THE POST OF DIRECTOR OF ELECTIONS: GOING FORWARD

OPINION PIECE

BY PROFESSOR ERROL MILLER

The General Elections of February 25, 2016 was the most peaceful and the best conducted Parliamentary elections in the history of Jamaica. The political party in Government changed on the margin of a single seat in the House of Representatives. None of the 112 losing candidates attributed their loss to any defect or malfunction of the electoral system. The Electoral Commission of Jamaica (ECJ), mandated to set electoral policy, and the Director of Elections, legally accountable for the conduct of elections, deserved and received the highest accolades for this excellent achievement. The public ceremony on March 8, 2016 witnessed the outgoing Prime Minister handing over power to the Prime Minister designate with the dignity and decorum of a mature and confident democracy.

There can be no question that since political independence in 1962 the Jamaican nation has made great progress in advancing its electoral and democratic systems. However, we would be in grave error to think that we have arrived at some pinnacle of accomplishment and that there are not areas still to be advanced. One such area is with respect to the post of Director of Elections.

The History and Challenge of the Post of Director of Elections

Since the establishment of the Electoral Advisory Committee (EAC) in 1979 there have been five Directors of Elections. Four of these Directors have actually conducted elections. All five have demitted office under some cloud. The causality rate of Directors has been 100 per cent. Yet, the contributions of Directors of Election have been central and pivotal to the outstanding accomplishments of the electoral system and the advancement of Jamaican democracy over these past 38 years. In mathematical terms, there has been an inverse relationship between the contributions that Directors of Elections have made and their continuation in the post, even by its most successful holders.

The Laws and Conventions related to the Appointment of Directors of Elections

There are two salient legal matters related to the appointment and reappointment of Directors of Elections.

First, the laws of the ECJ, and previously the EAC, explicitly require a unanimous vote of both Selected and Nominated Members in the appointment and reappointment of Directors of Elections. In other words, a single Selected or Nominated Member can veto the appointment or reappointment of a Director of Elections. Second, there is no legal requirement to advertise the post of Director of Elections.

There are two conventions that have been practiced since 1984 with respect to the reappointment of Directors of Elections and the advertisement of the post of Director of Elections.

The first convention is that where a Director of Elections had performed competently, impartially and with integrity, once he was willing to continue in the post, the Director was reappointed unanimously by acclaim. The second convention is that there is no advertisement of the post when Directors are reappointed. Theses conventions rested on four solid pillars namely: i) the Director had proven equal to the requirements of the post; ii) the ethical and moral obligation of the EAC/ECJ given its nature and mandate; iii) standard practice, consistently followed, in the public service where employees are only terminated for cause or the abolition of posts; and iv) the tenets of natural justice.

The record of adherence to these conventions is as follows: during the period of the EAC Mr. Noel Lee was reappointed for four-year terms in 1984, 1988 and 1992 and Mr. Danville Walker was reappointed for four-year terms in 2001 and 2005, all by acclaimed and no advertisement of the post of Director. Mr. Walker’s appointment for seven years in 2006, as the first Director of the ECJ, was treated as a reappointment. The post of Director was not advertised by the Commission. Mr. Fisher was reappointed in November 2015 for one year and again for one year in November 2016 consistent with the pattern of these conventions. The duration of the reappointment was not material to adherence to the conventions.

 Accordingly, the post of Director of Election was only advertised in 1979; 1980, 1994, 1997 and 2008, that is, the first appointments of the five Directors appointed since 1979. The post was first advertised by the ECJ in 2008 after Mr. Walker demitted office and Mr. Fisher was first appointed.

The Record of Mr. Orrette Fisher

Mr. Fisher served as Director of Elections from November 2008 to March 2018. During his tenure he conducted two Parliamentary General Elections and eight by-elections involving over 300 candidates. He also conducted two Local Government Elections and five by-elections with nearly 1000 candidates. None of the candidates who was unsuccessful in either the General or Local Government Elections, or in by-elections, attributed the loss to the conduct of elections. Mr. Fisher holds the distinction of being the only Director of Elections who has conducted two General Elections in which the party in Government changed in both instances. In addition, there has never been any complaint of Mr. Fisher committing any impropriety as Director of Elections. By any measure or standard, Mr. Fisher’s outstanding record as Director of Elections satisfies the criteria of performing the duties and functions of Director of Elections competently, impartially and with integrity and for being reappointed without advertisement of the post.

Mr. Fisher demonstrated his desire to continue as the Director of Elections. He took the Commission to court for not appointing him for seven years. Further, even after the disagreement between the Commission and the Director reached the Courts, the Commission reposed such confidence in the Director as to allow him to conduct two by-elections. Mr. Fisher justified this confidence with his usual professional conduct of those by-elections. Clearly, there was no loss of confidence by the Commission in Mr. Fisher’s character, competence and commitment. Seemingly, there was no animus on Mr. Fisher’s part that affected his professionalism.

Abandoning the Conventions and the Reasons given

In Oct/Nov 2017 when the Commission informed Mr. Fisher that the post of Director of Elections would be advertised and that he was free to apply, the Commission indicated, and its subsequent action has confirmed, that it has abandoned the conventions related to the re-appointment of Director of Educations who has performed creditably in the post.

From the public debate surrounding Mr. Fisher resignation we have learned that the Commission had sought and received advice from the Public Sector Modernization Program and acted on that advice. The point that must not be missed is that the Commission was not under any legal obligation to seek or accept or act on the advice of the Public Sector Modernization Program. At best, the Commission has described the process it used but does not explain the reason for its decision and action.

