'Foolhardy' not to seek Clarendon NW recount, says lawyer

Senior staff reporter

Tuesday, September 15, 2020

ANTHONY Williams, attorney for People's National Party (PNP) Clarendon North Western candidate Richard Azan, says, based on the 1,107 ballots rejected in the September 3 General Election, it would be “foolhardy” not to seek a magisterial recount in that constituency.

His comments come ahead of the start of the exercise in the Clarendon Parish Court in Chapelton, this morning, at the behest of the PNP.

The ruling Jamaica Labour Party (JLP) candidate Phillip Henriques, following the final count by the Electoral Office of Jamaica, was declared the Member of Parliament-elect with 5,630 votes — 83 more than those culled by Azan.

“That is an unusually enormous amount of ballots by any stretch of the imagination. It is unusual because if we go from a historical perspective, we have never seen that number; the numbers are usually below a hundred or a little over a hundred or so,” Williams told the Jamaica Observer yesterday.

The attorney also pointed out that several factors could have led to the situation.

“One of the factors could be the returning officer of the particular constituency, in the sense that there are 63 constituencies and so 63 returning officers, and each have different perspectives, analysis, views, and concepts as to the interpretation of the law. So what you find, for example, you could have invariably when you are counting the ballots, you will see other marks apart from X's.

“So you might see, for example, an asterisk [or] even a solid X outside the box. The returning officer may say, 'I am not going to accept X's outside the box or any ticks at all. Sometimes in counting on the night of the election, because of the exigencies in trying to get the count in, a ballot may inadvertently go in one candidate's count instead of another, so those are some of the factors,” Williams explained.

Section 35 (3) of the Representation of the People Act (ROPA) is clear that the elector, upon receiving his ballot, shall go to a specialised compartment in the election centre and mark his 'X'.

Williams said the court will have to determine whether variations of the 'X' will be accepted.

“Sometimes you see a ballot which has only part of an X in the shape of a Y, and so a debate can ensue among lawyers as to whether or not that X should be allowed or disallowed, and you have legal submissions.

“There are case laws that speak to the fact that if an elector makes a tick, it will not be consistent with section 35 (3) of ROPA, however, there are case laws which show that if an elector, in attempting to make an 'X', did not complete that X, it should be allowed,” he said.

“So tomorrow [Tuesday], we will get the ball rolling and see how many of those rejected ballots are properly rejected or should not have been rejected,” he told the Observer.

That exercise could take more than a day.

“Apart from counting the ballots, the lawyers on either side are entitled to make legal submissions. So you can have, for example, 10 rejected ballots in one box and you can have 10 submissions — that alone can take you the whole day,” the attorney added.

On the party's decision to file for a recount, even though Azan had initially indicated that he was not minded to do so, he said: “Well, Mr Mr Azan lost by just under a hundred votes and when it is stated that there are over a thousand rejected ballots, then any card can play. He may very well turn out to be the victor, or Mr Henriques may extend his lead, we don't know; but when you have a situation where you lost by under 100 votes and then the number of rejected ballots is 10 times or more what you lost by, then you're in for a penny, in for a pound.

“So it would be foolhardy for Mr Azan to allow that to go by, he could very well win,” Williams stated.



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