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IN THE COURT OF APPEAL SUPREME COURT CIVIL APPEAL NO. 45 OF 2008 (Supreme Court Claim No. 2007/HCV 03921)

IN THE MATTER of the Representation of the People Act.

AND IN THE MATTER of the Election Petitions Act.

AND

IN THE MATTER of a General Election to the House of Representatives for the Constituency of West Portland Holden on the 3rd day of September 2007.

BETWEEN ABRAHAM DABDOUB APPELLANT AND DARYL VAZ 1ST RESPONDENT AND CARLTON HARRIS 2ND RESPONDENT AND THE ATTORNEY GENERAL OF JAMAICA 3RD RESPONDENT CONSOLIDATED WITH SUPREME COURT CIVIL APPEAL NO. 47/08 BETWEEN DARYL VAZ APPELLANT AND ABRAHAM DABDOUB RESPONDENT

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Foundation of Civil Appeal No. 45 of 2008-Dabdoub v. Vaz, et. al.

1. In so far as the First Respondent, Daryl Vaz is concerned this appeal brought by Mr.

Dabdoub seeks to challenge, inter alia, the decision of the Learned Chief Justice in

respect of the trial of the Election Petition in the Court below, when she ordered that the

Appellant is not entitled to be returned as a duly elected Member of the House of

Representatives for the Constituency of West Portland and that his claim for such an

order that he be returned is refused. The Appellant also takes issue with the Judgment

of the Learned Chief Justice when she ruled that the disqualification of the First

Respondent was based on conduct and not on status. In summary the following

findings of fact and law are challenged by the Appellant in this appeal as summarized

below:

(i) That the First Respondent’s disqualification is premised on

conduct as against status.

(ii) That there was lack of sufficient notice of the First Respondent’s

disqualification to the electors in the Constituency of West

Portland.

(iii) That the legal notice of disqualification failed to state any act of

acknowledgment of allegiance and did not satisfy the legal

requirements of being clear, definite and certain.

(iv) That the notice to the public generated by posters and discussions

in the media concerning the disqualification of the First

Respondent to be nominated for election did not satisfy the legal

requirements of being clear, definite and certain; and that in

relation to the statements and press releases issued by the former

Director of Elections in his official capacity on 14th August and 31st

August 2007 that all 146 candidates were properly nominated,

there was no sufficient notice based on facts which are clear

definite and certain to the knowledge of the voters to entitle the

Court to find that their votes were thrown away.1

1 (see Notice & Grounds of Appeal (SCCA No. 45 of 2008 at pages 1 to 4, Vol. 1 Record)

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2. Central to the Appellant’s Grounds of Appeal are two principal issues. Firstly, the

Appellant’s contention that the Learned Chief Justice fell into error in failing to give due

recognition to the alleged fact that mere possession of a United States Passport as well as

citizenship of a foreign Power or State including the United States is in and of itself a

basis for disqualification on nomination or election to the House of Representatives and

further creates the status of not being qualified to be nominated for election or being

elected to the House of Representatives. Further in relation to the first issue the

Appellant contends that the Learned Chief Justice erred as a matter of law in finding

that it is not the fact of the owing of allegiance to the United States by virtue of

citizenship that is the ground for disqualification but rather the voluntary taking of steps

acknowledging that citizenship which creates the disqualification.

3. Secondly, the Appellant contends that the Chief Justice was not entitled to find as a

matter of fact or law that there should be a by-election and that the Appellant should not

be returned as a duly elected Member of Parliament on the basis that she was incorrect

in holding that the notice of disqualification was not clear, definite or certain in that it

did not state any actual acknowledgment by the First Respondent. In relation to the

second issue, the Appellant in his Grounds of Appeal asserts that based on the evidence

at the trial notice of the First Respondent’s alleged disqualification received wide spread

publication in the media as to the fact that he was a United States citizen and had in his

possession a United States Passport which he had traveled on. A side Ground of Appeal

is in relation to the Chief Justice’s Order that she would make no Order as to costs as

between the Appellant and the First Respondent.

4. On the basis of these Grounds the Appellant contends that the votes for the First

Respondent were thrown away on the basis that the electorate had notice of the alleged

disqualification and that further the proper order to make was that the unsuccessful

candidate who obtained the minority of the vote should be given the membership at the

House of Representative on the basis of the vacancy created by the First Respondent’s

disqualification.

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5. It is submitted that the said Grounds of Appeal outlined2 are without merit and it is

further submitted that this issue of whether there should be a by-election or whether the

Appellant is entitled to the seat made vacant by reason of the First Respondent’s

disqualification, was correctly decided by the Learned Chief Justice whose decision and

her reasoning is not open to challenge on the basis set out on the Appellant’s appeal.

That is to say the First Respondent contends that the Learned Chief Justice properly

applied the legal authorities relevant to this issue in coming to her decision that the

Appellant was not entitled to claim the seat vacated by the First Respondent on the basis

of his disqualification and that a by-election should be held to allow the voice of the

people to choose who they wish to represent them in the constituency of West Portland.

6. It is also submitted that if this Honourable Court should come to the view that the Chief

Justice was correct and that Mr. Vaz’s appeal in Supreme Court Civil Appeal No. 47 of 2007

ought to be dismissed then it ought properly to also find that if in fact he was

disqualified that such disqualification occurred by reason of his conduct and actions and

that the notice of the First Respondent’s alleged disqualification was insufficient in light

of the press statements made by the former Director of Elections Mr. Danville Walker

and indeed on examination and careful scrutiny of the said notices issued prior to

Nomination Day in relation to the alleged disqualification of Mr. Vaz.

First Respondent’s Challenge to Appellant’s Grounds of Appeal:-

The Concept of “Votes Thrown Away” and the Constitution of Jamaica:-

7. The Appellant contends that he ought to be declared the winner or the duly elected

Member of Parliament for the Constituency of West Portland on the basis that it is

contended that members of the Constituency were notified of the disqualification of the

First Respondent and that therefore the votes for the First Respondent should be treated

as thrown away.

2 At pages 4 to 9, Vol. 1 Record

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8. The concept of ‘votes thrown away’ has been judicially discussed in the English decision

of Hobbs v. Morey,3 as follows:

“The election of such an unqualified person can be objected to in only one

way, namely, by election petition to the Court. The Court on the hearing

of the petition cannot, I think, declare that a candidate who has a

minority of the votes is elected, unless it has first decided that the votes

given to the candidate who is returned at the head of the poll are votes

thrown away. I agree however, that there are cases in which the Court

has power so to decide. Alike in municipal and in parliamentary

elections, if a person is a candidate who is manifestly disqualified, then in

such a case the votes given for him may be treated as having been thrown

away, since they were perversely and willfully given to a candidate

whom the electors knew to be disqualified…”

9. Also instructive as to the elucidation of the concept of ‘votes thrown away’ is the leading

text on elections by Parker, ‘The Powers, Duties and Liabilities of an Election Agent and of a

Returning Officer at a Parliamentary Election in England and Wales’. 4 Under the caption

‘Votes Thrown Away’ the Learned Author states, inter alia, that

‘For if the opposing candidate was not duly nominated, he was not entitled to go

to the poll …; and, if being duly nominated, he is at the time of election

disqualified from sitting in Parliament, and due notice was given to the electors

of that fact, such candidate is considered as non-existent for the purpose of the

election; and all votes given for him subsequent to such notice, or previously

thereto, if the electors have actual knowledge of the disqualification, are

considered as not given at all, or thrown away ….

The effect of this is that the candidate next on the poll, though with a minority of

actual votes, may on petition be declared elected if, after deducting from the poll

3 [1904] 1 K.B. 74 at p. 78 4 (1950) 5th ed. at page 151

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unduly nominated or disqualified candidate the votes so thrown away, are best

found to have a majority of lawful votes. Where no such notice is given, and the

electors have no such knowledge of the disqualification, the candidate next on the

poll is not entitled to the seat, although the disqualified candidate be unseated,

but there must be a fresh election (see Hobbs v. Morey 5) …’

10. It was submitted in the Court below before the Chief Justice and is being vigorously

submitted before this Honourable Court that the concept of ‘votes thrown away’ in

relation to Parliamentary Elections being a doctrine created under the English system of

law is incompatible with the nature and structure of the Constitution of Jamaica. We go

further and submit that the concept of votes thrown away is unconstitutional.

