13 February 2020
RE: Resignation of the Supervisor of Elections
Most of you will know that on 11 February I accepted the resignation of the Supervisor of Elections. Some of you may have seen the Supervisor’s resignation letter, or have heard a transcript of it.
I do not intend to engage in a public dialogue on this matter. However, it’s important that I address suggestions that my actions – specifically those relating to the duration of the period for continuous registration this quarter – were at odds with the conduct of a free and fair election and crossed constitutional boundaries.
I have no doubt that my actions were fully consistent with the law and in the interest of democracy. They were made following careful consideration of two points that you should be aware of.
The first relates to the legal basis of the deadline for first-time voters to register this quarter, the first in 2020. As most people know, by virtue of the Elections Act 2019 and the Constitution, this is the last quarter in which voters can register for the 2020 election.
The Elections Act 2019 repealed and replaced the Elections Act (RSA c E30). As the provisions of the 2019 Act are substantially different to those of the repealed Act, none of the earlier Act’s provisions and regulations survived – except those set out in Section 99 of the 2019 Act.
This means that until the regulations I promulgated on 11 February were gazetted, no regulations were in place – including those relating to the registration of voters. Consequently, the publicised date for final registration of 8 February had no legal basis. This I believe compromised the credibility of the electoral process and needed to be remedied immediately. This was done by promulgating regulations that clearly set out the date by which this quarter’s registration needed to end.
The second relates to my decision to set the publication date for the provisional voters list at the 49th day of the first quarter of the Election year 2020. This step makes Friday 14 February the last day for registration this quarter. Two factors figured in my consideration for doing this.
One, putting aside the issue of the legal basis of the date, I had a genuine belief that there was confusion around this quarter’s final date for registration. Was it Friday 7 February, or was it the following day, which was a Saturday? In my mind, any ambiguity around the date when registration finishes raises the possibility of hindering people’s ability to exercise their democratic right to register as voters.
Two, when promulgating the regulations, if I had kept the publication date for the provisional voters list at the 42nd day (as in the previous regulations) I would have set a date for registration to end which had already passed. This I believe would have been fundamentally wrong.
Taking both factors into consideration, and having taken advice, I concluded, that the proper course of action was to set the publication date for the provisional voters list at the 49th day of the first quarter of the Election year 2020. This means registration can continue until Friday 14 February 2020, but not beyond that.
Turning now to suggestions of constitutional over-reach I make two points.
First, Section 97 of the Elections Act 2019 sets out that regulations pursuant to elections – including those relating to voter registration – are made by the Governor acting in his own capacity. Consequently, my decision to promulgate the Elections Registration Regulations 2020 on 10 February, and to direct that these be gazetted without delay (particularly noting the circumstances set out above) was fully consistent with the law.
Second, the Elections Act 2019 clearly states in exercising their functions the Supervisor of Elections must be impartial and independent of any influence, but subject to the Governor’s oversight. That oversight – quite rightly – does not extend to the way the Supervisor conducts the polls and administers the Central Electoral Office. However, it does extend to the matter of regulations. Consequently, my actions and directions were proper and fully consistent with the law.
Preparations for the 2020 election continue. On 11 February I appointed Mrs Maria Hughes as Acting Supervisor of Elections. On Monday 17 February, Mr Rodney Rey will take up the reins as permanent Supervisor with Mrs Hughes becoming Deputy Supervisor. I know you will share my confidence in their integrity and professionalism. I thank them for their service.
Tim Foy
Governor of Anguilla
