In this series of articles on electoral reform efforts in Dominica, we have so far discussed the unaccepted, rejected and/or unimplemented recommendations of several regional and international election observers contained in separate and in joint special-mission reports of the OAS, Commonwealth and CARICOM dating back from 2009. We also discussed the tremendous work of the Multi-sectoral (religious, civic and business) group consisting of the Dominica Business Forum, Dominica Christian Council of Churches, trade unions, political parties and civic-minded groups such as the Concerns Citizens Movement (CCM). The recommendations of Mia Mottley which were rejected by the DLP government was also discussed as well as the constant stalling, obstructing and blocking of the DLP government and the Electoral Commission, the latter guided by the Astaphan/Lawrence mission of preserving “the Roosevelt Skerrit’s winning legacy.”
We also discussed the instantaneous and categorical rejection of the recommendations contained in the report of the Joint OAS-CARICOM and Commonwealth Mission by the Attorney-General of Dominica, which was followed by the DLP’s rejection of the recommendation of the Multi-sectoral civic/business and religious group on the way forward for urgent electoral reform in Dominica in advance of the last general elections.
In this article, we shall focus on the introduction, alleged misrepresentation and misstatements as highlighted by Senior Counsel Anthony W. Astpahan, who is the government’s legal adviser and perhaps de facto Prime Minister of Dominica, in his very detailed and well-researched report entitled, “Response to the Report on the electoral reform effort by the Group comprising leaders of churches business and civil society (THE REPORT, which was purportedly on behalf of the Attorney-General and the government of Dominica.
In his introduction, the author states that following a brief meeting with the Special Joint Observer Mission via videoconference, he was shown a copy of the report by the Group. He stated, “The report is in effect asking the observers to ignore, if not to repudiate the Bill presented to the Parliament of Dominica after consultation with the Electoral Commission, and notwithstanding the commendations of the Commonwealth expert Miss. Pauline Welsh. [The Group] seeks to do so with a report deeply flawed with grave misstatements of fact and law.” “Simply put, the speculation, misinformation and falsehoods in the report is unquestionably astonishing.” by ignoring and/ or in many cases misstate the facts and fundamental principles of election law simply to deceive the public and observer and expressly misrepresenting the facts and law in several of its paragraphs.”
Further, Senior Counsel accused the Group of “not providing a shred of evidence to substantiate its allegations, undaunted of spraying the seed of mischief by suggesting, at least implicitly, there is some electoral devil hidden somewhere in the dark, and that unless its far fetched and baseless demands are met, Dominica will plunge into utter chaos. “This [the report] stripped to its bare essence is naked politics.” according to Senior Counsel. He also criticized the authors of the report and accused them of gross dishonesty, stating that it would have been a serious dereliction of his duty as a citizen and Senior Counsel had he failed to respond to the Group’s report.
Some of the facts allegedly misrepresented, ignored or false identified by Senior Counsel
- Every list and register of electors are in fact published at periods prescribed by law to the public with a notification of the right to object to electors;
- There have been, and are, very few, IF ANY, objections to electors and none on the basis that a person has been overseas for a period of more than five consecutive years;
- There has not been nor is there any record or evidence of fraudulent voting at any election in Dominica;
- The number of new electors who were duly registered and the number of actual votes cast in every five years since 1980 ere conveniently set out in the report of Miss. Pauline Welsh, a consultant from the Commonwealth dated April 2018- Tables 1 and 2 below Table 2.
According to Mr. Astaphan, the figures disclose considerable consistency in the number of new registrations every 5 years, votes cast, and number of electors not voting. To a passive observer, these numbers by themselves should demonstrate why there is such a paramount need for urgent reform in Dominica if we are to even contemplate free and fair election when the size of the list of registered voters is 90-100% of the total population and the number of persons not voting is as high as 45%.