11. On a review of the Constitutional framework it is submitted that the Chief Justice was

correct in refusing to treat the votes of the majority of the electorate of the Constituency

of West Portland as having been thrown away notwithstanding whether any notice may

or may not have been issued.

12. Section 38(1) (a) of the Constitution of Jamaica permits Parliament to make laws which

contain provisions designed to ensure that a person entitled to vote at an election will

have a reasonable opportunity of so voting. It is our view that concomitant with this

right is a right to have that vote treated as valid and effective and to simply treat the

vote as thrown away without reference to this section would in effect be defeating the

essence of the right to vote. Section 45(2) of the Constitution of Jamaica states that

whenever a seat of any member of the House of Representatives becomes vacant that

vacancy shall be filled by election in the manner provided by or under any law which is

in force in Jamaica at that time. That is a clear and express provision that if a seat should

become vacant then the only way of filling that vacancy is by way of by-election.

13. It is submitted that to interpret the Constitution in relation to whether it permits votes to

be thrown away that regard can be had to International Conventions specifically the

5 89 L.T. 531

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United Nations International Convention on Civil and Political Rights6 which requires that

every citizen:

‘Shall have the right and the opportunity … without unreasonable restrictions to

…. take part in the conduct of public affairs directly or through fairly chosen

representatives’.

14. One must bear in mind also that care must be taken in applying the English authorities

on constitutional matters as the United Kingdom does not have a written Constitution

and therefore the application of English authorities is of limited value in considering the

issue of votes thrown away.

15. This interpretation of the Constitution of Jamaica is in keeping with the overriding

principle articulated by the former Chief Justice Kenneth Smith (as he then was) in the

case of Mattison v. Junor 7 where His Lordship cited the decision of Hobbs v. Morey8 for

the principle that:

‘The overriding principle is this: that once an election is held the effect

must be given to the will of the majority of the electorate that a Court

should not lightly reject the will of the majority and impose upon an

electorate a person whom the majority of them did not elect to represent

them’. [emphasis added].

16. Our view that the concept of votes thrown away is unconstitutional or at the very least,

incompatible with the Constitution of Jamaica, finds some support from Dr. Lloyd Barnett,

O.J. a leading Constitutional Law jurist, who has come to a similar view in his article

‘Foreign Allegiance and the Disqualification of Parliamentarians’ co-authored with Mrs.

Stacey-Ann Soltau-Robinson, Attorney-at-Law, 9 when he commented, inter alia, on the

6 Article 25(1) 7 (1977) 15 JLR at 1999 letters (h) to (i) 8 [1904] 1 K.B. 74 9 published in the Jamaican Bar Association ‘JamBar Publications’Vol. 23, No. 02 – October to December 2008 at page 3

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issue of ‘By-Election or No By-Election’ 10 that the Judgment of Smith C.J. in the Mattison

case suggested firstly that the votes thrown away principle is not infallible and insists

that any assumption of a voter’s conduct in this regard must be fair. He also stated that,

‘Secondly it signals a necessary sensitivity to local circumstances and more

particularly the Jamaican voter in the examination of what is fair in this regard11

…

Fairness,12 it is submitted, is not an abstract concept dissociated from the reality

within which the Jamaican voter proceeds to attempt to participate in electoral

process, itself a crucial component of the democratic construct of the country’s

political system. Instead, the issue of what is a fair assumption is derived from

this context’.

17. On the issue of whether there was a right to vote Dr. Barnett, et. al., stated13 that,

‘The Constitution of Jamaica does not state that the right to vote is a

fundamental right although14 it recognizes ‘any person entitled to vote’.

McIntosh, however, has stated, according to Kateb, that along with the legal

procedure of the due process of law ‘the filling of political offices through

contested elections held at suitably frequent intervals, decided by the majority, on

the basis of universal adult suffrage [is one of] the most important procedures of

constitutional democracy’: McIntosh, Simeon C.R., Caribbean Constitutional

Reform, Rethinking the West Indian Polity p.231. ‘…the electoral system of

constitutional democracy accommodates values by giving citizens the

opportunity to the morally valuable and enriching experience of choosing their

political leaders’ McIntosh (supra) p.231. Jamaica as a constitutional democracy

would, it is submitted, embody the right to vote as a part of its foundational

construct in these terms.

10 At page 6 to 7 – paragraph 22 11 At page 6 - Paragraph 27 12 At page 7 - Paragraph 28 13 At page 7 - paragraph 29

14 In section 38(1)(a)

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The Constitution of Jamaica does set out qualifications for registration as an

elector as well as the bases on which a person is not qualified to be so registered:

ss. 37 and 38 respectively. It is submitted that these sections implicitly recognise

or, at the very least, generally leaves intact the right to vote in Jamaica’.

18. Dr. Barnett and Mrs. Robinson continue 15 to state that:

‘What is a fair assumption to be made from a Jamaican elector voting for a

disqualified candidate must, therefore, be considered against the backdrop of the

importance of this attribute of Jamaican constitutional democracy. It is

submitted that the application of the ‘votes thrown away’ principle compromises

the citizen’s right to participate in the election of members of the House of

Representatives in Jamaica as it invites the Court to apply an artificial construct

without considering the attributes of the Jamaican voting population’

19. In regard to the latter statement the learned jurists note 16 that from as long as 1944 in the

case of Bloomfield v. Benjamin17 per Watts J., that Jamaican Courts recognised the high

degree of illiteracy among the electorate at that time and in the leading Text, called the

‘Constitutional Laws of Jamaica’ by Dr. Lloyd Barnett he noted that attempts have been

made to facilitate voters who cannot read within the voting system by for example the

use of symbols on the ballot paper. In further support of this point the learned jurists

noted that the Population Census 2001 Jamaica Volume 1 issued by the Statistical

Institute of Jamaica has indicated, inter alia, that approximately 81% of the portion of the

population had not received any education beyond the Secondary School level and that

this seems to indicate that a typical Jamaican voter falls into this 81%. On that

assumption the learned jurists concluded 18 that,

‘The fairness of the assumption that such a voter will willfully and

perversely proceed to vote for a disqualified candidate ultimately to the

15 At page 7 - paragraph 30 16 at page 7 - paragraph 31

17 4 JLR 247 at page 249 18 At page 7 - paragraphs 32 and 33

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benefit of a candidate he does not support is questionable. It is submitted

that this assumption presupposes a ‘sophisticated intellectualisation’ of

the issue even though the statistics may suggest that he is more likely to

proceed with the reasonableness of the ordinary Jamaican voter.

Guided by reason, the Jamaican voter may be more reasonably inclined to

be suspicious of pronouncements by an opposition candidate of ‘facts’

supporting his candidate’s disqualification, especially in circumstances

where there is the absence of confirmation by the requisite authorities

and the disqualified candidate’s name remains on the ballot. The

assumption, it is opined, is therefore, unfair. In summation it is

suggested that the ‘votes thrown away’ principle is mechanically

unrelated to local circumstances particularly the Jamaican voter and its

application served to undermine Jamaica’s constitutional democracy.

It would seem that the only alternative in circumstances where the

candidates with the highest number of votes is disqualified is to hold a

by-election. This would certainly avoid a situation in which a candidate,

in the words of Smith, C.J. in Mattison (supra) at p.202 ‘for whom the

majority of [voters] did not cast their votes’ assuming the seat and

reaffirm the elector’s right to vote for his political representative’.

20. The unconstitutionality of the ‘votes thrown away’ concept was raised in submissions

before the Learned Chief Justice, but she did not expressly deal with this in her

judgment. Nevertheless this Court is urged to uphold the decision of the Chief Justice

that a by-election ought to be held on the basis that the ‘votes thrown away’ concept is

unconstitutional and therefore inapplicable to Jamaica.

21. The Learned Chief Justice held that the rule as established in the case of Drinkwater v.

Deakin 19 which established that if a member of the electorate votes for a candidate he

knows to be disqualified then that member of the electorate’s vote is thrown away which

19 [1874] 9 LRCP 626

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she said was firmly established in the law of Jamaica and was considered in the said case

of Stephen Mattison v. John Junor (supra)20. Notwithstanding this position in relation to

this issue of ‘votes thrown away,’ we maintain our earlier submission on this point that

that concept is foreign to the construct of the Jamaican Constitution and ought not to be

followed or applied but further we submit that if it is, as the Chief Justice accepted, a

part of the law of Jamaica then it ought to be interpreted on the facts of this case based

on the authorities to mean that the votes ought not to be thrown away in favour of the

Appellant, Mr. Dabdoub.

