Judge to hear EBC Tobago seats challenge next week

NEXT Monday, a High Court judge will hear the legal challenge of a Tobago East resident who is questioning the lawfulness of decisions taken by the Elections and Boundaries Commission (EBC) and the methodology it used to change the electoral districts in Tobago from 12 to 15.

Attorneys for June Jack-McKenzie on Friday filed a judicial review application which sought the court’s permission to challenge the EBC.

The matter came up for hearing on Monday, when Justice Carol Gobin agreed to hold a rolled-up hearing incorporating the leave application and the substantive judicial review claim.

She has set the matter for October 25.

On Saturday, the Prime Minister spoke of the legal proceedings, telling reporters, “There is an election in Tobago and the Elections and Boundaries Commission has received from the UNC its pre-action protocol and the Elections and Boundaries Commission is to be taken to court.”

In her claim, Jack-McKenzie, of Bacolet, has complained that some of the methodology used by the EBC to determine the new 15 districts were outside the commission’s statutory powers.

She will be asking the court for declarations that the EBC’s consideration of “community fragmentation and ensuring they were not divided” in arriving at the new districts was unlawful and should be voided and that the 2021 EBC Order, proclaimed by the President, which gave effect to the creation of the three additional seats, be declared unlawful.

Jack-McKenzie wants the order and the EBC’s report quashed by the court.

She says she was very concerned about the state of democracy and the lack of confidence in many institutions in TT. She also said she has always been keenly interested in the politics of Tobago and had assisted in the campaigns of former prime minister ANR Robinson. She was also Robinson's secretary in the Tobago East constituency and said she was aware and conscious of developments in Tobago politics.

In her lawsuit, she said she believes it is important for the court to interpret the relevant statutes to determine if the EBC acted within the law.

Her lawsuit contends it was only when the EBC’s report was presented to Parliament, did she know of it as there was no notice that the commission had embarked on the exercise to create three additional seats.

The need for the creation of the additional electoral districts came after January’s Tobago House of Assembly (THA) elections which resulted in an unprecedented six-six tie between the People’s National Movement – which previously held ten seats and the Progressive Democratic Patriots – which previously held two.

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

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.

Jack-McKenzie, in separate pre-action protocol letters, sought full disclosure on the criteria and methodology used in redrafting boundaries to create the three additional seats.

Her lawsuit contends she is not convinced an increase in electoral districts was a solution to the impasse, but if it was, then she wanted to ensure the EBC acted lawfully and not in contravention of the THA Act.

The lawsuit says the EBC’s discretion to determine boundaries is circumscribed and confined by the provisions of the THA Act Chapter 25:03.

Jack-McKenzie maintains there is no reference to either community fragmentation or unnecessary division of communities either in the statute, accompanying schedule or in the past reports of the EBC.

She is keen to know where did the consideration of the fragmentation of communities came from, what was meant by it and what factors were used to determine what could fragment a community.

"In Tobago we have a saying, 'just so breeze does come from no way and blow fowl tail.' In other words, I am advised by my attorney and verily believe that this consideration may be arbitrary because out of the blue the EBC has used these matters to make recommendations for the division of electoral boundaries."

The EBC has maintained the commission acted within the law and the Constitution and insisted it cannot be said it took into account irrelevant considerations when compiling its report.

It also rejected the view that the commission was tasked to redraft boundaries to solve a “particular problem involving two political entities,” insisting that it did its duties in accordance with its obligation prescribed by law, which was to define and review electoral boundaries, which eventually led to the increase in the number of districts from 12 to 15. This was referred to in the claim.

The lawsuit contends that the use of such considerations violated the principles of transparency and accountability as the terms are “vague, nebulous and uncertain.”

“There is too great a risk of arbitrary application… and contrary to the principle of legal certainty which is required in law.”

In one of the pre-action protocol letters sent by Jack-McKenzie’s lawyers to the EBC, it was pointed out that the EBC report, in treating with the creation of the three new districts, two were created on a purely numerical basis (dividing the largest districts), while, when creating the 15th district – Providence/Mason Hall – Moriah was bypassed.

This district, which has 4,484 voters, was sequentially the next largest district but, instead, the EBC was accused of using Goodwood/Belle Garden West, with 4,311 voters, to create a new district on the basis it wanted to avoid fragmenting communities.

The letter contended it was surprising that the EBC indicated it did not identify threats to the integrity of communities and did not embark on any determination of which communities could not be fractured.

Jack-McKenzie is represented by attorneys Dinesh Rambally,Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan.