lead attorney Russell Martineau, SC, of a delay in filing the injunction application until mere days before the party’s membership goes to the polls, particularly when the announcement by the party’s central executive, which was ratified by the general council, was made on August 10.
However, Rampersad held he was not able, at this stage, to come to a definitive finding on how to interpret article 18.1 of the PNM’s constitution.
“The case, therefore, turns on the construction to be found applicable to Article 18 (1),” he said.
The claimants say the only body that can change the party’s constitution is the annual convention, which was not done here. They say article 18.1 referred only to an election day and not multiple days, even if special voting is factored in.
In finding there was an issue to be tried on this interpretation and construction, the judge said, “If it applies, then it seems it may require amendment at an annual convention. If it does not apply, then the argument in relation to an established course of practice of the election spanning just one day would not be sufficient having regard to the power invested in the general council.”
He said the court would have to look at the constitution and background factors to reach a decision on what the article means.
“In those circumstances, the court is of the respectful view that there is an issue to be tried – an issue which is more than just fanciful but which is a real one for determination.”
He also dismissed a complaint that Foster Cummings, the party’s general secretary, was the wrong person to be named as the defendant by the three.
He said there was no allegation that Cummings was not a member of the PNM when the decision on the voting was made and in the absence of named trustees, the matter could proceed as is and an application to make a change can be made at a later stage.
In their injunction application, the Team Karen challengers had asked for orders for the election to be held on one day or postponed until their lawsuit is determined.
They were represented by attorneys Egon Embrack and Peter Taylor. The PNM was also represented by Michael Quamina, Anthony Bullock and Adana Bain-Bertrand.