Denecia Natalia Gopaul-Jones v The Returning Officer for the Electoral District of Lengua

• Jurisdiction: Trinidad & Tobago
• Judge: Pemberton J.A.,Kokaram J.A.,V. Kokaram J.A.,C. Pemberton JA
• Judgment Date: 26 March 2024
• Neutral Citation: TT 2024 CA 13
• Docket Number: CIVIL APPEAL NO S011 OF 2024 CIVIL APPEAL NO S048 OF 2024 CLAIM NO CV2023-03124
• Court: Court of Appeal (Trinidad and Tobago)

IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT, CHAP. 2:01

AND

IN THE MATTER OF A MUNICIPAL COUNCIL ELECTION FOR THE ELECTORAL DISTRICT OF LENGUA/INDIAN WALK HELD ON THE 14TH DAY OF AUGUST 2023

AND

IN THE MATTER OF THE ELECTION PROCEEDINGS RULES, 2001

Between

Denecia Natalia Gopaul-Jones

Appellant/Petitioner

and

The Returning Officer for the Electoral District of Lengua/Indian Walk Deemed to be the Respondent by Virtue of Section 107(2) of the Representaton of the People Act

and

The Chief Election Officer

Respondents

and

Autly Llewlyn Granthume

Interested Party

Panel

C Pemberton JA

V Kokaram JA

C Brown-Antoine JA

CIVIL APPEAL NO S011 OF 2024

CLAIM NO CV2023-03124

CIVIL APPEAL NO S048 OF 2024

CLAIM NO CV2023-03124

IN THE COURT OF APPEAL

APPEARANCES

Mr A Ramlogan SC leads Mr K Samlal, Mr S Hosein and Mr V Siewsaran instructed by Ms N Bisram for the Appellant

Mrs D Peake SC leads Mr R Heffes-Doon instructed by Ms A Bissessar for the Respondent.

Mr M Quamina SC leads Mr R Nanga and Ms C Jules instructed by Ms A Bain for the Interested Party.

I have read the judgments of Pemberton J.A. and Kokaram J.A. I agree with them and have nothing further to add.

_____________________________

CARLA BROWN-ANTOINE

JUSTICE OF APPEAL

These judgments speak to the interpretation of the Representation of the Peoples Act Chap. 2:01. (ROPA). In particular the judgements address the regime provided in ROPA for the conduct of Special Elections and the importance of observing the statutory provisions to maintain the integrity of the electoral process. The judgment highlights the difference in the two regimes, that is special elections and elections on polling day and the requirements necessary for votes cast at each election to be counted and therefore eligible for determining election results.

Both Kokaram JA and I have recorded our judgments.

I shall now invite my Brother to deliver his judgment and I shall follow.

TABLE OF CONTENTS TO KOKARAM JA'S JUDGMENT

	Page No
Introduction	5
Legislative Framework	12
Factual Background	20
Trial Judge's decision and the Appeal	23
Part 1—“Mediating the tension”—The Role of the Court in Election Petitions	29
Part 2—Enfranchisement and Legitimacy—The Interpretation of Rule 90(3)	34
Textual Analysis	38
History	43
Judicial Precedent	44
No curative power under rule 97(4)	51
Part 3—Trust and Confidence in the EBC—The Conduct of the EBC and Prejudice to the Appellant	57
Part 4—Conclusion—A Pathway Forward for the Parties	62

Delivered byV. Kokaram J.A.

“ In the Colonial Society everyman had to be for himself; every man had to grasp whatever dignity and power he was allowed; he owed no loyalty to the island and scarcely any to his group… universal adult suffrage was declared. The privilege took the population by surprise. The new politics were reserved for the enterprising, who had seen the prodigious commercial possibilities. There were no parties, only individuals.

Corruption, not unexpected, aroused only amusements and even mild approval”-Sir V.S. Naipaul, Middle Passage P.78

“This democracy is a strange thing. It does make the great poor and the poor great”—Sir V.S. Naipaul, The Suffrage of Elvira

Introduction

1 We have come a far distance from the suspicions and mistrust in using a “first past the post” system associated with the search for self-governance depicted in Sir V.S. Naipaul's novels, as our nation emerged from its colonial past. The exercise of one's voting rights has been a great leveller of competing socio-political groups. However the concerns of achieving both the effective participation of electors with the legitimacy and integrity of our electoral process echoes through our history and still predominates our discourse in our national and local government elections, as it has in this appeal which concerns the validity of one vote cast by a special elector at a local government election.

