Editorial | ECJ convention sensible

Attorney General Derrick McKoy’s brief disquisition on where the real power resides for creating constituency boundaries, and the legal limits of the Electoral Commission of Jamaica (ECJ) was fully understood, and useful.

As Mr McKoy explained, the prime responsibility rests with Parliament. The ECJ’s job, fundamentally, is to advise Parliament’s Boundaries Committee on where these boundaries should be drawn, which advice, on its transmission by the committee, Parliament may, or may not accept.

That said, we are happy that the committee seems inclined to maintain the near half-century old convention of Parliament deferring to the ECJ, which is to say, fully embracing its recommendations, on election-related issues.

On Tuesday, the Boundaries Committee rejected the recommendations of one of its members, Everald Warmington of the governing Jamaica Labour Party (JLP), to instruct the ECJ to complete electoral boundaries for the proposed new parish of Portmore along with an updated national electoral register, to be published in May.

Implicit in that suggestion is that Portmore, as a parish in its own right, should be in play for the general election, which must be held before year end. Acting on Mr Warmington’s advice would have not only upended Parliament’s longstanding approach in dealing with the ECJ, but would have, on its face, placed the Government close to being contemptuous of the court, which it gave an undertaking not to promulgate the Portmore parish law until the constitutional requirements are met.

IMPORTANT ON NUMBER OF FRONTS

The boundaries committee’s action is important on a number of fronts, given that the controversial and outspoken Mr Warmingtion has sometimes been considered a stalking horse for some of his party’s potentially contentious political ideas. More importantly, following Mr Warmington would fundamentally have altered the dynamics of ECJ and erode public trust in the institution, which would be difficult to regain. That would be bad for the island’s democracy.

Although their outcomes generally represented the will of the electorate, elections in Jamaica used to be marred by intimidation, outright violence, the stuffing of ballot boxes and in some instances, their theft. This started to change with the 1979 creation of the Electoral Advisory Committee (EAC), the ECJ’s predecessor, which took the management of elections from the direct control of the government, and placing them into the hands of a quasi-independent body on which the major political parties had representatives, who could do little by themselves. The structure of the body meant that the politicians had to convince independent members for their ideas to carry.

It is now an established convention that recommendations of the ECJ are agreed to without demur, either by the government or opposition.

The move to transition Portmore (currently a city municipality in the parish of St Catherine) has been politically controversial, and lately with respect to how the government has dealt with the ECJ with respect to constituency boundaries within the new parish. The opposition People’s National Party (PNP) is against the creation of the parish, saying that the government’s real intent is gerrymandering.

CONSTITUTIONAL AND TECHNICAL

The ECJ’s issues are constitutional and technical. Jamaica’s Constitution prohibits parliamentary constituencies crossing parish boundaries and requires parliament’s boundaries committee to produce delimitation every fours years, but, at an outside, six years. That last such report was in 2022, so the next one, at the earliest, should be 2026.

Last June, with the proposed boundaries for the planned Portmore parish in circulation, Earl Jarrett, the ECJ’s chairman, wrote to the local government ministry pointing out that those boundaries crossed into constituencies in an existing parish, which would be unconstitutional. He wasn’t responded to.

In February, as the legislature prepared to debate the bill, Mr Jarrett wrote to Parliament about his concerns as well as discrepancies in the proposed boundaries. There was again no response. The bills were passed.

However, raising similar constitutional concerns, opposition went to court to prevent the law taking effect. The Government promised the court, as was reflected in a consent order, that all constitutional requirements will be met before the new parish is promulgated.

That was the basis of this week’s meeting of Parliament’s boundaries committee, and the trigger for Attorney General McKoy’s explanation of the role of the ECJ, in the context of Parliament’s authority to delimit constituencies.

Said Mr McKoy: “It might be useful to say that the function of determining constituencies – or the number of them and the boundaries, resides in your Parliament. It doesn’t reside in anybody else.

“I know we are all very proud of the electoral commission. We attribute to them all sorts of responsibilities. But the commission’s responsibility is just to advise, first this committee, and this committee will make their recommendation to Parliament.”

The attorney general also said: “You defer to it (ECJ) to advise you, and you will accept or reject the advice it gives. That Parliament makes that decision of what the boundaries are.”

That, of course, is an unimpeachable interpretation of the constitution and the law. However, the convention of deferring to the ECJ on critical election matters has proved a powerful instrument that has served Jamaica well.

Nothing said by Mr McKoy, explicitly, or otherwise, in this newspaper’s interpretation, suggests that the convention should be changed. And it shouldn’t be.