A lawsuit from a private citizen seeking to challenge the Elections and Boundaries Commission (EBC)’s recent report on the creation of three new electoral districts in Tobago has collapsed at a preliminary stage.
Delivering a decision late yesterday evening, High Court Judge Avason Quinlan-Williams refused June McKenzie, of Bacolet, Tobago, leave to pursue her judicial review lawsuit against the commission.
In her decision, which included a detailed analysis of McKenzie’s case, Justice Quinlan-Williams ruled that she failed to raise arguable grounds which would have a realistic prospect of success.
She ruled that even if McKenzie had an arguable case, she would have still been barred from pursuing the lawsuit as litigation seeking to invalidate an election is confined to election petitions under the Representation of the People Act.
Quinlan-Williams also stated that there was delay in the case as the lawsuit should have been brought after the EBC’s report was approved by Parliament and before the issuing of the writ for the election and other preparations for it.
Quinlan-Williams noted that while McKenzie was claiming that the EBC improperly considered community fragmentation for the 15th district after using a numerical analysis of the areas with the most electors for the 13th and 14th districts, she said that allegations were based on a few words plucked from the EBC’s methodology and not from a detailed examination of the report.
Despite the ruling in the case, Quinlan-Williams stated that McKenzie was still free to bring an election petition over the 15th district after the election on December 6.
In McKenzie’s court filings, she was claiming that she is interested in the issue as she is a public-spirited individual concerned with the democratic affairs of Tobago having served as secretary for the Tobago East constituency during the tenure of former President and Prime Minister Arthur NR Robinson.
Her lawyers claimed that the EBC breached its statutory duties under Section 4 of the Election and Boundaries Commission (Local Government and Tobago House of Assembly) Act by allegedly utilising considerations that were not expressly or impliedly conferred by the legislation.
They also questioned the EBC’s consideration of community boundaries as they suggested that natural boundaries such as major highways and rivers should have been considered.
Through the lawsuit, McKenzie was seeking a series of declarations against the decisions contained in the report as well as an order quashing it.
Responding to the lawsuit, on Monday, the EBC’s lawyer Senior Counsel Deborah Peake noted that her client strictly complied with the legislation and was permitted to consider community fragmentation in addition to natural boundaries such as rivers and highways.
“This is something that the commission has always done,” Peake said.
She also noted that in the report complained of, the EBC provided a comprehensive methodology of how it came to its findings unlike in its previous reports.
Peake noted that if the Providence/Mason Hall/Moriah area was selected instead of Goodwood/Belle Garden West as suggested by McKenzie, it would mean that residents of Mason Hall living on opposite sides of the Northside Road would belong to different electoral districts.
“If Northside Road was used with regard to how people there live, that would be an arbitrary exercise of discretion,” Peake said.
The lawsuit was first assigned to Justice Carol Gobin who decided to hear the case in a rolled up hearing in which leave and the substantive issues in the case would be dealt with simultaneously.
The Office of the Attorney General applied for leave to be refused based on similar grounds that were eventually upheld by Quinlan-Williams, who took charge of the case after the application was filed whilst Gobin was on vacation.
As part of her decision in the case, Quinlan-Williams allowed the parties to file submissions on whether McKenzie should pay the EBC and the AG’s Office legal fees for defending the lawsuit.
The move to increase the electoral districts in Tobago was the result of a deadlock in the THA elections in January, in which the People’s National Movement (PNM) and Progressive Democratic Patriots (PDP) each secured six districts.
The three new districts are Lambeau/Lowlands, Darryl Spring/Whim, and Mt St George/Goodwood. All but two of the original 12 districts were slightly modified to make the change.
McKenzie was represented by Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon, and Rhea Khan, while Douglas Mendes, SC, Ravi Nanga, Tiffany Kissoon, and Avaria Niles represented the AG’s Office.
Ravi Heffes-Doon and Alana Bissessar also represented the EBC.