Senior Puisne Judge Justice Lorna Shelly-Williams says the island’s courts are primed and ready to handle any issues that may arise in the pending high-stakes general election which will see 189 candidates duking it out for the 63 parliamentary seats.

On Wednesday, September 3, qualified voters will head to the polls to select from the 63 candidates each fielded by the ruling Jamaica Labour Party (JLP) and Opposition People’s National Party (PNP), or the 47 candidates for the Jamaica Progressive Party, the seven hopefuls for the United Independents’ Congress, or the nine independents.

On Wednesday, Justice Shelly-Williams, leading a three-member panel comprising Puisne Judge Justice Sandria Wong-Small and Acting Puisne Judge Justice Opal Smith in an interview with the Jamaica Observer said all parish court judges were that day converged in a seminar to ensure that all are aware of the legislation in relation to magisterial recounts, the procedures, what they are to look out for in relation to how the recounts are conducted, how to conclude them, and what must be done to indicate that in fact they have been concluded.

“Of course, we don’t know how many parish court judges are going to be involved in recounts; however, we are ensuring that all the parish court judges are aware as to the procedure and the allocations that are to be made. We want to make sure that our courts are prepared, before elections; before the first person has cast a vote we are prepared to deal with all issues related to it, and this is not only for the parish courts,” Justice Shelly-Williams emphasised.

“We have also made preparations in relation to challenges that may be made at the Supreme Court as well, whether it be for judicial reviews or election petition applications at the Supreme Court. We are ready to proceed in relation to all issues, whether it is at the Parish Court level or the Supreme Court… we are trained and we are on alert for all eventualities,” the senior puisne judge told the Observer.

A magisterial recount is triggered when the result of an election in any constituency is challenged after the final count is announced.

On Wednesday, Justice Wong-Small said the Representation of the People Act (ROPA) Section 47 guides this process.

“So there is a time period which is very specific and [must be] strictly adhered to. The application for a magisterial recount is usually made within four days of the declaration of the results of the poll. The four days do not include the day of the declaration, so you start counting after the day of the declaration, so within those days the application has to be made to a judge of the Parish Court. It is to be supported by an affidavit from a person,” she explained.

Wong-Small said applications not received within the four-day period, barring Sundays and public holidays, “won’t be allowed thereafter”.

Once that procedure is followed, however, she said judges have duties.

“In preparation for the actual recount to take place there are certain things the judge has to do. The judge, once the date has been set, has to give notice, through the electoral officer to the returning officer and the election clerk, to have them appear with the ballots and all the relevant books that are utilised when the polls are being conducted. So the same books utilised by the returning officer, they have to appear for the recount with those books. Also, the candidate and the person who has made the application are notified of the date on which the recount will take place. Notices are then issued and summonses served on all the relevant parties and usually the serving of the summonses is done by the court’s bailiff for the persons to appear. Once that is done and everyone is summoned for the date, we move on to the actual recount process,” Justice Wong-Small outlined.

She said all proceedings are conducted under tight 24-hour security provided by the Jamaica Defence Force and Jamaica Constabulary Force.

“The ballot boxes are brought to the court and they have to be secured, so we usually have additional detachments from the Jamaica Constabulary and the Jamaica Defence Force because the ballot boxes and everything will remain at the court until the counting process is completed. The counting process is an ongoing process; once it has started, it must continue until it is completed,” Wong-Small explained.

Her colleague, Justice Opal Smith, said the recounting process is painstaking and thorough in the interest of justice, all under the watchful eyes of the clerk of court, the presiding officer, the returning officer, the two candidates and their attorneys, and at times other people who might be watching proceedings.

“The process to recount is also governed by the same ROPA. Counting normally takes place in the well of the court and this is something that the parish court judge will outline before the process actually starts. So, Section 48 speaks to the manner in which the ballots should be counted and the legislation puts in place checks and balances to ensure that whatever ballots are counted, they are counted and accounted for. It is for the Parish Court judge to keep everything secure, it is the parish judge who, assisted by the presiding officer, opens the boxes, but once the envelope is removed from the relevant box it is the parish judge who is responsible for opening the relevant envelopes and removing from it the separate envelopes [which contain] the counted ballots, the spoilt ballots, the unused ballots,” she noted.