22. If this Court does not find favour with the constitutional arguments the following

submissions are advanced.

‘Votes Thrown Away’ – Conduct vs. Status:-

23. It is submitted that on a review of the authorities on this issue votes may be thrown

away in status cases where the disqualification is obvious and requires no argument or

decision. This submission is supported by the leading case of Drinkwater v. Deakin

(supra) when the Court found that Colonel Deakin committed an act of bribery but that

the act did not disqualify him as a candidate for election on the basis that the Court

reasoned that there was a distinction between disqualification based on conduct such as

bribery in which event disqualification and throwing away of votes is less likely and

those based on status such as infancy, peerage or gender in which disqualification and

throwing away of votes is more likely. 21 Coleridge CJ. stated as follows:

‘Under the same principles maybe classed cases where the disqualification was

infancy … in want of estate …. and some others. The cases of a woman, of an

alien under the old law, of a convicted felon stand upon the same footing. In all

these cases something is wanting in the candidates themselves which cannot be

supplied the existence or non-existence of which is not dependent on argument or

decision but which the law insists shall exist in every one who puts himself

forward as a candidate….’

20 See page 36 of the Judgment of the Chief Justice, Volume 3 Record 21 At page 635 of the Report

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24. Thus for example, in the well-known decision of Re Parliamentary Election for Bristol

South East 22 the disqualification concerned status and not conduct in that the Court

found that Sir Anthony Benn was a peer and was thus disqualified as a candidate for

Membership in Parliament. The Court in that case treated his votes as thrown away in

favour of the other candidate because the fact that he was a peer was an incapacity of

status. The Court stated,

‘The distinction which is drawn is then the case of Drinkwater v.

Deakin and other cases is not a subtle one, it is a perfectly plain

one. Where in the incapacity is an incapacity of status so

annexed by law to the candidate it requires no proof; the fact of it

being an incapacity to which the law annexes the legal

consequences is known to every person who votes and the person

who votes and are aware of the fact which incapacity is attached

must in reason be held to be aware of the consequence which

attaches to their voting. The case of Drinkwater v. Deakin and

other cases of the same kind are cases where the fact of incapacity

had to be ascertained’. 23 [emphasis added]

25. In support of that submission we rely on the dictum of the Lord Chief Justice Coleridge

in the Drinkwater case24 where having reviewed the legislation disqualifying candidates

for bribery stated that those clauses dealt with the punishment to be inflicted upon the

candidates and other persons in relation to bribery or other corrupt practices. In his

view he stated that,

‘It seems to me to result from them all that the disqualification created by them

are intended to be and are the result of the finding of the report of the Judge or

other tribunal and that they attach only on such findings or report as from its

date. In the case of the candidate his incapacity of being elected to and of sitting

22 [1961] 3 WLR 577 23 At page 607 of the Report 24 At page 636

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in the House of Commons during seven years is expressly to begin after the date

of his being proved guilty …’

26. Similar reasoning was applied by Brett J. 25 when he stated the following:

‘I am therefore of the opinion that if we are to determine the question and the

authority of the decisions of the Committee as to Parliamentary usage there is

authority for holding that bribery by a candidate even if personal at an election is

an offence which would render that election void does not render him incapable of

being a candidate at the election. There is a manifest distinction between an

offence of voiding an election and an incapacity. If a man is incapacitated though

at the election in question, neither he nor any other elected is guilty of a fault, the

election is void and where there is bribery that is an offence against the law and

the election would be void but that result cannot be arrived at unless he or his

agent has been guilty of fault’.

27. The importance of the dicta just examined is that both Coleridge CJ. and Brett J. make

the point that the incapacity may be determined by a Judge or other tribunal and the

relevant date is the date of such a finding or decision by such third party. This position

was also taken by the Ceylon Court of Appeal in the Peiris decision (supra) when the

Court held 26 that the facts existing at the date of elections were not mere allegations but

were existing and established facts which admitted of no uncertainty.

28. Reference is also made to the text on Elections by Parker (supra) when the Learned

Author stated as follows27:

‘It is not every disqualification to be elected that will also disqualify a person

from being a candidate, or cause votes given to him to be thrown away. Avoiding

the election of a candidate and destroying the status of a candidate are two very

different things (Drinkwater v. Deakin … and see Hobbs v. Morey …). 25 At page 644 of the Report 26 At paragraph 252; page 15 of the Report 27 At page 152

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To cause votes to be given to a candidate to be thrown away, the disqualification

must be founded on some positive and definite fact existing and establishing at

the time of the poll so as to lead to the fair inference of willful perverseness on the

part of the electors voting for the disqualified person (2nd Clitheroe 28, approved

Drinkwater v. Deakin …). Of the class of disqualifications that will cause votes

to be thrown away are the cases of infancy, of an alien, and of a convicted felon;

in all these cases there is something wanting in the candidate which cannot be

supplied, the existence or nonexistence of which is not dependent on argument or

decision, but which the law insist shall exist in every one who puts himself

forward as a candidate (Drinkwater v. Deakin …)’.

29. Implicit in the holding of the Learned Chief Justice is her acceptance of Counsel for the

First Respondent’s submission on this issue which she articulated29 as follows:

‘If non-existence or existence of the capacity is dependent on argument or

decision then the Court will not hold the votes as thrown away unless the alleged

conduct is admitted, definite and certain by a third party. He said (Mr. Braham)

that section 40(2)(a) of the Jamaican Constitution creates a conduct incapacity as

the Constitutional provisions expressly require a determination of whether ‘by

virtue of his own act’ a candidate is under any acknowledgement of allegiance,

obedience or adherence and that determination must necessarily involve

ascertainment by a third party …’

30. It is submitted that the decision of the Learned Chief Justice in relation to this issue is

impeccable and ought not to be disturbed. It is further submitted that the Learned Chief

Justice was entitled to come to this view that the disqualification alleged was

disqualification by conduct and not by status given the express language of section

40(2)(a) of the Constitution of Jamaica which requires a finding that the individual has

conducted himself in doing some action which acknowledges, allegiance, obedience or

adherence to foreign power.

28 2 P.R.D 285 29 At page 41 of the Judgment, Volume 3 Record

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31. In summary it is submitted that in cases where the issue to be determined is that of the

conduct of the candidate which amounts to disqualification such conduct has to be

proved or certified by a Court or Tribunal and in keeping with the guidance of

Coleridge CJ. in the Drinkwater case the existence or non-existence of capacity if

dependent on argument or decision will most likely result in the Court not holding the

votes as thrown away.

Facts – “Clear, Definite & Certain”:-

32. It is submitted that whether or not we are dealing with status or conduct, the facts

placed before the electorate must be ‘clear’, ‘definite’ and ‘certain’. If the facts are not

‘clear’, ‘definite’ and ‘certain’ the Court will not treat the votes as thrown away

regardless of whether the alleged disqualification is based on conduct or on status.

33. Before conducting our analysis on this issue it would be useful at this juncture to review

the notices of disqualification which the Appellant contends were issued to members of

the electorate in the Constituency of West Portland. Examples of these are to be found

in the Affidavits of various members of the Constituency. Exhibited to30 the Affidavit of

Beryl Atkin are two notices which read as follows:

‘Jamaicans don’t waste your vote, these persons have sworn allegiance, adherence

and obedience to a foreign power, Peter Fakhouri – South East Saint Ann,

Shahine Robinson – North East Saint Ann, Gregory Mair – North East Saint

Catherine, Daryl Vaz – West Portland, Andrew Gallimore – West Rural Saint

Andrew.

Section 42(a) of the Constitution indicates that persons who have by their own

act pledged allegiance, obedience or adherence to a foreign country or state are

not eligible to be elected to the House of Representative. Are these the foreign

citizens you would want to vote for?’

30 The Record of Appeal Volume 1 for example at page 341

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34. There is also the Notice of Disqualification with Legal Opinion of Gayle Nelson

endorsed on the back of that Notice 31 and which is also set out in detail by the Learned

Chief Justice 32. The Notice33 simply states that Mr. Vaz was nominated and in relation to

the General Elections held 3rd September 2007 he was a citizen of a foreign power or

state namely the United States of America and the owner of a passport issued to him by

the Government of that country and is therefore not qualified to be elected as a Member

of Parliament and that votes cast for Daryl Vaz at the said election would by reason of

his disqualification and incapacity to be elected as thrown away and be null and void.