SC Astaphans placed heavy reliance on the opinion of the Commonwealth electoral expert, Miss Pauline Welsh in his response. He noted that following the 2014 election, Miss. Mia Mottley was asked to assist the Commission on reform. Subsequently, Miss Pauline Welsh, a consultant recommended by the Commonwealth assisted and prepared a report, which noted;
* Public consultations were in fact held by the Chairman of the Commission and Government and the Government as required by Section 51 of the Constitution in fact consulted the Commission and Chief Elections Officer on the proposed Bills;
* The Government of Dominica allocated sufficient funds to the Electoral Commission for the acquisition of the required machinery etc. to implement the ID cards and confirmation process set in the proposed amendments in the Bills;
* Draft Bills were presented to the Parliament but was not enacted into law.
The existing law ignored or misstated
Senior Counsel Astaphan highlighted what he claims to be indisputable questions or principles of election law ignored or misstated by the Group including;
- The Independence Constitution of 1978 vests the authority in the Parliament to make, amend or repeal any law concerning the registration of electors and elections. The sole fetter imposed by section 51 is the obligation to consult the Chief Elections Officer and Commission. It is therefore for the Parliament, subject to the duty to “consult”, and there was consultation, to decide on the appropriate law required in the public interest for registration and elections. It is therefore nothing short of constitutional heresy for the group to suggest, even implicitly, that the Parliament has no rights or say in these matters;
- A duly registered elector has the constitutional right to vote. This right may not be interfered with or repudiated except for significant cause and due process. [See the judgment of the Court of Appeal in Parry v Mark Brantley HCVAP 2012/00 the Court of Appeal especially at paragraph 73];
- The right to objection has not been exercised in accordance with the law: The law places the obligation on political parties to ensure the accuracy of the lists by invoking and complying with the law including notices and the right to object to any person who ought not to be on the list or register. [See Frampton v Pinard Rawlins J at paragraph 40 and Lindsay Fitzpatrick Grant v Rupert Herbert and Others, Belle, J delivered on the 12th July 2006 at paragraph ;
- There is no such thing under our law as “automatic disqualification.” This argument was expressly rejected by Justice Errol Thomas in John Abraham v Kelvar Darroux CLAIM NO. DOMHCV2010/0003 Justice Thomas, an election petition matter from Dominica at paragraph 78;
- It is now settled law that no name may be deleted or removed from the lists or register without the strictest compliance with due process, and any reckless or intentional removal without due process has, as the appellants in Parry v Mark Brantley HCVAP 2012/00 discovered, serious civil and financial consequences. [See the judgment of the Court of Appeal in Parry v Mark Brantley HCVAP 2012/00 the Court of Appeal especially at paragraph 73]; There ought, therefore, be no question that the allegation in paragraph by a simple process of notification, and without due process. It flies in the face of basic fairness and the rulings of our High Court and Court of Appeal which make it clear that strict compliance with due process is required.
According to Astaphan, following the 2014 general elections, the Commonwealth Observers addressed the validity of the voters’ register in their report where they stated, “The Mission concluded that, despite its aforementioned shortcomings, the voters’ list did not materially affect the credibility and transparency of the election process and of the results. The list is however widely and publicly discredited and despite, in the Mission’s view, being accurate and appropriate in the eyes of existing legislation, the Mission does not believe it necessarily reflects the reality or the wishes of Dominican society.” Counsel stated that there is no evidence to support the criticisms of the register. He accepts the Observers’ findings that the voters’ list did not materially affect the credibility and transparency of the election process and of the results, and that it was (and remains accurate) and appropriate in the eyes of existing legislation. However, Counsel would note that in 2019, no Observer Mission would have been so brave to declare our elections as “free and fair”. They were very cautious in stating that the elections may have been “free and represented the will of the people who voted on the day of elections,” which implies that our elections has not been “fair” in Dominica. As Counsel himself argued before Judge Glasgow in the Application to strike out the Petitions, “fairness” is foreign to an election campaign as the objective is to outperform the outside and to win.
Contrary to the assertions of Senior Counsel Astaphan, all Dominicans and the members of The Group have a clear understanding of the contents of the Draft Registration of Electors (Amendment) Bill, notwithstanding the assessment of Commonwealth expert Miss. Pauline Welsh. The Group did not fail to appreciate and understand what was being proposed by the government. In fact, the issue of the introduction of the National ID card, although still contentious was not much in question as the provisions to send electoral officials overseas to verify or re register voters. For avoidance of doubt, Dominicans were outraged with the government’s attempt to legitimize the offences of treating and bribery. The Group merely observed that the proposed Registration of Electors (Amendment) Bill 2018 did not make a minimal contribution to the process of electoral reform and if implemented, it would have “profound negative implications for the right to vote including the risks of retaining, on the lists of registered electors, names of persons who would otherwise be determined to be ineligible to remain on those lists.”
