Opening arguments began with Senior Counsel Douglas Mendes who addressed the issues that stemmed from the flawed March 12, 2009 General Election, which led to Justice Louise Blenman upholding petitions by Antigua Labour Party (ALP) members who argued that the United Progressive Party (UPP) candidates were not duly elected.
At the start of his presentation, Mendes, the lawyer representing the UPP revealed a twist to the case stating he would first argue against “the counter challenges” made by the ALP respondents to the appeal.
Mendes disclosed that the ALP petitioners who won their challenges have filed cross appeals to parts of Justice Blenman’s rulings.
It was the first time that the public was hearing that the ALP members had problems, in part, with Judge Blenman’s decision.
According to Mendes, the ALP respondents disagree with Blenman’s findings that there was ample fulfillment of the electoral law.
They are further seeking clarification on the adjudicator’s ruling that persons who were already in line prior to 6 pm ought to be allowed to vote even after 6 pm would have passed.
Regarding whether the electoral law was sufficiently adhered to, the senior counsel said he agreed with Judge Blenman’s findings when she said there was substantial compliance with the laws governing polling.
Mendes said it is for that very reason he disagrees in law with her final decision to overturn the elections in the constituencies of St John’s Rural West held by Prime Minister Baldwin Spencer, St John’s Rural North controlled by Minister of Tourism John Maginley and St George, which is held by Dr Jacqui Quinn-Leandro, of the UPP.
Mendes contended that the trial judge did not have evidence that was sufficient enough to void the election because she, in her ruling, stated that she could not make a determination as to whether the late start of polling affected the elections result.
On the second issue, Mendes also agreed with Blenman’s ruling that it would be a breach of the rights of an elector if a person had been turned away from voting after 6 pm when the individual was in the line before that hour.
However, he said the ruling has no bearing on the case before the court because it was not an issue that the ALP petitioners argued.
“The judge should not have made any decision on that matter because the respondents (ALP petitioners) did not raise that issue in the trial. And, even when we sought clarification of it in August 2009 they never addressed it.”
Mendes continued, “Therefore, what we are saying is that since there was nothing even remotely that questioned voting after 6 pm it should not be considered here. If it were an issue at that time, then we would have been able to argue it but the time has passed. …”
While the ALP petitioners submitted to the court that there are witness statements to support the claim, Mendes countered, “How can they expect to correct it using the witnesses’ statements when they did not plead it nor applied to amend their petitions when they had the time to do so? The judge (Blenman) was wrong to say it was properly pleaded because it was not part of the petition.”
The senior counsel said the voter turnout in the constituencies that were challenged, as well as those unchallenged, was significant – around 80 per cent – a percentage higher than what is achieved in many countries even when there are no breaches of the election law.
Mendes concluded that it would be absurd or impractical for one to deduce that persons who take the necessary reasonable steps to vote should be turned away even if they are already in line when the clock strikes 6 pm.
Senior Counsel Russell Martineau, who represents the electoral officers and the Supervisor of Elections Lorna Simon, supported Mendes’ arguments.
His contention is that the Photo List, which was used at the 2009 polls, was not an illegal list as ruled by Justice Blenman.
Explaining his reasoning, Martineau said the list contained the same information as the Register of Electors, which was published in accordance with the electoral law.
In his brief presentation, Martineau also said that the Election Observers reported the 2009 election as free and fair.
He said the findings of the “experts” cement the view that the election was no sham and the delay at the opening of the polls did not impact the results. The lawyer said the errors on the part of the electoral officers were not so egregious to declare the elections void.
The hearing resumes today at 9 am when the ALP petitioners will respond.
The other lawyers representing the UPP appellants are Leon Chaku Symister, Kendrickson Kentish and Michael Quamina while Patricia Forde is working along with Martineau to represent the electoral officers and the Supervisor of Elections.
Attorneys for the ALP members are James Guthrie QC, Anthony Astaphan SC, Rika Bird and Samantha Marshall.
Members of the legal fraternity turned out in full, as did supporters of the parties involved. However, unlike previous hearings tension was notably absent in the courtroom.
The ruling by Judge Blenman was obviously flawed. The UPP won the election and Lester Bird is only manipulating the system to undo the the voters decision.
It is amazing that someone like Lester Bird that has committed so much crime and misdemeanors against his own people can be considered fit to rule any law abiding country.
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I MUST SHOWER PRAISE ON OUR W.I. LAWYERS,QC. MENDES AND TEAM WELL SPOKEN UPP LAWYERS, JUDGEMENT MUST GO UPP WAY KEEP UP THE HIGH STANDARD WI. LAWYERS.
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“Vicnes ” I totally agree with you. What really puzzles me, is that inspite of the documented Rapes, Bribes, Money-Laundering and corruption, that characterized Lester’s tenor in office, reasonably educated Antiguans continue to hold up his shirt-tail. What is that all about??
