Attorney: EBC must account for electoral district change or face High Court

The Assembly Legislature, Scarborough. FILE PHOTO/JEFF MAYERS -
The Assembly Legislature, Scarborough. FILE PHOTO/JEFF MAYERS -

The Elections and Boundaries Commission (EBC) has been called to account by one Tobago East resident who is demanding it explain the methodology it utilised to change the electoral districts on the island from 12 to 15.

The EBC, acting upon the proclamation of the Tobago House of Assembly (THA) (Amendment) Act, recently completed its report proposing the change.

The THA has been deadlocked since January 25, 2021 when its elections ended in an unprecedented six-six tie.

The EBC order, which paves the way for fresh elections, was laid in Parliament by the Prime Minister on September 10 and passed last week by a simple majority – 21 for and 18 against.

On Wednesday, attorney Rhea Khan acting on behalf of Bacolet resident June Jack-McKenzie wrote to EBC Chief Election Officer Fern Narcis-Scope urgently requesting full disclosure on the criteria and methodology used in redrafting boundaries to create the three additional seats.

Khan said her client is not convinced that an increase in electoral districts is a solution to the current impasse. But even if creating 15 seats is the best option, Khan said her client wants to make sure the EBC acted lawfully and was not in contravention of the THA Act.

According to the letter, Jack-McKenzie is described as a "public-spirited individual who is concerned about Tobago affairs, the fundamental democratic process of elections...and the lawful exercise of discretion by the EBC pursuant to its constitutional status and statutory mandate."

The EBC was given seven days to respond, failing which McKenzie threatened to file for judicial review in the High Court.

Khan said the EBC report has "some matters contained...which are extraneous to the lawful division of electoral boundaries and in any event, may be ultra vires and/or outside of the statutorily prescribed criteria to be used in arriving at same.”

She said that the EBC’s discretion to determine boundaries is circumscribed and confined by the provisions of the Tobago House of Assembly Act Chapter 25:03.

“We have however noted in your report the use of several factors in the exercise of your discretion in arriving at your recommendations which are not contained within the statute. Particularly, we point to paragraphs nine, ten and 11 of your report which imports into your discretion such matters as the avoidance of community fragmentation and what you term to be the unnecessary division of communities.

"While we are unsure how the use of imaginary boundaries for use in elections could create community fragmentation or unnecessary division of communities, we have found no reference to such considerations either in the statute, accompanying schedule or in the past reports of the EBC.”

Khan added, “Further, if the EBC’s discretion is wide enough to encompass these considerations, then we request disclosure of the process and specific factors which the EBC utilised in identifying threats to the integrity of communities and how it resolved to prevent the alleged fragmentation and/or division of same. In other words, we request disclosure of the published criteria upon which the EBC relied in determining which communities could not be fractured or what precisely constitutes 'community fragmentation.'”

Khan also requested disclosure of any documentation, reports or consultation which was undertaken that may have influenced the EBC’s exercise of discretion in avoiding community fragmentation, unnecessary division and preparation of the report.

“We are of the respectful view that while there may not be a general duty to consult in the determination of boundaries, given that you were tasked with redrafting boundaries to purportedly solve a particular problem involving two political entities, a duty of consultation may have arisen in such circumstances. We also seek disclosure of whether or not there were any preliminary reports prepared in this matter by field officers and/or EBC officers functioning in Tobago.”

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