She said the Parish Court judge then has to verify the voters’ list, confirming how many people are eligible to vote, how many actually voted, how many ballots are used, rejected, or spoilt.

“Once the parish judge has examined it, that parish judge is to show the candidates what he or she has before her. Sometimes there are some ballots that may contain votes by police or military persons that would not have voted on election day but before; this has to be borne in mind when the tally is being done so that when you do the calculations you will know that whatever extra you have actually belongs to the police and the military or election day workers that were deposited before,” Justice Smith pointed out.

According to Justice Smith, while the process is, for the most part, fairly unremarkable, there are some things that can be jolting.

“The most interesting part of the counting is in relation to the actual ballots themselves and how the voters mark the ballots. The legislation refers to a cross that should be marked by a lead pencil; I would encourage voters to stick to as closely as possible making a cross on the ballot paper in the relevant section and that no creativity should enter the process; a cross is a cross, stick to one cross and move on. We in the courts have had experiences of persons putting things other than crosses [or even] several crosses and other works of art on the ballot paper. I would encourage our voters to stick to the cross,” she said.

Noted Justice Shelly-Williams: “We are not saying if there is no X we are automatically going to say it’s rejected; it is going to be examined by the judge who will look at the mark and determine whether or not it falls within the legislation. For instance, the particular voter has a signature drawing or something like that, if they put that drawing on the ballot it may actually identify the individual voter, so it is a case where we are encouraging persons to stick with the legislation and use the X within the box and nothing else. We will look at each individual ballot to determine whether or not it is rejected or accepted.”

Justice Smith, in the meantime, said other occurrences that shake up the otherwise smooth proceedings come from candidates themselves.

“The part that persons pay attention to is in terms of the markings on the ballots, because the intention of the party who lost is to look at the ballots accepted by the presiding officers, to look at the Xs…that is where we have most of the issues arising ,” she told the Observer.

Tension, she said, runs high in such instances.

“It is a very practical process, but where persons tend to get contentious is where, for example, you are looking at the rejected ballots and they are saying it should not be rejected and the ballots that have been passed as accepted where they are saying that they should not have been accepted. I will tell you that the closer the original results, the greater the contention over what should be accepted and what should not be accepted, and that is when the parish judge has to stand his/her ground, because the final decision stands with the judge, and that is the most contentious part of the process, that is why we are encouraging the voters to put just one cross and there will be no issue,” the acting puisne judge shared.

She said while most recounts are done in the constituencies in which the results were declared, the Judicial Education Institute of Jamaica organises refresher courses every time there is an election “as it’s an ongoing process, because you never know in which constituency you will have a magisterial recount”.

“One of the things about the legislation is that it says where the constituency is declared (the results), that is where the recount takes place. What that means is that after an election they may not declare in the constituency at the time, but the declaration is actually made afterwards at the EOJ’s head office which would be in Kingston. Even though, for example, the constituency is in St Mary, if the declaration is made in Kingston, the recount has to take place in Kingston, that’s what the legislation says, so all the judges have to be prepared, because even if it is not your parish you may be called upon,” she added.

In the 2020 General Election magisterial recounts were sought by the JLP for St Ann South Eastern, St Catherine North Western, and Westmoreland Eastern. Independent Rohan Chung had also applied for a recount in Manchester Central, which was won by the JLP.

Following the 2024 Local Government Elections the PNP sought magisterial recounts for four divisions — Cornwall Mountain in Westmoreland Central, Llandewey in St Thomas Western, Mavis Bank in St Andrew East Rural, and Southboro in the Portmore Municipality of St Catherine East Central. The JLP also sought a recount for the Kintyre Division in St Andrew East Rural; St Catherine North Central; and St Catherine West Central. The Supreme Court, following those elections dismissed two election petitions by JLP candidates.