Tue | Oct 20, 2020

Legal Scoop | Shedding light on magisterial recounts

Published:Tuesday | September 8, 2020 | 12:23 AM
Shena Stubbs-Gibson
Shena Stubbs-Gibson

In the recently concluded general elections, the Jamaica Labour Party (JLP) emphatically trounced the People’s National Party (PNP), with the preliminary count indicating 49 seats to the JLP and 14 to the PNP. Amid the many stunners of the election night, the biggest was, undoubtedly, Peter Bunting’s unseating by newcomer Rhoda Crawford in Manchester Central.

The next biggest stunner, possibly, was Lisa Hanna’s retaining of her St Ann South Eastern seat, by a hair’s breadth, a margin of a mere 14 votes (later changed to 32 votes at the final count). Over in Westmoreland Eastern, the PNP’s Luther Buchanan, having previously appeared to have lost his seat by eight votes, at the preliminary count, serendipitously regained control of same at the final count. According to media accounts, the final vote count in the constituency resulted in a tie between Buchanan and the JLP’s Daniel Lawrence, a situation which, according to the Representation of the Peoples Act (the Act) meant that the returning officer had to be called upon to break the tie. The returning officer, according to the said media accounts, engaged in a chance system of pulling a name from a box to break the tie between Buchanan and Lawrence.

Notably, the Act mandates the returning officer to “cast an additional vote” to break a tie that occurs at the final count. The procedure employed by the returning officer is certainly worthy of further analysis to determine whether it satisfied the provisions of the Act.

It would be surprising if both Hanna and Buchanan’s seats were not recounted given the close margins of victory. Readers will recall 2016 where the St Mary South Eastern constituency, contested by Dr Norman Dunn of the JLP and Dr Winston Green of the PNP, escalated to a magisterial recount when Dunn won the seat by 127 votes on the preliminary count but lost to Green on the final count by nine votes. Green ultimately defeated Dunn by five votes at the end of the magisterial recount.

In the parish council elections that same year, there was also a magisterial recount for the Llandewey Division in St Thomas, in 2016, which saw the PNP’s candidate defeating the JLP’s candidate by a mere two votes

Given the importance of recounts, the Legal Scoop will look at the process that will have to be observed by any person wishing to trigger a magisterial recount. The legislation that sets out the procedure for magisterial recounts is the Representation of the People’s Act.

TIME PERIOD

An application for a magisterial recount must be made within four days of the date on which a candidate was declared elected. The application is made to the parish judge in the parish where the constituency in question is located. The parish judge must then set a date, within four days of the application being made, for the commencement of the recount.

AFFIDAVIT OF WITNESS

The application for a recount must be grounded by an affidavit from a “credible” witness to the effect that the relevant returning officer incorrectly or improperly rejected any ballot papers or incorrectly added the number of votes cast for any candidate.

SECURITY COSTS

A sum of $40.00 for security to cover the costs of the declared candidate must also be paid to the parish court within the four-day time period.

ATTENDANCE AT THE RECOUNT

The Act further provides that the relevant constituency returning officer and the election clerk shall be summoned by the parish judge to attend the recount and shall take with them the used and counted, unused, rejected, and spoilt ballots. At the recount, each candidate is also entitled to be represented by an agent. Readers may recall that at the Dunn-Green magisterial recount in 2016, both gentlemen were represented by “high-profile” attorneys from each side of the political divide, including K.D. Knight (PNP) and Hugh Wildman (JLP).

RECOUNT

The actual recount by the parish judge involves recounting the votes given for each candidate and examining and counting the used and counted, unused, rejected ,and spoiled ballots. Once the recounting has begun, the parish judge must proceed with same continuously except for Sundays and between 6 p.m. and 9 a.m. and may only take breaks for rest and refreshments.

At the end of the recounting, the parish judge will declare the results, seal all the ballots in separate packages, and certify the results to the returning officer, who will then take the process from there.

IF THERE IS A TIE

As with the final vote (Section 45, Subsection 8 of the Act), if there is tie at the magisterial recount, Section 48 (8) provides that the returning officer shall have a casting vote even though he may have already cast an additional vote under Section 45, Subsection 8.

COSTS

If the result of the magisterial recount does not affect the original outcome in terms of the candidate originally declared as elected, the applicant will have to pay the costs of the candidate originally declared. The $40.00 paid for security for costs shall, “so far as is necessary,’ be applied to the before-mentioned costs. If the $40.00 is insufficient, as it would surely be today, then the Act provides that the successful party shall have the right to sue the other for the balance outstanding on his or her legal costs.

CONCLUSION

Given the high cost of litigation today, as well as to deter frivolous claims or successful parties inevitably having to sue to recover their legal costs, the security for costs sum provided for in the Act should be increased as a matter of urgency.

Legal Scoop will keep a close watch on whether any magisterial recounts are triggered from those very close seats in the recently concluded general elections.

Shena Stubbs-Gibson is an attorney-at-law and a legal commentator. Send feedback to shena.stubbs@gleanerjm.com or follow her on Twitter: @shenastubbs. This is a special edition of the Legal Scoop, which is usually printed every other Sunday.