No breach of secrecy at the polls in 2015 – Court

The court has found that there was no breach of secrecy at the polls in 2015, but noted that even if there had been, this breach could not invalidate the election.

Justice Stanley John made this clear at the end of his analysis on the issue of breach of secrecy, which was raised by the petitions filed by both Benjamin Exeter and Lauron Baptiste, who were candidates for the New Democratic Party(NDP) in the 2015 general elections.

“The secrecy of the vote is one of the fundamental values that inform the electoral process in St. Vincent and the Grenadines,” John began.

The Constitution has enshrined within it the right to vote, and it stipulates that voting shall be carried out in such a way so as not to disclose how a person voted, and this is reiterated in the election rules, he noted.

After a rehash of the evidence of breach of secrecy in the Central Leeward petition, the judge came to the submission of counsel for the Attorney General (5th Respondent in the case), Anthony Astaphan SC.

The mere breach of secrecy does not invalidate the election, as Parliament has created a specific criminal offence, the judge stated in summarizing Astaphan’s submission.

A case from St Vincent and the Grenadines, Tannis v Robertson, had been included in Astaphan’s submissions to the judge, and from which John said he had derived “much guidance.”

In this case, an unsuccessful candidate, Robertson, had filed an election petition which alleged, among other things, that the opposing candidate’s agent had infringed the secrecy of the voting at a certain polling station.

This petition was filed after the general elections of 1972.

The trial judge had found an infringement of the secrecy of the poll, and following section 70 of the House of Assembly (Elections) Ordinance 1951, it was an offence for which a person was liable on summary conviction to imprisonment for six months or a fine of $240.00.

The candidate’s election was declared void by the trial judge, but this was appealed and the crucial question became whether the breach of secrecy could in fact invalidate the election. The Appeal Court found that the only sanction made possible by the legislature, through section 70 of the House of Assembly rules, was that of a fine or imprisonment.

Section 70 of the House of Assembly (Elections) Ordinance 1951 is identical to section 54 of the Representation of the People Act.

John quoted another judge in the case Omerod v Cross, who said, “when the Legislature was for the first time creating the machinery of voting by ballot(…) it was for the Legislature to provide the safeguards by which that secrecy should be protected and maintained.”

“If the Legislature have failed in doing that, the misfortune may be the misfortune of the public, but the fault at all events lies at the door of the Legislature….

“The punishment is specified by the Legislature; it must be found within the four corners of the Act of Parliament, and I have no power, neither has the common law any power, to supplement any additional penalty upon either the persons who transgressed the law or the persons for whose sake or in whose favour such an act may have been done.”

Justice John said that he did not find a breach of secrecy in relation to Central Leeward, but said that even if there was, the court could not, based on the principle stated above, invalidate the election on this basis.

Further, the court found no ‘reliable’ evidence of a breach of the oath of secrecy, as was alleged, by the presiding officer Veronica John, who presided at a North Windward polling station. The judge also said that he would attach little or no weight to the testimony of witness Kendall Sandy against John, because he hesitated in answering questions, and there were inconsistencies.

However, he added, “In the event that there was a breach as a matter of law, the Court cannot invalidate the election.”