35. In relation to the Legal Opinion it is headed ‘Legal Opinion on the Effect of Foreign

Citizenship on Candidacy in Elections to the House of Representatives’ and is signed by the

Learned Counsel, Gayle Nelson, Attorney-at-Law who set out the provisions of section

40(2)(a) of the Constitution of Jamaica and states that the effect of such provisions is to

prohibit a Jamaican citizen seeking to become a Member of the House of Representatives

from having any allegiance, obedience or adherence to a foreign power whether by

voluntary acknowledgment or other form of disqualification and the opinion cited the

Trinidad Court of Appeal decision of William Chaitan, et. al. v. The Attorney General of

Trinidad & Tobago, et. al. 34.

36. Concurrently with the issue of these Notices were press statements issued by the former

Director of Elections, Mr. Danville Walker acting in his capacity as Director of Elections

and as a Commissioner of the Electoral Commission of Jamaica responsible for the

Electoral System in Jamaica and the holding of elections. Subsequent to the Appellant’s

notices of disqualification being circulated Mr. Walker issued a statement on 16th August

2007 to the effect that all 146 candidates were properly nominated for the elections to be

held on 27th August 2007. The statement 35 stated as follows:

31 Which is to be found at page 343 of Volume 1 of the Record 32 At pages 41 to 44 of the Judgment Volume 3 of the Record 33 At page 343 34 Civil Appeal Nos. 21 and 22 of 2001 35 At page 47 of the Judgment of the Learned Chief Justice, Volume 3

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‘The Electoral Office of Jamaica wishes to advise all media houses and the public

that all 146 candidates for the upcoming General Election to be held on 27th

August 2007 have been properly nominated and that only a Court of law can

deem a candidate not qualified. We caution the media and the public not to fall

prey and be misled by election or political gimmickry in this sensitive period

leading up to the General Election

– signed Danville Walker, Director of Elections’.

37. The Learned Chief Justice also referred to a press release36 which she noted also received

wide publicity and of relevance is the content of the press release which stated as

follows:

‘The Electoral Office of Jamaica has noticed that leading up to the Election there

continues to be misleading documents challenging the validity of the Nomination

of candidates. The Director of Elections would like to re-iterate a statement

released on 16th August 2007. All 146 candidates have been properly nominated

and will be on the ballots printed for Election to be held on 3rd September 2007.

The public is asked to be aware that persons are apparently seeking to mislead

electors that votes cast for certain candidates will be wasted. This is False.

Electors are encouraged to go out and vote on Election Day. The Electoral Office

of Jamaica will also like to take the opportunity to remind candidates and the

public of section 97(b)(c) of the Representation of the People Act which states:

‘(b) Every person who before or during the Election

knowingly publishes a false statement of the withdrawal

of a candidate at such election for the purpose of

promoting or procuring the Election of another

candidate.

(c) Before or during an Election, for the purpose of affecting

the return of any candidate or prospective candidate at

such election, makes or publishes any false statement of

36 Page 47 to 49 of the Judgment

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fact in relation to the personal character or conduct of

such candidate or prospective candidate, shall be guilty

of an illegal practice and shall be liable on summary

conviction before a Resident Magistrate to a fine not less

than $50,000 …’

signed Danville Walker, Director of Elections’.

38. The Learned Chief Justice37 correctly noted that the said statement and press release

were issued by Mr. Walker in his official capacity and that he was not a representative of

any of the two candidates.

39. At the trial in the Court below Mr. Danville Walker, the then Director of Elections gave

evidence-in-chief and was cross-examined before the Honourable Chief Justice. It is

relevant to review certain aspects of his evidence given both in-chief and in cross-

examination as to the role of the Director of Elections and the Electoral Commission. In

his evidence-in chief38 Mr. Walker stated that at all material times he was the Director of

Elections and was a Commissioner of the Electoral Commission of Jamaica since

December 4, 2006. He states that the Electoral Commission of Jamaica succeeded the

Electoral Advisory Committee and its role and function is that it is responsible ‘for the

Electoral System in Jamaica and in particular the holding of Elections and the registration of

voters and the production of the voter’s list which sets the policies and regulations of the Electoral

System’. 39 In relation to his role he stated as follows: ‘My role is to implement them, i.e., the

policies and regulations.’40

40. He also stated that the Commission has no role in the nomination of candidates and in

relation to the General Election held on 3rd September 2007 he stated that he was

responsible for all of the procedures that needed to be implemented for the preparation

of the voter’s list to be used as well as the recruitment and training of all the workers

37 At page 49 of the Judgment 38 at pages 122 to 128 of Notes of Evidence - Volume 2 Record 39 At page 123 – Notes of Evidence - Volume 2 40 At page 123 – Notes of Evidence – Volume 2.

19

and the conducting of Elections in accordance with the Representation of the People Act 41.

In discussing his role in relation to the press statements which he issued, Mr. Walker

expressed the view42 that with respect to the first statement ‘at time I issued it I was of a

certain view and remained so that all 146 candidates for the General Election that was to be held

on 7th August subsequently held on 3rd September were properly nominated’.

41. At the end of the day notwithstanding relentless cross-examination by Mr. Nelson, Mr.

Danville Walker remained firm in his view that he had issued the notices lawfully to

correct any possibility in the minds of the public that Mr. Vaz had been declared

disqualified by a Court of Law that all 146 candidates including Mr. Vaz had been duly

nominated on Nomination Day and in so doing he was carrying out his public official

role as Director of Elections and was guided by the relevant legislation governing the

Electoral Process in Jamaica. The importance of Mr. Walker’s evidence is the

information which he gave as to the role of the Director of Elections, the Electoral

Commission and the fact that press statements were issued in his official capacity.

42. The Learned Chief Justice held in relation to the role of the Director of Elections Mr.

Danville Walker that,

In the circumstances of this case I find that having regard to the

statement and press release issued by Mr. Walker in his official capacity

as Director of Elections that all 146 candidates were properly nominated,

there was no sufficient notice based on facts which are clear, definite and

certain, to the knowledge of the voters in the Constituency of West

Portland so as to entitle this Court to find that their votes are thrown

away. In these circumstances a by-election must be held so as to enable

the electors of West Portland to choose their representative’. 43

41 Page 123 Volume 2 42 at page 126 - Notes of Evidence Volume 2 43 See pages 49 to 50 of the Judgment of the Learned Chief Justice, Volume 3 Record

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43. In relation to the notices we also refer to the dictum of the Chief Justice44 when she

stated that in her observations as to the notices of disqualification that same merely

stated that ‘Daryl Vaz is a citizen of a foreign power’ or stated that ‘he is the holder of a

passport issued to him by the Government of the United States of America’. She found

that, ‘It does not state any act of acknowledgment by him. Therefore it does not satisfy the legal

requirements of being clear, definite and certain’. In support of that decision Her Ladyship

referred to Halsbury’s Laws of England 45 which states that:

‘Votes given for a candidate who is disqualified may in certain

circumstances be regarded as not given at all or thrown away and to

decide this scrutiny is not necessary. The disqualification must be

founded on some positive and definite fact existing and published at the

time of the poll so as to lead to the fair inference of willful perverseness

on the part of the voters electing for disqualified persons.’

44. It is submitted that support for the requirement that the facts alleged to ground the

disqualification of the candidate must be clear, definite and certain is to be found in the

Sri Lankan decision in Peiris v. Perera46 In this case the facts were that the respondent

had contested a seat in an earlier Parliamentary election. In consequence of a report

forwarded by the Supreme Court to the Governor General the respondent became

disqualified for a period of seven years from being elected a Member of Parliament.

Notwithstanding that disqualification he contested the same seat again at the by-election

held in September 1967 and where at such by-election the decision of the Supreme Court

which resulted in his disqualification was made known to the whole electorate at large

and was a matter of public notoriety in the Constituency, the respondent claimed that

the decision which rendered him disqualified was constitutionally invalid as a matter of

law in view of a previous seemingly conflicting decision in a different election appeal.

44 at page 45 of the Judgment, Volume 3 45 4th edition, paragraph 835 46 (1969) 72 New Law Report of Ceylon 232

21

45. In an election petition the petitioner asked for a determination that the candidate who

secured the second highest number of votes should be the duly elected candidate and

ought to be returned The Ceylon Court of Appeal held that at the time of the by-election

which gave the respondent a seat the disqualification of the respondent was definite and

certain and known to the electorate prior to the date of the by-election and accordingly

all votes cast in favour of the respondent were therefore wasted votes and the seat must

be awarded to the candidate who placed second at the poll. The Court also held that

any uncertainty in the minds of the voters with respect to the disqualifying legal effect of

the known facts grounding the disqualification is not a basis not to award the seat to the

candidate next in line at the poll (summary of head note).

