Crucial by-election in Turks and Caicos turns into legal melee

By Caribbean News Now contributor

PROVIDENCIALES, Turks and Caicos Islands — After what seemed to be an orderly start to a crucial by-election in the Turks and Caicos Islands scheduled for March 22, on which the government of the territory could hinge, the process has turned into a legal free-for-all, with the prospect of no poll being held at all, after three separate applications were filed in the Supreme Court on Friday, naming a total of ten different parties.

On Monday of this week, the Integrity Commission revealed that the ruling Progressive National Party (PNP) candidate, Amanda Misick, had failed to file her statutory notice of interests in government contracts by the deadline of March 1. As a result, Misick is disqualified for election to the House of Assembly.

One local weblog known to support the PNP described this as “a mind boggling act of carelessness and incomprehensible stupidity.”

Although the constitution does not require notice of the absence of such interests, Misick’s opponent, the opposition Peoples Democratic Movement (PDM) candidate Oral Selver, filed a “nil return” on February 28, one day before the deadline.

On Friday, attorneys acting for Selver filed an application challenging Misick’s nomination.

Also on Friday, attorneys acting for “Ewing-Williams” filed what is believed to be a cross petition challenging Selver’s nomination on the basis of a false declaration by him. According to sources, the ground for this assertion is the existence of an expired conditional land lease with the government. However, according to Selver, the lease has expired and he can no longer enforce the agreement.

Finally on Friday, acting attorney general Rhondalee Braithwaite-Knowles filed an application challenging Misick’s nomination as well as earlier declarations or the absence thereof by five elected sitting members of the Assembly: George Lightbourne (PNP); Edwin Astwood (PDM); Derek Taylor (PDM); Josephine Connolly (PDM); and Delroy Williams (PDM).

“On the basis of the background research undertaken I have also come to the conclusion that the election of certain sitting members of the House of Assembly should be challenged under section 53(2) of the Constitution,” Braithwaite-Knowles said.

“The basis of each of these challenges is that when each of the individuals made their section 50(1) Nomination Day declaration to the Supervisor of Elections for the 9th November 2012 General Election and the upcoming 22nd March 2013 by-election, a disqualification mentioned in section 49(1)(f) applied to each them in that each of them has a contract with the Government which, by that date, they had not given notice of to the Integrity Commission, as required by section 49(1)(f) of the Constitution. The type of contract in each case is a charge to secure the payment to the Crown of a ‘Belonger Discount’ (applicable under the Crown Land Policy) in the event of a sale in prescribed circumstances,” she explained.

Braithwaite-Knowles said she has asked the court to determine whether in each case, the individual is or is not qualified to be an elected member of the House considering the failure to give notice of the respective charges.

According to Braithwaite-Knowles, if the court determines that any candidate or current member is disqualified then:

a) In the case of Misick, she will not be able to stand for election on March 22 and the sole remaining candidate (Selver) will be declared elected;

b) In the case of the current members of the House of Assembly, their seats will be vacated and a by-election will have to be called. A decision on their disqualification would not prevent them from standing in a subsequent by-election called as a result.

Although the case against Misick appears straightforward in that it is based on a simple failure by her to file the required notice in time and the challenge has been filed within the five-day limit for such filing, the acting attorney general is facing a more complex battle in relation to the current sitting members.

First, the time limit for filing such challenges in relation to the nominations for the general election on November 9, 2012, has long since passed. Braithwaite-Knowles would therefore have to rely on section 51(2), which provides that an elected or appointed member of the House of Assembly shall vacate his or her seat in the House if any circumstances arise such that, if he or she were not a member of the House, would cause him or her to be disqualified for election by virtue of any provision of section 49(1), which includes the timely notification to the Integrity Commission of any contract with the government.

Braithwaite-Knowles would therefore have to convince the court that “circumstances have arisen” since the election, disqualifying the sitting members and causing them to vacate their seats. Clearly, however, there are no new circumstances other than the fact that the Attorney General’s Chambers dropped the ball last October by not scrutinising the nomination process adequately or at all and mounting the current challenge within the time limit specified in the constitution.

Added to this, Braithwaite-Knowles is well known locally as a dedicated PNP supporter and her actions on Friday against predominantly PDM members of the Assembly are likely to add to the political polarisation in the TCI.

It is, however, understood that Attorney General Huw Shepheard has now returned to the TCI after a lengthy absence and he may be able to bring some commonsense to the situation.

The various applications are due to be heard by the Chief Justice next Thursday in Grand Turk. In the meantime, both political parties are continuing their campaigns in case the by-election does go ahead as scheduled.

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