Been v Astwood et Al
| Jurisdiction | Turks and Caicos Islands |
| Judge | Ground, C.J. |
| Judgment Date | 19 June 2003 |
| Date | 19 June 2003 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | CL No. 26/03 |
Supreme Court
Ground, C.J.
CL No. 26/03
Mr. A. Misick QC and Mr. C. Greene for the petitioner;
Mr. R. Mahfood QC; Mr. P. Davis; Mr. S. McCann; Mr. B. Duncanson; and Mrs. S. Cartwright-Robinson for the first respondent
Mr. D. Woolitar and Ms. K. Astwood for the 2nd 3rd and 4th respondents.
Election - Validity — Election petition challenging the respondent's election to the seat in Electoral District No. 12 — Whether the rejected ballots clearly marked for the petitioner were wrongfully rejected — Whether two people had been improperly registered so as not to give effect to the outcome of the claims and objections process — Whether the eight names submitted by the petitioner for late registration under section 23(2) of the Elections Ordinance were omitted from the final version of the Register though the Supervisor had agreed in writing to include them — Whether two persons submitted by the first respondent had been included on the final Register although they were not qualified — Whether persons were induced to expose their ballots — Whether money was provided for the purpose of funding bribes — Whether bribes were offered to voters — Whether corrupt and/or illegal practices so extensively prevailed that they may have been reasonably supposed to have affected the result of the election.
This matter arises out of the election held in Electoral District No. 12 (Five Cays, Providenciales) as part of the General Election held on 24th April 2003. The petitioner and the first respondent were the only candidates, and they received 263 and 268 votes respectively, so that the respondent was declared duly elected to the scat. The petitioner now brings an election petition to challenge that.
Election petitions are the only way of challenging an election. They are provided for, and governed by, Part IV of the Elections Ordinance (‘the Ordinance’). They may be brought on the grounds of an undue election or an undue return. Without going into all that is encompassed by that, an irregularity on the part of election officials is sufficient to produce an undue election if it is such as to affect the result: Morgan & Ors. v. Simpson & Ors. [1974] 3 All ER 722. I have dealt with what that means in my judgment which I delivered today in action number CL 25/03, McAllister Hanchell v. Noel Skippings & Ors.
The Petition alleges various errors and irregularities against the election officials. It also alleges “various acts of bribery and/or corruption or illegal practices” against the first respondent and his agents, and pleads that they —
“…engaged in illegal or corrupt practices which prevailed so extensively that they may be reasonably supposed to have affected and in fact did affect the election result for the 12th electoral district to the detriment of the petitioner, and the electorate of the 12th electoral district.”
Sections 60 and 61 of the Ordinance govern the consequences of corrupt and/or illegal practices. They provide:
“60. If a candidate who has been elected is certified by the judge who tried the election petition questioning the return or election of such candidate to have been personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.
61. Where on an election petition it is shown that corrupt or illegal practices or illegal payments or employments committed in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the judge shall certify that the election of that person, if he has been elected, shall be void and he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held.”
The basic difference between those provisions is that, under s. 60 one act alone will suffice to cause the election to be set aside and held again, but the guilty candidate may stand again. Under s. 61 more is required, in that the corruption or illegality shown must be such as “may be reasonably supposed to have affected the result,” but the candidate concerned is then debarred from standing again. Both sections are draconian, in that personal guilt does not have to be shown against the candidate. It is sufficient if his people commit prohibited acts, and in this context agent does not just mean one of the agents formally appointed for the purposes of the election, but means anyone acting on his behalf. I will deal with that further below, but it seems to me that the policy of the law is to put the onus on the candidates to ensure that their people behave, and respect the laws, and if they fail to do that they must suffer the consequences. Although that may seem harsh, it makes eminent sense in a situation where the candidate could otherwise excuse himself by simply saying he did not know what was going on, and it is entirely reasonable to expect potential legislators and leaders of the country to enforce propriety and respect for the law in their own camps.