46. It is to be noted that on the facts in Peiris the respondent in fact admitted he was

disqualified but argued in his defence that the provision of the law relating to a report

by the Supreme Court related to corrupt practices had not been duly passed by

Parliament. 47 That position was rejected by the Court of Appeal and in ruling that the

votes for the candidate were thrown away the Court held that ‘it will thus be seen that the

report of the Judges to His Excellency that the due publication thereof were facts which at the date

of the election were not mere allegations but were existing and established and which, as

distinguished from the legal consequences following therefrom admitted of no uncertainty’. 48

47. Weeramantry, J.,49 discussed the issue before the Court of Appeal which he defined as

being the question of whether the seat ought to be awarded to the unsuccessful

candidate. On this issue50 he noted, inter alia, that:

‘Our law, following the English Law on this matter, provides that the seat may

be awarded to the candidate next at the poll in cases where the votes cast for the

successful candidate are regarded as having been thrown away. It is clear that

where a vote is cast by a voter with knowledge of a disqualification which is

definite and certain at the time, that vote must be regarded as thrown away so

47 Page 246 of the Report 48 Page 251 of the Report 49 At pages 248 to 249 of the Report 50 At page 249

22

that it would be treated as not cast, and that upon the elimination of such votes

the seat will be awarded to the candidate next at the poll. In order that a

disqualification be regarded as definite and certain, it must in the first case be

based on facts which are definite and certain. If the facts grounding the

disqualification are not definite then the vote cannot be regarded as

thrown away. For instance if there is an allegation of facts at the time of

the election which become definite and certain only at a later point in

time in as much as those facts have not been adjudicated upon at the date

of the election, they remain, so far as the voter is concerned mere

unproved allegations. In such cases, although the candidate may be

declared disqualified and the election avoided, the seat cannot be

awarded to the next candidate for there is not that definiteness about the

facts grounding the disqualification, which would be essential if the

votes are to be treated as thrown away. As Coleridge C.J. observed of such

votes in Drinkwater v. Deakin …. A case of alleged acts of bribery, ‘invalid

upon proof of his bribery for the purpose of seating him, they are; thrown

away, for the purpose of seating his opponent they are not.’

The principle underlying such a rule is self evident and needs no elaboration, for

a vote cannot be treated as thrown away merely because there was an allegation

of fact about the candidate for whom they were east (sic) which at the time of

voting may have been true or untrue, and which the voter could not be expected

and would not in most cases be able to verify …’ [emphasis added].

48. Thus the Court in Peiris is authority for the point that the alleged facts cannot be definite

and certain unless verified at the material time. It is important to note that at the time of

the by-election in Peiris, there had already been an adjudication by a tribunal of fact that

the respondent was disqualified.

“Willful Perverseness”:-

49. It is further submitted that a relevant consideration is whether it can be said that the

voters in the Constituency of West Portland, in voting for the First Respondent, Mr. Vaz,

23

having received notice of the alleged disqualification, acted with ‘willful perverseness’ so

as to permit the Court to treat votes cast for Mr. Vaz as thrown away and that the

Appellant must as a consequence be given the seat.

50. The word, ‘willful’ has been defined in the Shorter Oxford Dictionary51 as, inter alia: ‘done

on purpose, deliberate, intentional’; and the word ‘perverse’ is defined by the same

dictionary52 as: ‘obstinate or persistent in error or wrongdoing’; ‘going against or departing

from what is reasonable or required’; ‘contrary to accepted standard or practice; incorrect,

wrong’. Applying the ordinary meaning of those definitions to the facts before this

Court it is submitted that in order for the votes cast in favour of Mr. Vaz to be thrown

away and the seat awarded to the Appellant, the Appellant must establish that the

majority of the voters deliberately and intentionally voted for the First respondent

notwithstanding knowledge of his alleged disqualification and in so doing departed

from what is reasonable or required.

51. In the context of elections the term has been discussed in the extract from the Fourth

Edition of Halsbury’s just quoted which is that: ‘The disqualification must be founded on

some positive and definite fact existing and published at the time of the poll so as to

lead to the fair inference of willful perverseness on the part of the voters electing for

disqualified persons.’ That description was extracted in the Halsbury’s from the

judgment of Coleridge C.J., , in the Drinkwater case, with reference to the term ‘willful

perverseness’53 when he opined that ‘…and I farther think, as at present advised, that,

in a parliamentary election, in order “to give effect to the notice, the disqualification

must be founded on some positive and definite fact existed and established at the time

of polling, so as to lead to the fair inference of wilful perverseness on the part of the

electors voting for the disqualified person”. These are the words of the Clitheroe

Committtee”54.

51 5th Ed. Volume 2 at page 3640 52 (supra) at page 2171 53 At page 641 54 Per Coleridge C..J. at page 641 of the Report.

24

52. In Hobbs v. Morey (supra) the court stated with reference to this term that it could not

declare a candidate who has the minority of the votes as elected, ‘…, unless it has first

decided that the votes given to the candidate who is returned at the head of the poll are votes

thrown away. …. Alike in municipal and in parliamentary elections, if a person is a

candidate who is manifestly disqualified, then in such a case the votes given for him

may be treated as having been thrown away, since they were perversely and willfully

given to a candidate whom the electors knew to be disqualified…”.

53. In the Drinkwater case, Brett J., while not using the express language, ‘willful

perverseness’, nonetheless, it is submitted, arrived at the same result using the

‘reasonable man’ test which he discussed to have the same effect when he stated that55:

‘…when there are two candidates, one qualified to be so and the other not, and such knowledge is

had of existing facts, or such notice of existing facts is given to the voter, as would convince a

person of ordinary care and intelligence that such facts existed, and they are such as, if he knew

what legally constituted incapacity, would convince him as a person of ordinary intelligence that

such incapacity existed, then if he votes for the incapacitated candidate he throws away his vote..’

Brett J., therefore, like Coleridge C.J., but using different terminology concluded by

requiring that votes given to a candidate after notice of existing facts of disqualification,

and given to the reasonable voter of ordinary care and intelligence will render such

votes as thrown away because it can be said that the reasonable voter in those

circumstance had acted with ‘willful perversity.’

54. It is submitted that having regard to the authorities reviewed on this issue that in light

of the lawful public pronouncements of the former Director of Elections as to the

validity of the 146 candidates, including Mr. Vaz, and which he made pursuant to his

functions as provided by the relevant Act, it cannot be said that the voters acted with

willful perverseness in voting for Mr. Vaz, which is a necessary condition for such votes

to be treated as having been thrown away.

55 At page 642

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Uncertainty of Legal Consequences of “Votes Thrown Away” - Two Schools of Thought:-

55. It is submitted that if the facts are clear, definite and certain, but there is uncertainty as

to the legal effect which flows from those facts, the votes will not be treated as thrown

away. In the instant case, the facts were uncertain and the legal consequences also

uncertain. On a review of the authorities on this issue there appears to be two schools of

thought.

56. The Learned Chief Justice also held that, as legal arguments were advanced on

complicated facts and issues in order to determine whether the First Respondent was

qualified, that his disqualification was based on conduct as it was in the Drinkwater case.

She further stated as follows:

‘I understand the law to be as stated as Weeramantry J. in Peiris v. Perera

(supra) at page 249 that:

‘…. If there is an allegation of facts at the time of the election

which become (sic) definite and certain only at a later point of

time inasmuch as those facts have not been adjudicated upon the

date of the election they remain, so far as the voter is concerned,

mere unproved allegations. In such cases although the candidate

may be declared disqualified and the election avoided, the seat

cannot be awarded to the next candidate for there is not that

definiteness about the facts grounding the disqualification, which

would be essential if the votes are to be treated as thrown away.’

57. In support of this statement, Counsel for the First Respondent, Mr. Vaz, cited the Third

Edition of the Halsbury’s Laws of England56 which included the earlier extract quoted at

paragraph 51 herein (quoted by the Chief Justice in her judgment re ‘willful

perverseness)

58. And which also stated as follows: 56 Halsbury’s Laws of England (3rd Ed.) Volume 14 parag: 549

26

‘… If however, the disqualification is not notorious and depends on legal

arguments or upon complicated facts or inferences it would appear that

even though the candidate may be unseated by reason of his

disqualification the votes given for him will not be thrown away so as to

give the seat to the candidate within the next highest number of votes.’

