Taken from: Governance and Democracy in the Commonwealth Caribbean: An introduction by Patrick Emmanuel pp 21-29
The constitutions outline the functions to be performed
by electoral Commissions, as well as the chief election officials in the OECS
countries. The functions of Jamaica’s Electoral Advisory Committee and of
election officials in the other countries are set out in electoral statutes.
The exercise of responsibility for constituency matters,
involves periodic review of the numbers and boundaries of constituencies and
the submission of reports therein to the Houses of Representatives or Assembly.
With particular exceptions in the cases of Belize and St. Vincent, the reports
must recommend either the retention of existing numbers and boundaries or
changes therein. In these cases, the elected Houses are empowered to accept,
reject or amend these recommendations. Upon parliamentary resolution of the
matter, an Order issued by the Head of State authoritatively sets out the
arrangements with respect to constituency numbers and boundaries which will
prevail until a new set of recommendations is received and acted upon.
The exceptional provisions in Belize and St. Vincent are
that in both cases while Parliament fixes the number of seats, the respective
Commissions have final authority to fix boundaries.
Most countries, seven in all, require constituency review
reports to be submitted no more than five years apart, but Jamaica’s maximum
interval is six years and St. Lucia’s is seven years. In Belize the Commission
is required to report “from time to time”, while in St. Vincent the interval
depends on the circumstances of the Commission’s appointment: when it is
appointed on the occasion of a census or an alteration in the number of seats, a
review must be undertaken forthwith. Otherwise such a review must be undertaken
not less 8 years nor more than 10 years after its last boundaries review.
One
of the fundamental features of constituency delimitation lies in the relative
sizes of constituencies. The requirement constituency review take account of the
desirability of ensuring approximate equality among constituencies, is
recognised in the Constitutions of ten of the eleven independent states
emp1oying system of constituency representation. (However while seven countries
confine this vital requirement to schedules to their Constitutions, of them,
Bahamas, Belize and St. Vincent seem to give greater w to the matter, by
including it in the section spelling out the functions of their constituency
review bodies). In the exceptional case of Antigua, the Constitution provides
that in undertaking its reviews, the Commission “shall be guided by such
general principles as may be prescribed by Parliament” (S.64:3).
In most cases, the requirement to strive for approximate equality of constituency size is qualified by the necessity to take account of
(a) population density and in particular the need to ensure the adequate representation of sparsely populated areas
(b) the means of communication
(c) geographical features; and
(d) the boundaries of administrative areas.
But Trinidad and Tobago, while recognising the f mentioned above, has adopted
the most rigorous standard, stated in the Second Schedule to its Constitution:
“In Trinidad and in Tobago respectively, the electorate in any constituency
shall not be more than one hundred and ten per cent nor less than ninety per
cent of the total electorate of the island divided by the number of
constituencies of that island”. Barbados has emulated this innovation,
adopting this yardstick by way of constitutional amendment in 1981, albeit with
the qualification “so far as is practicable”. As will be seen later in this
Section considerable inequalities in constituency size exist Commonwealth
Caribbean countries.
Compared with the arrangement for constituency matters, the allocation of responsibility for administering elections, which involves registration of electors and supervising the conduct of elections, is somewhat different. In seven cases - Barbados, Belize, Dominica, Guyana, St. Kitts-Nevis, St. Lucia and Trinidad and Tobago -Commissions are directly and solely charged with the responsibility for registration and elections. In four others, Antigua and Barbuda, Bahamas, Grenada and St. Vincent and the Grenadines, these functions carried out by independent election officials. In Jamaica there is a mixed approach involving a Director of Elections advised by the
Electoral Advisory Committee. And in Montserrat, a Supervisor of Elections is responsible to the Governor.
An important distinction between the formal provisions for constituency matters and for registration and voting is that Parliament, apart from its inescapable role in enacting electoral law, is insulated from involvement in the processes of registration and electoral supervision. But a fuller treatment of the matter requires explication of the rules governing appointment, tenure and removal of election commissioners and officials, to be undertaken later on.
Because of the critical importance of elections in
the region’s political systems, it is appropriate that some detailed treatment
of the specific provisions for their administration be undertaken. There is an
interesting variety of language in which the responsibilities are expressed, a
factor which perhaps reflects the peculiar sensitiveness of electoral matters.
This review is thus aptly approached on a country-by-country basis, before any
assessment of uniformity and variability be attempted.
A
Countries with Elections and Boundaries Commissions:
(I) Barbados: By amendment in 1981, the Constitution provides that “the registration of voters and the conduct of elections in every constituency or any matters that appear to the Commission to be incidental to or consequential upon either, shall be subject to the direction and supervision of the Commission” (S.4 1C: 1), and further that in the “exercise of its functions under this section, the Commission shall not be subject to the direction or control of any person or authority” (S.4 1C:2). The (amended) Representation of the People Act which establishes the office of Chief Registering Officer/Supervisor of Elections, authorises the Commission to issue directions to this official “who shall comply with such directions” (S.7:4); and transfers functions previously exercised by a Minister or the officer to the Commission.
