Inasmuch as it is constitutionally and ethically improper for the executive arm of government to invite Sir Dennis Byron to conduct a half a million dollar “consultancy” on electoral reform, one is mindful that Section 41 of our Constitution mandates the government “to make laws for the peace, order and good government of Dominica,” subject to the provisions of the Constitution.
SC Astaphan may be right in highlighting the difficulty in estopping the executive arm of government from soliciting expert advice from an eminent jurist on proposed amendments to our electoral laws. As the Leader of Opposition, Mr. Lenox Linton has correctly observed, the process of soliciting and rendering advice or making recommendations are not by themselves violations of any constitutional provision. This does not challenge the constitutional requirement to preserve the independence and integrity of the Electoral Commission (the Commission). The SOLICITATION AND GRANTING of advice are not equivalent to DIRECTING AND CONTROLLING the work of Commission, albeit it may well influence the decision of the Commission in the same way that the opinions and views from various other sources will. What is important, therefore, is the assurance that the legislative process with respect to electoral laws is strictly adhered to as constitutionally prescribed i.e., through the Commission, which the Leader of Opposition has rightfully been insisting upon.
The proviso, ‘Subject to the Constitution’ in Section 41 takes into account the provisions of Section 38 and 51 of the same Constitution. Therefore, the idea that the Prime Minister and his cabinet may unilaterally appointing someone who they refer to as a ‘Sole Commissioner’ to effect changes to our electoral laws must be frowned upon by Dominicans with a sound sense of socio-political justice, patriotism and civic conscience.
For the avoidance of doubt, Section 38 of the Constitution of Dominica clearly identifies the functionary with whom the responsibility for all matters pertaining to the conduct of elections in Dominica lies. It states, “the Electoral Commission SHALL be responsible for the registration of voters for the purpose of electing Representatives, for the conduct of elections of Representatives and Senators and SHALL have such powers and other functions relating to such registration and elections as may be prescribed by law.” The Prime Minister of Dominica and his cabinet do not have such authority. The parliament only exercises its authority under Section 41, following the adoption of the procedure outlined in Section 51 pursuant to authority vested in the Commission in Section 38. In discharging its official functions, the Commission SHALL be assisted by a Chief Elections Officer (CEO). The Commission may give such directions as it considers necessary or expedient to the CEO, who shall comply with such directions or cause them to be complied with. The Commission may make such reports to the President concerning the matters for which it is responsible or regarding any draft Bill or instrument that is referred to under Section 51 of the Constitution, as it may think fit to be laid before parliament.
For the purposes of exercising its constitutional function under sub-section (2) of Section 38, the office of the CEO may give such directions as he considers necessary or expedient to any registering officer, presiding officer or returning officer relating to the exercise by that officer of his functions under any law regulating the registration of voters or the conduct of elections, and any officers to whom directions are given under this subsection shall comply with those directions. Without prejudice to the provisions of subsection (2), in the exercise of his functions, the CEO SHALL NOT BE SUBJECT TO THE DIRECTION OR CONTROL OF ANY OTHER PERSON OR AUTHORITY…definitely not subject the Prime Minister, Senior Counsel nor any politician, political party or a highly paid, eminent, retired jurist. So powerful is this constitutional mandate, the question whether the CEO has acted in accordance with the directions of the Commission SHALL NOT BE ENQUIRED INTO IN ANY COURT OF LAW.
Per Section 51 of the Constitution of Dominica,
“Every proposed bill and every proposed regulation or other instrument having the force of law relating to the registration of electors for the purpose of electing Representatives or to the election of Representatives and Senators SHALL BE REFERRED TO THE ELECTORAL COMMISSION AND THE CHIEF ELECTIONS OFFICER at such time as shall give them sufficient opportunity to make comments thereon before the bill is introduced in the House or, as the case may be, the regulation or other instrument is made.
Consequently, it should be absolutely clear to Sir Byron, SC Astaphan, if not to the PM and his mouthpieces on Karifm (Simeon, Ronald, Kelly, Daryl, Mills, Sogo, Brain and Proper and the Facebook minions like Samantha, Delvin, Paul and others that the responsibility for all matters concerning the amendment to our electoral laws fall squarely under the jurisdiction of the independent Electoral Commission, who advises the executive on the nature and contents of amendments to the electoral laws. It is not the other way around. Thus, the genuine concern with respect to the invitation of Sir Byron by the Prime Minister and the appointment with a half million dollar tag by the submissive, rubber stamping cabinet members.
This solidifies the argument that Sir Byron should have been invited by the constitutionally constituted independent Electoral Commission, which is the body entrusted to supervise the electoral system in Dominica, in the same way that the former Leader of Opposition – now PM of Barbados, Ms. Mia Motley QC, was invited to review our electoral laws a few years ago. Unfortunately, because the Skerrit-led administration could not agree with the sound recommendations made, no further action was action taken on the report. Our money went down the drain of the Bridgetown harbour.
Assuming that it is still unclear to PM Skerrit and his cabinet, the Dominican public must remind them that only upon consideration of all recommendations submitted to Commission will a report be submitted with approved recommendations for consideration as amendments to existing laws or for passage of new electoral laws in the House of Assembly. The recommendations of the independent Commission need not and should not necessarily be in favour of the position of the government, the opposition, senior or junior counsel or the recommendations of any hired, eminent, retired Chief Justice.
To reiterate, the appointment of Sir Byron by the executive is objectionable and ethically abhorrent. For that matter, Sir Byron should not have accepted the appointment under the circumstances. His acceptance of a non-competitive, no-bid consultancy in violation of public procurement regulations and to do so within months of his retirement as former President of the CCJ, Sir Dennis Byron is ethically repugnant. Whatever his contribution to the process of electoral reform in Dominica, his professional integrity has been severely impugned.
Electoral reform is a serious issue of national importance. It ought not be a partisan political matter. It must be conducted in strict compliance with the rule of law. If the government wishes to continue its 20-year violation of our Constitution and laws, let Sir Byron accept his half a million dollar cheque, bearing in mind that the executive has the constitutional power to make laws for the good governance of all the people.
Justice Byron will soon be in Dominica. He will be provided with a small staff at the state expense to execute the terms of his engagement. It is expected that he will listen to the citizens and pay particular attention to the concerns of all stakeholders, socio-economic, religious, political leaders and groups. At the end of his well-paid four months consultancy, a report will be submitted to the pied piper who paid him to sing electoral reform, who in turn shall submit recommendations for consideration of the constitutionally constituted Electoral Commission with a chairperson appointed by the President in his own deliberate judgment along with 4 other members as political nominates pursuant to Section 56.