A decision by the Senate to amend three electoral bills containing provisions against open voting has set the Upper House on a collision course with the Electoral Commission, the parliamentary body with oversight responsibility for the fair conduct of elections.

Director of Elections Danville Walker confirmed Friday that the Commission, following a meeting Wednesday, has written to Leader of the House and minister responsible for electoral matters, Dr Peter Phillips, advising him of their objection to the Senate’s attempt to amend the bills.

“We have huge problems with the amendment. We have a problem with any amendment to anything the Commission puts forward,” Walker said. “There is a convention that whatever the Commission puts forward, it is enacted without any amendment.”

The Commission’s position now puts the House of Representatives in a position where it may be forced to reject the Senate’s amendments and pass the bills.

The House is scheduled to meet Tuesday, and among the issues on its agenda for conclusion, prior to an expected early prorogation for general elections, is debate on the three bills amending the Representation of the People Act; the Kingston and St Andrew Corporation Act; and the Parish Councils Act.

The bills seek to amend the principal Acts by creating penalties for open voting. The penalties comprise fines of $20,000 to $80,000 and imprisonment, with or without hard labour, of three to five years, or both fine and imprisonment, for breaches.

When the bills were debated in the House of Representatives on May 29, a number of lawyers there criticised the mandatory nature of the penalties. But Dr Phillips said that while he sympathised with their point, he felt that Parliament had to uphold the tradition of approving proposals from the Electoral Commission (formerly the Electoral Advisory Committee) without variation. The House went along with him.

However, when the debate was held in the Senate on Friday, June 15, Leader of Government Business Attorney-General A J Nicholson led an about-turn with an amendment giving judges discretionary authority in applying penalties.

Nicholson said that, the Commonwealth was moving away from mandatory sentences, and that the Commission could not dictate to Parliament.

“This Parliament is supreme when it comes to the passing of laws,” the attorney-general said. “The EAC can’t tell us what laws to pass.”

He was supported by 10 of his colleagues from both sides of the House. The only “nay” came from Senator Anthony Johnson, Leader of Opposition Business, who supported Dr Phillips’ view.

When the bills were returned to the House of Representatives last Tuesday for final approval, Dr Phillips changed his tune and sought support for the amendments. He said that he had been advised that the Commission had accepted the amendments.

But Opposition MP and Electoral Commission member Karl Samuda denied the claim.

“I must say, as a member of the Commission, I am not aware of the agreement to accept the amendment,” Samuda informed the House.

In response, Phillips agreed to put the matter on hold, pending a formal response from the Commission.

However, since then, the issue has grown into Parliament’s first major confrontation with the Commission, whose forerunner, the Electoral Advisory Committee, was formed in 1979 to conduct national elections without any unfair advantage to any party or individual contesting the polls, and to ensure one man, one vote.

Walker said that the mandatory nature of the penalties was consistent with others which fell under the Commission’s purview and, unless there was a need to review all the penalties, the Commission could not have all but one penalty being mandatory.

‘Every single offence in the Representation of the People Act is treated that way, with a mandatory minimum,” Walker explained. He said that he was surprised that the Senate was not aware of that.

“I was very surprised when I heard that they found a difficulty with this, when they didn’t find a difficulty in all the others,” said Walker.

He said that the Commission is about to embark upon some fundamental reforms, including campaign financing, which will have to be sent to Parliament for approval, and a change in this relationship between the Commission and Parliament, at this time, must be of concern to the Commission.