PART XVII: WILL SIR BYRON GIVE FAVOURABLY CONSIDERATION TO DLP’S PROPOSAL TO REMOVE THE 5 YEAR ABSENTREQUIREMENT FROM OUR ELECTORAL LAWS?

Lest we forget, in our state of shock and amazement from the unfamiliar sights of bright Christmas lights on our streets and the traditional smell of smoked turkey and salted ham in the air, the final $500 thousand consultancy report of Sir Dennis Byron with recommendations on the way forward for electoral reform in Dominica, was supposed to be made available to the public by the end of December 2020 following consultations with stakeholders and interest groups.

In September 2020, the Prime Minister, Hon. Roosevelt Skerrit confirmed that prominent Caribbean jurist, Sir Denis Byron was contracted to embark on a project to deliver Electoral Reform for Dominica. The PM initially announced on his Anou Palay Program that Sir Byron was chosen to undertake the task as the “sole commissioner.” The hope of the Prime Minister was for the recommendations of Sir Byron to be accepted by all and put into law, as if to suggest that there was no role for a constitutionally mandated Electoral Commission, which, at the time, the President of Dominica had not yet ensured its constitution.

We eventually learned that the consultancy of Sir Byron would cost the state in excess of EC$500 thousand with deliverables within a very tight schedule –in any event by the end of December 2020. Of course, as is the case with this DLP administration, the innocence of nature is always blamed for the Administration’s lack of foresight and failure to plan effectively for contingencies. In November 2020, we were advised by PM Skerrit that Covid-19 was to be blamed for the delay in the work of Sir Byron, having previously announced that notwithstanding the COVID-19 pandemic, his government felt it was necessary to advance the cause of electoral reform and to have the necessary work done the soonest.

PM Skerrit did not inform the nation that his tardiness in nominating members to the Commission and the presidential lethargy to appoint the Chairman of the Commission….” in his deliberate and independent judgment,” contributed immensely to the delay in the engagement of Sir Byron. We were advised that Sir Byron was not pleased with the utterances of the Prime Minister about his no-bid ‘consultancy’ and he privately admonished PM Skerrit for what was characterized as ill-advised statements with ludicrous expectations that the report with recommendations from the engagement of Sir Byron would automatically be submitted to parliament for adoption as the amendments to our electoral law without regard to the constitutional mandate requiring the involvement of the Electoral Commission. In that regard, the astuteness and vast experience of Sir Byron was tested very early as he insisted that all official appointments to the new Electoral Commission was paramount before he began full engagement under the terms of his no-bid, public procurement consultancy contract with an advance down payment already made.   

The final OAS Observer Report with its recommendations on the general elections held in Dominica on 06 December 2019 was presented to the OAS Permanent Council for its consideration on 18 November 2020.  There was no substantive change from the contents presented in the preliminary report on 7 December 2019. The OAS recommended that Dominica should seek a legislative solution to deal with the nagging issue of the diaspora vote.

We recall that in Part I of this series we discussed the constitutional and legal authority of PM Skerrit to appoint retired Caribbean jurist Sir Byron as “Sole Election Commissioner.”[1] In Part II, we examined the scope of the half a million-dollar consultancy of Sir Byron;[2] Part III: The public reaction to PM Skerrit’s appointment of Sir Byron;[3] Part IV: The appointment of Sir Byron in context of the Constitutional mandate to amend our electoral laws;[4] Part V:  Electoral reform is about all of us beyond the desire of the DLP and the consultancy of Justice Byron;[5] Part VI:  A call for Sir Byron to consider the hostility of the DLP Administration against the democratic values promoted and defended by the OAS;[6]  Part VII of this series, a call was made to Sir Byron to consider the observations and recommendations of the OAS in its 2009 Report;[7]Part VIII:  Consideration of the OAS 2014 observations and recommendations for electoral reform;[8] In Part IX, the unimplemented OAS’ observations and recommendations from the 2009 and 2014 general elections:[9] Part X:  The reports of the Commonwealth Observer Mission on the 2014 and 2019 elections, which was the potential seed for the hiring of Sir Byron;[10]Part XI, while awaiting the release of the 65-page final report of the OAS Observer Mission, we discussed the recommendations contained in the preliminary OAS report on the 2019 general elections, which once again outlined the repeated failure of the DLP administration to under-financed the Electoral Commission, and engaged in blocking, stalling, and frustrating electoral reform process in Dominica.[11]  Part XII: The recommendations of the Joint-Special Mission of CARICOM-OAS-COMMONWEALTH for electoral reform;[12] Part XIII: The AG’s response to the Joint-Special Mission of CARICOM-OAS-COMMONWEALTH for electoral reform;[13]

Part XIV: The recommendations for electoral reform by the local Multi-sectoral Civic- Religious/Business group;[14] Parts XV[15] and XVI[16], we considered the lengthy response of SC Anthony Astaphan to the report of the Multi-sectoral group. These two articles essentially outlined the DLP’s position on electoral reform in addition to the article in PART XIII,

In the next few articles of this series, we shall continue to examine the vision or lack thereof of the DLP administration for electoral reform and the reason(s) for engaging retired Justice Byron to glaze the already rejected DLP electoral reform proposals with a judicial quoting to add some legitimacy to the political poison intended to be served to the Dominican public by the Labour Party.

 Removal of the Five-year absence provision from our electoral laws:

 Let’s be clear, no political party in Dominica is advocating the disenfranchisement of Dominicans residing in the diaspora. However, as recommended by local, regional, and international electoral observers, we must undertake immediate electoral reform to ensure that an appropriate legislative framework is in place to ensure that Dominican citizens residing in the diaspora can legally participate in our election process without having an undue influence on election results.

 The DLP has already expressed support for the recommendations contained in the report authored by a Commonwealth consultant, Miss. Pauline Welsh, which as is the case with this secretive and nontransparent Administration has not been made public. This report served as the basis for the provisions contained in the draft Registration of Electors (Amendment) Bill and accompanying Regulations, which was intended for presentation to Parliament before it was challenged by Dominicans. In this article, we shall examine the DLP proposal to do away with the provision or extend the 5-year term absence as a qualification for voting in Dominica.

 As per the laws of Dominica, A person who is registered remains registered unless his/her name is deleted from the register because:

  1.  He/she has died;
  2.  An objection to his registration has been allowed;
  3.   He/she has been absent from Dominica for a period exceeding five (5) years; or
  4. He/she has become disqualified for registration as an elector.

The criterion of the five-year absence from the jurisdiction that determines one’s eligibility for voting was recently the focus of the newly appointed DLP Electoral Commissioner, Attorney-at-law Lennox Lawrence on the Prime Minister’s Anou Palay program of Sunday, 20 September 2020. Mr. Lawrence vehemently opposed the current provision and advised of his intention to advocate for the complete removal of the said provision from our electoral laws. This recommendation was reportedly made by the Jamaican-Commonwealth consultant Ms. Welsh in the Addendum to her report. This issue was specifically addressed under Part II, Sections 30 and 31 of the DLP draft Registration of Electors (Amendment) Bill and sections 5 and 10 of its accompanying Regulations.

 Mr. Lawrence was resolute that the five-year restriction should be removed or extended to 10 years, although his preference is to have it completely removed from our laws. PM Skerrit concurred with his assessment that the provision is archaic and unnecessary at this juncture of our development. The Commissioner believes that Dominicans living abroad should be afforded the same rights to participate in our electoral process as citizens residing in Dominica. “The law as it is and as I understand it is that the constitution gives you the right to vote. So for example, we could look at a 10-year period but with other considerations,” he noted.

 In providing further justification for his proposal, Attorney Lawrence referred to the judgment of the Ontario Superior Court and the historical reason for enacting the five-year absence voting qualification, which is rooted in property rights unlike the case today. Additionally, he argued  “a number of persons  have migrated for better economic possibilities but they’re in connection with the country….they have homes, they have accounts in the banks, so we want their money, but we don’t want them to vote..”- a complete misrepresentation and deliberate misinterpretation of the current status of the law as citizens who reside in the diaspora are in fact eligible to vote but the law simply requires that they visit Dominica at least once every five years.

 Mr. Lawrence added, “Someone from the commonwealth, someone could leave Australia and come to Dominica and after one year of residence they can vote. This foreign person could vote and even contest elections, but one would want to prevent a Dominican who has been in connection with Dominica, sending remittances, caring for their families, even sending for their families to get immigration status in those countries.”  This, in fact, acknowledges the point that whether one is a citizen or non-citizen, as long as the residency requirements and the legal qualifications for voting are satisfied as laid down in the law, one is entitled to exercise the right to vote.

 The above position of the DLP is in response to the negative reaction by Dominicans to the Registration of Electors (Amendment) Bill in which the government had proposed the following in Section 10, “The Enrolment Officer shall not refuse to confirm the registration of the elector unless he is satisfied that (a) the person is not the elector whose name is mentioned in the register; (b) the details required to be provided in Form 3A have not been provided or are inadequate, or (c) the applicant is not entitled to remain registered by virtue of his having been absent from Dominica for a continuous period exceeding five years.”

This was echoed by the DLP’s chief advocate SC Astaphan who stated, “there ought to be no doubt that an Enrolment Officer – [including one sent to enroll potential voters overseas], is required to refuse to confirm the registration of the elector if he or she is not satisfied the applicant is entitled to remain registered because he has been absent from Dominica for a continuous period exceeding five years. This process is infused with fairness because there is a right of appeal, and the right of access to the High Court remains unfettered….if a person is not able to satisfy the enrolment officer that he or she in fact has returned to Dominica at least once in the preceding five years, that person will not be confirmed. Consequently, that person’s name will not appear in the new Register

Clearly, unless  the majority of Dominicans were to think otherwise, Sir Byron is expected to propose that the 5-year absence restriction be removed from our laws based on the expressed desire of the DLP, and the legal and persuasive precedence of decided cases, including Quinn Leandro v Dean Jonas, in which the ECSC of Appeal, which  ruled that a person duly registered has a constitutional right to vote, which the DLP interprets to say whether or not the registered voter has been in or away from the jurisdiction over the last five years. In the case of John Abraham v Kelvar Darroux, the High Court in Dominica held that a person who has resided overseas even for more than five years has a right to vote unless objected to and an objection has been successful following the observance of due process. Also in Parry v Brantley, the ECSC of Appeal held that no elector who is duly registered can be removed from the register without strict compliance with the statutory regime for hearings and due process.

The DLP has fortified its argument with its interpretation of the judgment of the Ontario Court of Appeal judgment involving the appeal of two Canadian citizens who were residing in the United States challenging the Canada Elections Act, arguing the five-year rule was arbitrary and unreasonable.  That earlier ruling had overturned an amendment to the Canada Elections Act only allowing ex-pats to vote in Canadian elections if they had lived out of the country for less than 5 years. However, Justice Michael Penny found that the five-yearrule was arbitrary and unconstitutional.  The judge found that the government had decided that some citizens are “not worthy” to vote despite their constitutional right to do so. “Citizenship,” he stated, “is a fundamental requirement for voting- not residency, (which is more akin to the right to register to vote). In reaching his decision, the judge argued that while mass murderers have the right to vote, long-term ex-pats “who care deeply about Canada” do not have the right

The Canadian government argued that allowing non-residents or Citizens who have been away for more than 5 years to vote is unfair to resident as the residents live in the country and are, on a day-to-day basis, subject to Canada’s laws and live with the consequences of Parliament’s decisions, which the judge did not find to be a persuasive argument in the Canadian context- a vast country with millions of citizens unlike a tiny Island with less than 100 thousand citizens. In any event, unlike the citizens of Dominica residing abroad, the Canadian ex-pats may well be subject to Canadian tax and other laws, while residing outside the country.