From the public debate it has also been revealed that one Commissioner had taken up a consistently hostile attitude towards Mr. Fisher for at least three to four years. At best this could explain Mr. Fisher’s consistent refusal to agree to apply to an advertisement for the post of Director of Election. Mr. Fisher is well aware of both the law and the conventions. It could also explain the bargaining that had gone on between the Commission and Mr. Fisher since Oct/Nov 2015. What is not explained is the unanimous decision of the Commission to depart from the conventions and for embarking upon this new process for reappointing Directors of Election.

A third reason given from the public debate is that of appointing the Director for seven years without advertising the post. However, as shown above, Mr. Walker, the first Director appointed by the ECJ was appointed for seven years without advertisement of the post. The reason for not re-appointing Mr. Fisher has to be other than the duration of the appointment.

It takes only one incident to abandon and break a convention irrespective of how long and how successful that convention has been practiced. Abandoning a convention releases all the parties adhering to it and sets a new precedent.

Elements of the New Process for Appointment to the Post of Director of Elections

From the information revealed publicly, the new process has been described as follows:

• A Director of Elections will normally serve for seven years as specified by statute.
• The Director will demit office so that a clear vacancy exists.
• The post of Director will then be advertised and competed.
• The former Director is not debarred from applying for the post.

The justification for this new process is that it complies with international best practice.

Fitness for Purpose of the New Process

The fact that anything is described as an international best practice does not exclude it from rigorous scrutiny. Moreover, the electoral system of Jamaica is itself an emerging international best practice. Countries within the Caribbean and across the world have been copying elements of Jamaican electoral practice.

The acid test, therefore, is fitness for purpose.

The fitness for purpose of this new process must be established in relation to the following criteria:

1. Equivalence: the new process is increasingly being used, internationally, with respect to employees without tenure and for consultants. Equating the post of Director of Elections to a contract employee or a consultant is a false equivalent. The term of office of the Director of Election is set by statute. The contract is the instrument of executing the statute but the contract does not define the post within the Public Service apropos permanent and tenured posts.
2. Nature of the Post: the Post of Director of Elections is a particular and peculiar post within the Public Service. By statute the holder is debarred from voting in any public elections or referendum; debarred from swearing allegiance to a foreign power; and perform duties and functions explicitly stated in the Representation of the People Act.
3. Common sense: the new process requires a hiatus, with contingent risks, between periods of appointment of Directors. It institutionalizes the break in service, as well as the risks, especially with respect to constitutionally due elections and elections that the Prime Minister may call at any time. The Commission implicitly acknowledged these risks when it reappointed Mr. Fisher for one year prior to the General Elections of 2016 again for one year prior to the Local Government Elections of 2017. Future Directors of Elections may not act as Mr. Fisher did in both instances. Moreover, installing a new Director just prior to a General Election is a huge risk.
4. Adverse effect: the new process means that every appointment of a Director is an appointment subject to the veto of a single Commissioner. This will most likely change the nature of the post of Director of Elections especially with precedent of the unfair treatment of Mr. Fisher notwithstanding his exemplary performance in the post. The chances of a Director, who performs his duties over seven years with competence, integrity and impartiality, not offending some faction in the political arena who may have influence with a Commissioner, is close to nil.
5. Superiority to existing practice: the new process is rigid and mechanical and lacks the wisdom and justice of the convention that has been followed over the past 34 years. It is likely to further weaken the post of Director of Election and make it even more precarious and vulnerable than it presently is.

This new process that the Commission has embarked upon fails on all five criteria of fitness for purpose.

The Critical Importance of Conventions to the Electoral System and Jamaican Democracy

The genius of the creators of the Electoral Advisory Committee in 1979 was the combination of structure, laws and conventions that they initiated to guide and civilize the exercise of political power with respect to the electoral system and by extension to democratic governance of the country. Conventions that have evolved and have been applied are with respect to the following:

• The appointment of Selected Members to the electoral body.
• The way in which the sovereign Parliament will adhere to recommendations of the constitutionally and legally inferior electoral body.
• The way in which the Boundaries Committee of Parliament will accept and act upon the advice of the electoral body with respect to the number of constituencies into which Jamaica is divided and the boundaries of those constituencies.
• The ways in which polling station locations will be decided in each constituency.
• The way in which disputes and grievances between the political parties are resolved by the Selected Members.
• The reappointment of Directors of Elections who have performed creditably.

Every one of these conventions can be abandoned and breached by legal means. The likely consequences is retrogression and regression from whence we came. A major factor in the success of the EAC/ECJ has been the conventions that have evolved over the last 38 years. Abandoning any of these conventions is an issue of grave importance.

The Silver Lining

The silver lining is that commitment to the advance of the electoral system and democracy in Jamaica is both broad-based and deep. It starts from the pinnacle of leadership in almost all spheres, runs through civil society organisations to ordinary citizens across the country. Every time there has been a snag, leaders and people have come together and used the opportunity to further advance our electoral system. There is every reason to believe that this will happen in this instance, particularly with respect to the post of Director of Elections.

Fortunately, while the conventions for reappointment of Directors of Elections cannot be reinstated, there is a superior alternative to the new, untried and possible disastrous process that has replaced the conventions. That is, to amend the ECJ Interim Act of 2006 such that the reappointment of Directors of Election follows the same formula for the dismissal of a Director. By statute a Director can be dismissed only for cause. Six Commissioners, including three Selected Commissioners, must vote in favour of dismissal. In other words, a Director of Elections who has performed creditably in the post would be reappointed without advertisement of the post provided that six Commissioners, including three Selected Commissioners, vote in favour of reappointment.

As humans we all err. This includes organisations and entities comprised of good and competent people. The unabridged truth is that the Commission got this one wrong. Hopefully the Commission will accept that it made an error and take correction action for Directors of Election going forward.

Professor Errol Miller

Former Chairman of the EAC and ECJ

June 19, 2018