Counsel also misrepresented the statement of the Group with respect to the power of Parliament to make laws. The Group did acknowledge the provisions of Sections 42 and 51 of the Constitution and did not claim that Parliament has no right or say in the process of making law regarding the conduct of elections in Dominica. The Group appeared to have opined that it is the Commission and not the Executive arm of government that is responsible for matters pertaining to the preparation/conduct of our election in Dominica. Whereas SC properly identified the powers of Parliament under section 51 of the Constitution, he appeared to have deliberately failed to note that the Constitution does not merely request that Parliament “consult” the Electoral Commission but it mandates that for “every proposed bill and every proposed regulation or other instrument having 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 to the Chief Elections Officer at such time as SHALL GIVE THEM SUFFICIENT OPPORTUNITY TO MAKE COMMENTS THERE BEFORE ANY BILL IS INTRODUCED IN THE HOUSE or, as the case may be, the regulation or other instrument is made”. With all due respect to the SC, this is much stronger than merely “consulting” with the Commission considering how the DLP casually and erroneously interprets the word consult as used in the Constitution.
On the issue of the government’s provision of funding for the work of the Commission, as per the Commissioners nominated by the Opposition, the government failed to provide the Commission with all the funds requested to do its work.
With respect to the issue of the onus on political parties to ensure the accuracy of the lists by invoking and complying with the law to file objections, SC is correct. However, the Courts held in Grant V Rupert, “the Supervisor of Elections being the Chief Registration Officer CAN BE BLAMED for certain problems relating to the list albeit the scheme of the legislation places the onus on all voters and the supporters of political partiesto object to any apparent false, erroneous, or illegal listings. If they fail to discharge this duty they cannot be heard to complain thereafter as to the consequences and indeed the Supervisor’s hands would be tied with regard to any cleaning up of the Register of Voters in the circumstances.”
One must concur with SC Astaphan that very few objections were filed by the UWP prior to the issuance of the election writ, even though the party had been chanting no reform –no elections for many months leading up to elections. The UWP definitely has some blame to take for not intensifying its efforts very early in the electoral cycle in that regard, although when such action was taken the Commission failed to take prompt action. Hence, the reason that one must be pleased with the focus of the Alternative People’s Party (APP) in championing that cause today.
SC Astaphan noted, “the Group erred in making reference to “automatic disqualification of a voter” as this is not provided for in the laws of Dominica. Our courts have said, “the Petition is impugning the alleged practice of processing persons to vote knowing that some of them are prohibited from voting. The alleged illegality is absence from Dominica. But this fact in and of itself is not an illegality. It requires the deletion of such a person’s name from the Register of Electors. It is not automatic. Section 7 of the Act is clear in its purpose in stating that: “A person registered … shall remain registered unless and until his name is deleted from the register because … he has been absent from Dominica for a period exceeding five years.” But the point here remains, as the Group has requested, all parties including the Commission should exercise their constitutional and legislative authority to have the Register of voters cleansed, while ensuring that all negatively impacted voters are afforded due process.Strict compliance to due process is paramount but this does not mean that the Electoral Commission cannot afford the registered Voter such due process before a name is removed for reasons outlined in the law.
The Senior Counsel also claimed that the draft Registration of Electors (Amendment) Bill was presented to parliament but was “prevented by violence in 2018, and threats of violence and an application for an injunction in 2018.” This is bogus, a classic piece of naked political propaganda. The Bill was actually withdrawn by the government owing to public objections to several of its provisions. An application was made to the court for an injunction, which was never granted as the matter became moot upon the withdrawal of the Bill.
In the next article, we shall consider the concerns of SC Astaphan on the registration process including the verification of overseas voters and ID cards (Voter ID/National ID) as proposed in the draft Registration of Electors (Amendment) Bill among other areas of concerns highlighted by the learned Senior Counsel and de facto Prime Minister of Dominica.