ECJ says Portmore mayoral poll going ahead
Using old boundaries that will exclude almost 5,000 people from participating in today's election of the mayor of Portmore could expose the results to court challenges, Attorney General Marlene Malahoo-Forte has advised.
However, Dorothy Pine-McLarty, chairman of the Electoral Commission of Jamaica (ECJ), says that while the court challenge "is quite possible", going ahead with the elections is out of "necessity".
Last week, Supreme Court judge Martin Gayle ruled that changes signed off on in 2015 by Noel Arscott, then local government minister, breached the 2003 Municipalities Act, which established Portmore as a municipality.
However, it has emerged that the ruling did not consider the Local Governance Act 2016, which repealed the 2003 Municipalities Act and maintained the decisions of the minister.
DOCTRINE OF NECESSITY
In her opinion, sought by the ECJ, Malahoo-Forte said going ahead with the Portmore mayoral elections under the wrong ruling can be done out of "necessity".
"The doctrine of necessity is relevant in these circumstances," she said, pointing out that the Electoral Office of Jamaica (EOJ), upon getting the November 22 ruling, went ahead and changed the voters' list for the November 25 special voters' election and today's polls.
That list excluded 4,837 electors in 16 polling divisions in Greater Portmore North, St Catherine Southern, Portmore Pines, and in St Catherine East Central.
"The law recognises that necessity excuses what it compels. As such, it is my considered view that the ECJ (through the EOJ) may proceed to hold the poll on the 28th (today), having already held part of the said poll, which relates to the election workers and members of the security forces."
She added: "If the Electoral Commission of Jamaica accepts this opinion, it is important to note the possibility of the future challenge to the poll in the Municipality of Portmore."
Pine-McLarty told The Gleaner that the nine-member commission met yesterday and accepted the opinion. "We are satisfied that the decision taken on Thursday to proceed with the election of the special services on Friday was the best in the circumstances, and, similarly, to continue today in the Portmore Municipality as well.
"The decision on the Lennox Hines case did not take into account the relevant provisions of the Local Governance Act, hence we had to revert to the 2003 boundaries and similarly amend the list to coincide with the reduced municipality," Pine-McLarty continued.
Hines is the Jamaica Labour Party (JLP) candidate caretaker for the Southborough division who, in 2015, challenged Arscott's decision.
The People's National Party had called on the ECJ to reject the opinion of Malahoo-Forte and seek independent advice, saying that she was "clearly conflicted" because she was a JLP member of parliament.
The JLP is seeking to wrest control of the municipality from the PNP, and some of the affected residents are from PNP strongholds.
Pine-McLarty said that the ECJ is not uncomfortable with the situation, although she acknowledged that the affected residents could sue. "It is their democratic right if they are unhappy and dissatisfied and have their doubts. Then they have every right to pursue that, and that is something that is quite possible in these circumstances."
The ECJ head also explained that the commission could not postpone the elections because while the law pronounces on municipal corporations, it is silent on municipal cities such as Portmore. Malahoo-Forte said, "There is, therefore, a gap in the law."
Some 93,054 people will be eligible to vote today for the mayoral position being contested by Keith Blake of the JLP and the PNP's Leon Thomas.