TRINIDAD AND TOBAGO

 


 

 

 


REPORT

 

OF

 

 

 

THE COMMISSION OF ENQUIRY

 INTO THE FUNCTIONING OF THE ELECTIONS AND BOUNDARIES COMMISSION

OF

TRINIDAD AND TOBAGO

 

 

 

 

 

Friday May 31st, 2002



 

EXECUTIVE SUMMARY

 

1.      On January 29, 2002, the President of the Republic of Trinidad and Tobago appointed a Commission of Enquiry into the functioning of the Elections and Boundaries Commission. The Commission received 72 submissions, held public hearings over the period March 13 to May 15, 2002 and paid visits to selected Offices of the EBC.

 

2.      Although the Commission fully understood that it was not a judicial enquiry it, nevertheless, saw its task as arriving at an understanding of what really transpired in respect of those matters referred to in its Terms of Reference. In doing so, the Commission strove to establish a proper balance between fairness to any persons who might be named on the one hand and the public interest on the other.

 

3.      In accordance with its Terms of Reference, there were three main questions which the Commission sought to answer –

 

(1)   Were the Electoral Lists for the 2000 and the 2001 General Elections accurately compiled?

 

(2)   Are the processes and procedures employed by the EBC conducive to accuracy of the Electoral Lists and the competent functioning of EBC staff?.

 

(3)   What changes, if any, should be made to ensure that the integrity of the Electoral Process is preserved?

 

4.      On the question of the Electoral Lists: While the Commission has arrived at a definitive answer with respect to the 2001 General Election, the same cannot be said for the 2000 Election.  In the case of the 2001 Election, the obvious reliance on the House-to-House Survey for modifying the Electoral List meant that the accuracy of the List for that year was directly linked to the quality of the Survey. In respect of the 2000 List, there was not much evidence before the Commission relating to the compilation procedures adopted.  With respect to this List, the Commission cannot state as a finding of fact that the Electoral List  for 2000 was inaccurate , although it appears that the probabilities point  in this direction.

 

5.      In its extensive consideration of the processes and procedures employed by the EBC, the Commission was confronted with a number of areas of weakness.  Our findings are that there are reasons for very serious concern in relation to -

 

           (i)     the security of EBC information on registrants          

          (ii)     delays in the processing of basic registration transactions

         (iii)     the  quality of field checks in the different registration areas and

          (iv)     the execution of a national registration update exercise.

 

The Commission was informed that most of these problems are directly related to a bigger problem - that of underfunding – and that the EBC has had to live with this over the years.

 

6.      In the light of these findings, the Commission has arrived at a number of recommendations.  In summary these are -

 

(i)         Give the EBC a chance to be guided by a new vision

 

(ii)               Undertake a thorough repair of the Electoral Lists in the five marginal Constituencies before going into the next General Election

 

(iii)             Decide at governmental level to put the funding of the EBC on a footing consistent with its crucial role in the maintenance of our democracy

 

(iv)             Provide the EBC with appropriate staffing, paying special attention to the Data Section

 

        (v)        Undertake a detailed review of the Representation of the People Act with the intention of making it possible for greater stakeholder involvement, greater transparency, and higher levels of accuracy in the production of Electoral Lists.

 

 

 

 

 

 

 

RECOMMENDATIONS

 

WE  RECOMMEND -

 

1.         That the Commissioners of the EBC tender their resignations to His Excellency the President.

 

2.         That a suitably qualified person in Management and knowledgeable in Human Resources and Information Systems be recruited on contract to the post of Chief Election Officer.

 

3.         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.

 

4.         That the field-check exercises referred to in paragraph 3 be done before the next General Election.

 

5.         That the field-check exercises referred to in paragraph 3, be continued in the remaining Constituencies as soon as is practicable thereafter.

 

6.         That the EBC take immediate steps to ensure the security of all Registration Record Cards and other Registration Documents.

 

7.         That the EBC take immediate steps to cancel the Registration Record Cards of all Electors whose names have been deleted from the Electoral List.

 

8.         That the EBC take immediate steps to obtain information on persons falling under Section 15(1)(a) and (b) of the Act and update the Electoral List on a continuous basis in respect of these persons.

