Editorial | Justice Brooks’ mandate

Justice Patrick Brooks’ appointment to the Electoral Commission of Jamaica (ECJ) is, on its face, a good choice.

President of the Court of Appeal Justice Brooks has a reputation for integrity and as a thoughtful jurist with a curious mind who was not afraid to break new ground in his judgments. Those are traits that would make him unafraid of criticism, though not unmindful of it.

These are characteristics that should serve him well in the new role, although he should be mindful that he is no longer on the Bench and ought to make adjustments therefor. He is not required, and has no need to, maintain the stoic silence which judicial etiquette usually requires of judges when outside of the courtroom, on the basis that their rulings and written judgments are sufficient.

In other words, while we appreciate that Justice Brooks isn’t the chairman of the ECJ, he can, and should, speak. Or, at least, he should encourage his new colleagues to do so, explaining that their long (and, they likely presume), studied silence, on critical issues does little good.

The role of the ECJ as the political ombudsman, as well as the updating of the Political Code of Conduct, are among the matters on which Justice Brooks must be clear to his fellow commissioners that they owe the public a fulsome conversation. His newness and absence of ‘baggage’ in the ECJ allows him a fresh perspective and an opportunity to be frank.

DESERVED AND ENVIABLE REPUTATION

Jamaica must hold a general election before the end of this year, for which the execution of whose technical aspects this newspaper has neither doubt nor question of the ECJ’s competence.

Indeed, the commission has earned a deserved and enviable reputation for its performance in that area. Over four decades, the ECJ has transformed Jamaica’s elections from scrappy undertakings – even though they broadly represented the will of the electorate – to exercises in which people have deep trust.

We cannot say that it enjoys, or deserves, anything close to the same admiration for its handling of the job as Political Ombudsman, which was thrust upon it nearly a year ago, on the eve of the municipal elections. There was no public signal that the ECJ demurred, despite the warnings from important stakeholders that the two positions were not a good fit, either technically or philosophically.

The point is that the ECJ managed, and was good at, the nuts and bolts of running elections. It ensured that the technology for efficient voting and maintaining a clean voters’ register, as well as legislation to support these, were in place. It handles the logistics of elections well.

Part of the reason why the ECJ worked is its model – an appreciation that Jamaica’s two dominant political parties have a stake in how elections are executed. So, while the management of elections was removed from the control of the government and party in power, the Jamaica Labour Party (JLP) and the People’s National Party (PNP) have two members each on the ECJ.

Critically, however, three members of the commission are also appointed by the governor general, one of whom must be chairman, with a casting vote. The director of elections participates in the deliberations.

The parties and their representatives are forced into compromise, or they have to persuade independent members to their positions.

MORAL OBLIGATION

The political ombudsman is conceptually a different construct. The legislation, prior to last year’s sublimation of the post into the ECJ, provided for an individual ombudsman who policed the Political Code of Conduct, in which the parties and their candidates pledge against promoting or inciting violence, and to engage in civil discourse.

The political ombudsman couldn’t impose penalties on breaches of the code, or for behaviour inimical to peace or good conduct. The ombudsman would make recommendations for sanctions to political leaders.

The ombudsman also had another instrument – a public platform from which to name and shame errant politicians.

The political ombudsman largely dealt with ethical issues relating to what takes on the hustings – not stark technical matters.

It was predicted that it would be difficult for the ECJ to undertake the ombudsman role, which has proved to be the case. Either that, or politicians behaved impeccably during the municipal elections. The ECJ, in its job as political ombudsman, offered no public report or statement with respect to that aspect of its mandate. Even if not legally, the ECJ had a moral obligation to do so. It is still not too late to fulfil that responsibility.

Further, it must say how it plans to operate as the political ombudsman in the coming national elections, when the stakes will be considerably higher, the campaigning more intense, and politicians and their supporters more likely to do or say things that incite breaches of the peace.

Further, as we have noted before, the political targeting on social media of this newspaper’s reporters by person(s) unknown highlighted the potential for threats and physical harm to journalists in a heated political atmosphere.

The political ombudsman should therefore invite the political parties and other stakeholders to a process for upgrading the Political Code of Conduct to, among other things, include language that expressly declares the importance of the press in advancing political debate in a free and democratic society, and the role of journalists in facilitating that conversation.

Reporters should not have to endure intimidation and threats. This should be on Justice Brooks’ agenda at his first meeting of the ECJ.