As originally pleaded the Petition alleged that —
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(i) Of the 10 rejected ballots, at least five were clearly marked for the petitioner and should not have been rejected.
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(ii) Two persons had been improperly registered so as not to give effect to the outcome of the claims and objections process, they being:
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(a) Laverne Walkin
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(b) Claudius Williams
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(iii) Eight names submitted by the petitioner for late registration under section 23(2) of the Ordinance were omitted from the final version of the Register, although the Supervisor had agreed in writing to include them. At trial that number was reduced to five persons, being:
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(a) Joanal Germeus
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(b) Rolyn Almonte
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(c) Gregory Bain
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(d) Daverine Simmons
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(e) Alvin Forster Rigby
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(iv) Two persons submitted by the first respondent had been included on the final Register, although they were not qualified:
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(a) Nadege Parker
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(b) Sandy Odena Butterfield
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At the trial the petitioner abandoned the claim in respect of Laverne Walkin and Claudius Williams, on the basis that they did not in fact vote. Her counsel also attempted to abandon the claim in respect of the rejected ballots, but the respondent asserted a recriminatory case that four of the rejected ballots were properly cast for him, or alternatively that all of the rejected ballots claimed by the petitioner were properly rejected. I will, therefore, have to deal with that also.
The law as it stands is mandatory as to the requirement that a vote should be signified:
“… by marking with a black lead pencil and not otherwise a cross within the space opposite the name of the candidate for whom he intends to vote,”
In England, and in many other places, the rigours of this provision have been ameliorated by a provision that a ballot paper should not be invalidated by a failure to comply with these directions if the intent of the voter can nevertheless be ascertained. We do not have such a provision here. In the absence of it, the common law (which has been in part developed in the region) has insisted on the making of a cross with a black lead pencil:
“The construction which we adopt would have the effect of disfranchising those who deliberately ignore the directions given to them. We can see no hardship in such person being disfranchised. Indeed we think it right that they should he. If a man who has been told to make a cross deliberately makes an ‘O’ or a tick he is not doing or attempting to the act which records a vote.” Ragoobir v. Punch & Dass, Trinidad, Suit 176 of 1956; cited with approval in Cato v. Allen (1958) 1 WIR 68, FSC.
However, in respect of the placing of the cross the law is less clear. In Cato v. Allen (supra) it was said:
“With regard to the second group of disputed votes, those where the cross is made in an ambiguous position, I accept as a useful guide the principle cited by Mr. Hughes from Fraser on Parliamentary Elections, namely, that if one strikes out all that is unessential for the cross, does what remains clearly indicate an intention to vote for the candidate who claims it as such?”
I find that a non-sequitur. The principle cited has nothing to do with the placement of the cross, but with its form. Nor do I see why, if the requirements are mandatory, the direction as to the placement of the cross should be any less mandatory than anything else. Mr. Woolgar, who appeared for the election officials, in an elegant argument urged me to find that only the requirement that the voter mark his ballot secretly is mandatory and that the rest is directory, and so not requiring strict compliance. He bases that on the English antecedents of this provision, in which only the requirement to mark the ballot secretly was contained in the Act, the other requirements as to how to mark it being contained in the directions for the guidance of voters. While that is attractive, I think I am bound to assume that the framers of the legislation, by incorporating the ancillary requirements in the body of the Ordinance, must have intended to make them mandatory, perhaps seeking the advantages of certainty. I think that it would require an express provision, along the lines of that now contained in the English legislation, to allow a more flexible approach. Whether or not that is desirable is a matter for the legislature, not me.
Applying that to the disputed ballots, and identifying them by the number on the back, I find as follows:
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(i) 6001 — for the petitioner is good, and not invalidated by the voter having written out the candidate's name in full.
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(ii) 5922 — for the petitioner is bad — the cross has been made through the shell, and not in the box “opposite the name”.
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(iii) 5771 —...
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