High Court Judge Avason Quinlan-Williams is expected to decide whether a woman should be granted permission to pursue her lawsuit against the Elections and Boundaries Commission (EBC), over its recent report on the creation of three new electoral districts in Tobago today.
Quinlan-Williams reserved her decision on whether June Mckenzie, of Bacolet, Tobago, should be granted leave to pursue the judicial review after hearing extensive submissions on the issue from her attorneys and those representing the EBC and the Office of the Attorney General yesterday.
The case was first assigned to High Court Judge Carol Gobin, who agreed to hear it in a rolled-up hearing in which leave and the substantive issues in the case would be dealt with simultaneously.
However, the case was transferred to Justice Quinlan-Williams after the AG’s Office brought a preliminary application to strike out the case and Justice Gobin was on vacation.
Justice Quinlan-Williams then decided against the rolled-up hearing and agreed to deal with whether McKenzie should be granted leave and the application from the AG’s Office first.
Presenting submissions during the virtual hearing yesterday, McKenzie’s lawyer Kiel Taklalsingh claimed that the EBC’s report was tainted, as it considered community fragmentation, which was not specifically referenced by the Election and Boundaries Commission (Local Government and Tobago House of Assembly) Act.
“It is our submission that nothing in the act allowed the EBC to take into consideration what they did,” Taklalsingh said, as he noted that community fragmentation was not considered by the EBC in previous reports.
He suggested that if the EBC was using the consideration when exercising its discretion to establish the new electoral districts, it should have been disclosed to the public first.
“It (the EBC) plays a pivotal role in democracy and it must be transparent…Any discretion they exercise would be scrutinised,” Taklalsingh said.
He noted that while the EBC appeared to have selected the first two electoral districts based on numerical analysis, it selected the third based on the consideration under challenge.
Responding to the submissions, 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, 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 be mean 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 persons there live, that would be an arbitrary exercise of discretion,” Peake said.
In his submissions, Senior Counsel Douglas Mendes claimed that McKenzie should not be allowed to pursue the lawsuit, as she delayed filing it.
Mendes said the challenge to the report should have been made before it was approved by Parliament and the election date of December 6 was set after President Paula-Mae Weekes issued the Elections and Boundaries Commission (Local Government and Tobago House of Assembly) (Tobago) Order 2021.
“Even if the commission agreed it had flaws in the report, there was nothing it could do to correct it,” Mendes said.
He suggested that McKenzie should have waited until the election was completed to make her challenge through an election petition under the Representation of the People Act.
“Once the election had been called, her only option was to wait for it to be completed and challenge it by an election petition,” Mendes said.
Mendes also said that the lawsuit affected third parties, who were awaiting the election so the Tobago House of Assembly (THA) would be properly constituted.
Responding to the submissions, Taklalsingh rejected the third-party concerns, as he noted that no one objected after his client advertised her intention to pursue the lawsuit.
The move to increase the electoral districts in Tobago to 15 was the result of a deadlock in the THA elections in January, 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.
Five parties registered candidates during THA Nomination Day yesterday.