of the Election Process

By Norman B. Saunders Jr., Saunders & Co.

Democracy has never been the cheapest form of government and it always requires assistance to function well. This article looks at certain aspects of the legislative framework upon which our democracy stands.

The legislation that is relevant to the Turks & Caicos Islands people’s exercise of their democratic rights is contained within the Elections Ordinance, the Electoral Districts (Boundaries) Ordinance, and there are aspects to our Constitution that touch on the exercise of democratic rights.

In its purest form democracy requires that for every decision each member of the public should have an equal say in the determination of that decision. This is of course impractical, so much of the world has instead embraced representative democracy. In a representative democracy, everyone has an equal say in the election of an individual, or group of individuals, who then make decisions on behalf of the masses.

This article will look at certain aspects of TCI elections legislation, specifically areas of the law that are designed to ensure the integrity of the election process, in an effort to ensure that our representative democracy reflects the choice of the people.

Our election laws are the foundation upon which a superstructure is created to ensure the proper exercise of our democratic rights. It provides for the appointment of a Supervisor of Elections (“Supervisor”), who is responsible for supervising and administering the election and ensuring compliance with every aspect of the legislation. The law provides for the preparation of a register of voters, the creation of electoral districts, a process for making objections to the voters lists, proper conduct at elections, a process for disputing the results of elections through the courts, election offences and a miscellany of other matters.

ELECTORS
The individuals that are allowed to select our representatives are set out in the Elections Ordinance and in the Constitution. A potential voter must either have been born in the Turks & Caicos Islands, or was born to a father or mother that was born in the Turks & Caicos Islands, or he must be a Belonger. In addition, such a person must be 18 years old and must have lived in the Turks & Caicos for a minimum of 12 months in the 2 years prior to the date used to qualify voters for an election.

It is interesting to note that birth in the Islands, coupled with a minimum period of residency, entitles an individual to vote. Perhaps more interesting is the fact that one’s birth in the Islands, alone, does not entitle one to Belongership nor does it entitle one to any form of residency status. It may therefore be the case that potential voters are prevented under the Immigration Ordinance from qualifying to vote because they are subject to immigration control and they have no right to reside in the country, which is a necessary criteria for their exercise of the right to vote. It would be interesting to see whether an argument before the Supreme Court that the provisions in the Immigration Ordinance that subject individuals that are born in the Islands to immigration control is unconstitutional because it might deny them of their constitutional right to vote.

APPOINTMENT OF THE SUPERVISOR OF ELECTIONS
Our elections law provides that the Governor shall appoint a Supervisor. Once appointed it is the Supervisor, subject to the approval of the Governor, who appoints the election officers except that in the case of the returning officers he recommends them to the Governor for appointment. Presiding Officers are appointed to oversee the conduct at the polling station in each district. Poll Clerks are appointed to assist Presiding Officers and the Returning Officers are recommended to the Governor for appointment for the counting of the votes and determining the winning candidate.

VOTERS LISTS
A considerable amount of effort is put into the proper compiling of the voters lists. The law provides that the Supervisor shall publish no later than 30 January in each year, a list of individuals that were eligible to vote on 30 November of the previous year. Claims and objections can be made to the voters lists within 14 days of their publication.

If the Supervisor decides to hear a claim or objection he must give no less than five days notice to the potential voter and he must also give notice to the person lodging the claim or objection. It is the Supervisor who hears the claims and objections but a further appeal lies from the Supervisor to an Elections Adjudicator (“Adjudicator”), who is appointed by the Governor in his discretion. The decision of the Adjudicator is final.

The Governor must publish the list of voters shortly after the claims and objections procedure but at any rate, not later than 28 February of each year. If there are still unheard claims and objections before the Adjudicator, then the Governor shall not publish that part of the voters lists affected by the appeal and the corresponding part of the previous voters lists shall continue in use.

Despite all of the statutory protections indicated above, the Supervisor of Elections can amend the list of voters at any time, and indeed he must do so, to give effect to a decision on a claim or objection, or to include the name of anyone that he is satisfied is entitled to be registered. This power, however, to make these amendments at any time does not appear to come with the same statutory obligations that apply during the claims and objections procedure, where notice must be given to those individuals affected by the exercise of the power.

The effect of this provision is that changes can be made to the voters lists up to and on the day of the elections. While it also appears that there is an unrestricted right to appeal the decision of the Supervisor, in the opinion of the writer those rights are effectively futile if the Supervisor is going to make changes to the voters lists up to and including the day of the elections. This is because the right to appeal a decision of the Supervisor requires that notice be given within seven days of a decision, and for a hearing within seven days of receipt of notice. This effectively means that the decisions that the Supervisor makes in the days running up to the election are, for all practical purposes, only subject to review by the Supreme Court after a winner has been announced.

What is different about elections in the Turks & Caicos Islands is the small number of voters that comprise some districts. In those districts each vote is relatively important. A considerable amount of effort in the days up to our elections is spent, by most candidates, trying to massage the voters lists in the hope of switching the balance of support. Since changes that are made in this manner are outside of the claims and objections procedure the writer can see nothing in the elections legislation that requires such decisions to be notified to all relevant parties and indeed, since such changes can be made up to and including the day of the election, the delivery of such notice to relevant parties would be futile.

