TEAM Karen, led by PNM political leader contender Karen Nunez-Tesheira, has lost their appeal of a judge’s refusal to grant an injunction to postpone the party’s internal election – which begins this weekend – until her lawsuit over the changes to the electoral process is determined.
The emergency appeal was heard late on Friday by Justices of Appeal Nolan Bereaux, Peter Rajkumar and Maria Wilson.
On Friday’s virtual link were PNM leader Dr Keith Rowley, chairman contender Stuart Young and general secretary Foster Cummings and the Team Karen members. Cummings has been sued as representative of all of the PNM except for Nunez-Tesheira and the two others.
At the end of more than two hours of submissions, at 9 pm, the judges dismissed the appeal, ruling they found nothing wrong with the way the trial judge exercised his discretion in refusing to grant the injunction.
Bereaux, who delivered the unanimous oral decision, said, “In exercising his discretion, the judge examined the evidence and the law. In considering where the balance of justice/injustice lay, he found on the side of the respondents,”
“We can only overturn that discretion if found to be clearly wrong in misunderstanding of law or misapprehension of the evidence. We act by review only. “
Bureaux said the Appeal Court could find no fault with Justice Devindra Rampersad’s exercise of his discretion.
He said the judge examined the evidence as thoroughly as he could. “We cannot say he made a fatal error. We can say he was plainly right, We have no option but to dismiss the appeal. We can find no fault with the judge’s decision,”Bereaux said.
The judges also ordered Nunez-Tesheira and the others to pay the PNM’s costs.
On Wednesday, Justice Rampersad dismissed the injunction application of Nunez-Tesheira and two members of her slate.
He said he was not minded to granting the interim relief sought as the greater risk of prejudice in doing so lay with the party.
Rampersad also held the application was devoid of evidence, saying an election should not be stopped or altered based “only on fears without cogent evidence.”
He said if the complaints of an unfair election, raised by Nunez-Teshiera and her team materialises, they can challenge the outcome of the process.
“...The claimants may have other recourse should the process be found, in fact, to be tainted. Even though it is a more onerous task to correct an election after the fact, evidence of actual illegality and unfairness would be grounds to set it aside,” the judge said.
Although he dismissed the application for the injunction, the judge, however, held he was not able to, at this stage, come to a definitive finding on how to interpret article 18.1 of the PNM’s constitution.
Before the start of the hearing on Friday, Bureaux had to chastise the claimant’s attorneys for the wording of the grounds of their appeal.
“We overrule judges all the time, but what we do not do is question their integrity or substance as a judge. You may disagree with his ruling, but do not question his fiber as a judge.”
In his submissions, attorney Egon Embrack, who represents Nunez-Tesheira and the others, said the only body that can change the party’s constitution was the annual convention which was not done here.
He referred to article 18(1) of the PNM’s constitution, saying it spoke of an election day, except for those days set aside for special voting.
“It doesn’t say the days of the election. There is a settled and established procedure for the conduct of elections.”
Embrack raised the issue of tampering of ballot boxes since the election committee did not say at the end of each day of voting, ballots will be counted in the presence of the candidates.
“To change that one day to a nine-day period should have been put to the annual convention.”
This, he said, has been the practice since 1956 to present.
“The only way the constitution can be changed is through the annual convention.”
Embrack said the constitution names the convention as the “supreme authority of the movement” in article 17(4).
“Dr Eric Williams, the party’s founder, designated the annual convention as the governing body of the movement.” He also said one example of this type of change to the constitution was when the party’s annual convention adopted the one-man, one-vote system.
“What we have done stretched the candidates' resources for more than one day in 41 constituencies.”
Embrack said it was because of this “unconstitutional decision,” there was a landslide of injustices that flowed affecting candidates, not only his clients. He described the change as “monumental” and that the “conduct of the election is not fair.”
“When it comes to elections in this country, this is the political party in power so we have to send the right message to the public.”
Embrack said his clients were not “on the money” but “in preserving fair elections and the preservation of democratic principles which have no value.”