(II) Belize: By amendment (1988), the Constitution states that the EBC “shall be responsible for the direction and supervision of the registration of voters and the conduct of elections, referenda and all matters connected therewith” (S.88:13). It also declares the independence of the Commission from outside control except that it “shall, subject to the provisions of this Constitution, act in accordance with the Representation of the People Act or any other law, rule or regulation relating to elections” (S .88:14).
According to the Representation of the People Act, which
establishes the office of Chief Elections Officer, “the Commission may confer
any of its powers and impose any of its duties on the Chief Elections Officer
...“ (S.10).
(III) Trinidad and
Tobago: The Constitution at S.71 states that the “registration of voters
and the conduct of elections shall be subject to the direction and supervision
of the Commission”, and that in the exercise of these functions the Commission
“shall not be subject to the direction or control of any person or
authority”. In turn, the Representation of the People Act, which establishes
the office of Chief Election Officer, provides that the official “shall,
subject to any general or specific directions of the Commission, perform such
functions and duties and exercise such powers of the Commission in such manner
as the Commission may from time to time direct...“(S.3:2).
B.
Countries with Election Commissions:
(I) Dominica: The Electoral Commission is charged
with the responsibility for “the registration of voters ... and for the
conduct of elections ... and shall have such powers and other functions relating
to such registration and elections as may be prescribed by law” (S.38:1). In
discharging its functions the Commission “shall be assisted by a Chief
Elections Officer, whose office shall be a public office, and the Commission may
give such directions as it considers necessary or expedient to the Officer, who
shall comply with such directions or cause them to be complied with”.
(S.38:2). It is provided that the officer, without prejudice to the provisions
of the foregoing subsection, “shall not be subject to the direction or control
of any other person or authority”. (S.38:5); but it is also expressly
provided that the “question whether the Chief Elections Officer has acted in
accordance with the directions of the Electoral Commission shall not be enquired
into in any court of law” (S.38:6). The Commission itself is declared to be
independent of all outside control in the performance of its functions (S.56:11).
One particular requirement concerning Parliament and the
Commission is that all proposed electoral bills, regulations or other
instruments “relating to the registration of electors.., or the election of
Representatives and Senators shall be referred to the Electoral Commnission and
to the Chief Elections Officer at such time as shall give them sufficient
opportunity to make comments thereon before the Bill is introduced in the House
or, as the case may be, the regulation or other instrument is made” (S.5 I).
(II) Guyana: Article 62 of the Constitution states
that “(e)lections shall be independently supervised by the Elections
Commissions in accordance with the provisions of Article 162,” which is both
more expansive and specific in providing that “subject to the provisions of
this Constitution, the Commission-
(a) shall exercise general direction and supervision
over the registration of electors and the administrative conduct of all
elections of members of the National Assembly; and
(b) shall issue such instructions and take such action
as appear to it necessary or expedient to ensure impartiality, fairness and
compliance with the provisions of this Constitution or of any Act of Parliament
on the part of persons exercising powers or performing duties connected with or
relating to the matters aforesaid”.
The office and functions of
a “Chief Elections Officer” are spelt out in the Representation of the
People Act but there is no specific definition of the relationship between the
Commission and the Officer.
There is also no statement in the Constitution expressly
establishing the independence of the Commission from outside direction or
control, other than the above cited provision of Article 62.
(III)
Jamaica: In 1979 the Jamaican Parliament enacted a Representation of the
People (Interim Electoral Reform) Act to make temporary provisions for the
control of elections “until provision is made in the Constitution of Jamaica
for the establishment of an Electoral Commission” (5.3). This Act established
an Electoral Advisory Committee and a Director of Elections, the primary
function of the Committee being defined as “advising the Director on the
performance of his functions under the Representation of the People Act” (S. 5:1).
The Director was given all the functions formerly exercised by the Chief
Electoral Officer, and was made a non-voting member of the Committee. Power to
hire staff was vested in the Committee.
The provision which indicates the nature of the
relationship between the Committee and the Director enunciates that where “the
Director refuses to follow any advice or recommendation of the Committee he
shall report the matter to Parliament within fourteen days of such refusal”
(S. 5:2). At the same time however, S. 7 states that “The Minister
(with responsibility for electoral matters) shall be responsible to Parliament
for matters concerning the activities of the Committee and accordingly, the
Committee shall keep the Minister fully informed of all such matters, and shall
furnish the Minister with such information as he may request with respect to any
particular matter’. The interim Act itself is silent about the resolution of
differences between the Committee and the Director involving the Director’s
refusal to accept advice from the Committee. It is evident however that unlike
the regional cases where the chief elections official is subordinate to an
Electoral Commission, the Jamaican case is significantly different in
effectively stipulating that the chief official is not subject to the Electoral
Committee’s direction and control.
