Independent commissioners did not 'cave in'

Professor Errol Miller, Contributor

It is clear that it is most unlikely that anything independent members of the Electoral Commission say will change Peter Espeut's declaration of shame on us. However, in the interest of public education on the processes of the Electoral Commission, there is one aspect of Mr Espeut's column of Friday, September 24, that requires response.

Mr Espeut asserts that the independent commissioners 'caved in' on the matter of public disclosure. This seems to imply that the independent commissioners advocated public disclosure and, as a result of pressure, 'caved in' on that position. Actually, the commission functions in a totally different way.

Briefly stated, and in a simplified form, the standard practice of the commission in deliberating on any major issue is as follows:

Invite submissions from political parties, organisations of civil society, local and international experts on the state of practice worldwide, and individuals with special interest on the subject to be deliberated.

Collate the submissions and draft a report. This is done by the Standing Committee of the commission related to that subject.

Discuss the draft report with the leadership of the major political parties. This is done by the nominated commissioners of the two parties.

Revise the draft report in light of feedback from the political parties, discussions with other stakeholders and further discussion in the Standing Committee.

Submit the revised report to the commission for review and deliberation of its contents, including points of disagreement.

Refer points of disagreement to the independent commissioners for final decision.

Table the report for signing by all commissioners after ruling by independent commissioners.

In a nutshell, all commissioners benefit from the submissions made from all sources.

develops general thinking

A sub-group, comprised of commissioners and the director of elections, develops general thinking on the subject. This begins the process of formulating the report. The nominated commissioners have a dual role. They represent the general thinking of the commission to the leadership of their parties and represent the views of the leadership of their parties to the commission. This leads to some redrafting of the report.

The role of the independent commissioners is to challenge both parties if they agree in some areas that are deemed not to be in the best interest of the country and to make the final decisions in areas where the parties disagree.

With respect to the report to Parliament on the issue of the registration and financing of political parties, of the more than 20 substantive elements covered, in the final analysis, the leadership of the two parties disagreed on two elements. The People's National Party (PNP) advocated public funding for political parties at this time; the Jamaica Labour Party (JLP) disagreed based on the current financial situation of the Government. The JLP advocated disclosure to the commission while the PNP advocated public disclosure.

The independent commissioners decided in favour of public funding of political parties at this time and in favour of disclosure to the commission. The leadership of both political parties accepted the decisions of the independent commissioners as evidenced by the fact that the report was signed by the nominated commissioners of both parties. The important point to note is that the independent commissioners did not 'cave in' on any matter. Rather, we made the final decisions in areas in which the two parties were in disagreement.

In essence, the independent commissioners were the arbitrators whose decisions both parties accepted on areas that they disagreed. As arbitrators, in the best traditions of jurisprudence, each independent commissioner is obliged to make his/her decision, taking into account the objectives to be achieved, all the evidence and arguments presented, the principles and rules that should be applied, previous history in the circumstances and the compelling logic when all is considered.

This quasi-judicial role of the independent commissioners is one of the factors that has contributed to the progress the country has made in resolving differences between the political parties on electoral matters and in the reform of the electoral system.

Interestingly and somewhat unusual, the leadership of both parties continued to voice publicly their positions, although their nominated commissioners had signed the report. The response of the independent commissioners on the matter of disclosure was that disclosure to the commission was the legal minimum. Those who believed in public disclosure could exceed this minimum and act on their conviction. The converse was also true. Those who disagreed with public funding of political parties at this time could refuse to accept the same.

To the great credit of the PNP, the leadership of the party has submitted an audited financial report at the time of its annual conference and has made it contents public. To the best of my knowledge, this is the first time that any political party in the Caribbean has done this. However, at the press conference at which these audited statements were presented, when some journalists asked about disclosure of the names of contributors, the response from the leadership of the party was to the effect that the party had not reached there yet.

While I would in no way question the sincerity of the leadership of the party with respect to the issue of public disclosure of the names of contributors, I can only conclude that in the proactive and unilateral implementation of this aspect of the report of the Electoral Commission, the leadership came face-to-face with the considerations that influenced the independent commissioners in deciding in favour of partial disclosure.

The commission is now considering the matter of campaign financing. The commission will follow the same process as outlined above. Indeed, the commission has invited submissions from all interested groups and individuals within and across the country, to be submitted to the commission by Friday, October 29, 2010.

public disclosure

I must point out that Sections 55-61 of the Representation of the People Act (ROPA) is the existing legislation on campaign financing. This legislation requires public disclosure by candidates of their campaign expenditure. While the EAC and the commission have faithfully complied with their responsibilities as outlined by the ROPA, and have published the returns of candidates in the newspapers, including The Gleaner, and on the Internet, we are yet to see any action taken with respect to violations or public comments on these disclosures, except by Professor Trevor Munroe and a few others.

In considering the matter of amending the existing legislation on campaign financing, I am sure that the commission would benefit from the deliberation of Mr Espeut and other strong advocates of public disclosure on three questions:

1. What account has been taken of public disclosure of the returns of candidates of their expenditure in the 2002 and 2007 general elections?

2. What difference has public disclosure made?

3. What else is needed to make this legislation effective?

Professor Errol Miller is chairman of the Electoral Commission of Jamaica.