High Court Judge Carol Gobin

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High Court Judge Carol Gobin is expected to give her judgment in a lawsuit against the Elections and Boundaries Commission (EBC) over its recent report on the creation of three new electoral districts in Tobago, on November 22.

Gobin set the date yesterday during a case management conference of the lawsuit brought by June McKenzie, of Bacolet, Tobago.

In the brief virtual hearing, Justice Gobin granted permission for the Office of the Attorney General to be joined to the case as an interested party.

Attorney Ravi Nanga, who represented the AG’s Office, indicated that his client wanted to make a preliminary point related to the writ that was issued for the Tobago House of Assembly (THA) elections to take place on December 6, before the parties file submissions in the case.

Gobin gave the parties time-lines for filing the submissions on the preliminary and substantive issues but warned that both would have to be dealt with expeditiously based on the proposed date of the election.

“We really need to fast-track everything because the date is looming large,” Justice Gobin said, as she noted that she would have to consider the case while she is on vacation leave to deliver her judgement within a reasonable time.

In McKenzie’s court filings, obtained by Guardian Media, McKenzie is claiming that she is interested in the issue as she is a public-spirited individual concerned with the democratic affairs of Tobago having served as secretary for the Tobago East constituency during the tenure of former President and Prime Minister Arthur NR Robinson.

Her lawyers are claiming that the EBC breached its statutory duties under Section 4 of the Election and Boundaries Commission (Local Government and Tobago House of Assembly) Act by allegedly utilising considerations that were not expressly or impliedly conferred by the legislation.

They are contending that when the EBC decided to split two existing districts into four new districts, it was done on a mathematical basis with the districts with the highest number of electors being selected.

“However, when the intended defendant came to exercise its discretion in relation to the new 15th district, the intended defendant bypasses the largest electoral area for the creation of the new 15th district and instead uses the second largest electoral district for the creation of this 15th district,” McKenzie’s lawyers said.

“The intended defendant, in its report, states that this was done to avoid “fragmenting” “communities” within the Providence/ Mason Hall/Moriah electoral district,” they added.

They also questioned the EBC’s consideration of community boundaries.

“These terms are vague, nebulous, and uncertain. There is too great a risk of arbitrary application,” they said, as they suggested that natural boundaries such as major highways and rivers should have been considered.

Through the lawsuit, McKenzie is seeking a series of declarations against the decisions contained in the report as well as an order quashing it.

When first confronted with McKenzie’s challenge, the EBC’s Chief Election Officer Fern Narcis-Scope claimed that the matter is closed as the EBC’s report was submitted to the House of Representatives on September 10 and passed five days later before the President issued the Elections and Boundaries Commission (Local Government and Tobago House of Assembly) (Tobago) Order 2021.

Narcis-Scope denied any wrongdoing in relation to the commission’s report and said it was consistent with the statutorily prescribed procedure.

“It cannot be said that reasonable persons applying the appropriate principles could not have set the electoral boundaries as the Commission has or that the Commission took into account irrelevant considerations or ignored relevant ones,” Narcis-Scope said.

“It (EBC) did not identify “threats to the integrity of communities” and did not embark on any determination of “which communities could not be fractured”,” she added.

The move to increase the electoral districts in Tobago was the result of a deadlock in the THA elections in January, in which the People’s National Movement (PNM) and Progressive Democratic Patriots (PDP) each secured six districts.

The three new districts are Lambeau/Lowlands, Darryl Spring/Whim, and Mt St George/Goodwood. All but two of the original 12 districts were slightly modified to make the change.

Justice Gobin has agreed to determine the case in a rolled-up hearing, in which she would consider whether she (McKenzie) should be granted leave to pursue the case while simultaneously considering the substantive issues.

McKenzie is being represented by Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon, and Rhea Khan, while Douglas Mendes, SC, Tiffany Kissoon, and Avaria Niles are appearing alongside Nanga for the AG’s Office. Deborah Peake, SC, Ravi Heffes-Doon and Alana Bissessar are representing the EBC.