59. The underlined extract of the Third Edition of the Halsbury’s just quoted raises the issue

of the whether the existence of uncertainty as to the legal consequences of votes thrown

away should be a relevant consideration. Halsbury’s takes the view that disqualification

based on complex legal arguments may preclude the other candidate from filling the

vacancy. On this issue, the Court in Peiris indicated there were two divergent schools of

thought as to the issue of how votes cast for a disqualified candidate are to be treated.

60. One such school of thought is illustrated by the English authority, The Queen v. Major of

Tewkesbury 57, specifically the judgment of Blackburn J. In that case the candidate with

the majority of votes was proven to have been disqualified by reason of the fact that he

was both the Mayor and the Returning Officer and notice of this disqualification had

been published to the electorate. However as to the matter of the notices of

disqualification the Court held that the mere knowledge on the part of the electors who

voted for disqualified candidates of the fact that he acted on the dual capacity of Mayor

and Returning Officer, did not amount to knowledge that he was disqualified in point of

law as a candidate and therefore the votes were not thrown away so as to give the seat to

the other candidate with the consequence that a new election would be held. The Court

stated that:

“The question now is, whether Moore, who had the smallest number of votes, has

been elected. The candidate for the office of town councilor is duly elected if he

has an actual majority of votes; this was decided in Rex v Hawkins (2), and it

was also decided that if an elector, having notice of the disqualification of a

candidate, chooses to vote for that candidate, it is the same thing as if he did not

vote at all. From the illustrations in the cases, it is plain that if an elector knows 57 [1867 – 1868] 3 L.R.Q.B. 629 at pages 634 to 638

27

as a fact that the candidate for whom he is about to vote is disqualified, and yet

persists in voting for him, the elector’s vote is as utterly thrown away as if he had

voted for a dead person, or for the man in the moon. Does it appear in this case

that those who voted for Blizard without knowing of his disqualification were a

smaller number than those who voted for Moore? If it does, Moore is entitled to

be declared duly elected; if it does not, then the election is void.”

“It further appears from paragraph 7, that about half-past nine o’clock on the

morning of the election, after the election had begun, notices were posted up on

conspicuous places, informing the public that Blizard was disqualified from being

a candidate for the office of town councilor during the term of his mayoralty. It is

also stated in that paragraph that other steps were taken to bring that fact to the

knowledge of the electors, but it does not follow that it was brought within their

knowledge. Many of them probably could not read, and besides that a

considerable number might not see the notice. Perhaps there was evidence from

which a jury might have drawn the inference that those who voted after half-past

nine might have had notice, but there was no direct evidence that they actually

received such notice. The probability is that a large number had notice. But it is

also stated in paragraph 8, that several persons had voted before any notice was

given. From these statements it does not appear that an express notice of the

disqualification was given to so many of those who voted for Blizard as to entitle

Moore to be returned.

“It is therefore necessary to decide whether the mere knowledge of the fact that

Blizard was the mayor and returning officer, must be taken to involve knowledge

of his being disqualified for election. Every elector in the borough must have

known that Blizard was the mayor, and every elector who saw him presiding at

the election must have known as a fact that he was the returning officer, and

every elector who was a lawyer, and who had read the case of Reg. v Owens (1),

would know that he was disqualified. From the knowledge of the fact that Blizard

was mayor and returning officer, was every elector bound to know as matter of

law that he was disqualified? I agree that ignorance of the law does not excuse.

But I think that in Martindale v Falkner (2), Maule, J., correctly explains the

28

rule of law. He says: ‘There is no presumption in this country that every person

knows the law; it would be contrary to common sense and reason if it were so. In

Jones v Randall (3), Dunning, arguendo, says: ‘The laws of this country are

clear, evident, and certain; all the judges know the laws, and knowing them

administer justice with uprightness and integrity.’ But Lord Mansfield, in

delivering the judgment of the Court, says: ‘As to the certainty of the law

mentioned by Mr. Dunning, it would be very hard upon the profession if the law

was so certain that everybody knew it; the misfortune is that it is so uncertain

that it costs much money to know what it is even in the last resort.’ It was a

necessary ground of the decision in that case that a party may be ignorant of the

law. The rule is that ignorance of the law shall not excuse a man, or relieve him

from the consequences of a crime, or from liability upon a contract. There are

many cases where the giving up a doubtful point of law has been held to be a good

consideration for a promise to pay money. Numerous other instances might be

cited to shew that there may be such a thing as a doubtful point of law. If there

were not, there would be no need of courts of appeal, the existence of which shews

that judges may be ignorant of law. That being so, it would be too much to hold

that ordinary people are bound to know in what particular court such and such a

practice does or does not prevail.”

“I take this to be the rule of law applicable to this case. I think the knowledge that

Blizard was the mayor is clearly brought home to every voter, but the question is

not merely whether every vote given for him was thrown away, in the sense that

it was given for a disqualified candidate – in that sense it was undoubtedly

thrown away; but whether it was thrown away in the same manner as if the vote

had been given for a dead man, or had not been given at all. I think that where a

voter is informed that a certain circumstance in point of law disqualifies a

candidate, even although he may hold a different opinion, yet if he afterwards

votes for that candidate, his vote is thrown away. In the present election a

voter may possibly have been told by the one party that Blizard being

returning officer could not be elected, by the other party that he could be;

if this could be shewn the vote would be thrown away; but the case

29

merely shews as a fact that Blizard was returning officer, from which a

lawyer would be aware that he was disqualified, and, in my opinion, the

knowledge that Blizard was returning officer does not in law necessarily

involve the knowledge that he was disqualified.”

“The whole of this reasoning goes to shew that those who voted for the

disqualified candidate, knowing of his disqualification, were to be treated as

voting for a person not in esse, so that there must be an actual knowledge of his

disqualification in law. And Lord Eldon similarly grounds his decision on the

fact that the majority knowingly voted for a disqualified candidate, or, as he

terms it, ‘for a dead man.’ (1) Certainly he seems to have thought that the ratio

decidendi was the knowledge of the disqualification in law, and that the votes

given with that knowledge were mere nullities.”

“In Reg. v Coaks (2) Lord Campbell, C.J. says: ‘Blake was, in fact, a candidate,

but he was an alderman, and therefore ineligible, and that fact was known to the

electors. Now, it is the law, both the common law and the parliamentary law,

and it seems to me also common sense, that if an elector will vote for a man who

he knows is ineligible, it is as if he did not vote at all, or voted for a non-existent

person; as it has been said, as if he gave his vote for the man in the moon.’ It

seems to me that Lord Campbell’s opinion was this:- The reason why the vote

given for a dead man is not to be counted is that the voter knowingly votes for a

person whom he knows to be incapable of election, and therefore the result is the

same as if he had not voted at all. Voting for a dead man, or for the man in the

moon, are expressions shewing that, in order to make the vote a nullity, there

must be willful persistence against actual knowledge. But it does not seem to me

consistent with either justice or common sense, or common law, to say that,

because these voters were aware of a certain circumstance, they were necessarily

aware of the disqualification arising from that circumstance, and that therefore

their votes are to be considered as mere nullities. Upon this ground I do not

think that the votes given in ignorance that Blizard was in law disqualified, are

30

made out to have been wholly thrown away, and that Moore is entitled to act as

town councilor.

“Under these circumstances the election ought to be considered as void, and a

new election ought to be held.” [emphasis added]

61. The Ceylon Court of Appeal in Peiris (supra) indicated that in relation to the issue of

disqualification and notice, where there may be some uncertainty as to the legal effect, is

to be considered in two parts in that the first issue is whether the disqualification of the

candidate was clear, definite and certain and that notice was given to the whole

electorate prior to the date of election; and secondly whether the votes cast for such

disqualified candidate are to be treated as thrown away and the seat to be awarded to

the next in line, in the context of whether there is the existence of any uncertainty in the

minds of the voters with regard to disqualifying legal effect of the known facts

grounding the disqualification. Weeramantry J., referred to the position taken by the

Lord Chief Justice Coleridge in the Drinkwater case when the Court stated 58 that:

‘Voting for a man obviously notoriously disqualified is a very

different thing from voting for a man who proved to be

disqualified after much doubt and argument upon the effect of

complicated facts or legal inferences.’ [emphasis added].

62. It is submitted that the first school of thought aptly described by Cleridge C.J., in

Drinkwater, in the passage just quoted represents the correct position in law.

