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Appeal court ruling could cost another JLP MP his seat
Paul Henry, Observer staff reporter
editorial@jamaicaobserver.com
Saturday, May 17, 2008
THE Court of Appeal yesterday gave the People's National Party's (PNP's) Phyllis Mitchell the go-ahead to proceed with an election petition to have the Jamaica Labour Party's (JLP's) Desmond Gregory Mair disqualified as MP for North East St Catherine, because of his alleged holding of dual citizenship.
The ruling has effectively reinstated the petition that was struck out by the Supreme Court last October.
If the Mitchell election petition is successful it will mean more trouble for the governing JLP which suffered a major blow last month when its MP for West Portland, Daryl Vaz, was disqualified by the court from sitting in the House by virtue of his holding both Jamaican and United States citizenship.
Chief Justice Zaila McCalla, in handing down her decision, ruled that a by-election be held, instead of the seat going to the PNP's Abe Dabdoub, who had brought the action against Vaz.
Dabdoub this week filed an appeal against the court's decision not to declare him the winner of the seat, while Vaz, who has since renounced his US citizenship, filed an appeal Thursday against his disqualification.
The ruling JLP has a 32-28 majority in the House and a victory for Dabdoub in the Court of Appeal could force the Government to call fresh elections. Not only would the JLP's razor-thin majority make it difficult for it to pass bills in the Parliament, but the party's leader and prime minister, Bruce Golding, made it clear recently that he would not allow anyone not elected by the people to sit in the House.
A similar win for Phyllis Mitchell would therefore push the Government to move faster in seeking a fresh mandate.
Mitchell had brought the petition against Mair following her loss in the September 3, 2007 general elections. Mitchell, a former MP, claimed in her petition that Mair is a citizen of Venezuela, to which he owes allegiance, and as such is not fit to be a member of the House of Representatives.
Following Mitchell's filing of the election petition, Mair was served with the documents on October 2 during a sitting of Parliament.
Lawyers for Mair on October 9 filed and served an acknowledgement of service of the document, but later took action to have Mitchell's petition struck out because he was improperly served while in Parliament. The serving of the document, he contended, contravened Section 30 of the Senate and House Representatives (Powers and Privileges) Act and Section 48 (5) of the Constitution.
However, Mitchell's lawyer, Abe Dabdoub, provided evidence during the hearing in October to determine whether the petition should be struck out, that Mair was also served at his North East St Catherine constituency office at Dover Castle District in Redwood, St Catherine by registered post on October 9.
Notwithstanding this fact, Justice Marva McIntosh, at the October hearing, tossed out Mitchell's petition, ruling that the serving of the petition in Parliament was null and void and that the petition was not properly before the court. The ruling prompted the appeal by Mitchell.
Yesterday, the Court of Appeal, while upholding Justice McIntosh's decision that serving the document in Parliament was improper, ruled that mail issued by registered post to a candidate's address on the nomination paper was deemed as served the moment the mail is registered, given that the registration is done within the stipulated 10-day period of the filing of an election petition in accordance with Section 6 of the Election Petition Act.
"The object of Section 6 in providing that service may be effected by registered post to a specified address, is not to protect the right of the addressee to receive the notice. It is intended to assist the person who is obliged to serve the notice," said the 54-page judgement.
".The respondent was effectively served when the documents [the election petition] were registered on October 9, 2007. .The judge erred . when she found that the documents were not served," the judgement said.
Yesterday, Dabdoub lauded the judgement, which he described as 'well reasoned'.
"My client is extremely happy that her petition is back on the table and my instruction from her is to proceed to try and get it heard as soon as possible," Dabdoub told the Observer.
Appeal court ruling could cost another JLP MP his seat
Paul Henry, Observer staff reporter
editorial@jamaicaobserver.com
Saturday, May 17, 2008
THE Court of Appeal yesterday gave the People's National Party's (PNP's) Phyllis Mitchell the go-ahead to proceed with an election petition to have the Jamaica Labour Party's (JLP's) Desmond Gregory Mair disqualified as MP for North East St Catherine, because of his alleged holding of dual citizenship.
The ruling has effectively reinstated the petition that was struck out by the Supreme Court last October.
If the Mitchell election petition is successful it will mean more trouble for the governing JLP which suffered a major blow last month when its MP for West Portland, Daryl Vaz, was disqualified by the court from sitting in the House by virtue of his holding both Jamaican and United States citizenship.
Chief Justice Zaila McCalla, in handing down her decision, ruled that a by-election be held, instead of the seat going to the PNP's Abe Dabdoub, who had brought the action against Vaz.
Dabdoub this week filed an appeal against the court's decision not to declare him the winner of the seat, while Vaz, who has since renounced his US citizenship, filed an appeal Thursday against his disqualification.
The ruling JLP has a 32-28 majority in the House and a victory for Dabdoub in the Court of Appeal could force the Government to call fresh elections. Not only would the JLP's razor-thin majority make it difficult for it to pass bills in the Parliament, but the party's leader and prime minister, Bruce Golding, made it clear recently that he would not allow anyone not elected by the people to sit in the House.
A similar win for Phyllis Mitchell would therefore push the Government to move faster in seeking a fresh mandate.
Mitchell had brought the petition against Mair following her loss in the September 3, 2007 general elections. Mitchell, a former MP, claimed in her petition that Mair is a citizen of Venezuela, to which he owes allegiance, and as such is not fit to be a member of the House of Representatives.
Following Mitchell's filing of the election petition, Mair was served with the documents on October 2 during a sitting of Parliament.
Lawyers for Mair on October 9 filed and served an acknowledgement of service of the document, but later took action to have Mitchell's petition struck out because he was improperly served while in Parliament. The serving of the document, he contended, contravened Section 30 of the Senate and House Representatives (Powers and Privileges) Act and Section 48 (5) of the Constitution.
However, Mitchell's lawyer, Abe Dabdoub, provided evidence during the hearing in October to determine whether the petition should be struck out, that Mair was also served at his North East St Catherine constituency office at Dover Castle District in Redwood, St Catherine by registered post on October 9.
Notwithstanding this fact, Justice Marva McIntosh, at the October hearing, tossed out Mitchell's petition, ruling that the serving of the petition in Parliament was null and void and that the petition was not properly before the court. The ruling prompted the appeal by Mitchell.
Yesterday, the Court of Appeal, while upholding Justice McIntosh's decision that serving the document in Parliament was improper, ruled that mail issued by registered post to a candidate's address on the nomination paper was deemed as served the moment the mail is registered, given that the registration is done within the stipulated 10-day period of the filing of an election petition in accordance with Section 6 of the Election Petition Act.
"The object of Section 6 in providing that service may be effected by registered post to a specified address, is not to protect the right of the addressee to receive the notice. It is intended to assist the person who is obliged to serve the notice," said the 54-page judgement.
".The respondent was effectively served when the documents [the election petition] were registered on October 9, 2007. .The judge erred . when she found that the documents were not served," the judgement said.
Yesterday, Dabdoub lauded the judgement, which he described as 'well reasoned'.
"My client is extremely happy that her petition is back on the table and my instruction from her is to proceed to try and get it heard as soon as possible," Dabdoub told the Observer.
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