Chief Justice Kenneth Benjamin has reserved judgment in Supreme Court action #176 of 2012, brought by political aspirant Yolanda Schakron, of the Opposition People’s United Party, challenging the legality of the March 7th general election poll in Lake I, from which Schakron was excluded on the grounds of dual citizenship, a bar from sitting in Belize’s Parliament.
The United Democratic Party’s Mark King, the victor in the race, is named as one of three respondents in this petition case; the other two respondents are (1) the returning officer, Noreen Fairweather, who rejected Schakron’s nomination after a voter raised the objection based on her dual nationality, and (2) the Government of Belize, via the Attorney General’s Ministry.
“I would want them to have a by-election, because I don’t think it went correct. They had no right to disqualify that lady,” the second applicant in the case, Whylma White Munnings, told Amandala today.
By nomination day, Schakron had initiated but not completed the process of renouncing her US citizenship.
Munnings, one of the six nominees who filed the nomination paper with Schakron, told us that when they went to nominate Schakron on February 17, Noreen Fairweather, the returning officer for Lake I, who is also named as respondent in this case, asked for a 10-minute break to make a decision.
“She came long after and said Schakron was disqualified. She can’t run,” Munnings told us.
Inside the courtroom of Chief Justice Benjamin this morning, Monday, Senior Counsel Godfrey Smith, a former Attorney General of Belize, representing the applicants, Schakron and Munnings, said that the threshold that has to be met, to convince the court to allow Schakron and Munnings to file a petition to challenge the Mark King seat, is two-fold: They have to convince the court, first, (1) that the application brought by Schakron and Munnings is not frivolous and (2) that the case has an arguable or realistic prospect of success.
Smith furthermore maintained that Fairweather had no such power to reject the nomination paper for Schakron, and that any issue of disqualification based on her dual citizenship can only be decided by an election judge, who would be a judge of the Supreme Court appointed to hear the case, via an election petition.
The attorney drew from the Belize Constitution, the Representation of the People’s Act, and the Election Rules in arguing his case. He also presented cases which have been decided in Commonwealth jurisdictions, contending that cases going as far back as the 1800s have addressed the matter of the powers of the returning officer, and the general position has been that the only way to deal with the issue of the specific qualifications of a candidate is via a petition to the court.
“It was not for the returning officer to get into the qualifications or disqualifications. That is reserved to and only to an election judge,” said Smith, adding that Schakron was “so entitled to be on the ballot.”
On Monday afternoon, Senior Counsel Denys Barrow, representing King, Fairweather and the Government of Belize, told the court that under Section 48 of the Representation of the People’s Act, Schakron is not entitled to present an election petition: only a voter or a candidate—which Schakron was not, due to her rejection—may bring such an action.
There were three candidates in the election, said Barrow: the first candidate is the 1st respondent, Mark King; the second candidate is Martin Galvez, and the 3rd candidate is Carlos Diaz. Schakron is neither a candidate nor voter in Lake I, Barrow added.
“Yolanda Schakron may not present a petition,” he told the court.
Barrow went on to tell the court that Schakron still has another similar case pending before Justice Oswell Legall, #109 of 2012, in which the main issue being argued in #176 has already been determined—and that issue is, whether Fairweather had the power to make the decision she did. The issue is now rez judicata, meaning already determined.
“The precise question sought to be litigated in the proposed petition was specifically determined by Justice Legall,” Barrow argued, referring to the preliminary matter of an emergency injunction sought by Schakron to stop Fairweather from rejecting her nomination. “That was not appealed.”
He said that the claimants in the case before Legall, who are Schakron and another nominee, Moses Sulph, have not discontinued that matter; neither has the judge dismissed it, and the main part of that case before Justice Legall has not gone to hearing.
The file for case #109 was handed to the judge by officials of the court, at Barrow’s request, so that the Chief Justice could have a look at those proceedings, before making his decision whether to grant the request of Schakron and Munnings to present their election petition.
“Is it not frivolous for a person who was determined to be disqualified on the basis of allegiance to a foreign power to come to court and say, in effect, do not be concerned whether it is the fact that I am disqualified, be concerned only with the fact that that disqualification ought not to have been acted upon or determined by the returning officer?” Barrow advanced to the court.
In his response to Barrow’s submissions, Smith maintained that Schakron was nominated in proper form. He also said that the cause of action in this present case is not the same as the case before Legall, and added that Whylma White Munnings is not a party to case #109.
“In this cause of action, the application is seeking to challenge the validity of the return… and the relief sought is to have the election set aside and declared void,” he said.
Benjamin asked Smith to consider the possibility of the court ruling that Schakron was in fact not qualified to participate in the elections; what happens then?
To this, Smith replied that there is the concept of the electorate being entitled to throw away their votes—”the court can [as referenced by legal authority] rule that the electorate threw away their votes,” in the event they vote for a candidate they know to be disqualified, he reasoned.
Following the in-court proceedings, Senior Counsel Lisa Shoman, another attorney representing the applicants, said: “It may involve overlap of issues, but it is not the same thing…”
As for the judge’s question on what would ensue if there were to be incontrovertible evidence that Schakron is disqualified because of her dual citizenship, Shoman told us (out of court) that the returning officer can only look at the nomination paper—not at the qualification in question, such as the issue of nationality.
Outside the courtroom, Denys Barrow, in speaking with the press, pointed to the Legall case, which, he said, decided the central issue: the legal authority to decide on qualification.
“The question is whether that decision applies to the fact that they are now seeking to litigate exactly the same issue once more before the Chief Justice now, on an election petition—different procedures, but the same issues. Did the returning officer have the capacity to make that determination?” he said.
In delivering his oral decision to deny Schakron’s and Sulph’s request for an injunction to stop Fairweather from rejecting Schakron’s nomination, Legall had said: “In my view, the Returning Officer, in carrying out duties under 3.1 [the election rules], is entitled to consider 58.1.a. of the Constitution in deciding whether the applicant for nomination is a duly qualified candidate.”
He asserted that the Returning Officer exercised her power under the rules.
In Section 10 of his written 7-page decision explaining why he did not grant the injunction, Legall asserted: “Under Rule 8(2) of the Rules, where the Returning Officer allows an objection, the claimant is authorized to apply to the Supreme Court to reverse the ruling of the returning officer; and on such an application the court may, if it is satisfied, reverse the ruling of the returning officer, in which case a by-election can be ordered. I take the point made by learned senior counsel for the defendants that if the view is that the returning officer erred in allowing the objection, an election petition to the Supreme Court is the proper process to take.”
Barrow noted to the court that there is no assertion by the applicants’ side that the returning officer, Noreen Fairweather, erred in making the determination that she did—that Schakron was indeed disqualified by virtue of her nationality, but they contend, instead, that the issue was not for her to decide.
“They submitted that she ought NOT to have decided—not that she made a wrong decision,” Barrow commented.
Justice Benjamin has indicated that he would announce whether he would allow the Schakron and Munnings election petition on Friday at 2:00 p.m.
The Opposition People’s United Party has indicated that it wants to file at least two more election petitions for electoral divisions in Cayo.