2 On 14 ^th August 2023 the electors in the Electoral district of Lengua/Indian Walk exercised their franchise under the Representation of the People Act Chap. 2:01 (“ROPA”). Three candidates, Nicole Gopaul, the candidate representing the United National Congress (“UNC”), Autly Llewelyn Granthume, the candidate representing the People's National Movement (“PNM”) and Bronson Douglas, the candidate representing the Progressive Empowerment Party (“PEP”) offered themselves for public service as Councillor. They were measured by the voters. Election officials took their oaths of office. Ballot boxes were inspected and sealed. Ballots were cast by over four thousand voters. The ballots for the new Councillor for Lengua/Indian Walk were counted by the presiding officer of the Election and Boundaries Commission (“EBC”). The parties and their respective polling agents waited on the result. By 9:00pm Autly Llewelyn Granthume emerged victorious over her nearest political rival Ms. Nicole Gopaul by just five votes. After a recount there was a “historic” tie 1. The second recount spanned the course of two days. Still there remains a deadlock in the election of a Councillor at the Lengua/Indian Walk district.

3 What separates them and which is the subject of this appeal from the trial judge's dismissal of the Appellant's election petition, is one solitary ballot from a special elector.2 This one ballot could make all the world of difference. It clearly bears an “X” for Ms. Gopaul as the candidate for the UNC but it does not bear any initial from the returning officer as required by rule 69 of the Election Rules 3. This one ballot underscores both powerful values in a participatory democracy of the enfranchisement of the voter and the integrity of the electoral process. While they complement one another,

in this appeal, like tectonic plates, these values have clashed and the inevitable fissure begs the question whether voter enfranchisement should give way to the integrity of the electoral process

4 Although this one vote clearly signifies the voter's will and choice of representative, the initial of the returning officer is an important authenticating requirement of the Election Rules under rules 69, 82(c) and 90(3) (c). There is no evidence of fraud or manipulation and the ballot paper is itself authentic, it simply did not bear the initials of the returning officer as required by statute. Shorn of all the mystery as to how this ballot with this deficiency found its way through a carefully crafted special electoral process, the dispute over this one special voter's vote in this appeal is simply this:

Should a ballot cast by a special elector which does not bear the initials of the returning officer be rejected or counted? If it is to be counted, is there a need for the exercise of any curative power to cure the irregularity?

5 The trial judge held that the ballot should be rejected and dismissed the Appellant's election petition. She held that the ballot was properly rejected, there was no provision for the presiding officer to treat with or cure a defective special ballot.

6 The appeal essentially turns on a proper construction of the statute governing special electors and the rules of disqualification of special electors in rule 90(3) of the Election Rules. The competing views in this appeal suggest, for the Appellant, a liberal construction of the Election Rules to import the notion of enfranchisement of the citizen to ensure that the vote which clearly expresses the intention of the elector is counted and not unnecessarily disenfranchised due to no fault of the elector. However conversely, the Respondents contend that the central purpose of the ROPA 4 is to protect the integrity of the electoral process and it is designed to eliminate fraud, manipulation and other acts of illegitimacy that fundamentally undermine the faith and confidence in the electoral process.

7 There is no doubt that the court will be slow to disenfranchise a voter. However, the contest between substantive rights and procedure or substantial compliance with a statute is not new. It is not that every vote counts. It is that every valid vote counts. Due regard must be placed on the strict adherence to the electoral process comprehensively set out under our ROPA. Its main thrust is to ensure that our elections are seen to be the product of a transparent process. Based on our unique post-colonial history, this in and of itself builds legitimacy in the ultimate result and carries the promise that such legitimacy would coalesce rivalling political groups to move forward accepting an electoral result inspiring faith, trust and confidence in a system of governance that ensures that everyone matters.

8 While the electoral system is designed to eliminate or counterbalance human error, neither the need to comply with process regardless of outcome nor the need to articulate voice without compliance of core fundamental process are to triumph over the other. The court exercising its special jurisdiction on election petitions will strictly apply the electoral statute and in doing so “mediate” this inevitable tension in the interests of the overall themes of legitimacy, trust and confidence in our electoral process. Without this, democracy flounders and the rule of law delegitimised.

9 In our view the trial judge was not plainly wrong in her interpretation of rule

90(3) of the Election Rules. While rule 90(3) does not specifically state that “a ballot which does not bear the initials of the returning officer should be rejected”, it is clear to me that is what is plainly expressed by a proper reading of rule 90(3). To hold otherwise that such a vote is to be counted is inconsistent with the main objects of the rules deliberately fashioned for special electors and the purpose and policy of the legislation. It is an incurable...