Right rul­ing on Port­more bound­ary

Jamaica Gleaner - - OPINION & COMMENTARY -

NO ONE who has had even a cur­sory read of the Mu­nic­i­pal­i­ties Act would be sur­prised by Jus­tice Martin Gayle’s rul­ing this week that main­tains the ex­ist­ing bound­aries of the Port­more mu­nic­i­pal­ity in the parish of St Cather­ine.

The most im­me­di­ate con­se­quen­tial ef­fect of this de­ci­sion is that it will pre­vent res­i­dents from the St Cather­ine com­mu­ni­ties of Lakes Pen, Quar­rie Hill, Grange Lane and Clifton, which are part of the con­stituency of St Cather­ine South­ern, from vot­ing in next week’s vote to choose the mu­nic­i­pal­ity’s coun­cil and its di­rectly elected mayor. Un­less there is a stay or ur­gent over­turn of the judge’s rul­ing, the de­ci­sion im­plies changed political cal­cu­lus for par­ties and can­di­dates who con­test the elec­tion and po­ten­tially messy man­age­ment prob­lems for the Elec­toral Of­fice of Ja­maica (EOJ), only days ahead of the vote. It need not have come to this. Nine­teen months ago, when two Port­more politi­cians, Keith Blake and Wel­ton Shet­tle­wood, first chal­lenged then lo­cal gov­ern­ment min­is­ter, Noel Arscott, on the way he was at­tempt­ing to ad­just the Port­more bound­aries, we, too, warned Min­is­ter Arscott of the folly of his ways.

UNAMBIGUOUS DEC­LA­RA­TION

As we said then, and Jus­tice Gayle up­held, the unambiguous dec­la­ra­tion of Sec­tion 3 (3) is of the rules for es­tab­lish­ing the bound­aries of a mu­nic­i­pal­ity be­fore it re­ceives its char­ter from the min­is­ter. That in­cluded hav­ing a pe­ti­tion “signed by seven per cent of the in­hab­i­tants of the pro­posed mu­nic­i­pal­ity, whose names, at the time of the sig­na­ture, are on the of­fi­cial list of elec­tors for the House of Rep­re­sen­ta­tives”. Nowhere in the law is there a pro­vi­sion for how a bound­ary is to be amended.

In other words, in law, once the mu­nic­i­pal bound­aries are es­tab­lished, there is no way to change them, bar­ring amend­ing the leg­is­la­tion. In­stead, Mr Arscott sought to use the rules that ap­ply at the ge­n­e­sis of a mu­nic­i­pal­ity and en­gaged the EOJ as an agent in gath­er­ing sig­na­tures for the pe­ti­tion.

Ini­tially, he seemed to have im­plicit sup­port from the then op­po­si­tion Ja­maica Labour Party (JLP), on the grounds that elec­tion-re­lated is­sues, in­clud­ing vot­ing bound­aries, are usu­ally set­tled by con­sen­sus by the Elec­toral Com­mis­sion of Ja­maica (ECJ), on which the ma­jor political par­ties are rep­re­sented.

What­ever may have been the broad merit of that po­si­tion, it ig­nored a crit­i­cal fact: de­ci­sions taken by the ECJ have to be grounded in law, not ul­tra vires thereof. In­deed, it is the case that when the ECJ rec­om­mends sub­stan­tial changes to elec­toral pro­ce­dures, which are not con­tem­plated in ex­ist­ing laws, they are ac­com­pa­nied by pro­posed amend­ments to the law, or for the pas­sage of new ones.

In any event, in this case, this was not an ini­tia­tive of the ECJ, but an ac­tion of the then min­is­ter, in which, un­for­tu­nately, the ECJ al­lowed it­self to be em­broiled. For while min­is­ters might ar­gue that mu­nic­i­pal­ity bound­aries are specif­i­cally within their purview, the ECJ has de­vel­oped suf­fi­cient moral au­thor­ity to say no, sim­i­lar to how it re­cently pushed back against the new ad­min­is­tra­tion on their own Port­more bound­ary ad­ven­ture.

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