 

9.         That the EBC should streamline its field investigation procedures and abolish the use of Form A134.

 

10.        That the EBC should as a matter of policy, refer to the Police all cases of registration transactions which after a proper field-check are found to be invalid.

 

11.        That the EBC streamline its registration and re-registration procedures to ensure that ID Cards are available to the Registrant within one month from the date of application.

 

12.        That the EBC utilize its power under Section 4 of the Act to register Electors and update the Register of Electors on a continuing basis.

 

13.        That the EBC post lists of Additions to and Deletions from the Electoral List in every Polling Division on a quarterly basis.

 

14.        That the EBC print the Elector’s File Number on the ID card and on Electoral Lists and Poll Cards.

 

15.        That the EBC should ensure that on Polling Day -

 

(1)        Pending an amendment to the Rules, the “initials of the Presiding Officer and the Deputy Presiding Officer should be displayed in the Station Diary.

 

(2)        The Duplicate Poll Cards carry Electors’ Registration Numbers and organized for convenient use by the Poll Clerks.

 

(3)        The Poll Clerk check the Registration Number on an Elector’s ID card against the Registration Number on the Duplicate Poll Card in every case and use the Duplicate Poll Card in the Voting Process.

 

(4)        The Poll Clerk should call the sequential number and the name of every Elector as the Elector is being processed by the Poll Clerk.

 

(5)        Where a Voter does not have an ID Card or his/her name does not appear on the Electoral List, the Poll Clerk should check the Voter’s Registration Record Card in the Unit Register in every case.

 

(6)        Pending an amendment to the Rules, that the EBC must regard it as a mandatory practice to send out Poll Cards to every Elector before an Election.

 

(7)        That the EBC continue the practice of printing the registration number of Electors on the Electoral List provided to the staff at Polling Stations and ensure that these Lists reach the Presiding Officer prior to polling day.

 

16.        That the EBC should as soon as possible acquire the new computer recommended in this Report and update its Identity Card Issuance System.

 

17.        That the EBC make Voter Education one of its priorities and immediately embark upon a planned programme to accomplish this.

 

18.        That Government provide adequate funding to the EBC to enable it to carry out its Constitutional and Legal Functions.

 

19.        That Government guarantee to the EBC the funds allocated to it in the Annual Budget and ensure timely releases of these funds.

 

20.        That a competent local Attorney be appointed to carry out a review of the Representation of the People Act, Chap.2:01.

 

21.        That the Act be amended to provide for a Revising Tribunal.

 

22.        That the Registration and Election Rules be amended as follows -

 

(1)        A Statutory Declaration be included in the following Forms:

 

Form 10 – Registration Record Card

 

Form 22 – Notice of Change of Residence

Form 24 –  Application for Replacement of  Identity Card

 

Form 31 – Option where Person has more than one place of residence

 

(2)        Election Rule 39(1) be amended to make it mandatory for the EBC to issue or cause to issue Poll Cards to prospective voters whose names appear on the Revised List of Electors at the address stated thereon.

 

(3)        Election Rule 54(1) be amended to include the initials of the Presiding Officer and the Deputy Presiding Officer and any other officer authorized by the Presiding Officer to initial ballot papers in the station diary.

 

(23)      That the Representation of the People Act, Chap 2:01 be put before Parliament for amendment following the Review of the Act as recommended.

 

 

 

TRINIDAD AND TOBAGO

 

 

 

REPORT OF THE COMMISSION OF ENQUIRY INTO THE FUNCTIONING OF THE ELECTIONS AND BOUNDARIES COMMISSION

 

 

A.        PRELIMINARY

 

 

1.         By Instrument dated the 29th day of January, 2002, His Excellency the President of Trinidad and Tobago appointed a Commission to enquire into the functioning of the Elections and Boundaries Commission of Trinidad and Tobago (“the EBC”) with the following Terms of Reference:

 

“ (i)   To inquire into:

 

-                The entire process involved in the compiling of the lists of electors used in the 2000 and the 2001 General Elections for all the electoral districts in Trinidad and Tobago with special attention being paid to the process as it relates to the constituencies of Tunapuna, Barataria/San Juan, San Fernando West, St. Joseph and Ortoire/Mayaro

 

-                The systems and procedures followed by the Elections and Boundaries Commission to ensure the accuracy of the lists of electors in 2000 and 2001 in circumstances where

 

-           registered persons change their places of residence from one registration area to another

 

-           registered persons die or no longer have their places of residence in Trinidad and Tobago or otherwise cease to be qualified to be registered as electors in their registration areas

 

-        The systems, processes and procedures followed by the Elections and Boundaries Commission to ensure that members of its staff exercise their functions competently, and in accordance with democratic practice and principles

 

(ii)     To make such observations and recommendations arising out of its deliberations as the Commission may deem appropriate to ensure that the integrity of the electoral process is preserved.”