Second School of Thought:-

63. The second school of thought is illustrated in the Ceylon case of Peiris (supra) which also

provides in the judgment of Weeramantry J. a discussion and comparison of the two

schools of thought in his Judgment. Weeramantry’s J. discussion on this issue as to the

dichotomy in the schools of thought on the issue of votes thrown away is stated 59 that in

58 At page 259 59 Paragraph 249 to 250, page 13 of the Report

31

order for a disqualification to be regarded as definite and certain it must to be first

placed to be based on facts which are definite and certain and if the facts grounded the

disqualification and not definite then the vote cannot be regarded as thrown away. He

continued to say further that:

‘If however the facts grounding the disqualification are definite and certain at the

time of the election, two alternative positions require consideration. There is in

the first place the case where the law applicable to those facts is itself definite and

certain in the mind of the voter, and there is, secondly, the possibility that

although the facts are definite and certain in the mind of the voter, and there is,

secondly, the possibility that although the facts are definite and certain the voter

is not certain that disqualification results in law from those definite and certain

facts. In the first of these alternatives the disqualification would clearly be a

definite and certain disqualification and a vote cast with knowledge of that

definite and certain disqualification would be a vote thrown away. It is the

second alternative which needs close examination in the context of this case for,

as will presently appear, the instant case is one where the facts grounding the

disqualification were definite and certain but it is alleged that there was some

uncertainty in the minds of the voters in regard to their legal effect. In such

cases the question arises whether a vote cast with knowledge of these facts, but

with uncertainty as to their legal result, is thrown away if disqualification is the

true legal effect of these facts. Must the voter, as in other areas of the law, be

presumed to know the true state of the law, or, in the sphere of election law, is

there to be an exception to this rule?

64. In relation to the facts in the case of Peiris the facts which grounded the disqualification

were definite and certain and the voters had proven notice or knowledge of the facts;

however there was differing views in relation to the disqualifying legal effect of such

facts. The Court in Peiris also reviewed, inter alia, the Drinkwater decision but, it is

submitted, however, that it failed to pay sufficient regard to the views expressed by

32

Lord Coleridge CJ. when they commented 60 that he did not depart from a view ‘which he

expressed in the course of the argument in that case that voting for a man obviously and

notoriously disqualified is at very different thing from voting for a man who proves to be

disqualified after much doubt and argument upon the effect of complicated facts or legal

inferences’.

65. In support of the divergent view that willful perverseness is not a requirement the Court

cited the cases of Beresford-Hope v. Lady Sandhurst 61 and Re Parliamentary Election for

Bristol South East 62. It is submitted that the Court in Peiris wrongly rejected submissions

which sought to distinguish those two cases, that is Lady Sandhurst and Bristol South East

to the effect that in those cases the disqualifications were apparent and were based on

known facts, in the former case (Lady Sandhurst) the disqualification arose from the fact

that the candidate was a woman, and the latter case (Bristol South East) the

disqualification arose from the fact that the candidate was a peer. The further

submission which was made and also rejected by the Court, wrongfully, was that the

votes cast for candidates who were so obviously disqualified could appropriately be

votes thrown away and that the two decisions that is Lady Sandhurst and Bristol South

East were inapplicable to the case before the Court in Peiris in as much as the facts in

Peiris involves not merely a question of fact but an application of legal principles to a

question of fact. This argument as to obvious disqualifications as those stemming from

sex or nobility was also connected with the views expressed to the Court by Counsel for

the respondent in Peiris who also submitted that there is a requirement of willful

perverseness in the elector; that when the law is doubtful or difficult no perverseness

exists; and that the concept of willful perverseness is inextricably interwoven with the

attitude of a Court in deciding whether to seat a defeated candidate.

66. Weeramantry J., wrongfully, it is submitted rejected those submissions on the basis that

the facts in the LadySandhurst and Bristol South East cases were not cases where the law

applicable to the facts was plain and free from doubt; but rather were subject to difficult

60 At page 259 61 (1889) 23 Q.B.D. 79 62 (1964) 2 Q.B.D. 257, see pages 264 to 268 of the Report

33

questions of law, the decision upon which was well beyond the capacity of the average

lay-voter. With respect it is submitted that Weeramantry J. was incorrect in this regard

as on a closer analysis of both the decisions in Lady Sandhurst and Bristol South East the

disqualification arose from status based on obvious disqualifications stemming from the

fact that Lady Sandhurst was a female and Anthony Benn in Bristol South East was a peer

and a member of the House of Lords; and in both those cases the obvious stated facts

which were known to the electorate prevented those individuals from being qualified to

sit in the House of Representatives.

67. It is submitted that on a close analysis of the Judgment of the Court of Appeal in the

Lady Sandhurst case in particular in the Judgment of the Learned Chief Justice Coleridge

that the question before that Court concerned the status of the candidate who was

elected and the fact that that status rendered her disqualified as a legal consequence

flowing from the question of her status. By way of illustration we refer your Lordships

in particular to 63 where Coleridge CJ. stated as follows:

‘If it were necessary, I should say that upon the hold we had the power of

drawing inferences of fact, but I do not think that for the purpose of this

Judgment, it is necessary to decide that question, because it appears to me to be

undisputed, that the facts of this case are sufficient to shew, that the incapacity

was an incapacity of status. The facts from which the incapacity arose must have

been known to everyone who voted for Lady Sandhurst; therefore everyone voted

at his peril, because there existed that fact to which the law annexes the

incapacity of being elected. I apprehend that both in Gosling v. Veley and

Drinkwater v. Deakin and in other cases it has been laid down over and over

again, that if the fact exist which creates and incapacity, and it is known, and

must be known, to those persons who voted for a candidate who is so

incapacitated, votes given under those circumstances are thrown away.

As it is put in one of the Judgments, such votes are fairly enough thrown away,

because the persons would not do the only thing they ought to do to give the 63 Page 94 of the Lady Sandhurst case

34

effect to there votes, namely, to vote for a properly qualified candidate. The

distinction which is drawn in the case of Drinkwater v. Deakin and in other cases

is not a subtle one, it is a perfectly plain one. Where the incapacity is an

incapacity of status so annexed by law to the candidate it requires no proof; the

fact of it being an incapacity to which the law annexes the legal consequences is

known to every person who votes and the persons who vote and who are aware of

the fact to which incapacity is attached must in reason be held to be aware of the

consequence which attaches to their voting. The case of Drinkwater v. Deakin

and other cases of the same kind are cases where the fact of incapacity had to be

ascertained. In the case Drinkwater v. Deakin the fact of incapacity was not in

the Judgment of the Court ascertained. In that case it was held that there must

be sufficient and conclusive notice given to a sufficient number of people to

invalidate the election and to seat the rival candidate….’ 64

68. Similarly the head note in the Bristol South East case notes that the Court in that case

held, inter alia, that a person succeeding to a peerage of the United Kingdom is

disqualified immediately upon his succession from being a candidate or sitting in the

House of Commons:

‘Such disqualification derives not from incompatibility of Parliamentary service

on the issue of the Writ of Summons but from status, namely, the status of one

who by the fact of succession has entered a particular class of persons on whom it

is imposed by law and immemorial usage the right and duty to sit in the House of

Lords …. (and that)… ‘where the facts which constitute incapacity or

disqualification by status of a candidate from election exist and are made known

to the electorate before their votes are cast and the voters are also made aware that

the legal consequences of those facts might constitute disqualification votes given

to such candidate are given at the electors peril and where disqualification in law

is established such votes are thrown away and are null and void and the Court is

64 At pages 94 to 95 of the Report

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bound to declare that the candidate for whom the highest valid votes was cast has

been duly elected’. 65

69. Thus it is submitted that with respect to the Lady Sandhurst and Bristol South East

decisions that those were clearly and undoubtedly status cases which were based on

facts undisputed and known at the date of election and to which the annexed the

incapacity of being elected and were not cases based on complicated facts and complex

legal considerations which would have caused the electorate to be uncertain as to the

right of such candidate to contest the seat being reviewed in either case. Those cases are

distinctly different from the conduct cases such as Drinkwater and we reiterate our

submission on that issue to state that unlike the facts in Lady Sandhurst and Bristol South

East cases the fact and legal consequences of disqualification were required to be

ascertained after complex legal arguments in the case of Drinkwater and accordingly

there is a distinction to be made on the issue of whether the votes are to be thrown away

in those circumstances.