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So now they have problems with Blenman’s ruling? Hmmmm. Trying to get witness statements through the back door ALP? Where did y’all find those witnesses, all of a sudden, when you did not argue the issue of voting after 6; in the first instance? By the way, didnt Blenman through out ALL the “quack” witnesses y’all presented to the court? I think the witness who couldn’t read but who gave a full statement-which he could not read & the lieing spanish man from Grays Farm should have been flogged publicly & there were others. I hope y’all at least, used more inteligent persons to “make up” these new witness statements, this time!
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you all upp supporters will need pampers in a few weeks
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So far so good. Now remove the other injunctions and let`s get on with those cases; lock the culprits up and let the country go forward. Too long the Alp has been stifling progress in A&B. They have the country in a tailspin in their quest for power, thinking only about themselves and FORGETTING about the people. The UPP has been duly elected, now you ALP folks, just get out of the way, and let the country move on.
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I dont think none of you that really read these law stuff read well frist of all how are you going to say lester commit any crimes after you get into office the first time and you had something to lock up lester for and you didnt this time is manufacture you all are going to manufacture something to lock them up if you were a clear minded thinking person that is what that will be saying you guys really need to open mined and been so close mined think with your brain and not your colours if a lot of Antiguans do that Antigua would be a better place So let us all think logically and see the thing what it is and do the right thing
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Its interesting that a few of the same posters who argued the ALP would never win, after being proved wrong, now argue that the UPP will win the appeal. I read the argument proposed by Mendes that there was no proof that enough voters were disenfranchised therefore the election should not have been voided. I take that he suggests that the judge was wrong to exercise caution in order to preserve our democracy. If this had happened under the ALP many UPP persons would be in agreement with the judge’s ruling. Why would UPP persons be so afraid of having an election if they so strongly believe that the UPP was fairly elected. Then again do they really believe that since the very same PM has publicly stated that the election list is flawed. How can someone win an election fairly on a flawed list? If this were a football match we would all suspect the team that had a problem with the do over because the very act shows an unwillingness to compete. You then have a lawyer arguing that the photo list is not illegal then if true why would parliament see the need to enact legislation to make it legal? The judge stated that the photo list was not enshrined in law and she was right. The biggest flaw with the photo list was in some instances it did not reflect the names on the official list therefore one can easily argue it was a different list to the one enshrined in law.
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Hahahaha…listen ‘Anonymous’…seriously? You have to look at your English…so don’t go around saying people have “closed Mined”…lol…says a lot about ALP supporters…lol
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Anonymous…. Please take the time to make sense,and spend some time reading over what you wrote. If what you wrote made sense to you then you may very well be one of those whom Lester and the others told to “Close your eyes and see.”
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Tenman, I agree you! It’s good to see intellectual bloggers like you still on Observer. The UPP and their lawyers can never shoot their arrow straight. Now Mendes argued that the March 12, 2009 General Election was “flawed.” What’s next?
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The strange thing is not only has the UPP publicly said the list is flawed, the PM is on record as saying it is fundamentally flawed. This is the big problem with the UPP they make contradictory arguments, it as if they are not thinking straight. You cannot be hot and cold. I am willing to state if evidence of the PM’s recent statement is introduced as evidence, the judges would ask that the UPP make up their mind
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Pull Up my problem with Observer is they take too long to post comments and sometimes it seems as if they choose to display comments that are inline only with the way they see things. The present system makes it next to impossible to have real debate via observer. I think they need to state clearly the hours for posting and the possible delay intervals for postings. Unlike carib arena Observer does not seem interested in reactions to their stories.
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You can tell who loves antigua and who dont, i believe in justice and freedom.I read the case above and i really cant understand Judge Blenman’s
decsion to the case i personally think moneys was pass or some bargin was made other Judges who hear this case will think that we are crazy in Antigua.
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Tenman do you realize that Caribarena also does the same thing as Observer? They check all comments. We can argue all day about timing, but it is very unfair for you to say that “they choose to display comments that are inline only with the way they see things”. Just as it is unfair to say that Caribarena does the same thing. Just yesterday someone posted in another article that observer only report what the ALP says and not what UPP says. That is not the correct quote but going in that direction. We can’t have it both ways.
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Tennman, are you saying that the judge, not having any evidence presented to her in court, proving that the late start disenfranchised any voter; was correct to err on the side of “caution”-as you put it-& make the the decision she did; even though there was strong evidence to the contrary? re. the voter turn-out in other constituencies, not affected by late starts.
