Defending the Indefensible – S.C. Astaphan’s Oral Summation

January 26, 2012

Witnessing today’s proceedings in the Election Petition Trial, one would have to give Lead Counsel Anthony Astaphan some credit. He made every effort to represent his clients; but at the end of the day the facts and the law just was not on his side. It is likened to being asked to stop and tank, but only armed with a water pistol. Astaphan did not attempt to argue mostly on the evidence presented, he chose instead to ask the Court primarily to disallow the Petitioner request on the basis that; Mark Brantley did nothing prior to the Election so he should not be allowed to bring a Petition after; and that it was not the fault of the Registration Officer that the notices were not received in time for the hearings.

Astaphan began by reading from the Constitution to establish that a person may be removed if an objection is allowed. He went on to establish that the monthly lists are subject to claims and objections. He offered to the Court that a proper appreciation of the Regulations is important. He went on:
“We submit that the Regulations of St. Kitts and Nevis provides the best framework … if you do not take action, you must not be allowed to come to the court after the election. “

He went on to state that they do not dispute that the list of objections and the monthly revised list were not published, but the law provides for the agents of certified candidate to inspect the certification of voters. He argued that the Petitioner did one thing; that was to request extracts of the monthly revised lists; though he (Brantley) was aware that persons were getting notices late. He pleaded:
“We submit that if you do not exercise the rights given, then you cannot approach the Court after. If you know, or had the means to know, you have no right to an Election Petition. We are not arguing the validity of the list, but the alleged irregularities in the compilation of the list. You do not have to wait until after the election if it is clear. The Court can compel a public officer in the performance of duties in a Judicial Review.”

To the question that the Petitioner did not know that the names were removed until the list for the purpose of the election was obtained on the 2nd of July; Astaphan offered that if by May 2011 the CCM knew that there were decisions in relation to the objection CCM made, then a reasonable inference would be that there were decisions in relation to the objections that the NRP had made.

His Lordship Justice Lionel Jones interjected at this point; “Are you saying that because he (the Petitioner) could have requested the decisions, that excuses the officials not publishing the decisions as required by law?” Astaphan responded; “if the officials are failing to perform their duties, you ought to take precise legal action before the election.”

Astaphan challenged the Petitioner’s contention that the revised monthly lists were not published as required by the Statutes with the argument that the Petitioner had the right to request these lists. His Lordship asked, in respect to the non publication of the lists; “If the persons do not know they have been wronged, how could they seek redress?” Astaphan responded; “That speaks to the vigilance of the political party. This is not a case about the individual voter. It is about whether the Petitioner is entitled to leave.”

Astaphan then addressed the Court with regard to “things that were not pleaded”. He told the Court that things had been overshadowed but not specifically pleaded; and asked the Court to look at the pleadings, and confine the evidence to what the pleadings are.

In terms of the bias toward the NRP by the Registration Officer expressed by the Petitioner, Lead Attorney for the Respondents argued that Mrs. Lawrence acting as a polling agent for Hon. Hensley Daniel in 2007 cannot be deemed recent. And that Mrs. Lawrence was a resource person for the NRP, not an Executive Member. He asked that the charges of bias and bad faith not be considered for:
- There is no evidence that Mrs. Lawrence was an NRP Executive or Activist
- That there is no evidence of a meeting between Bernadette Lawrence and the NRP in 2009
- There was no political interference in her appointment as Registration Officer
- Agents of the CCM continued to attend objection hearings with Mrs. Lawrence
- No action taken by the Petitioner after the allegation of being told the “all CCM people are liars”.

With respect to the Reconfirmation exercise in 2001/2008, Mr. Astaphan told the Court that Reconfirmation was to “clean up the list”. He went on that nothing in the law suggests that a person could confirm where they did not live. But on the assumption that they were told (by the Supervisor of Elections) that they could reconfirm where they did not live; that does not precludes another voter’s right to object.

Tackling the charge of late notices, S.C. Astaphan began on the premise, which he put before the Court that sent means when it was dispatched by the post Office, not when received by the addressee. He argued;
“Mrs. Lawrence only duty was to ensure that the Notices reached the Post Office in sufficient time. The Registration office cannot be blamed that the Notices were not received on time. No election can be set aside on that! If they got the Notice late; what did they do?” Facing the Judge he pleaded;
“Your Lordship will have to make a decision as to who is responsible”.
He contended that with the exception of one time, the Registration officer delivered the Notices to the Post Office outside of the five days required by law. And that what happens at the Post Office is not the responsibility of the Registration Officer. He finished;
“Despite 200 or 300 did not get the Notice, is that enough to set aside the election?”

Mr. Astaphan then turned his attention to the letter from the Electoral Commission dated May 26th, 2011, directing that persons reconfirmed and holding valid Voter IDs on January 31st 2011 be allowed to vote. He laid out that the determination was made without consultation with the NRP. He contended that the Electoral Commission does not have the power to issue such a directive. He told the Court that the Constitution provide that the Electoral Commission supervise the Supervisor of Elections, but does not create jurisdiction(authority) over the Supervisor of Elections. “As such”, conclude Attorney Astaphan, “the Supervisor of Elections was totally and absolutely correct to disregard the directive!”
Astaphan ended his oral submissions herewith, advising the Court that he would expand in his written submissions.

The trial will wrap up tomorrow with Dr. Henry Browne making his oral submissions when the court resumes at 9:00 am. Then S.C. Douglas Mendes will make his rebuttal to what was presented by Anthony Astaphan. It is expected to all conclude at about noon. Thereafter, Petitioner and Respondents will have seven (7) days to submit written summations. Following this His Lordship Justice Lionel Jones will make his ruling at his leisure.

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