Gov't asserts 'no intention' to enforce Portmore parish law before boundary changes

The Government says it never intended to enforce the Portmore parish law until constituency boundaries are settled, pushing back against Opposition claims of potential constitutional breaches.

The assertion is contained in documents filed on Thursday in the Supreme Court ahead of today's 2 p.m. hearing before Chief Justice Bryan Sykes.

He is to determine, among other things, whether a March 21 interim injunction blocking the law from taking effect will continue until a lawsuit brought by members of the Opposition People's National Party (PNP) is tried.

Four officials filed an affidavit of urgency on March 17, arguing that enforcing the law would cause "potentially irreparable constitutional breaches" and "violations of the structure of local governance," and if it's found to be unconstitutional, it would create "widespread instability and electoral confusion".

Despite the PNP's assertions, lawyers from the Attorney General's Chambers, which is representing the Government, said there is "only one" arguable issue raised for the maintenance of the injunction.

They identified the issue as the allegation that the law is inconsistent with the constitutional requirements for determining constituency boundaries, according to the documents obtained by The Gleaner.

But according to the government lawyers, Local Government Minister McKenzie "has not notified any date for the legislation to be brought into operation." They also noted that while the Governor General signed the legislation on March 12, it requires the minister to specify a date for it to come into effect.

"The ministry has indicated through the affidavit of the Permanent Secretary (Marsha Henry Martin) that there is no intention to bring the act into operation before the constituency boundaries for the parish of Portmore are established," the Government lawyers said.

That position was not stated in Parliament as Local Government Minister Desmond McKenzie piloted the controversial legislation through the House of Representatives in February.

The lawyers concluded that thee PNP’s argument for maintaining the injunction "has no basis" because the ministry "intends to allow the process for establishing the constituency boundaries for the parish of Portmore..."

The state lawyers also pointed to laws that came into effect years after being approved by Parliament. They singled out the 2014 Disabilities Act, which took effect in 2022, and the 2019 Road Traffic Act, which was brought into operation in 2023.

The PNP officials' use of the concerns raised by the Electoral Commission of Jamaica (ECJ) has also been dismissed by the Government.

In February, ahead of the Senate debate and approval, the ECJ warned Parliament that the proposed parish boundary "may negatively affect" a constitutional provision prohibiting constituencies from crossing parish lines.

The ECJ said it raised that concern in a June 2024 letter to Henry Martin, noting that the proposed boundary for the parish of Portmore "will impact four constituencies, 13 electoral divisions, and 398 polling divisions from the parish of St. Catherine."

The Constitution states, "The boundary of a constituency shall not cross the boundary of a parish as delimited by the Counties and Parishes Act or by any law amending or replacing that law."

However, the Government is contending that it had sought multiple responses from the ECJ since that letter but was yet to receive any updates.

The Government said the ministry has been engaging the ECJ, which has the duty to set electoral boundaries, on the Portmore issue.

It said it wrote to the director of elections in February 2022, inviting comments on a submission to Cabinet based on a parliamentary report that recommended parish status for Portmore. The ministry said the ECJ informed it in May 2022 that the commission "is prepared to give its feedback once the boundaries for the parish of Portmore are defined..."

The ministry said despite the ECJ's stance, it continued to engage the commission, including submitting a copy of the proposed parish boundary in March 2024. The ministry acknowledged receiving, in September 2024, a letter dated June 2024, in which the ECJ raised "discrepancies" about the proposed boundaries.

The ministry said it wrote to the ECJ on January 16, 2025, requesting a meeting to discuss the issues. "The ministry received no response from the ECJ in response to its request for a meeting despite further letters dated October 8, 2024, November 22, 2024, and January 16, 2025," the Government's lawyers said.

They also said, "there is no serious issue to be tried," arguing that the constitutional requirement that constituency boundaries not cross parish boundaries "applies to the conduct of elections to the House of Representatives." They argued that the provision "directly applies" to constituency boundaries and not the Counties and Parishes Act, under which the Portmore parish law is based.

"What is apparent is the Government's intention to make Portmore a parish. Without a Constituencies (Boundaries) Order that incorporates, without more, the prospective Portmore constituencies, the question of the constitutionality of the Act has not been triggered, as in all the circumstances, all the preparatory steps to be taken by the House of Representatives, the Governor General, and the ECJ have not been completed," the lawyers said.

They said the PNP claimants have also not demonstrated or provided the court with any evidence of "irreparable harm" if the injunction is removed. They said the balance of convenience "favours" the Government in lifting the injunction.

The legal challenge, filed on March 17, lists the claimants as Portmore’s Member of Parliament Fitz Jackson, Mayor Leon Thomas, and councillors Claude Hamilton and Vanrick Preddie.

With the change, Portmore will no longer have the direct election of a mayor, which means Thomas will lose his position.

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