The new campaign finance legislation and the rule of law
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.