Tobago resident loses EBC seat challenge again

A Tobago resident has again lost her challenge against the Elections and Boundaries Commission’s (EBC) report on the creation of three new electoral districts in Tobago.

In an oral ruling on Monday, Justices of Appeal Alice Yorke-Soo Hon and Gregory Smith held June Jack-McKenzie could not achieve through the back door, what should have been done through the front door.

They agreed with Justice Avason Quinlan-Williams that Jack-McKenzie should not have brought a judicial review application but filed an election petition after the December 6 polls for the Tobago House of Assembly if she wanted to challenge the illegality of the EBC’s actions.

The judges held Quinlan-William was correct to refuse leave for Jack-McKenzie to pursue her lawsuit against the EBC in November, last year

Smith, who delivered the judgment, said if Jack-McKenzie was successful in her judicial review challenge, it would mean the results of December’s polls are not valid.

He said the Representation of the People Act allowed for such challenges after the elections were completed and Jack-McKenzie should not have brought her challenge after the President issued the writ of election. He said there was an opportunity to challenge the EBC’s decisions and report in the Parliament before it was approved.

Smith also said Jack-McKenzie could not prove that the EBC was acting outside of its legislative remit in preparing the report and using its discretion to determine which electoral districts should be split to increase the total districts from 12 to 15.

In her lawsuit, Jack-McKenzie claimed she was interested in the issue as a public-spirited individual concerned with the democratic affairs of Tobago having served as secretary for the Tobago East constituency during the tenure of former president and prime minister ANR Robinson.

Jack-McKenzie's lawyers claimed that the EBC breached its statutory duties under Section 4 of the Election and Boundaries Commission (Local Government and Tobago House of Assembly) Act by allegedly using considerations that were not expressly or impliedly conferred by the legislation.

They also questioned the EBC's consideration of community boundaries, suggesting that natural boundaries such as major highways and rivers should have been considered.

Jack-McKenzie's lawyer Kiel Taklalsingh claimed that while the EBC correctly selected the two districts that had the largest number of registered voters to split, it wrongly bypassed the third largest existing district to create the last new district, as it wanted to avoid community fragmentation.

The EBC’s attorney, Senior Counsel Deborah Peake, argued that Jack-McKenzie had to demonstrate that the EBC’s use of its discretion to create the new seats was unreasonable. She said Jack-McKenzie’s lawyers had not done so, nor did they provide support for their claim that the commissioner acted illegally.

She questioned what was the EBC expected to do, “go eeny, meeny, miny, moe? Willy-nilly cut up a community by picking a natural boundary? That is not what a responsible commission will do.”

She said the EBC strictly complied with the legislation and was allowed to consider community fragmentation in addition to natural boundaries such as rivers and highways.

She also said the EBC’s report approved in Parliament without challenge provided a comprehensive methodology of how it came to its findings unlike in its previous reports.

Smith also agreed it would be a “fallacy” to say no one knows how the EBC chose the new districts.

It was Jack-McKenzie’s contention that the EBC should have selected Goodwood/Belle Garden West and not Providence/Mason Hall/Moriah.

The move to increase the electoral districts in Tobago was the result of a deadlock in the THA elections in January 2021, in which the People's National Movement (PNM) and Progressive Democratic Patriots (PDP) each secured six districts.

The three new districts are Lambeau/Lowlands, Darryl Spring/Whim, and Mt St George/Goodwood. All but two of the original 12 districts were slightly modified to make the change.

The PDP secured a landslide victory in the December 6 election as it won 14 of the districts.

Jack-McKenzie was also represented by Dinesh Rambally, Stefan Ramkissoon, and Rhea Khan. Douglas Mendes, SC, led the legal team for the Office of the Attorney General.