Breach of natural justice

Recommendations by the Deyalsingh Commission of Inquiry into the functioning of the Election and Boundaries Commission (EBC), calling for the resignation of the commissioners of the EBC and the replacement of its Chief Election Officer (CEO) Howard Cayenne, was quashed by Justice Alan Mendonca yesterday.  He noted that there was nothing in the report that required their resignation and called it a breach of the rules of natural justice.

In a 52-page judgment, Mendonca  nullified the Commission’s five recommendations and other findings of the Commission and ordered the State to pay 75 percent of the EBC’s costs in this legal matter. He said: “ These findings, decisions and recommendations made against the Commissioners and the CEO personally as distinct from the EBC are a grave indictment on them and are prejudicial and injurious to their reputation. The report of the Commission received wide publicity, the recommendations were accepted by Cabinet and calls were made in the medial for the commissioners of the EBC to resign.” The Commission had recommended  by a majority decision that the Commissioners of the EBC should tender their resignations to the President; that a suitable qualified person in management and knowledgeable in human resource and information systems be recruited on contract to the post of CEO; and that the EBC immediately revisit and redo the entire field-check exercises carried out in the 2001 house to house survey in the marginal constituencies.

The two other recommendations dealt with field-check exercises, which the Commission recommended be carried out and continued in all constituencies. Retired judge Justice Lennox Deyalsingh was appointed by then President Arthur NR Robinson to chair a commission of inquiry into the functioning of the EBC. The call for the inquiry came amidst spiralling allegations of irregularities  by the  People’s National Movement (PNM) following the  2000  General Elections. After the recommendations of the Commission, Chairman of the EBC, Oswald Wilson, and other members, filed for judicial review, complaining that the Commission, among things, acted out of its jurisdiction. Representing the Commission were attorneys Douglas Mendes and John Jereme. Justice Mendonca recalled that section 71 (12) of the Constitution protects the EBC commissioners in the exercise of their function from “direction or control” from a third party, or the imposition of a wish of will. Mendonca explained, however, that he awarded only 75 percent costs because the EBC did not succeed on all its reliefs sought.  Attorneys Russell Martineau SC and Deborah Peake argued on behalf of the EBC. The Commission, which included Deyalsingh, Prof Karl Theodore, Dr Noel Kalicharan, Myrtle Palacio and Kyron Arthur, commenced public hearing on March 13, 2002 and ended on May 15, 2002.  Their report was presented to the President on June 3, 2002. However, Dr Kalicharan disassociated himself from the Commission’s  recommendation calling for the resignation of the EBC commissioners.