Derek Achong

A new judge has been as­signed to pre­side over a law­suit against the Elec­tions and Bound­aries Com­mis­sion (EBC), over its re­cent re­port on the cre­ation of three new elec­toral dis­tricts in To­ba­go.

The case brought by con­cerned cit­i­zen June McKen­zie, of Ba­co­let, To­ba­go, was ini­tial­ly as­signed to High Court Judge Car­ol Gob­in, who de­cid­ed that she should de­ter­mine whether McKen­zie should be grant­ed leave to pur­sue the ju­di­cial re­view case at the same time as the sub­stan­tive is­sues raised, in a rolled-up hear­ing. 

Dur­ing a hear­ing late last month, the Of­fice of the At­tor­ney Gen­er­al raised a pre­lim­i­nary ap­pli­ca­tion over the law­suit.

As Gob­in and her ju­di­cial sup­port staff were due to go on va­ca­tion, she set time­lines for the fil­ing of ev­i­dence and sub­mis­sions and promised to give her judg­ment in the case on No­vem­ber 22– two weeks be­fore the To­ba­go House of As­sem­bly (THA) elec­tion is sched­uled to take place on De­cem­ber 6. 

How­ev­er, when the AG’s Of­fice filed the ap­pli­ca­tion to strike out the case, Gob­in in­di­cat­ed that she could not deal with it and the ap­pli­ca­tion should be trans­ferred.  

The case was sub­se­quent­ly re­as­signed to High Court Judge Ava­son Quin­lan-Williams.

Guardian Me­dia un­der­stands that Quin­lan-Williams held a case man­age­ment hear­ing  in which she in­formed the par­ties that af­ter read­ing their fil­ings she de­cid­ed to sus­pend Jus­tice Gob­in’s or­der for a rolled up hear­ing and de­cide whether McKen­zie should be grant­ed leave to pur­sue the case first. 

Quin­lan-Williams is sched­uled to give her de­ci­sion on the is­sue on Mon­day. 

In McKen­zie’s court fil­ings, she is 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 are claim­ing 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 are con­tend­ing that when the EBC de­cid­ed to split two ex­ist­ing dis­tricts in­to four new dis­tricts, it was done on a math­e­mat­i­cal ba­sis with the dis­tricts with the high­est num­ber of elec­tors be­ing se­lect­ed. 

“How­ev­er, when the In­tend­ed De­fen­dant came to ex­er­cise its dis­cre­tion in re­la­tion to the new 15th dis­trict, the In­tend­ed De­fen­dant by­pass­es the largest elec­toral area for the cre­ation of the new 15th dis­trict and in­stead us­es the sec­ond largest elec­toral dis­trict for the cre­ation of this 15th dis­trict,” McKen­zie’s lawyers said. 

“The in­tend­ed de­fen­dant, in its re­port, states that this was done to avoid “frag­ment­ing” “com­mu­ni­ties” with­in the Prov­i­dence/ Ma­son Hall/Mo­ri­ah elec­toral dis­trict,” they added. 

They al­so ques­tioned the EBC’s con­sid­er­a­tion of com­mu­ni­ty bound­aries. 

“These terms are vague, neb­u­lous, and un­cer­tain. There is too great a risk of ar­bi­trary ap­pli­ca­tion,” they said, as they sug­gest­ed that nat­ur­al bound­aries such as ma­jor high­ways and rivers should have been con­sid­ered.

Through the law­suit, McKen­zie is seek­ing a se­ries of de­c­la­ra­tions against the de­ci­sions con­tained in the re­port as well as an or­der quash­ing it. 

When first con­front­ed with McKen­zie’s chal­lenge, the EBC’s Chief Elec­tion Of­fi­cer Fern Nar­cis-Scope claimed that the mat­ter is closed as the EBC’s re­port was sub­mit­ted to the House of Rep­re­sen­ta­tives on Sep­tem­ber 10 and passed five days lat­er be­fore the Pres­i­dent is­sued the Elec­tions and Bound­aries Com­mis­sion (Lo­cal Gov­ern­ment and To­ba­go House of As­sem­bly) (To­ba­go) Or­der 2021.

Nar­cis-Scope de­nied any wrong­do­ing in re­la­tion to the com­mis­sion’s re­port and said it was con­sis­tent with the statu­to­ri­ly pre­scribed pro­ce­dure. 

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.

In its ap­pli­ca­tion, the AG’s Of­fice claimed that since the re­port was de­bat­ed and ap­proved by Par­lia­ment, McKen­zie’s le­gal team should have moved to pre­vent it from be­com­ing law be­fore the Pres­i­dent is­sued the writ of elec­tion. 

It al­so claimed that the elec­tion could on­ly be chal­lenged by a rep­re­sen­ta­tion pe­ti­tion un­der the Rep­re­sen­ta­tion of the Peo­ple Act. 

“The court ac­cord­ing­ly has no ju­ris­dic­tion to en­ter­tain these pro­ceed­ings,” it stat­ed. 

McKen­zie is be­ing rep­re­sent­ed by Di­nesh Ram­bal­ly, Kiel Tak­lals­ingh, Ste­fan Ramkissoon, and Rhea Khan, while Dou­glas Mendes, SC, Ravi Nan­ga, Tiffany Kisson, and Avaria Niles are ap­pear­ing for the AG’s Of­fice. 

Deb­o­rah Peake, SC, Ravi Heffes-Doon and Alana Bisses­sar are rep­re­sent­ing the EBC.