 

2.                        The Commissioners are:

Justice Lennox Deyalsingh                -           Chairman

Retired Judge of the Supreme Court

 

Professor Karl Theodore                   -           Member

Professor in Economics and

Head of the Economics Department,

The University of the West Indies

St. Augustine

 

Dr. Noel Kalicharan                            -           Member

Senior Lecturer in Computer Science,

The University of the West Indies

St. Augustine

 

Mrs. Myrtle Palacio                           -           Member

Chief Elections Officer, Belize

 

Mr. Kyron Arthur                               -           Member

Retired Assistant Commissioner,

Trinidad and Tobago Police Service

 

 

 

3. The Commission held its first meeting on February 5, 2002.  Memoranda from the public were invited with a closing date of March 7, 2002.  Since political parties were considered to be key stakeholders in the electoral process, the Commission by separate communication, invited all political parties to submit memoranda and be represented by Attorneys at the Commission’s public hearings.

 

4. The Commission received a total of 72 memoranda as follows:

                        Political Parties                       4

                        Other Organisations               6

                        Individuals                              62 - 72

 

The Political Parties represented at the Enquiry were the People’s National Movement (“the PNM”) and the United National Congress (“the UNC”) with the UNC’s appearance being limited only to any allegations of misconduct by the UNC raised at the Enquiry.

 

5. Except for a very few sessions which were held in camera, the Commission sat in public over the period March 13, 2002 to May 15, 2002.

 

6. The evidence heard by the Commission covered the period March 13, 2002 to May 15, 2002 - a total of 34 working days.  The Record of Evidence consists of 3655 pages and 261 Exhibits from 58 witnesses -  17 called by the PNM, 11 called by the EBC and 30 by this Commission.  In addition, our investigation included visits to Registration Offices, Data Analysis, Statistical Analysis and Literature Review.  To say the least, it was voluminous.

 

7.                  The volume of the evidence was such that the Commission could not possibly examine and arrive at a determination on each individual transaction highlighted in the evidence.  Such an exercise would require hundreds of witnesses and would take several months.  The Commission’s approach was to look at the evidence in a broad and sensible manner and attempt to arrive at conclusions deriving from the particular facts which could be found and from our general “feel” of the issues as they emerged.  There was no “lis” before us with specific issues of fact to be found as in a Court of Law.  There was before us a mass of evidence, often incomplete and disjointed, often leaving us unable to come to a specific finding of fact on specific issues but in the final analysis cogent and sufficient to lead to broad and reasonable inferences.  The Commission is satisfied that, at the end of the day, the conclusions reached are justified in the context of all the evidence we have heard.

 

B.        ROLE OF COMMISSIONS OF ENQUIRY

 

8.                   “Commissions of Enquiry are not judicial proceedings.  They are not even quasi-judicial for they decide nothing; they determine nothing.  They only investigate and report. But this should not lead us to minimize the significance of their task.  They have to make a report which may have wide repercussions.  They may, if they think fit, make findings of fact which are very damaging to those whom they name.  They may accuse some; they may condemn others; they may ruin reputations or careers.

 

9.         Seeing that their work and their report may lead to such consequences, they must act fairly.  They can obtain information in any way they think best, but before they condemn or criticize a man, they must give him a fair opportunity for correcting or contradicting what is said against him.

 

10.        They must be masters of their own procedure.  They should be subject to no rules save this:  they must be fair.  This being done, they should make their report with courage and frankness, keeping nothing back.  The public interest demands it” - See Re Pergamon  Press Ltd. P.535 at p.539 (c) to (f) and p.540 (c).