(IV)
St. Kitts-Nevis: The Constitution briefly lays down that the function of
the Electoral Commission “shall be to supervise the Supervisor of Elections in
the performance of his functions ... relating to elections and referenda” (5.
33:4). The Supervisor’s duty is “to exercise general supervision over the
registration of voters in elections of Representatives and over the conduct of
elections” (S. 34:1). The officer is obliged to report to the Commission when
requested, on the exercise of his functions, in which instances copies of the
report must be sent to the Minister responsible for elections, who is required
to lay the reports and any comments from the Commission, before the House
(S.34:5).
The
Supervisor is required to “act in accordance with such directions as he may
... be given by the Electoral Commission” but “shall not be subject to the
direction or control of any other person or authority” (S. 34:7). However,
there is no such declaration concerning the Commission itself.
(V) St.
Lucia: The Electoral Commission “shall be responsible for the registration
of voters ... and for the conduct of elections ... and shall have such powers
and other functions relating to such registration and elections as may be
prescribed by law” (S.37:l). The Commission is to be “assisted by a Chief
Elections Officer” in the discharge of its functions and “may give such
directions as it considers necessary or expedient to the Officer, who shall
comply with such directions or cause them to be complied with” (S.37:2). The
Commission has the right of scrutiny of proposed electoral bills, regulations or
other instruments in good time before such proposals are enacted or otherwise
authorised (S.52).
While
the Chief Elections Official is subject to the direction and control of the
Commission only (S.37:5) it is also provided that the “question whether
[he] has acted in accordance with the directions of the Electoral Commission
shall not be enquired into in any court of law” (S. 37:6). The Commission
itself is declared to be not subject to outside direction or control (S. 59:11).
C
Countries with Chief Election Officials Only
In terms of responsibility for registration and the conduct
of elections, there is a third group of countries, numbering five, in which
these functions are vested not in a Commission but a sole elections officer,
variously styled. Summarily, the particular constitutional or statutory
provisions are:
(I) In Antigua and Barbuda the Constitution
establishes the office of Supervisor of Elections, the holder of which “shall
have and exercise such functions, powers and duties as may be provided by law”
(5. 67).
(II)
Bahamas: The Constitution states only that parliamentary elections shall
take place “in the manner provided by any law in force in the Bahamas” (S.
46:2). The Representation of the People law establishes the office of
Parliamentary Registrar who has sole responsibility for the registration of
electors and the conduct of elections (S. 12).
(Ill)
Grenada: The Constitution establishes the office of Supervisor of
Elections “whose duty it shall be to exercise general supervision over the
registration of voters ... and over the conduct of ... elections” (S. 35:1).
The Supervisor “may, whenever he considers it necessary or expedient so to
do, report to the House of Representatives on the exercise of his functions
...“, such reports to be submitted to the Minister responsible for election
matters who is obligated to lay them before the House within a stipulated time
period (S. 35:5). Section 35:6 declares the independence of the
Supervisor from outside direction or control in the performance of his election
duties.
(IV)
Montserrat: The Electoral Provisions Order (1966 No. 1402) assigns
responsibility for elections (registration and voting) to the Governor solely,
while the Constitution and Elections Ordinance (Cap. 53) provides for a
Supervisor of Elections who is responsible (to the Governor) for “general
direction and supervision over the administrative conduct of elections” and
related matters.
(V) St. Vincent and the Grenadines: There is constitutional provision for a Supervisor of Elections, independent of outside direction, “whose duty it shall be to exercise general supervision over the registration of voters ... and over the conduct of .... elections”. The officer has discretionary responsibility for the submission of reports on his functions, which must be laid before the House of Representatives. (S.34).
The Appointment, Tenure and Removal of
Commissioners and Officials
The integrity of the region’s electoral systems
relies not only on the scope of the powers and functions of commissions,
committees and officials, but also importantly on the procedures emplaced for
appointment, tenure and removal. With a few exceptions, the Constitutions and
statutes, as the case may be, make express provision for these procedures.
The following is a summary presentation of provisions for
appointment and removal for the relevant bodies and officials in each of the
thirteen states.
There are several aspects of the summary presentation which necessarily require explication and elaboration. Primarily, these concern the source of power over appointment and the formal manner of its exercise, the specification of offices and classes of persons to which appointment is in some cases confined, the exclusion of classes of persons from eligibility for appointment in other instances, differences in the composition of bodies and selection of offices which have authority exclusively for constituency review, or for registration and voting, and the location of initiative to effect removal through the tribunal process.