He­len Dray­ton

An­oth­er day in the land of plen­ty ca­coph­o­ny, with the swing from crime ex­plo­sions to dev­il dengue, from mu­si­cal steel­pan sounds to Olympics non-per­for­mance, from con­sti­tu­tion­al re­form to the colo­nial relics of three wrecked ships of half a mil­len­ni­um years ago, and the con­tin­ued splat­ter of po­lit­i­cal out­house waste in our faces.

But a con­tro­ver­sial blow-up just be­fore some of these events re­turned the Elec­tions and Bound­aries Com­mis­sion (EBC) to the lime­light when it made a sen­si­ble de­ci­sion for Elec­tions Re­turn­ing Of­fi­cers (ROs) to de­clare po­lit­i­cal par­ty mem­ber­ship—mind you, not of which po­lit­i­cal par­ty but sim­ply, mem­ber­ship. The rash con­dem­na­tions came fast and fu­ri­ous, from politi­cians, po­lit­i­cal pun­dits, and me­dia com­men­ta­tors.

Not sur­pris­ing, as the Tri­ni ten-day men­tal­i­ty is not on­ly as­so­ci­at­ed with make-work but with a kind of pro­gres­sive brain dis­or­der symp­to­matic of an in­abil­i­ty to think crit­i­cal­ly, if at all. You see, folks, it was just about a year ago, in Au­gust 2023, when re­port­ed­ly dur­ing a lo­cal gov­ern­ment cam­paign, the UNC called up­on the EBC to con­firm whether two ROs were reg­is­tered PNM mem­bers.

They queried the EBC’s “re­cruit­ment cri­te­ria for ROs.” They said if ROs were PNM mem­bers, they should dis­close “the con­flict of in­ter­est.” Any po­lit­i­cal par­ty with cred­i­ble in­for­ma­tion that ROs are par­ty mem­bers should be con­cerned, as these of­fi­cers hold crit­i­cal re­spon­si­bil­i­ties in the im­ple­men­ta­tion of the elec­tion. ROs ad­min­is­ter the nom­i­na­tion process; they ver­i­fy and count votes and de­clare re­sults.

They may be di­rect­ly in­volved in dis­putes on elec­tion day be­tween po­lit­i­cal com­peti­tors. Sec­tion 35 (2) of the Rep­re­sen­ta­tion of the Peo­ple Act spec­i­fies that ROs, at elec­tions, shall do all such acts and things nec­es­sary for ef­fec­tu­al­ly con­duct­ing elec­tions in the man­ner pro­vid­ed by the Elec­tion Rules. There­fore, elec­tions are con­duct­ed by the ROs—a re­spon­si­bil­i­ty many cit­i­zens aren’t aware of.

They have the pow­er to re­ject nom­i­na­tion pa­pers, de­cide who works in which polling sta­tion, and make oth­er de­ci­sions per­tain­ing to the ad­min­is­tra­tion of an elec­tion. They are in a po­si­tion of in­flu­ence. Al­though these of­fi­cials are not civ­il ser­vants or hold­ers of an in­de­pen­dent of­fice, the same prin­ci­ple of non-par­ty mem­ber­ship should ap­ply to them and prob­a­bly to oth­er elec­tion of­fi­cers, con­sid­er­ing the EBC’s oblig­a­tion to main­tain im­par­tial­i­ty and trans­paren­cy in the elec­tion process.

These must be seen and per­ceived to be in ef­fect. Po­lit­i­cal par­ty mem­ber­ship pos­es a high risk for con­flict of in­ter­est in elec­tion de­ci­sion-mak­ing. If Elec­tions Re­turn­ing Of­fi­cers are PNM par­ty mem­bers, will the UNC be­lieve that the EBC’s ac­tions and de­ci­sions were im­par­tial, and con­verse­ly, how will the PNM view UNC ROs’ per­for­mance?

In­deed, the in­ten­tion of the EBC is prac­ti­cal and wise and in the best in­ter­ests of the in­tegri­ty of the elec­tion process. Ac­cord­ing to the Cana­di­an Elec­tions Act, “No re­turn­ing of­fi­cer shall … hold a po­si­tion in a reg­is­tered par­ty, an el­i­gi­ble par­ty or an elec­toral dis­trict as­so­ci­a­tion.”

In the Unit­ed King­dom, the RO is an in­de­pen­dent statu­to­ry of­fice hold­er. In Bar­ba­dos, as else­where, like T&T, ROs must swear to faith­ful­ly per­form the du­ties in com­pli­ance with the law, with­out par­tial­i­ty, fear, favour, or af­fec­tion, and to main­tain con­fi­den­tial­i­ty.

The EBC said it has re­ceived al­le­ga­tions from var­i­ous par­ty sources about ROs be­ing mem­bers of po­lit­i­cal par­ties, and it must safe­guard the in­tegri­ty of the elec­toral process. It stat­ed that mem­ber­ship in a po­lit­i­cal par­ty im­plies a lev­el of al­le­giance or af­fil­i­a­tion that could po­ten­tial­ly cre­ate the per­cep­tion of bias or “ap­par­ent bias.”

At law, the court can over­turn a de­ci­sion that there was no ev­i­dence of bias “if a fair-mind­ed, in­formed ob­serv­er, hav­ing con­sid­ered the facts, would con­clude that there was a re­al pos­si­bil­i­ty that a tri­bunal or per­son was bi­ased.”

The pos­si­bil­i­ty is in­deed re­al if that per­son has sworn al­le­giance to a po­lit­i­cal par­ty. The EBC has em­pha­sised that re­quir­ing ap­pli­cants to de­clare their mem­ber­ship is a proac­tive step to­wards mit­i­gat­ing po­ten­tial con­flicts of in­ter­est and main­tain­ing pub­lic con­fi­dence in the elec­toral sys­tem. Sub­ject to Sec­tion 71 of the Con­sti­tu­tion, the EBC ex­er­cis­es gen­er­al di­rec­tion and su­per­vi­sion over the ad­min­is­tra­tive con­duct of elec­tions and en­forces fair­ness, im­par­tial­i­ty, and com­pli­ance with the law that gov­erns it.

The run­ning of elec­tions by the EBC is de­signed to be in­de­pen­dent. The EBC is an in­de­pen­dent in­sti­tu­tion. Con­se­quent­ly, it should im­ple­ment its pru­dent pol­i­cy well be­fore the next elec­tions, re­quir­ing po­ten­tial of­fi­cers to de­clare, un­der oath, that they are not par­ty mem­bers and not in the em­ploy­ment of a po­lit­i­cal par­ty or can­di­date.

If the EBC de­cides to re­cruit them, then, at least, the of­fi­cers must de­clare a con­flict of in­ter­est and re­cuse them­selves from the process of de­ci­sion-mak­ing. That is old-fash­ioned com­mon sense, a mat­ter of pro­mot­ing the com­mon good.