 

11.        “Whatever its particular terms of reference, a Public Inquiry should attempt to promote understanding, not only of what may have gone on, but also what led to the events which are the subject matter of the Inquiry, and what may have been the motives and intentions of those involved.  In this way, the complexities that surround all events and actions can be exposed and explored.  The black and white uncertainties advanced by some may be shown to be illusory and unhelpful.

 

12.        A Public Inquiry should aim, indeed it may be as much a duty as a purpose, to be a means whereby all those affected by the events under investigation can feel that their concerns have been aired and heard and that life can move on.  It is commonly the case that events leave those touched by them in some kind of personal limbo, prevented by the past from creating a future.

 

13.        Further, a Public Inquiry, whatever its formal terms of reference, offers the opportunity for a form of communal catharsis.  The importance of this purpose should not be undervalued.  It offers an opportunity for those in authority to be held to account;  it allows for the public venting of anger, distress and frustration; it provides a public stage on which this can take place.”

 

14.        “It has been suggested that restoring public confidence in Government or in a particular organization may be one of the purposes of a Public Enquiry but in talking of restoring public confidence we should add from our experience that a Public Inquiry of itself cannot, and perhaps should not seek to, restore public confidence.  The public’s confidence in any particular organization or even government’s role in any particular area has to be won.  Indeed, a Public Inquiry may reach the view that confidence is not deserved unless certain actions are taken.” - (See Percy v Secretary of State for Environment, Food & Rural Affairs (2002) EWHC 371 (Admin) (15th March, 2002).

15.        This Commission of Enquiry has been guided in its functions by all that has been said above.  We have not been circumscribed by strict legal procedures, we have sought information from visits to Registration Offices, we have called witnesses on our own initiative, we have striven to be fair and believe that we have been, and we make our Report “with courage and frankness, keeping nothing back”.

 

C.     REGISTRATION SYSTEM

 

16.              Voter registration may be classified based on two (2) main criteria:

 

(a)                State responsibility model versus self-registration model -registration through State initiative versus responsibility placed on the individual citizen;

 

(b)               continuous registration where the Register is updated on a regular basis (much of Western, Central and Eastern Europe, Australia, Peru, Guatemala, Belize, Jamaica) versus non-continuous registration where a new Register is put together for each Election (emerging democracies, Canada before 1997, British Virgin Islands, Bahamas).

 

Taken from (a) “Voter Turn-out since 1945 – A Global Report” and (b) “Free and Fair Elections International Law and Practice” by Guy S. Goodwin Gill (Inter-parliamentary Union 1994).

 

17. The system of registration in Trinidad and Tobago is governed by the Representation of the People Act, Chap.2:01 (“the Act”) prescribes to the self-registration model as one of voluntary permanent personal registration.  The system requires a person wishing to be registered to make an application to the Registration Officer of the Registration Area in which he/she is resident.  Once a person is registered, his/her name remains on the Register until it is removed in a manner provided by the Act.  Further, since the Act provides for the Register to be continuously updated by additions (e.g. new registrations) and deletions (e.g. cancellation in cases of death) it can be said that ours is a continuously updated system; but it is only so in a limited way as will be shown later in this Report.

 

18. The several transactions in the registration process are as follows:

 

(1)                           Registration of Non-Electors i.e. citizens 15 - 17 years old.

 

(2)        Registration of recent Returnees who do not satisfy the residency requirement.

 

(3)        Registration of Electors i.e. persons 18 years and over.

 

(4)               The deeming of Non-Electors (change of status from Non-Elector to Elector on attaining the age of 18).

 

(5)        Transfer of Electors due to change of residence within the same Registration Area or across Registration Areas and for the purposes of a General Election, from one Polling Division to another or from one Constituency to another.

 

(5)               Deletion of Electors from the Register by reason of migration, death, mental incapacity, being under a sentence of death imposed by a Court of Law, serving a sentence of imprisonment exceeding twelve months or convicted of an offence relating to elections.

 

(7)        Re-registration and Re-Instatement.

 

19. The overall process contemplated by the Act is relatively simple.  To be registered, a person makes a written application to the Registration Officer in the Registration Area in which he resides.  A “field-check” is carried out and if the Registration Officer “is satisfied” with the particulars stated in the application, the person is registered. On attaining the age of 18, a Non-Elector is field-checked; if the check is satisfactory, he/she is transferred to the Register of Electors.

