Derek Achong

A To­ba­go res­i­dent has lost her ap­peal against the pre­ma­ture dis­missal of her law­suit against the Elec­tions and Bound­aries Com­mis­sion (EBC) over its re­port on the cre­ation of three new elec­toral dis­tricts in To­ba­go.

De­liv­er­ing an oral judg­ment af­ter hear­ing sub­mis­sions dur­ing a vir­tu­al hear­ing on Mon­day, Ap­pel­late Judges Gre­go­ry Smith and Al­ice Yorke-Soo Hon ruled that High Court Judge Ava­son Quin­lan-Williams was cor­rect to refuse June McKen­zie leave to pur­sue her law­suit against the EBC in No­vem­ber, last year.

Smith, who de­liv­ered the judg­ment, said McKen­zie could not chal­lenge the re­port us­ing ju­di­cial re­view pro­ceed­ings as, if suc­cess­ful, it would mean that the re­sults of the To­ba­go House of As­sem­bly (THA) elec­tions on De­cem­ber 6, last year, are not valid.

Smith not­ed the Rep­re­sen­ta­tion of the Peo­ple Act on­ly al­lowed chal­lenges to the re­sults of elec­tions through spe­cif­ic pe­ti­tions be­fore the High Court af­ter they (the elec­tions) are com­plet­ed.

“It would have achieved through the back-door what could have been achieved through the front,” Smith said.

He ruled that Quin­lan-Williams was al­so right to pre­vent McKen­zie from pur­su­ing the case based on un­rea­son­able de­lay as it was filed af­ter the re­port was ap­proved by Par­lia­ment and the writ for the elec­tion was is­sued by Pres­i­dent Paula-Mae Weekes.

Smith al­so stat­ed McKen­zie could not prove that the EBC was act­ing out­side of its leg­isla­tive re­mit in prepar­ing the re­port and us­ing its dis­cre­tion to de­ter­mine which elec­toral dis­tricts should be split to in­crease the to­tal dis­tricts from 12 to 15.

In her law­suit, McKen­zie was claim­ing that she is in­ter­est­ed in the is­sue as she is a pub­lic-spir­it­ed in­di­vid­ual con­cerned with the de­mo­c­ra­t­ic af­fairs of To­ba­go hav­ing served as sec­re­tary for the To­ba­go East con­stituen­cy dur­ing the tenure of for­mer pres­i­dent and prime min­is­ter Arthur NR Robin­son.

McKen­zie’s lawyers claimed that the EBC breached its statu­to­ry du­ties un­der Sec­tion 4 of the Elec­tion and Bound­aries Com­mis­sion (Lo­cal Gov­ern­ment and To­ba­go House of As­sem­bly) Act by al­leged­ly util­is­ing con­sid­er­a­tions that were not ex­press­ly or im­plied­ly con­ferred by the leg­is­la­tion.

She al­so ques­tioned the EBC’s con­sid­er­a­tion of com­mu­ni­ty bound­aries as they sug­gest­ed that nat­ur­al bound­aries such as ma­jor high­ways and rivers should have been con­sid­ered.

McKen­zie’s lawyer Kiel Tak­lals­ingh claimed that while the EBC cor­rect­ly se­lect­ed the two dis­tricts that had the largest num­ber of reg­is­tered vot­ers to split, it wrong­ly by­passed the third largest ex­ist­ing dis­trict to cre­ate the last new dis­trict, as it want­ed to avoid com­mu­ni­ty frag­men­ta­tion.

Re­spond­ing to the law­suit last year, the EBC’s lawyer Se­nior Coun­sel Deb­o­rah Peake not­ed that her client strict­ly com­plied with the leg­is­la­tion and was per­mit­ted to con­sid­er com­mu­ni­ty frag­men­ta­tion in ad­di­tion to nat­ur­al bound­aries such as rivers and high­ways.

“This is some­thing that the com­mis­sion has al­ways done,” Peake said.

She al­so not­ed that in the re­port com­plained of, the EBC pro­vid­ed a com­pre­hen­sive method­ol­o­gy of how it came to its find­ings un­like in its pre­vi­ous re­ports.

Peake not­ed that if the Prov­i­dence/Ma­son Hall/Mo­ri­ah area was se­lect­ed in­stead of Good­wood/Belle Gar­den West as sug­gest­ed by McKen­zie, it would mean that res­i­dents of Ma­son Hall liv­ing on op­po­site sides of the North­side Road would be­long to dif­fer­ent elec­toral dis­tricts.

“If North­side Road was used with re­gard to how peo­ple there live, that would be an ar­bi­trary ex­er­cise of dis­cre­tion,” Peake said.

The move to in­crease the elec­toral dis­tricts in To­ba­go was the re­sult of a dead­lock in the THA elec­tions in Jan­u­ary, last year, in which the Peo­ple’s Na­tion­al Move­ment (PNM) and Pro­gres­sive De­mo­c­ra­t­ic Pa­tri­ots (PDP) each se­cured six dis­tricts.

The three new dis­tricts are Lam­beau/Low­lands, Dar­ryl Spring/Whim, and Mt St George/Good­wood. All but two of the orig­i­nal 12 dis­tricts were slight­ly mod­i­fied to make the change.

The PDP se­cured a land­slide vic­to­ry in the De­cem­ber 6 elec­tion as it won 14 of the dis­tricts.

McKen­zie was al­so rep­re­sent­ed by Di­nesh Ram­bal­ly, Ste­fan Ramkissoon and Rhea Khan. Dou­glas Mendes, SC, led the le­gal team for the Of­fice of the At­tor­ney Gen­er­al.