Published On: Wed, Dec 5th, 2012

Turks and Caicos court hears first election challenge

PROVIDENCIALES, Turks and Caicos Islands – A packed courtroom in Providenciales (Provo) in the Turks and Caicos Islands (TCI) on Tuesday heard attorney Ariel Misick QC move for dismissal of an election challenge that could lead to a by-election for the Cheshire Hall and Richmond Hills voting district.

Misick, representing the winning Progressive National Party (PNP) candidate, Amanda Missick, argued that that the petition should be dismissed at the outset on two grounds.

First, he adopted and argued a point raised in relation to unsuccessful Peoples Progressive Party (PPP) candidate in the November 9 general election, Dr Edward Smith, who is the focus of the claim, that he (Smith) could not be forced to appear before the court as a respondent, a point that had also been made earlier by Attorney General Huw Shepheard in a press statement.

However, this point was reportedly resolved by a consensus in the court that Smith could nevertheless be subpoenaed to testify as to the facts at issue.

The second ground argued by Misick was that Smith’s alleged disqualification to be elected as a member of parliament under the TCI constitution as a reported US citizen was irrelevant, since he was not in fact elected.

Supreme Court Judge Margaret Ramsay-Hale indicated that she would rule on Misick’s motion to strike out at 9 am on Wednesday.

Given that the winning party in the election, the PNP, obtained only an eight to seven seat majority over the other main party, the Peoples Democratic Movement (PDM), any successful challenge could result in an immediate change of government, raising the spectre of a similar situation in 2003 when the situation was reversed and a successful challenge by the PNP in one district resulted in a by-election in which the PNP prevailed, thereby giving them the government.

The petition filed by PDM candidate Oral Isaac Selver in relation to Electoral District Number 7 (Cheshire Hall and Richmond Hills, Providenciales) is grounded in an alleged failure by a third party candidate, Edward E. Smith of the Peoples Progressive Party (PPP), to declare his US citizenship.

Section 49(1)(a) of the TCI constitution provides that “No person shall be qualified to be an elected member of the House of Assembly who, on the date of his or her nomination for election… is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to any foreign power or state.

Section 50(1) of the constitution goes on to provide that “Each candidate for election to the House of Assembly shall, on the date of his or her nomination for election, make a written declaration to the Supervisor of Elections that he or she is qualified for election under section 46 and that no disqualification mentioned in section 49 applies to him or her.”

Further, under subsection (2) “The Supervisor of Elections shall publish any declaration made to him or her under subsection (1) by the close of the next following working day” and “(3) Within five days of the publication of any such declaration, a challenge to the veracity of that declaration may be brought by any registered elector or by the Attorney General before the Supreme Court.”

Selver claims in his petition that, at the time Smith made his declaration to the supervisor of elections under section 50(1) of the constitution on October 25, 2012, he was disqualified for election to the House of Assembly under section 49(a) of the constitution because he (Smith) is a citizen of the United States of America, a foreign power, and is under an acknowledgement of allegiance, obedience or adherence to that country being the holder of that country’s passport.

Selver claims further that the Supervisor of Elections, Dudley Lewis, failed in his duty to ensure that Smith was qualified to be nominated as a candidate in the general election to be elected as a member of the House of Assembly and that Lewis further failed to publish such candidate declarations within the time limit required by the constitution, thereby denying opposing candidates the opportunity to challenge such nomination(s) prior to the election.

In the constituency ballot, Selver received 364 votes, Smith received 58 votes and the successful PNP candidate Amanda A. Missick received 394 votes.

As the difference between the top two candidates was only 30 votes, Selver claims that, if Smith had been declared as unqualified prior to the election, the 58 votes cast for Smith could have accrued to the other candidates, thereby having the potential to affect the outcome of the election, which according to local sources is the benchmark the court must use in deciding whether or not to overturn a result.

The petitioner is represented by senior counsel from Jamaica, Allan Wood QC, instructed by local attorney Alvin Garland.

The PNP respondents are represented by Ariel Misick QC and the Supervisor of Elections by the Attorney General’s Chambers. Dr Edward Smith is reportedly representing himself.

Present in the courtroom were the leader of the PDM Oswald Skippings and Sharlene Cartwright Robinson, the PDM’s leader of the opposition. Also present were most of the elected members from both the PDM and PNP.

Smith was seen with members of his Peoples Progressive Party, including its leader Harold Charles. Smith has reportedly lived and worked for upwards of 30 years in the US and allegedly failed to renounce his US citizenship in a timely fashion prior to the recent elections.

A second petition, to be heard on December 20, filed by PDM candidate Ashwood Leon Forbes in relation to Electoral District Number 4, North and Middle Caicos, alleges a number of failures by Supervisor of Elections, Dudley Lewis, to remove or transfer disqualified voters from the constituency voters list and corresponding failures to register qualified voters.

Forbes also alleges instances of harassment and bribery of voters by a known agent of the successful PNP candidate Don-Hue Gardiner.

Further, according to Forbes, there were insufficient voter ballots at polling stations, thus preventing registered voters from casting their ballots.

By Caribbean News Now contributor

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