Election challenge thrown out

Attorney General not barred by time

The six Bodden Town voters who challenged the validity of Mark Scotland and Dwayne Seymour’s elections in May did not do so in the prescribed form of an election petition and what they did file was too late.

The six Bodden Town voters who challenged the validity of Mark Scotland and Dwayne Seymour’s elections in May did not do so in the prescribed form of an election petition and what they did file was too late.

Those were among the conclusions announced late Monday afternoon by Chief Justice Anthony Smellie in open court.

The Chief Justice heard arguments on Friday, 24 July, when attorneys for Mr. Scotland and Mr. Seymour asked that the challenge be stopped or struck out because an incorrect process had been used to get the matter before the court.

In his ruling, the Chief Justice pointed out that the Constitution gives the Legislative Assembly the power to enact a law regulating the procedure for challenging the validity of elections: ‘including as to whether a person has been validly elected on account of being disqualified.’

In this case, the challengers said the two successful candidates were disqualified because they had not met the deadline for filing notice of their contracts with Government. Neither their attorneys nor the court addressed the correctness of the allegation.

The Chief Justice said the Legislative Assembly enacted the Elections Law, which provided a comprehensive and exclusive scheme for challenging the validity of elections.

Citing historical background and ‘the imperative public interest in the certainty of parliamentary elections and the regularity of parliamentary affairs’, he said the time limit imposed by the Elections Law for the brining of challenges must be met. Those time limits are regarded by the courts as mandatory.

Further, where a specific remedy is provided by a law enacted under the Constitution, it is an abuse of process to seek to by-pass that recourse by seeking another remedy.

The Chief Justice said the challengers were required to bring their challenge by election petition.

‘If the time limits imposed by the Elections law can be by-passed, then there would be no time limits at all. That cannot be a proper interpretation of the constitutional intent,’ he said.

For all these reasons, the originating motion filed by the challengers was an abuse of process and had to be struck out. However, the Chief Justice added, ‘This conclusion does not affect the standing of the Attorney-General to bring a motion, if it is appropriate to do so, in the public interest.’

Ramon Alberga QC and Attorney Steve McField applauded what they called a landmark judgment. Mr. Alberga asked that costs be awarded on the standard basis. Attorney David McGrath asked that the question of costs be reserved until he spoke with his clients and senior counsel.

The court set no date.

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