General — 12 April 2012 — by Adele Ramos
The Opposition People’s United Party’s (PUP) legal advisor, Anthony Sylvestre, Jr., told the media today that they have crossed a very important preliminary hurdle with the decision by Chief Justice Kenneth Benjamin to grant leave for Martin Galvez, the PUP candidate who fell to Mark King in the March 7 general elections, to file an election petition, alleging that King is disqualified to serve in the National Assembly because he failed to properly and publicly disclose a contract he has held to provide security services to the Government of Belize.
Attorney for King, Denys Barrow, SC, had urged the court on Tuesday to disregard Galvez’s affidavit, on the grounds that it was inadmissible, for failure to properly present the facts. Barrow posed the same argument against the affidavit of a second deponent, Marlon Clarke, which states that King’s business, Brints Security, was the beneficiary of the $135,216 contract, which the documents say does not expire until 2013.
However, CJ Benjamin has not discarded the affidavit evidence. In granting Martin Galvez leave to file an election petition, CJ Benjamin said that when you strip away the hearsay from the affidavit of Marlon Clarke, what is left is a contract.
Paragraph 10 of Clarke’s affidavit alleges that the contract was signed by Mark King. The CJ didn’t agree with the issues Barrow raised — that Galvez did not provide evidence that the signature is indeed King’s. Justice Benjamin said it is enough that what appears before him is a document that bears King’s name.
In court on Tuesday, Barrow, on the one hand, and Lisa Shoman, SC, attorney for Martin Galvez, on the other hand, maintained sharply differing views on the interpretation of Section 58.1.h of the Belize Constitution, under which King is alleged to be disqualified for failure to properly and publicly disclose the contract at least one month before the general elections.
The Chief Justice this afternoon said that he resisted the temptation to rule on the interpretation of that part of the Constitution, as the trial is a proper place to ventilate that issue. He affirmed that the trial would provide an opportunity to have this matter judicially interpreted.
Sylvestre said, in an interview with the press, that the court’s role is to serve as a constitutional filter, to weed out cases that are without merit, and clearly, with the CJ giving the Galvez petition clearance, it means that the case does have merit.
He added that whether, in fact, the contract was signed by Mark King and entered into with the government will be determined in the trial.
The attorney noted that there is no judicial precedent in Belize for such election petition cases.
“It is a win-win situation not only for the applicant, but the country as well, because we would be able, from here on, to have some judicial guidance as to how to deal with these issues. Post-election, we will know how to approach matters of this nature when they arise again,” Sylvestre elaborated.
Going forward, he said, both sides will have to prepare thorough and meticulous arguments and do very detailed research, in order to properly present their case to the court.
As for the questions Barrow raised over the validity of the contract submitted to the court, in support of the claim that King is disqualified to sit in Parliament because of it, Sylvester said, “The Chief Justice pointed out that when the deficiencies (if you would like to put it that way) in the affidavit, when those were pulled out, the fact of the matter is you have a contract… So that is why we move to this next stage to make a determination.”
Sylvestre said that new affidavits will have to be filed.
Earlier today, Benjamin likewise granted leave to Lee Mark Chang, United Democratic Party (UDP) aspirant for Freetown, to file an election petition, on the claim that Opposition Leader Francis Fonseca won the Freetown division because electors were bribed. Fonseca won by 150 votes.
Multiple affidavits allege that voters were paid $300 or $500 to vote for Fonseca; however, the Chief Justice signaled that the laws (specifically the Representation of the People’s Act — ROPA) also forbid voters from accepting bribes for votes.
ROPA sets out criminal penalties of a fine of $500, a year in prison or both, on summary conviction for bribery.
At a press conference held right after the general elections, Lisa Shoman, SC, had spoken of a petition the PUP intends to file, challenging the validity of the election of Elvin Penner in Cayo North East, where Orlando “Landy” Habet fell to Elvin Penner in the tightest race in the general elections, decided by as little as 17 votes.
In that division, the PUP has charged “bribery and misconduct,” partly based on a public statement by Penner that he was paying fees and facilitating the immediate registration of naturalized Belizeans in order to get their political support.
Shoman had also said that they have photographic evidence of “bribery and misconduct” on election day, and the call for a recount of a box had been flatly denied.
As for Cayo Central, Shoman had said that there was a discrepancy in the number of votes reported from that division, and their agents had been refused their right to accompany the ballot boxes to the counting station for that division.
Collet Montejo, who lost to the UDP’s Rene Montero by 44 votes or a 1.8% margin, told Amandala today, Wednesday, that the petition for his division is expected to be filed on Tuesday, April 10, 2012.
Responding right after the elections to the PUP’s announcement that it would be filing a series of election petitions, UDP leader Dean Barrow, Prime Minister of Belize, said: “That’s their business. The law gives the defeated candidate the right to file. It is obviously the desperation of a party that’s lost.”
Barrow added that in all of Belize’s election history, not one election petition has succeeded. “They are wasting their time,” said Barrow.
Since the election, the PUP has sought leave to file three election petitions:
(1) Yolanda Schakron challenged the election of Mark King in Lake I, on the basis that she was wrongfully denied the right to sit as a candidate in the election on the claim that she has dual Belizean-American nationality – a matter Shoman contended should not have been decided by the returning officer. On Friday, Benjamin declined Schakron’s request to file that petition.
(2) David Craig challenged the election of Herman Longsworth in Albert, on the basis of an undisclosed contract with the Government of Belize, similar to allegations Galvez has levied against King. Justice Michelle Arana approved leave for Craig to file his petition.
(3) Martin Galvez challenged the election of Mark King in Lake I, on the basis of the contract detailed earlier in the article.
For the UDP side, the party has filed one election petition: that for Lee Mark Chang challenging Francis Fonseca.
The PUP has won approval to file two petitions; the UDP has won approval to file one. Round two is a more detailed hearing by the court of the election petition, and the allegations charging invalid elections in those respective divisions. There could be more rounds in this battle, since Supreme Court decisions are open to subsequent appeals.
Should the courts rule in favor of the petitioners, by-elections could be forced in those divisions, which would mean that those seats could be up for grabs in local electoral races.
Lake I and Albert are, interestingly, two of the seats that the UDP gained from the PUP in the last elections.
Lee Mark was hoping to upset Fonseca in Freetown; however Fonseca managed to retain his seat and widen his margin of victory a little.
The 2012 election turned out to be one of the closest wins for the UDP since 1993, when it won 16 of 29 seats. Today, it holds 17 of 31 seats in the House of Representatives, while the PUP holds the remaining 14.
Addendum: In a statement issued Wednesday, April 5, 2012, Francis Fonseca said:
“I categorically and unequivocally deny any suggestion or allegation of bribery on the part of anyone associated with the PUP Freetown election victory.
“Our election victory in Freetown was won through hard work, sweat, and yes, sometimes tears contributed by hundreds of good, honest, faithful members and supporters of myself and our great party.”