The above notwithstanding, the pleas and warnings of many Dominicans should not be dismissed. We should never allow a carte-blanche electoral reform that mandates equal voting-weight for Dominicans residing abroad in our elections as this would destroy our chances for a fair electoral process and the death of true democracy. Whatever is put in place as part of our electoral reform, we must champion a mechanism that is guided by the cognizance of a mathematical reality of a nation with a small local population. Any amendment to our electoral laws must avoid one citizen- one -vote concept, irrespective of residency as this would be disastrous and will be infinitely disadvantageous to the local population.

 The results of many recent local village council elections illustrate the point clearly. In almost every instance, even in the stronghold community of Grand Bay, the locals who are prepared to challenge the political status quo are emerging as victors. Labourites are now suggesting that PM Skerrit should find a way to bring voters from outside the communities or go to the extent of importing voters from the diaspora to secure a win for the candidates supported by Labour. 

 

[1] http://www.dominicapatriot.com/what-is-the-constitutional-or-legal-authority-of-pm-skerrit-to-appoint-retired-caribbean-jurist-sir-charles-m-dennis-byron-as-sole-election-commissioner/

[2] –  http://www.dominicapatriot.com/part-ii-the-authority-of-pm-skerrit-to-appoint-retired-caribbean-jurist-sir-charles-m-dennis-byron-as-sole-election-commissioner-the-scope-of-his-consultancy-for-electoral-reform/

[3] http://www.dominicapatriot.com/part-iii-public-reaction-to-pm-skerrits-appointment-of-sir-dennis-byron-as-governments-expert-legal-counsel-on-electoral-reform-in-dominica/

[4] http://www.dominicapatriot.com/part-iv-the-appointment-of-sir-dennis-byron-in-context-of-the-constitutional-mandate-to-amend-and-make-electoral-laws/;

[5]http://www.dominicapatriot.com/part-iii-public-reaction-to-pm-skerrits-appointment-of-sir-dennis-byron-as-governments-expert-legal-counsel-on-electoral-reform-in-dominica/;

[6] http://www.dominicapatriot.com/part-vi-sir-byron-must-consider-the-hostility-of-the-dlp-government-toward-the-democratic-values-promoted-and-defended-by-the-organization-of-american-states-oas/

[7] http://www.dominicapatriot.com/part-vii-sir-byrons-must-consider-all-past-oas-observer-mission-reports-2009-recommendations-for-electoral-reform-in-dominica/.

[8] http://www.dominicapatriot.com/part-viii-oas-2014-recommendations-for-electoral-reform-in-dominica-for-the-attention-of-sir-byron/

[9] http://www.dominicapatriot.com/part-vii-sir-byrons-must-consider-all-past-oas-observer-mission-reports-2009-recommendations-for-electoral-reform-in-dominica/

[10] http://www.dominicapatriot.com/part-x-commonwealth-observer-reports-on-dominicas-election-of-2014-2019-the-potential-seed-for-hiring-of-sir-byron/

[11] http://www.dominicapatriot.com/part-ix-while-awaiting-the-final-report-of-the-oas-on-the-december-2019-elections-sir-byron-must-take-note-of-the-oas-preliminary-observations-recommendation/

[12] http://www.dominicapatriot.com/part-xii-recommendations-of-the-joint-special-mission-of-caricom-oas-commonwealth-for-electoral-reform-a-solid-foundation-for-sir-byron-s-review/

[13] http://www.dominicapatriot.com/part-xiii-ags-response-to-the-special-joint-oas-caricom-and-commonwealth-mission-on-electoral-reform/

[14] http://www.dominicapatriot.com/part-xiv-recommendations-for-electoral-reform-in-dominica-by-the-muti-sectoral-civic-religious-business-group-for-consideration-of-sir-byron/

[15] http://www.dominicapatriot.com/part-xv-response-of-sc-anthony-astaphan-to-the-report-of-the-electoral-reform-group-comprising-church-business-and-civil-society/

[16] http://www.dominicapatriot.com/part-xvi-response-of-sc-anthony-astaphan-to-the-report-of-the-multi-sectoral-group-on-electoral-reform-in-dominica-contd/;

  

 

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