It is suggested that it is contrary to democratic principles that the Supervisor should have the power to make changes to the elections lists up to and including the day of elections. Some voters in Providenciales’ Bight, for instance, stood in line for more than five hours for the right to cast their vote. This in itself is a hefty price to pay for democracy. It is the writer’s view that it would be a travesty of decency if a voter got to the front of the line in the Bight only to find that a few hours prior to the elections the Supervisor had amended the elections lists changing the voter to another district.

It is the writer’s view that a better approach would be to prevent changes to the elections lists during the one-month period prior to the elections. This would prevent both sides from trying to achieve victory by ambush. More importantly, it would give all voters the opportunity to determine, well in advance, where they must exercise their democratic rights.

THE PROCEDURE AT ELECTIONS
Every candidate may appoint someone to attend at the polling station along with someone to attend at the counting of the votes. Voting is to be by secret ballot cast in a covered booth designed to keep confidential the identity of the candidate for who the voter cast his ballot.

On the day of the elections, the Presiding Officer and the Poll Clerk, at 7 AM in each district, must open the ballot box in front of the candidates or their agents to ensure that there are no ballots in the box and then the ballot box must be closed, locked, and kept on a table in full view of all present in the polling station. The person representing each candidate may stay in the polling station so that he can see each voter and hear each voter’s name. No person other than the election officers and the voters should be allowed within 100 yards of a polling station.

When given his ballot paper, voters should be allowed to enter the secret polling compartment in the polling station to mark their ballot paper. On return of the voter, the Presiding Officer must examine the ballot in front of the representatives for the candidates to ensure that it is the same ballot and he must then, again in full view, deposit the vote in the ballot box. Every person who presents himself at a polling station before it is closed must be allowed to vote and the blind and the illiterate are allowed to have a friend vote for them.

After the poll is closed the Presiding Officer must seal the ballot box, count the number of voters casting votes, count the number of spoiled ballots, count the number of unused ballots, and cross-reference them to ensure that all ballot papers are accounted for. All the documents used at the polling station must be delivered to the place for the counting of the votes or to the Returning Officer, who must place his seal on the box. The Presiding Officer must also deliver the keys to each ballot box to the Returning Officer.

The Returning Officer must open the ballot box, giving each candidate, or someone on his behalf, the ability to see each vote counted. The witnesses must also be given sheets to keep track of the votes cast for the candidates. Where there is an equality of votes for two or more candidates, no such candidates having the highest number of votes, no candidate shall be elected. The tie must be resolved through a special by-election with only those candidates with an equality of votes, to determine the winner.

ELECTION OFFENCES
During the hours that the poll is open no person should in any public place seek to influence a voter to vote for any particular candidate. In addition no person should use any loudspeakers for political propaganda or supply any loudspeakers with the intent that they are to be used for political propaganda. It is also an offence to supply intoxicating liquor during polling hours, presumably on the basis that liquor promotes disorderly behavior.

It is also an offence to bribe a voter, to corruptly bestow treats on a voter as an inducement to vote for a candidate, or to coerce a voter to vote in a particular manner. The list of what is covered by bribery is wide. It includes giving something of value to a person to vote in a particular manner, or after voting in a particular manner, or having refrained from voting in a particular manner. It also includes a person giving someone money for the purpose of bribery. It includes the person accepting the item of value on the promise to vote or to refrain from voting in a particular manner. It also includes someone accepting something of value because of the promise of another to vote or to refrain from voting in a particular manner.

The definition of bribery not only bides on the person giving the item of value but also on the person accepting the bribe. Both parties might indeed be culpable but from a practical standpoint it makes it difficult, in the absence of a sting operation, to secure convincing evidence of bribery if all the parties involved are subject to penalties.

ELECTION COMPLAINTS
Objection to an election result must be made by petition to the Supreme Court within 7 days of the election unless the petition is based on corruption and unless it alleges the payment of a reward, by or on behalf of a candidate, in which case the petition may be lodged within 14 days of the petitioner becoming aware of the payment.

If on hearing a petition the Judge finds and certifies that a candidate who has been elected is personally guilty, or is guilty through someone who represents him, of any corrupt or illegal practice, that person’s election shall be void. In addition, if the Judge finds that corrupt and illegal practices so extensively prevailed at an election that it likely affected the result of the elections, the Judge must determine that the election of that person is void and that person shall be incapable of being elected to fill any vacancies for which the elections were held.

After hearing the petition, the Judge must determine either that the person complained of was properly elected, that another person was properly elected, that no one was properly elected, or that the election was void and the Judge must certify his results to the Governor, which shall be final. The election must either be confirmed, altered, or a new election must be held in accordance with the Judge’s certification.

This article has only briefly touched on some of the legislative provisions that help to secure the integrity of the electoral process in order to ensure that representatives are properly chosen. It is the writer’s view that it is important if the process is to work well that we have well-thought-out legislation and a strong judiciary that will act as a buffer to the excesses of power. Even where the difficulty is more an exuberate but ill advised use of power, resulting in mistakes, which is more likely to be the case, rather than an intention to skew the results of an election, it is important that there be a check against official power.

Norman B. Saunders Jr. read law at Cambridge University, England and Philosophy and Economics at the University of Toronto, Canada. A native of South Caicos, Mr. Saunders is the founding partner of Saunders & Co.