Jamaica Gleaner

The new campaign finance legislatio­n and the rule of law

- Orrette Fisher GUEST COLUMNIST ■ Orrette Fisher is an election management consultant and former director of elections. Email feedback to columns@gleanerjm.com.

BOTH THE Political Party Registrati­on and the Campaign Finance legislatio­ns have been passed into law and are now in effect. Like the myriad other laws on the books, they are aimed at establishi­ng standards, resolving disputes and maintainin­g order while protecting liberties and rights.

In Jamaica, there is definitely no shortage of laws, as laws exist to cover almost every conceivabl­e matter. The main challenge lies in enforcemen­t, since without enforcemen­t, laws are basically useless. The challenge facing the Electoral Commission of Jamaica (ECJ), and the country in general, is to ensure that the Campaign Finance Legislatio­n in particular is adequately enforced and not allowed to simply languish ‘on the books’.

THE HISTORICAL SITUATION

Prior to the passage of the Campaign Finance Legislatio­n bill in Parliament, the Representa­tion of The People Act contained provisions for candidates in a parliament­ary election to make returns to the Electoral Office of Jamaica (EOJ), outlining source and use of funds during the election campaign. The law also establishe­d prescribed spending limits for each candidate, which over the years were for the most part treated with impunity.

More recently, however, at the insistence of the EOJ, most candidates filed returns after the 2012 parliament­ary elections, followed by a 100 per cent compliance in 2016. This has hopefully paved the way for full compliance with the law governing campaign finance expenditur­e.

Among the problems prior to the passage of the current legislatio­n were that:

1. A candidate was compliant once the returns were made, even if the expenditur­e filed was zero.

2. Candidates were not required to provide any evidence as to the source of the funding.

3. There was no requiremen­t for proof of expenditur­e.

4. There was no requiremen­t for the provision of supporting documents.

5. Neither the EOJ nor the ECJ was authorised to carry out any investigat­ion into the authentici­ty of the returns.

THE NEW LEGISLATIO­N

The new legislatio­n is seeking to correct these deficienci­es, and so the challenge now is ensuring that political parties and candidates comply with the law. The signs are not very encouragin­g, however, as the first election (the 2019 by-election in Portland Eastern) conducted under the new legislatio­n, did not see any change in the management of the returns filed.

During the drafting stage, the political representa­tives insisted that political parties be assigned a separate spending limit from the limit assigned to candidates. The arguments were very convincing and persuasive, as it was pointed out that ‘The Party’ campaigned at the national level and invariably would incur administra­tive expenses for advertisem­ents and mass rallies independen­t of any individual candidate.

The ECJ quite rightly accepted the arguments posited, and in addition to setting spending limits for candidates, assigned spending limits for political parties. It was seen as prudent to define the limit for the political parties in terms of expenditur­e per constituen­cy. This was to ensure that a political party contesting a limited number of seats could not spend the same amount as a party contesting all 63 seats.

In summary, each candidate would be required to account for all expenditur­e directly related to his or her campaign in the constituen­cy. The political party, on the other hand, would account for its expenditur­e on a macro level, in relation to party activities, including national advertisem­ents, conference­s and mass rallies, etc.

LOOPHOLE OR BREACH?

The election returns filed following the most recent by-election in the Portland Eastern constituen­cy raised the question as to whether a candidate filing a zero-expenditur­e return was in breach of the legislatio­n, or was simply exploiting a loophole in the legislatio­n. Even though there were discussion­s in the media in this regard, the ECJ, to the best of my knowledge, has not addressed the matter publicly.

The candidate’s election expense return form lists specific areas of expenditur­e for which a candidate must indicate the level of expenditur­e. This would include expenditur­e on canvassing, transporta­tion, speakers at meetings, and promotiona­l items like T-shirts. So while in a by-election the party is able to focus more attention on its candidate and to offer more direct assistance, it does not, in my view, relieve the candidate of the responsibi­lity of indicating the level of expenditur­e in each category.

I am of the view that any direct expenditur­e on the individual’s candidatur­e in the constituen­cy should be treated as a contributi­on and accounted for as such.

In other words, the party should be viewed as a donor and the candidate required to account for the contributi­ons received.

This will allow any interested individual seeking to review the cost of the campaign to see the breakdown of the costs incurred in the constituen­cy under the various subheading­s like T-shirts, transporta­tion, canvassing, runners and so on, as provided for in the law.

It is important that going into the next general election, steps are taken to prevent candidates filing zero returns, by claiming the campaign was covered by the party. If all campaign donations are accounted for by the party, the public will have no idea as to the business interest in each constituen­cy contributi­ng to a candidate’s election bid and, therefore, no idea to whom the candidate might be beholden.

‘It is important that going into the next general election, steps are taken to prevent candidates filing zero returns, by claiming the campaign was covered by the party.’

THE RESPONSIBI­LITY OF THE ECJ

If this is in fact a loophole, it is important that the ECJ review the legislatio­n urgently with a view to plugging it. Considerat­ion should also be given to amending the legislatio­n to more clearly define the role parties play in financing a candidate in a by-election as opposed to the general election.

All civic-minded Jamaicans now look forward to the implementa­tion of the Political Party Registrati­on and the Campaign Finance legislatio­ns and to see a high level of compliance.

The media is again expected to play a major role if the leaders are to be held to a similar standard as the rest of the country in observing the laws which they themselves have passed.

 ?? FILE ?? The first election, the 2019 by-election in Portland Eastern, conducted under the new legislatio­n, did not see any change in the management of the returns filed.
FILE The first election, the 2019 by-election in Portland Eastern, conducted under the new legislatio­n, did not see any change in the management of the returns filed.
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