Court in Jamaica elections petition ruled against ID objection

Guyana Chronicle
January 28, 2001

`There is no ground on which I can hold that the provisions of the Representation of the People Law, as amended by the Act of 1963, relating to thumb prints and photographs are inconsistent with the Constitution.'
- Justice Smith

THE court challenge against the Guyana December 15, 1997 elections has attracted widespread attention here, in the Caribbean and further afield.

Justice Claudette Singh ruled Friday she did not have the power to tell President Bharrat Jagdeo and his government to vacate office, a contention the main Opposition People's National Congress (PNC) had been pressing since her January 15 ruling in the elections petition brought by PNC supporter Esther Perreira.

The judge had found that the use of a special voter ID card was unconstitutional and that this made the elections invalid, an issue lawyers for respondent former President Janet Jagan and others would be challenging this week.

There was a similar case in Jamaica in 1967 when Thompson, the defeated candidate for the Western Saint Mary constituency, who lost the elections by 125 votes, presented a petition asking the Court to void the elections on a constitutional ground.

Petitioner Thompson had in his petition contended that because of an amendment to the Jamaica Constitution, the new Act provided for persons to be thumb-printed and or photographed before the names could be entered on the electoral lists in accordance with the provisions of the Representation of the People (Amendment) Act, 1963 (Act 54 of 1963).

And according to him, because of the amendment which introduced the thumbprint and photograph system as the only means of identifying a voter, more than 125 persons were disenfranchised.

Thompson had further alleged that this constitutional breach enabled the respondent Forrest, the other candidate for the constituency, to win by a majority of 125 votes.

Consequently, Thompson had urged Justice Smith to find the elections null and void on the basis of the alleged constitutional breach and to declare him the winner of the constituency.

That request was turned down.

Before dismissing the petition the trial judge had said:

"There is no ground on which I can hold that the provisions of the Representation of the People Law, as amended by the Act of 1963, relating to thumb prints and photographs are inconsistent with the Constitution.

"There is, therefore, no alternative but to dismiss the petition with costs to be taxed or agreed."

The judge said that as far as the matters complained of in the petition were concerned:

"I hold that the Respondent Forrest was duly returned and or elected and I shall in due course certify accordingly to the Speaker of the House of Representatives. Petition dismissed."

That case arose from the Jamaica general election of February 21, 1967.

The petitioner and the respondent Forrest were the candidates for the constituency of Western Saint Mary and the respondent Wood was the Returning Officer. Forrest was the successful candidate, winning by a majority of 125 votes.

The grounds of the petitioner's claim were

** that the Chief Electoral Officer omitted from the official lists of electors for the constituency the names of a number of persons in excess of 125 who were disqualified to be registered as electors;

** that their names were omitted because they were not thumb-printed and/or photographed in accordance with the provisions of the Representation of the People (Amendment) Act, 1963 (Act 54 of 1963);

** that in the preparation of the official lists the Chief Electoral Officer acted unconstitutionally and under colour (pretext) of a law containing provisions requiring thumb printing and/or photographing as conditions for the registration of electors;

** that those provisions were repugnant to and inconsistent with and ultra vires Section 37 of the Constitution of Jamaica;

** that the Returning Officer conducted the poll on the basis of the lists aforesaid and thereby deprived a large number of persons in excess of 125 of the opportunity of voting at the election;

** and that in so doing the Returning Officer acted unconstitutionally and under colour of a law which was repugnant to and inconsistent with and ultra vires section 37 of the Constitution.

NAMES NOT ON LIST The Chief Electoral Officer, Mr Ronald Christopher Roxburgh was called as a witness for the petitioner. He said that of a total of 9,651 persons who were enumerated in the constituency of Western St. Mary, the names of 350 of them were not placed on the official lists.

This because they were not registered since they did not have their thumbprints and their photographs taken. He said that the requirements for registration included the taking of thumbprints for all prospective electors and the taking as well of photographs for all prospective electors.

The contentions put forward on behalf of the petitioner were
** that a person who is qualified under Section 37 of the Constitution is entitled, and has an unconditional right, to be registered as an elector;
** that persons registered as electors have a right to be placed on the official lists of electors;
** that the Act of 1963, by making it a condition of being registered that a person should be thumb-printed and/or photographed, derogates from the right conferred by Section 37;
** that as the official lists of electors used during the election were not, and were not intended to be lists of persons with an unconditional right to be registered they were not legal lists;
** that, therefore the election was not an election under the law and, in any event, the result was not a true expression of the will of the majority of persons who were qualified to be registered and, therefore, entitled to vote.

Justice Smith said that sections 40 and 50 are concerned with alterations of the Constitution and the passing of Special Acts of Parliament and are not here relevant.

The main question for a decision is a legal one. It is whether the relevant provisions of the Representation of the People Law (Chapter 342) are inconsistent with Section 37 of the Constitution. If they are then Section 2 makes them void, the judge disclosed.

NOT A POLITICAL CONTROVERSY Citing Chief Justice Latham in a judgment in South Australia versus The Commonwealth, to direct attention to the nature of the problem which he was called upon to resolve, Justice Smith said:

"Thus the controversy before the court is a legal controversy, not a political controversy. It is not for this or any court to prescribe policy or to seek to give effect to any views or opinions upon policy. We have nothing to do with the wisdom of expediency of legislation.

"Such questions are for Parliaments and the people. It has been argued that the Acts now in question discriminate...between States. The Court must consider and deal with such a legal contention.

"But the Court is not authorised to consider whether the Acts are fair and just as between States - whether some States are being forced, by a political combination against them to pay an undue share of Commonwealth expenditure or to provide money which other States ought fairly to provide.

"These are arguments to be used in Parliament and before the people. They raise questions of policy which it is not for the Courts to determine or even to consider."

The trial judge in his ruling then said, "I am not here concerned with whether it was fair and just for Parliament to provide for the identification of voters by means of thumbprints and photographs; nor whether it is right that those provisions seemingly discriminate between different sections of the electorate; nor with the motives for the apparent discrimination.

"Nor is it relevant that if the provisions in question are held to be valid the power may, in the future, be used unwisely or abused.

"It is also my view that it is irrelevant that, as stated by learned counsel for the Returning Officer, the effect of finding as the Petitioner has asked the Court to find would be that the elections in all the constituencies in the February General Elections would be voided.

"As I have said, the main question is purely a legal one and the provisions impugned are, as a matter of legal interpretation, either inconsistent with the Constitution or they are not."

After perusing the different laws and arguments put forward by both sides, the judge dismissed the petition and held that there was no ground on which to hold that the provisions for thumbprints and photographs were inconsistent with the Constitution.

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