 

20. Where an Elector changes his/her residence, he applies on a prescribed form (Form 22) for the change to be made on the Register of Electors and this is done after a “field-check” to confirm the particulars given by the Elector in his/her application.

 

21. Where a person migrates or is dead or suffers from mental incapacity or is under a sentence of death or serving a sentence of imprisonment exceeding twelve months or has been convicted of an offence relating to elections, he is disqualified, and his name is removed from the Register of Electors.  Where a “field-check” satisfies a Registration Officer that an elector is no longer living at his registered address or has yielded no information on the elector, the elector is sent a Notice on a prescribed form (Form 21) that his name will be removed from the List of Electors after the expiration of the time stated in the Notice unless the person satisfies the Registration Officer that his name should not be removed.

 

 

22. The Registration Rules (appended to the Act) lay down the procedures to be followed and the Forms to be used in the case of each of the registration transactions mentioned above.  The Election Rules lay down the procedures relative to an Election.

 

23. Generally speaking, the Act and Rules provide for a simple process for the compilation of the Electoral List.  Some regulatory imperfections (e.g. short deadline for objections) do not provide for the proper implementation of checks and balances, but if followed both in the letter and in the spirit, it would result in an accurate Register of Electors.  With the right approach and due diligence, the EBC should be able to maintain an Electoral List which engenders confidence in the public mind.

 

 

D.        THE ELECTIONS AND BOUNDARIES COMMISSION

 

24. The EBC is the authority charged with the maintenance and accuracy of the Electoral Lists.  It is an autonomous body created by the Constitution of Trinidad and Tobago with inter alia the function of directing and supervising the registration of voters and the conduct of elections.  The Constitution provides:

 

“   71.(1)   There shall be an Elections and Boundaries Commission for Trinidad and Tobago.

                             .   .   .   .   .   .   .   .   .

The Commission may regulate its own procedure.   

 

 (9)   The Commission shall be provided with a staff adequate for the efficient discharge of its functions.

 

(10)  The salaries and allowances of the staff shall be a charge on the Consolidated Fund.

 

(11) The registration of voters and the conduct of elections in every constituency shall be subject to the direction and supervision of the Commission.

 

(12)  In the exercise of its functions the Commission shall not be subject to the direction or control of any other person or authority.”

 

25. The Act provides, inter alia, that the EBC “shall exercise general discretion and supervision over the administrative conduct of Elections and enforce on the part of all Election Officers fairness, impartiality and compliance with this Act” – Sec. 3(1).  The Act goes on to prescribe “Registration Rules” and “Election Rules” specifying the procedures to be used in these two exercises.

26. The Act sets out the mechanics by which the EBC carries out its constitutional and legal functions.  It provides for:

 

(1)   A Chief Election Officer who shall, subject to any general or special directions of the Commissioners of the EBC, perform such functions and duties and exercise such powers of the EBC in such manner as the EBC, may from time to time direct, including the following:

 

(a)        to make such arrangements and do such things as are necessary for the initiation and maintenance of the Unit and Central Registers in accordance  with the Act, and for that purpose to make arrangements for the preparation and issue of the necessary forms and instruments and for the collection and keeping of such records as may be necessary;  

 

(b)        to issue to all Election Officers such instructions as he may, from time to time, deem necessary to ensure the effective execution of the provisions of this Act; and

 

(c)        to execute  and perform all other powers and duties that by this Act or by the EBC are conferred or imposed upon him – Sec. 3(2).

 

27. The Chief Election Officer is therefore, the Chief Executive Officer of the EBC.  Subject to the directions of the Commissioners of the EBC, he is the officer charged with the responsibility of ensuring that the entire electoral process, from the registration of Non-Electors and Electors to the declaration of the results of the poll on Election Day, is carried out in accordance with the Act.

 

28. Further, the Act provides for the appointment by the EBC of the necessary staff for the purposes of an Election e.g. Returning Officers, Election Clerks, Presiding Officers, Poll Clerks etc. – Sec. 6 – 8 and prescribes the Registration Rules and the Election Rules governing these two areas.

 

 

 

 E.     BACKGROUND TO ENQUIRY