If so, then by deduction, a judge who errs on the side of caution & convicts a person or allows a conviction to stand (“in order to perserve/protect persons unknown), even though that judge had no evidence that the person had committed the crime but who simply thought that person was “potentially” dangerous, would; likewise; be correct! Isnt that so & wouldn’t the judge’s placing of that rational, in his or her judgement, cause any defence lawyer, woh is worth is pay, to appeal that decision? Just as obtains now!
On another note, the issue of the flawed list was NEVER an issue brought to the court! Therefore, NOTHING the PM or any other person said, outside of the court, concerning the list was admissible. Just like the three members of the ALP, whose polls opened late, are still allowed to remian in parliament, legally, even though the court tossed out other results for late starts.
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Tenman, I agree with you. I used to have similiar problems with Observer’s posting in the past. It takes forever for the comments to post, and sometimes your comments are not post, which is why I was missing for a while. They do need to have a such update system like Caribarena, so bloggers can have “real” debates.
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If what alp members have planned and done is of human origin;it will disappear
But if it comes from GOD,you cannot possibly defeat them.
You could find yourselves fighting against GOD.
They will turn away from listening to the truth and give their attention to legends.
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Edmond, the answer to your post is simple and its called selfishness. Under Lester and ALP, a number of persons benefitted over and above many. A friend of mine who works at a bank told me that he will vote ALP because he would stop paying income tax. Another told me that He has money and can buy his children’s uniform and feed them so he want ALP to win so that they will cut out the schools’ meal and free uniform. Another told me that it was easy for him to get duty free under ALP. Notice, not one said anything about country; it is all about self. That is what is driving those persons who want ALP back in office but, they are foolish. The global recession is real and so is its effect upon us so as soon as ALP ‘takes’ govt, God forbid, they will start talking about global recession and how they cannot remove the taxes at this time. Then they will once again jump on the gravy train, borrow and dont pay back, to the detriment of Antiguans and Barbudans. So to those people you mentioned Edmond, I say, ‘be careful of what you wish for!’
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Careful Zackie, the same thing is happening under the UPP and like you said it is selfishness. If we really sit down and have an honest debate, we would realize that some supporters on both political party are condoning the same thing that they were or is opposed to.
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Venom your example of someone being tried for murder is an interesting one because I would like to see how that person would go about getting a stay and there not be conditions of at least bail. You make a good argument in terms of the need for proving guilt or innocence, however you ignore the fact that the judge ruled a crime(breach) was committed (the late opening of the poles). The next question to be answered was is this sufficient enough to void the elections. Using your example of someone being found guilty of murder the next step would be to determine the penalty. Would you not say in most cases in determining the penalty to be exercised most judges would err on the side of caution in regards to protecting the public?
Regarding Observer posts TC, I did say seems. Have you not noticed how slow they are to post comments? Have you noticed if you post lets say about 8PM that it most likely will never show up? This is why I suggested that they state clearly how their system will work. As I write this I am wondering if this will even be posted. If i was posting at carib arena and I had an issue I would simply email the support tech to see if there was an issue. Observer provides no link to such a person.
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Yes I have notice that Tenman. Even my post above at 3:25 took a long time to be added. And Caribarena sometimes has the same problem.
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dorsett hurry up we got to get rid of alp and upp,the to of them are the same none no teuqi than none . u tell me how can a minister that makes $4000 a month aquire so much i make that an more so i know not even if u save all u will have what they have
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Tenman, that was quite an interestin response. However, you never mentioned the issue of a stay, in your initial arguement so why introduce it now? I took issue with you stating that that the judge erred on the side of caution & invalidated the seats. My arguement, therefore, remains thus: wouldn’t for her to err in the side of caution more reasonably be to leave the sitting members, in parliament, since she had NO evidence that the the late openings disenfranchised anyone? I.e. wouldn’t it have been more prudent to not invalidate the seats, even while she admits that; from the evidence before her; she could not determine that anyone was disenfranchised? Why then, if she was erring on the side of caution, did she still go ahead & toss out the three, without clear evidence to support doing so? I dare say that, in my anology of a murder trial, if that judge had sentence that person or allowed their conviction to stand, with no clear evidence that the person was guilty, it would have been a grave injustice. Even though that judge was considering that this person, innocent as he/she may have been, was likely to cause harm to others, he/she could NOt convict that person because there was, simply no evidence to support the conviction!
In your innitial arguement, you suggested that she was “exercising caution….to preserve our democracy.” However, looking at the political fallout, & the state of affairs that now exists here, following her ruling, would you say that such a ruling-as cautious as you suggested was-has served to preserved our democracy? has it helped or has it served to cause, what some have suggested is “constitutional disaster?” Bare in mind, that the MAIN reason for the UPP’s appeal is, her making a decision to invalidate seats, even though she claims the evidence, before her, did not prove the claimant’s arguement. Had she based her ruling on the evidence, presented & had she really erred on the side of caution, we would not have been where we are today!
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why not just call a new election?
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