By Ravi Nanga
IN last week’s article we examined the first of two issues that arose in the course of the 2020 General Elections, namely the law as it pertains to a recount.
The second issue is the nomination of a candidate in an electoral district.
The law as it relates to elections is very precise given the importance of an election to a country. Although the law allows for elections to be challenged, the courts must deal with any such challenge in an expedient manner, as the result of a challenge can impact on the Government that was elected.
Accordingly, the courts do not have much discretion in terms of allowing a person to depart from the strict letter of the law. For example, in 2015 when there was a challenge to the Elections and Boundaries Commission’s power to extend the hours fixed for the taking of the poll, there was a failure to serve the election petition in accordance with the law and the court held that such failure was fatal to the election petition and the petition was dismissed.
During the 2020 general election a candidate nominated by a political party was out of the jurisdiction, however that candidate returned to the jurisdiction before nomination day.
The procedure for the nomination of a candidate is different where the candidate is in the country and where he is not in the country and the procedure is not interchangeable. Therefore, if a candidate is in the country, he cannot utilise the procedure in respect of a candidate who is out of the country.
Pursuant to rule 6 of the Election Rules, seven days before nomination day the returning officer must arrange to scrutinise a candidate’s nomination papers if the candidate wishes to exercise that procedure. Where the returning officer scrutinises nomination papers and the papers are in order, the returning officer is required to certify whether the nomination papers are valid. It must be pointed out that this process of scrutinising nomination papers is not a requirement in law and is a facility that is provided in the event a candidate wishes to utilise it.
It is a useful process as it ensures that all the documents are in order so that nomination day will be a smooth process. However, if a candidate fails to utilise this procedure, it has no bearing on his ability to be validly nominated.
During the 2020 general election the candidate was out of the country during the scrutinising process and the nomination papers submitted for scrutiny were those that were applicable to a candidate who was out of the country.
The returning officer scrutinised the nomination papers and as at the date of the scrutiny, certified the nomination papers as valid.
Rule 7 of the Election Rules provides for the nomination of candidates on the day fixed for nomination. Rule 8 provides for the filing of a statutory declaration as part of the nomination process.
Unlike the scrutinising procedure, in order for a candidate to be validly nominated, he must file the correct nomination papers with the returning officer on nomination day. With respect to the candidate being discussed, while he was out of the country during the scrutinising procedure, he had returned to the country in time for nomination day. Although he was in the country on nomination day, his agent still filed nomination papers as if he was out of the country. However, seven days before his nomination papers, scrutinised on the basis that he was out of the country, were certified by the returning officer as being valid.
Unfortunately, between the scrutinising of the nomination papers and the nomination day, there was a change in circumstance, namely, the candidate returned to the country.
Although pursuant to rule 11(2) of the Election Rules, the returning officer is required to accept as valid nomination papers that he certified the week before, that does not mean that the nomination papers would be automatically valid if it turns out there was a failure to follow the proper procedure.
Rule 11(5) provides that the validity of a nomination can be questioned by a representation petition. Accordingly, although the returning officer certified that the nomination papers were valid the week before nomination day, because the candidate was now in the country on nomination day, the incorrect nomination papers were filed, as the candidate was required to file nomination papers on the basis that he was in the country, and not Nomination Papers as if he was out of the country as was certified the week before.
Accordingly, if someone wished to challenge the validity of the nomination on the basis that the incorrect nomination papers were filed, they could have done so by filing a representation petition in court, and ask the court to declare on the validity of the nomination. The person who filed the representation petition would have been required to provide evidence to prove that the incorrect nomination papers were filed, and if the court was satisfied that there was an error in the procedure, the court could rule that the nomination papers were invalid and accordingly, the candidate was not properly nominated.
There was another candidate who discovered that the incorrect nomination papers were filed, and gave notice to the electors of that electoral district that in the event they voted for that candidate who utilised the incorrect nomination papers, they would be wasting their vote as the nomination was open to challenge. In the event there was a challenge to the nomination of the candidate securing the most votes, and the court found that the nomination was invalid, then there would not have been a by-election, but rather the candidate polling the second most votes would have been declared the winner.
Accordingly, when an Election is being held, it is important that the law is strictly followed, as a failure to follow the letter of the law can result in a nomination being invalid, or even the election process being invalid.
Ravi Nanga was one of the attorneys for the People’s National Movement candidate for St Joseph Terrence Deyalsingh in the 2020 general elections in Trinidad and Tobago. He is also a member of the legal team for the constituency of St Joseph.