ECJ blunders

IT IS exceedingly rare, if ever, that this newspaper has had cause to disagree with, or criticise, the Electoral Commission of Jamaica (ECJ). But the ECJ has never before endorsed, or declared its willingness to give expression to, the Government’s bad idea of subsuming the political ombudsman in the commission. Which brings us to our oft-repeated declaration about bad policy: what’s worse than their formulation is their implementation.

In that regard, Earl Jarrett, the chairman of the ECJ, and his fellow commissioners still have an 11th-hour opportunity– if they have not done so as yet– to avoid being complicit in foisting a bad policy on Jamaicans and, in the long term, do harm to the commission.

Having been passed by the House on Tuesday, the legislation to give effect to this blunder is to be debated by the Senate tomorrow, where, in the normal course of things, it will pass. Mr Jarrett must therefore urgently advise Prime Minister Andrew Holness that he and the other independent members of the commission have now recognised their error and have withdrawn their endorsement of the plan.

With the legislation having failed, the existing Political Ombudsman (Interim) Act would then remain in place. On that basis, the ECJ should then encourage critical stakeholders to call on the governor general, Sir Patrick Allen, to exercise what in the law seems to be his exclusive authority to appoint an ombudsman for an interim period. Donna Parchment Brown, the previous ombudsman; her predecessor, the Rev Herro Blair; the public defender, Carolyn Reid-Cameron; or someone of similar stature might be asked to act for the next several months.

CRITICAL INSTITUTION

The political ombudsman – the post has been vacant since Parchment Brown’s seven-year term expired in November 2022– is one of the important outgrowths of Jamaica’s turbulent politics of the 1970s and ’80s, when campaign violence and ballotstuffing were rife. Another critical institution born out of those times was the ECJ, which is in charge of the mechanics of preparing for, and management of, elections, which it has done a good job of cleaning up.

The ombudsman, though, is an institution of a different sort. It is concerned primarily with attitudes and behaviours of political parties and with helping them to keep the peace among themselves. Put another way, the political ombudsman deals with the moral and philosophical side of the political process and democracy, rather than its mechanics.

That starts with the ombudsman’s policing of a code of behaviour agreed to by the major parties, so that their rhetoric and actions on the hustings do not lead to tensions and violence. The ombudsman can undertake investigations of breaches of the code either on the basis of external complaints or on its own volition. It has semi-judicial powers in conducting its probes.

An ostensibly big concern, however, including by government officials recently, is that the ombudsman lacked authority to sanction offenders. The office could only make suggestions to the offenders and their political leaders about how to address their misconduct.

There were signals that this would change with any new arrangement.

This presumed weakness in the ombudsman’s powers may, in retrospect, be an exaggeration that fails to appreciate the subtleties of the office. The public announcement of the office’s findings allows it, in effect, to name and shame misbehaviours. The office of itself, and the bully pulpit it provides the holder, asserts a moral authority to coax politicians to decency. Muscular powers, in that context, would be a last resort.

IMPRESSION OF UNANIMITY

The ombudsman’s job, this newspaper believes, ought to be ongoing – beyond election cycles and campaign periods. But this concept of the office is not, it appears, ingrained in the precepts of the Jamaican democratic process.

So despite many statements of intent about the shape of the new ombudsman, it was only last week, with the administration preparing to announce the date for municipal elections, that the administration hurriedly brought to Parliament the bill to make the ECJ the political ombudsman.

Delroy Chuck, the minister in charge of electoral matters, suggested that Mr Jarrett had signalled that there was unanimity at the ECJ that all the commissioners, including the four appointed by the two big political parties, “should perform the functions of the political ombudsman”, making the body “indivisible”.

It is possible that the ECJ, in its role as ombudsman, will get through the municipal elections without stress. We are not sanguine about the long term, and share the concern of Karl Samuda, the veteran member of the governing Jamaica Labour Party, of the risk of “tinkering” with the ECJ. There was a danger, he told parliamentary colleagues, of “reintroducing concerns and confrontations of a partisan nature and (that) detract from the distinctly apolitical and neutral work of the ECJ”.

Samuda echoed the concerns of several society organisations, including the election monitors, Citizens Action for Free & Fair Elections, which argued that it would not be“prudent to submit to the Electoral Commission of Jamaica the ethical questions which are normally dealt with by the political ombudsman”.

There are already signs that these arguments could prove true. The political Opposition, which has two voting members of the ECJ, has, contrary to the impression of unanimity on the commission, distanced itself from the move.

Decisions of the ECJ are taken by majority vote, which, given its eight voting members (the director of elections does not have a vote at meetings), requires the independent members voting with one side or the other in the event of a stand-off between the representatives of the parties. There are likely to be many such instances when accusations of breaching the code of political conduct are being debated and hearings relative thereto are being held. The independent members will likely often find themselves in invidious positions on matters that, unlike their current deliberations, will have far more public, and partisan, airings.

The opinions on this page, except for The Editorial, do not necessarily reflect the opinions of The Gleaner.