The ECJ Issue: Let's not unsolve it to resolve it

Errol Miller, Contributor

In The Gleaner of Monday, May 13, The Gavel advocated that the composition of the Electoral Commission should be revamped to exclude the commissioners nominated by the prime minister and the leader of the Opposition. Indeed, this revisits an issue that was front and foremost in 1994 when Peter John Thwaites, chairman of the Electoral Advisory Committee (EAC), resigned and took a position very similar to that advocated by The Gavel. In revisiting this issue, therefore, it is necessary to examine it, if even briefly, from at least four perspectives: historically, comparatively, functionally and contemporarily.

Historically

The EAC was established as a tripartite body in 1979: Two members nominated by the prime minister, two members nominated by the leader of the Opposition, and three non-political members jointly agreed on by both persons. On this basis, the nominated commissioners were in the majority. Following the dramatic resignation of Mr Thwaites, and support for his demand that political representatives be removed from the EAC, Parliament responded in 1996 by changing the composition of the EAC to one member and an alternate nominated by the prime minister and the leader of the Opposition, respectively. This change placed the selected members in the majority. The EAC was replaced in 2006 by the Electoral Commission of Jamaica (ECJ).

The composition of the ECJ is two commissioners nominated by each of the prime minister and the leader of the Opposition, four commissioners agreed on by both prime minister and leader of the Opposition, and the director of elections appointed unanimously by the eight commissioners. This composition retains the majority in the hands of the non-political members.

Comparatively

Canada has a chief electoral officer appointed by unanimous vote of the House of Commons. The Bahamas has a sole parliamentary commissioner appointed by the Parliament. The Electoral Commission of India comprises the chief election commissioner and two other election commissioners appointed by the president. The Election and Boundaries Commission of Trinidad and Tobago is composed of a chairman and not less than two or more than four other members, appointed by the president after consultation with the prime minister and leader of the opposition. The Elections and Boundaries Commission of Belize comprises five members. The chairman and two members are appointed by the governor general, on the advice of the prime minister following consultation with the leader of the opposition, and two members appointed with the concurrence of the leader of the opposition. The Electoral Commission of Guyana comprises seven members. The chairman is appointed by the president from a list of six persons submitted by the leader of the opposition, three members appointed by the president on his own deliberate judgement and three members appointed by the president, acting on the advice of the leader of the opposition, following consultation with the parties not in government in the Parliament.

The Antigua and Barbuda Electoral Commission and the Elections and Boundaries Commission of Barbados have five members: the chairman and two members appointed by the governor general acting on the advice of the prime minister after consultation with the leader of the opposition and two members, including the deputy chairman, appointed by the governor general acting on the advice of the leader of the opposition after consultation with the prime minister.

International attention

The Electoral Commissions of St Lucia and St Kitts and Nevis are composed of one member appointed by the governor general on the advice of the prime minister, one member appointed by the governor general on the advice of the leader of the opposition and the chairman appointed by the governor general on his/her own deliberative judgement. The Electoral Commission of Dominica follows the same pattern as St Lucia and St Kitts and Nevis, except that it has five embers. The Electoral Commission of the United Kingdom, established in 2000, has seven full-time members appointed by the Speaker's Committee of the House of Commons and, since 2010, four part-time commissioners, one each named by the main political parties.

Of the 12 examples of electoral commissions cited, four are predicated on the assumption that the members are non-political. Eight commissions are composed of some combination of members appointed by both the prime minister and leader of the opposition, that is, they include political members. The United Kingdom is the most recent country of the Commonwealth to adopt this formulation. This reform followed the allegations of malpractices in the general election of 2010.

The Electoral Commission of Jamaica is unique in that it explicitly includes both political and non-political members, with the non-political members holding the majority and having the assigned responsibility to make final decisions in cases of disagreements between the political parties. On this basis, by statute, the non-political members and the director of elections are denied a vote in all elections and referenda. This has attracted international attention, especially in light of the progress that has been made in the governance of the electoral system.

Functionally

The practice in Jamaica since 1979 is that the nominated members of the EAC, and now the ECJ, are high-ranking, well-respected and influential members within the leadership of both major political parties. This has conferred considerable functional advantages, namely:

1 Operational certainty, in addition to legal authority, by the director of elections and ECJ staff, in the implementation of agreed policies in constituencies and electoral divisions.

2 Coordination, cooperation and collaboration in compilation of voters' lists, decision-making about polling locations, and agreement on the boundaries of polling divisions, electoral divisions and constituencies.

3 Rapid and robust problem-solving, thus preventing problems from festering, becoming intractable and sources of great animus.

4 Forward-looking reforms of the electoral system in response to dynamic developments in society, especially in relation to changes in technology and social behaviour.

5 Continuing development of social capital among political representatives at the national and constituency levels which becomes a national asset, especially in times of crisis.

Contemporarily

There can be little question that one of the greatest achievements of Jamaica since Independence has been the reform of the electoral system. The changes have been real and can be verified by numerous sources. Jamaica has been recognised regionally and internationally for the progress made. The country has received value for the investments made in the EAC and the commission.

The contemporary question that must be asked and answered is: Why should we now change the composition of the electoral commission in light of its proven effectiveness and the progress that has been made in the electoral system? Common wisdom is, if it is not broken, don't fix it. Given the brokenness that exists in other areas of Jamaican society, one would think that the example of the electoral commission needs to be emulated, or at least studied, to understand the essence of its success that can be applied in other areas.

The short answer

I suggest that the short answer to the question asked can be concisely given in four sentences. Advocacy to revamp the commission is directly related to its success and solid achievements. The purpose of it is to halt, or even reverse, the advances that have been made. The new frontier of electoral reform is the financing of political parties and campaign financing. The pushback is from the anticipation of the loss of power and influence by some persons in Jamaican society.

The resignation of Peter John Thwaites as the chairman of the EAC in 1994 and, subsequently, the change in the balance of the composition of political and non-political members in the EAC in 1996, contributed significantly to the advances made in electoral reform over the last 15 years. Based on this experience, the removal of political representatives from the governance of the electoral machinery would be a colossal mistake.

My research into Jamaican education led me to discover that a recurring pattern in Jamaican his-tory is that we solve problems, then unsolve the solution, then re-solve the problem. The result is that other countries surpass us as we stagnate in this cycle of back and forth. I highlighted this pattern in the Grace Kennedy Lecture in 2001: 'Jamaica in the Twenty-First Century: Contending Choices'. I sincerely hope that this will not be the case with respect to the problems relating to the electoral system that we have solved since Independence.

Professor Errol Miller, OJ, CD, is chairman of the Electoral Commission of Jamaica. Email feedback to columns@gleanerjm.com.