70. The dichotomy arising from the two conflicting schools of thought has been aptly

discussed in Parker (supra)66 when he stated as follows:

‘…So where the disqualification is not clear, but doubtful, and depends on

argument and decision as to the effect of complicated facts and legal inferences,

the decisions of the old election committees are conflicting. Some committees held

that if the disqualification did in fact exist at the election, the decision established

in the disqualification related back to the time of election, and nullify the votes

given thereat after notice of the disqualification, on the ground that every man is

bound to know the law; and therefore, when apprised by notice of the fact

creating the disqualification of the candidate for whom he voted, his vote was

given at his own risk and if he were wrong in his construction of the law he could

not plead ignorance or mistake … and upon these grounds they seated the

candidate next on the poll … other committees observed the distinction, and

65 Extract from head note 66 At page 153

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where the alleged disqualification was disputed, and was not clear but doubtful,

they, while unseating the disqualified candidate, yet declined to give the seat to

the qualified candidate... The law in such cases has not been declared by the

election judges, but it must be remembered that the words in the 2nd Clitheroe

case67: ‘that the disqualification must be founded on some positive and definite

fact existing and established at the time of polling’ have been approved and

followed in Drinkwater v. Deaken … and the Lord Chief Justice in that case (see

PP 649, 640) seems to doubt whether votes are thrown away where the

disqualification depends on an uncertain or obscure legal question or in that such

a case a voter gives his vote at his own risk and on his own responsibility … It

has also been said that to hold the contrary, is to place each individual elector in a

position of hardship and difficulty, if upon the mere assertion of an opposing

party that a disqualification exists, the truth or falsehood of which the voter may

have no means of ascertaining, he is to exercise his franchise at the risk of his vote

being thrown away, if on subsequent investigation the existence of that

disqualification should be established …. It is submitted, therefore, that a

disqualification depending upon a novel question or one, of doubt or

difficulty or upon legal argument and decision upon complicated facts

and inferences, does not cause votes to be so thrown away as to seat the

opponent on a minority of votes …’ 68 [emphasis added]

71. It is submitted that Parker’s submission on these divergent school of thought is correct.

Conclusion:-

72. In conclusion, it is also submitted that regardless of whether this Court should prefer

one school of thought over the other, the case in favour of the Appellant’s view, that is

Peiris, notwithstanding its decision, in the end remains authority on which the First

Respondent relies for the proposition that the disqualification of a candidate must be

clear, definite and certain and known to the whole electorate prior to the date of election

in order to achieve a result that such votes for such candidate are wasted votes entitling

67 2 P.R.&D 276 68 At page 153 of the Text

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the next in line to be appointed as the elected person. We rely in particular on the

statement of Weeramantry J. when he stated in relation to the facts before him which

were,

‘at the date of the election …. not mere allegations but were existing

and established and which as distinguished from the legal

consequences flowing therefrom admitted of no uncertainty. That

is a correct statement of the law in relation to those facts and in that a

Court of law had declared that the respondent candidate was disqualified

and in the by-election that disqualification so ordered by the Court was a

fact of great notoriety and could be said to have been existing and

established and which admitted of no uncertainty’.

73. This is unlike the present case where the notice of the First Respondent’s alleged

disqualification were at as at Nomination Day, mere unproved allegations which were

not existing and established and the relevant date, and further the fact of the First

Respondent’s alleged disqualification had to be ascertained on complicated facts and

legal inferences and arguments which took weeks and months to be settled at the trial

before the Learned Chief Justice.

74. In conclusion, it is submitted in relation to the Peiris v. Perera decision that, although the

issue in that case before the Court did not turn on the question of status versus conduct,

the disqualification of the candidate was in fact based on status and not conduct in that

as at the date of the by-election the respondent had already been declared disqualified

by Order of the Court in circumstances and had thereby acquired a status verified by a

tribunal of fact, and where that fact of disqualification was well-known to the entire

electorate irrespective of any uncertainty in the minds of the voters as to the

disqualifying legal effect of the facts grounding the disqualification. It is submitted in

this context that in conduct cases as distinct from status cases the votes would be thrown

away only if a third party such as for example a Court should determine that the

candidate is disqualified.

38

75. We reiterate in closing our submissions that the prohibition in section 40(2)(a) of the

Jamaican Constitution creates a conduct incapacity as against a status incapacity as such

incapacity has to be ascertained as it was in the Drinkwater case. Our reason as we have

submitted is the constitutional provision in the Jamaican Constitution expressly requires

a judicial determination of whether a candidate has ‘by virtue of his own act´ come under

an acknowledgement of allegiance, obedience or adherence to a foreign power. The ‘act’

is clearly conduct and not status. Accordingly such disqualification if it exists must

never necessarily involve an ascertainment by a third party.

76. It is further submitted that even if there was no reference to the phrase, ‘by virtue of his

own act’, the provisions in section 40 (2)(a) would still create a conduct disqualification

because whether or not there is an acknowledgment of allegiance that is a matter that

has to be ascertained. On the facts before the Learned Chief Justice and unlike the facts

in Peiris, there was no evidence that on Nomination Day a third party whether a Court

or tribunal had declared that the First Respondent had violated or breached the

disqualification clause that is to say, that by virtue of his own act, he acknowledged

allegiance, etc.

77. The evidence is to the contrary and the only third party pronouncement on the matter

was made by the Director of Elections who issued national press releases confirming

that all candidates were validly and properly nominated. The voters were therefore

entitled to rely on this official pronouncement of the Director of Elections and

accordingly it is submitted that the votes cast in favour of Mr. Vaz ought not to be

treated as thrown away on the basis in summary as follows:

(A) That having regard to the press releases issued by Mr. Danville Walker it

could not be said that there were any real notices before the constituents

of the Constituency of West Portland in relation to the disqualification of

Mr. Vaz, Mr. Walker being an officer responsible for elections with the

responsibility of conduct of the election having issued a statement with

served to nullify that which was issued by Mr. Dabdoub, the Appellant.

39

(B) Having regard to the press releases issued by Mr. Walker it cannot be

said that the voters acted with willful perverseness.

(C) In circumstances where the disqualification depends on complex legal

arguments and complicated facts and inference, the Court ought not to

declare that the votes are thrown away.

(D) The notice of whatever kind should be clear, definite and certain and the

notice in this matter as found by the Chief Justice cannot be said to be

clear, definite and certain and accordingly and in accordance with the

position taken by the Court in the Sri Lankan case of Peiris it cannot be

argued that the notices in this case, within the context of Mr. Walker’s

press statements, can be treated as clear, certain and definite.

78. Accordingly we again state that the Learned Chief Justice was correct in stating that:

‘The statement and press release were issued by Mr. Walker in his official

capacity. He was not a representative of any of the two candidates. Further in

this case legal arguments were advanced on complicated facts and issues in order

to determine whether or not the First Respondent was disqualified and therefore I

find that the First Respondent’s disqualification is based on conduct as it was in

the Drinkwater case. I understand the law to be stated by Weeramantry J. in the

Peiris (supra) 69that:

‘if there is an allegation of facts at the time of election which

become (sic) definite and certain only at a later point in time in

as much as those facts have not been adjudicated upon at the date

of the election, they remain, so far as the voter is concerned mere

unproved allegations. In such cases although the candidate

maybe declared disqualified and the election avoided the seat

cannot be awarded to the next candidate for there is not the

definiteness about the facts grounding the disqualification which

would be essential if the votes are to be treated as thrown away’. 69 At page 249

40

‘In the circumstances of this case I find that having regard to the statement and

press release issued by Mr. Walker in his official capacity as Director of Elections

that all 146 candidates were properly nominated, there was no sufficient notice

based on facts which are clear definite and certain to the knowledge of the voters

in the Constituency of West Portland so as to entitle this Court to find that their

votes were thrown away’.

79. In conclusion therefore it is submitted that the Chief Justice was correct on this issue and

that this Court ought to uphold her Judgment to require a by-election in relation to that

Constituency so that effect is given to the will of the majority of the electorate and that

the Court ought not to impose upon that electorate a person whom the majority of them

did not select to represent them.

RESPECTFULLY SUBMITTED

RANSFORD BRAHAM & SUZANNE RISDEN-FOSTER

(IN CONSULTATION)

Dated this 17th day of November 2008

Filed by LIVINGSTON, ALEXANDER & LEVY of No. 72 Harbour Street, Attorneys-at-Law for and on behalf of the First Respondent (in SCCA No. 45 of 2008) and the Appellant (in SCCA No. 47 of 2008).