Sat | Dec 16, 2017

Editorial | Removal of EOJ boss demands transparency

Published:Thursday | November 2, 2017 | 12:00 AM

Notwithstanding the convention of parties to legal disputes refraining from comment, the independent, or so-called selected members of the Electoral Commission of Jamaica (ECJ), owe the public an explanation for backing the surprising, and seemingly sudden, decision to remove the director of elections, Orrette Fisher, from his job to and open it to public application.

After all, the director of elections is an important public official in whose appointment, performance and removal the public has interest and is owed transparency. This matter is beyond Orrette Fisher.

In the meantime, this issue with Mr Fisher provides an opportunity for a review of elements of the Electoral Commission (Interim) Act which provides the basis for the existence of the ECJ as well as for the Government to indicate when the commission will, as promised, be entrenched in the Constitution.

As the situation currently stands, Mr Fisher is, by agreement between the parties, being allowed to stay in his job until the end of November, by which time the Supreme Court should have heard his application for an injunction for a longer-term stay, ahead of fuller arguments disputing the ECJ's ability to remove him. Without this stay, Mr Fisher would have been ousted on Tuesday, the day after he presided over three largely successful by-elections, including the one for the hotly contested South East St Mary parliamentary seat.

The ECJ, which oversees Jamaica's elections systems and matters related thereto, is a nine-member body appointed by the governor-general. Two members each are nominated by the prime minister and the leader of the opposition and four others the selected members by the governor general in his own right, but after consultations with the prime minister and the opposition leader. It is these eight commissioners who select the director ofelections.

In a sense, the nominated and selected members are the directors and Mr Fisher the CEO. He runs the day-to-day operations of the Electoral Office of Jamaica.

Mr Fisher has been in the job for nine years. His first appointment was for seven years, followed by two one-year contracts, the latest of which supposedly expired on October 31. The ECJ did not wish to renew the arrangement. Except that Mr Fisher's lawyer, Hugh Wildman, has raised public-policy issues. He may have a point.

Section 4 (1) of the first schedule of the act says: "Subject to the provisions of this Schedule, the appointment of a selected Commissioner and the Director shall be for a period of seven years." So, according to Mr Wildman, Mr Fisher could not, in law, have been appointed for one year, no matter that he signed the contract. It had to be for seven years.

 

Different scenario

 

On the face of it, a decision not to extend or renew a contract, which is apparently the case in this instance, is different from the powers under Section 4 (5) (d) of the schedule, allowing the removal of the director of elections "by a vote supported by not less than six commissioners including at least three selected commissioners".

This case has echoes, at least from the public policy front, of that failed attempt by Prime Minister Andrew Holness, when he was in opposition, to use pre-signed, but undated letters, to affect the resignations from the Senate of Arthur Williams and Christopher Tufton.

The courts ruled in that case that not only was an appointment to the Senate irrevocable, but as Justice Daye put it, resigning from the legislature was "non-delegable" and Mr Holness' purported use of the letters was therefore unconstitutional "and contrary to public policy".

There are related issues with regard to the ECJ that needs serious scrutiny in any parliamentary review. It requires two-thirds of the commissioners, including 75 per cent of the selected members, to revoke the appointment of the director of elections. Yet, in the case of selected members, who are chosen by the governor general, only a majority of all voting members is required. However, if Parliament decides to remove one of these members, a two-thirds majority in either chamber is necessary.

The logic of the existing threshold, especially the lower bar required by commissioners to remove a selected member, is not immediately apparent.