Lloyd Barnett | Fixed dates for general and by-elections

The question of whether or not there should be fixed election dates has been one of long and intense debate. Section 64(2) of Jamaica’s Constitution provides that Parliament continues for five years after its first sitting following a general election, unless sooner dissolved on the advice of the prime minister. Thereafter, general elections must be held within three months, the actual date being fixed by the prime minister. The date for the holding of general elections is therefore entirely at the discretion of the prime minister. This is an entrenched provision of the Constitution and will normally require bi-partisan support for its change.

The grant of this unrestricted right to a prime minister does not establish a level playing field, particularly as he or she may so order the business of government so as to ensure that the election is held on a date which is advantageous to his or her party. As a country in which athletics is part of our culture, we understand how unfair it would be to give to the reigning sprints champion the exclusive right to hear the starter say “on your marks”.

Nevertheless, a majority of countries maintain the optional or floating election date system. These include most Commonwealth countries. Canada is the exception within the Commonwealth. The United States of America and the Dominican Republic also have fixed election dates. However, in Canada, there has been a campaign, especially in the Provinces, against the fixed date system. For a short time, the British, under an act of Parliament passed in 2011, introduced a fixed-date system but, contrary to the recommendations of the Parliamentary Committee, this act was repealed in 2022. This manoeuvre occurred during the highly contentious Brexit dispute and so is not indicative of a non-partisan or entirely rational resolution of the question.

MAIN ARGUMENTS

There are three main arguments in favour of fixed election dates. The first is that it provides a level playing field which is important in democracies where elections should be fair. Without any legal restriction on the time at which a political leader can determine that elections should be held, he or she will tend to exercise that right solely in his or her personal political interest rather than the national interest.

The second reason advanced in support of fixed election dates is that it promotes efficiency because, when the time for the holding of general elections is uncertain, it is not conducive to efficient planning in the public or private sector. Fixed election dates also facilitate the operations of the budget cycle and financial administration. It would also be advantageous to private sector and relevant civil society organisations which are impacted by elections.

The third reason is that the fixed election date promotes efficiency in electoral administration. It certainly would facilitate the Electoral Commission, the director of elections and the political ombudsman, as well as the political parties. For instance, the monitoring mechanisms for campaign financing and the prevention of corruption could be more efficiently implemented in a fixed date system.

It remains possible in a fixed date system to retain the important principle by which a vote of no-confidence will result in the termination of the current life of Parliament and the opportunity given to the people to decide whether a governing party should remain in power.

If a decision is taken to change from the present uncertain system, there are options which can be utilised to make the alternative remedy flexible. For instance, in Germany, the elections have to be held between 46 months (at the earliest) and 48 months (at the latest) after the commencement of the current term.

EVERY THIRD YEAR

It is significant that in the case of local government, the incorporating acts had provided that elections are to be held in every third year on such dates not earlier than in the month of March or later than the month of June, as is determined by Proclamation made by the governor-general. Subsequent statutory amendments have been made which allow an extension of 90 days after the fourth anniversary of the most recent elections. There have, however ,been several extensive postponements of local government elections which are facilitated by the fact that this can be done by ordinary legislation which is in the control of the current government.

Thus, no local government elections were held in Jamaica from 2016 until February 2024, although, in 2015, the Constitution had been amended to make express provisions for the inclusion of a democratic system of local government for Jamaica. As a result, for a long period, electors were denied their fundamental right to vote in elections for their local representatives. It is clear that the Constitution should be amended to prevent any reoccurrence of this abuse of power.

Essentially, Jamaica’s system of local government is closely intertwined with central government, both politically and administratively. Statutory provisions have been made for the holding of local government elections at the same time as parliamentary elections, where the time for these elections falls within 120 days of each other. There is a strong argument that it would be more efficient and cost-effective to have a system which ensures coordinated policies and administration by compelling the holding of both national parliamentary and local government elections at the same time.

A fixed period should, in any even,t be applied without hesitation to by-elections. Where there is a casual vacancy in Parliament (as is the case in a municipality) by reason of the death, resignation or disqualification of the representative, the electorate should not be denied representation for any appreciable time. Accordingly, the Constitution should fix a period within which the by-elections to fill such vacancies in parliament must be held and, in this case, the actual date should be fixed by the Electoral Commission.

There is clear need for constitutional reform in this area to be given serious consideration.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com