[UPDATED\ Judge throws out UNC’s Arima Northeast election petition

A HIGH COURT judge has thrown out the election petition of the losing candidate in the Arima Northeast local government district.

On Monday, Justice Frank Seepersad dismissed the petition of the UNC’s candidate Jairzinho Domingo Gustav Rigsby.

He said Rigsby’s petition was “hopelessly flawed” as it failed to comply with statutory requirements of the Representation of the People Act.

“Even if a petition is addressed only at the conduct of the returning officer, the successful candidate whose election or return is complained of must also be made a respondent,” the judge ruled as he upheld a motion filed by Chief Election Officer Fern Narcis-Scope to dismiss the petition because it was not served on the seat’s winner, Kim Garcia.

Rigsby did not serve Garcia with notice of the petition, filed on September 1, nor was she named as a respondent as required by the act and the election rules. The petition named the district’s returning officer and the CEO instead.

In his ruling, Seepersad said, on carefully considering the wording of the act, “This court is resolute in its view that by virtue of section 107(2) of the ROPA, the elected candidate must always be joined as the respondent to an election petition in this jurisdiction.

“This is irrespective of whether the challenge concerns a national election or a municipal election and notwithstanding the fact that the petition may not make any complaint with respect to the conduct of the said elected candidate.”

He said the failure by Rigsby’s attorneys to join Garcia as the respondent and serve her with notice of the petition was “fundamental and fatal.”

“Election petitions must therefore be brought strictly in accordance with the requirements of the statutes. Failing this, a petition would be a nullity and would be struck out as such,” Seepersad said.

Rigsby's attorneys had argued there was no need to join or serve Garcia with the petition since section 107 of the ROPA introduced the word "but" outlining where the conduct of the election officials was complained of, then they shall be deemed respondents.

Seepersad said local election courts have held that there is little or no discretion open to it to waive non-compliance with statutory requirements.

“Accordingly, the consistent result is that failure to comply is fatal to the petition rendering it a nullity, unless the court finds that the failure goes to form.

According to Seepersad, even if the conduct of the returning officer or election clerk was being challenged, the elected candidate had to be named as a defendant since the complaint directly impacted them.

The Arima Northeast election petition was the second challenge to the results brought by the Opposition United National Congress (UNC); the other being the Lengua/Indian Walk district. The election for the Lengua/Indian Walk district was deemed void by the EBC, making way for fresh elections.

The Arima Northeast petition was based on what transpired after a recount and review of that recount for the Arima Northeast district and Rigsby took issue with two ballots, which he contended should not have been deemed valid.

On election night, a tally of the votes saw the UNC and the People’s National Movement receiving 623 votes each.

An initial recount led to Rigsby 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 received two additional votes when that check was done.

Rigsby said the two impugned ballots should be struck out and declared null and void by the court.

It was also his contention that, at the very least, fresh elections should be held for the district.

In his ruling, Seepersad noted that “free and fair elections represent the foundational premise upon which a representative democracy such as Trinidad and Tobago stands.”

Elections in TT, he said, were fiercely contested, which was now “accompanied by a destructive degree of divisiveness, distrust, disdain and discord.”

He said Rigsby’s complaint was not frivolous but his attorneys made “lamentable and completely avoidable errors” when they failed to join and serve Garcia.

Seepersad urged the returning officer and CEO to “engage in a critical and comprehensive review of the current processes.

“Returning officers and election clerks should undergo structured screening.

“Bias sensitisation and intense training also need to be engaged so as to reinforce the need for strict adherence to the electoral regulations and guidelines.

“Those entrusted with the sacred responsibility to conduct elections must do all within their power to gain the population’s trust and its confidence in the impartiality and integrity of the electoral process.

He continued, “This society stands dangerously close to a precipitous edge. The patience and tolerance levels of significant portions of the citizenry appear to be strained, and if a cautious, transparent and unbiased application of the law is not engaged, when elections are conducted and the results are tabulated, mayhem will likely ensue.”

Rigsby was represented by attorneys Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon, Rhea Khan, Kavita Moonsar and Arif Rahman.

Attorneys Deborah Peake, SC, Ravi Heffes-Doon and Alana Bissessar represented the EBC.