Kevin Ramnarine
Madam Justice Mira Dean-Armorer has ruled that the Elections and Boundaries Commission (EBC) broke the law when it extended the close of voting by one hour on the day of general elections in 2015. The learned judge in her 53-page judgment stated that it was her view that there were breaches of the election rules at every polling station where the election officers failed to close the polls as required by Rule 27(i) and that the directive of the EBC to extend voting hours was not justified in law and hence was illegal.
She also dismissed the election petitions from the United National Congress candidates in St Joseph, Tunapuna, Moruga-Tableland, San Fernando West and Toco-Sangre Grande. Since the delivery of the judgment and the finding that the EBC broke the law (the Representation of the People Act Chap 2:01), there have been calls for the affected commissioners to resign. While the UNC has signalled that it will appeal the dismissal of the petitions, it is not yet certain whether the EBC will appeal the judgment. I am of the view that those commissioners who were in office on September 7, 2015, should tender their resignation to the President. This will of course have no bearing on former chairman Norbert Masson, who retired in December 2015.
Readers may recall that in somewhat similar circumstances, in February 2009, the entire Integrity Commission resigned when they were found to have breached the Integrity in Public Act by failing to inform the MP for Diego Martin West, Dr Keith Rowley, that he was being investigated. In that matter, Rowley sought judicial review of the action of the Integrity Commission to forward a report in relation to him to the DPP without giving him a fair opportunity to be heard.
In her judgment on the matter, Justice Maureen Rajnauth-Lee ruled that the Integrity Commission had acted in bad faith and was guilty of the tort of misfeasance in public office. The Integrity Commission subsequently admitted that it had acted wrongly and issued an apology to the President of the Republic, Rowley and the people of T&T. The decision of the 2009 John Martin-led Integrity Commission to resign was a principled decision and the right thing to do.
The question that now arises is should the EBC follow the precedent created by the Integrity Commission in 2009 and resign having been found guilty of breaking the law? It should be considered that the EBC commissioners are charged with the very serious responsibly of regulating elections in T&T.
Free and fair elections form the substratum of our democracy. It is imperative therefore that the population has the highest degree of confidence in the agency charged with the regulation of elections. It is equally imperative that the population form the opinion that the outcome of any election is an accurate reflection of the will of the electorate.
The erosion of confidence in the EBC sets the country on a very slippery slope. In addition, there remain several unanswered questions related to the events of September 7, 2015. Questions have been asked as to who took the decision to extend the hours of voting, when the decision was taken, whether legal advice was sought and whether the EBC consulted the political parties contesting the polls before making the decision. The EBC cannot arrogate unto itself powers it does not have. To do that would be tantamount to assuming the law-making role of the Parliamentarians. Should the commissioners who were in office on election day not resign, I fear that the EBC would lose the moral authority to oversee future elections. The matter assumes urgency when one considers that there are two elections due in the next five months.
Like the Integrity Commission before them, there is no legal requirement for the EBC commissioners to resign. There is, however, a moral and an ethical argument that they should resign. There is also convention. In the United Kingdom, David Cameron was under no legal obligation to resign as Prime Minister following the Brexit vote. However, convention dictated that, considering that the British people had largely voted in a direction that was in opposition to his policies, he should resign.
The act of resignation when one has made a fundamental error in judgment or broken the law is an accepted convention in developed countries, but finds resistance in developing countries. Case in point, when the Panama papers scandal broke the Prime Minister of Iceland and the Prime Minister of Pakistan were both implicated in separate matters. The Icelandic Prime Minister resigned. The Pakistani Prime Minister appointed a commission to probe the allegations and is still in office.
In this country, we have too many tin gods and sacred cows. Many times people in authority become a law unto themselves. This malady is not unique to independent statutory commissions like the EBC, but extends to state enterprises and ministries where chairmen, CEOs and ministers over time begin to lose sight of the legal boundaries that delineate their power and authority. It's time to correct that and the EBC can help by following the example of the Integrity Commission in 2009.
Kevin Ramnarine is the former Minister of Energy of Trinidad and Tobago.