He added, “You cannot put a price on that. We need to preserve our democracy. This will affect us nationally…The party is not a club.” The PNM’s election committee chairman, Anthony Roberts, said some $950,000 have been spent, so far, on the election.
Embrack was also peppered with questions from all three judges. “The established practice is being eroded,” he maintained.
He urged the judges to go back and look at the vision of the PNM’s founder, Dr Eric Williams for the party and who should make decisions.
“There is constitutional impropriety (in the process) and we cannot perpetuate the impropriety.”
He said the election can go on on December 4.
In response, Senior Counsel Russell Martineau, who represents Cummings, reminded the judges of the Appeal Court’s jurisdiction on appeals from an injunction application.
He said the appellate court’s function was limited at this stage as the discretion of whether to grant an injunction was vested with the High Court judge.
“You have to defer to the learned judge’s exercise of his discretion.” He said the Appeal Court could only set aside Rampersad’s decision if they found he misrepresented the law or the evidence.
“I don't think anyone can fault the judgment of Justice Rampersad.”
He said in refusing the injunction, the judge was careful. “It seems my learned friend wanted the judge to say, ‘case done,’ rather than there was a serious issue to be tried.”
Martineau said article 18.1 did not deal with the election but the tenure of office holders. “It (the constitution) is silent on whether it will be on one day, or not. Because it is silent, that might be one of the reasons the judge said there was a triable issue, but he may move to the next step, by looking at the balance of injustice…And, you get that from evidence.”
Martineau said the claimants did not provide evidence as Rampersad pointed out.
He said by postponing the election, hours before members - some 100,000 - were to go to the polls, had serious consequences.
Martineau said as the judge pointed out the balance of justice lay in the institution of the defendant, the party.
“The irony of it is that they are now saying the damage will affect the party.” He also questioned what the national election had to do with the PNM, as raised by Team Karen in their injunction application.
“There was no evidence of prejudice or damage to the claimants and the judge said so.
“Three days before the election, they say they want an injunction. That, in my view, was fatal to their case.
“What they are seeking to do, three people are saying to you, the 100,000 minus those three, let's move the election to an uncertain date. The membership has been told since August there is an election and they have been preparing for it and arranged their affairs.
“The inconvenience is to the 100,000-plus people. If they (the claimants) are right, they will know when the substantive matter is heard but they should not be entitled to stop an election.”
He also said the decision complained of was one made by the party’s general council which, he said, was the organ of the party whose decision was final.
In their breach of contract lawsuit, Nunez-Tesheira, Dr Kenneth Butcher, who is vying for the post of chairman, and Bishop Victor Phillip, who is contesting the post of election officer, are claiming that the party's central executive breached the party's constitution by deciding that the election should be contested on three separate days over a nine-day period – November 26, 27, and December 4 – instead of on one day. Their lawsuit said the party’s central executive does not have the power to make this decision.
They also raised concerns about the security of the ballot boxes. However, the PNM’s election committee chairman Anthony Roberts, in his evidence, said the ballot boxes on the days of the election would be secured and transported by the police to a “secure secret location” and independent auditing firm, Pannell Kerr Forster will secure the boxes.
Rampersad held the application was devoid of evidence, saying an election should not be stopped or altered based “only on fears without cogent evidence.”
The judge added, “...Whereas the defendant has indicated facts which the court has to consider and to take into account, the claimants have not.
“Of course, the upshot of any unfair election could be that officers are elected for four years thereby depriving the unsuccessful candidates of the chance to have so been elected. During that next four-year period, the court can also take judicial notice of the fact that there would be national general elections so that the impact of the appointment of persons to any of these relevant offices would have an even greater lasting effect.”
Rampersad also said there was no actual evidence of the potential for an unfair election. He also agreed there was a delay in bringing the challenge, on the eve of the election, when the decision was made known on August 10.
In their injunction application, the Team Karen challengers had asked for orders for the election to be held on one day or, in the alternative, postpone the polls until their lawsuit is determined.
They were also represented by attorney Peter Taylor while the PNM was also represented by Michael Quamina, Anthony Bullock, and Adana Bain-Bertrand.