In the last article of this series, we focused on the introduction, alleged misrepresentation and misstatements as highlighted by Senior Counsel Anthony W. Astpahan in his well-researched report entitled, “Response to the Report on the electoral reform effort by the Group comprising of leaders of churches, the business community and civil society (THE REPORT). As part of our continued review of this response, we now examine the informed statements of Senior Counsel on the proposed reverification excess, the registration process, the legal authority or lack thereof of the Electoral Commission to remove names of registered voters, to issue Voter/National ID Card, overseas registration, lawful objection to registered voters and other summary matters within the context of the DLP government’s proposed/people rejected draft Registration of Electors (Amendment) Bill and the Registration of Voters Act, Cap.2:03 with accompanying Registration of Voters Regulations.
As noted in the last article, Senior Counsel Astaphan embraces the recommendations contained in the report of the Commonwealth consultant, Miss. Pauline Welsh, which together with the provisions of the draft Bill, seem to form the anchor of his arguments. He explained that Ms. Welsh dealt exhaustively with the confirmation process in the Addendum to her report. In that regard, he considered the assessment of the Group in his characteristically impolite, obtuse and crass manner as “mischief making where it alleges, wrongly and falsely, that there is no provision for the removal of names during the confirmation process. This is false and dishonest for the following among other reasons, stated Mr. Astaphan. He is of the view that the issue is well covered under PART III and sections 30 and 31 of Draft Registration of Electors (Amendment) Bill and Section 5 and 10 of its Regulations. In fact, unlike what is now proposed by the new DLP Commissioner Attorney Lennox Lawrence, Section 10 provides for the five year period of absence. It states, “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.”
According to SC Astaphan,“there ought to be no doubt that an enrolment officer 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.”Consequently, “the allegation of the Group that there is no power to remove is misleading because if a person is not able to satisfy the enrolment officer that he or she in fact returned 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”
SC Astaphan’s stressed, “the Commission is not empowered to initiate the process of removal for whatever reason as it acts in such matters as a tribunal of appeal. As established by the High Court the laws of the Commonwealth of Dominica place the burden on parties and others to object to names of the voters list.” He cites the case of Frampton v Pinard, in which Rawlins J at paragraph 40 stated, following the decision of Radix v Gairy, “In the first place, it is a Judgment of our Court of Appeal. Any statements of principle that it contains must be treated by this Court with the deference which the doctrine of precedent requires. In any case, it is my view that the statement is sound in principle. Where there is a legislative regime, which provides a detailed procedure for registration and for the hearing of claims and objections in relation to the electoral Register, the procedures set out in the legislation must mean something. Candidates and political parties are expected to be ever vigilant. By acting in accordance with the procedures which the regime provides, they would assist Elections officials to provide an accurate Register of the persons who are entitled to vote according to law. The Registration of Voters Act, Cap.2:03 and the Registration of Voters Regulations provide such a procedure in Dominica…”
Lawful Objection to Registered Voters
The learned Senior Counsel further noted that in Lindsay Fitzpatrick Grant v Rupert Herbert and Others, Belle, J delivered a judgment in which he stated “The Supervisor of Elections being the Chief Enrolment officer can be blamed for certain problems relating to the list. However the scheme of the legislation places the onus on all voters and the supporters of political parties to 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. See the Rawlins J statement on this issue in Ferdinand Frampton v Ian Pinard.”
Hence, persons duly registered are entitled to remain on the register except if dead or removed in accordance with an objection procedure with due process. He observed that since 1984/85, there has been minimal, if not zero objections in accordance with the Registration of Electors Regulations. On the other hand, there have been and continue to be, a number of new registered electors every year since 1984/85. The result is that the number of electors on the Register has continuously increased over the last few decades with little or no removals except by way of death. [That is not necessarily correct as even deaths are not removed from the bloated lists.] SC Astaphan highlighted the increase in the number of registered electors from 2005 to 2014 as evidence of the significant increase in registered voters over the years. Consequently, if one adds the new registrants since 1995 with little or no objections, it will be obvious that the Register will increase by an average of 3000 to 5000 every year.
According to SC Astapphan, the Commonwealth consultant, Miss. Pauline Welsh reviewed sections 30 and 31 of Registration of Electors (Amendment) Bill pertaining to overseas registration and upon doing so, she wrote,
“The insertion of this new section 30 is critical to the achievement of a voter’s register which reflects the voting population with some degree of accuracy and correctness. Coupled with proper administrative and other guidelines from the Commission, the achievement of the creation of an acceptable voter’s register can become a short to medium term objective of the Commission. This amendment fulfils one of the important recommendations made in the earlier report for a full reverification/reconfirmation exercise. The amendment requires verification of the electors living overseas at embassies, missions and at other places as designated by the Commission. In order to achieve this overseas verification, wide scale logistic planning will be required.
There are several countries that have successfully implemented similar programmes from which the Commission may seek to adopt best practices and lessons learned. Case in point the Dominican Republic employed Voting Coordinators to operate overseas to effect registration. Mexico adopted a similar approach as is being suggested. It means, therefore, that there are several international cases best practices that the Commission may rely on in order to inform itself how best to give effect to the section. Such an exercise if not managed and administered properly can become a logistical nightmare. There are examples of jurisdiction where overseas registration was poorly managed and the exercise had to be eventually abandoned. The Electoral Commission may wish to seek further assistance in this regard from the breadth of existing Commonwealth expertise. This amendment fulfils one of the important recommendations made in the earlier report for a full reverification/reconfirmation exercise.”
ID Card (National/Voting and ‘Re/Confirmation process
On the issues of the “ID card for voting” and ‘Confirmation process,”SC Astaphan concluded that The Group’s allegations collide frontally with the comments of Miss.Welsh when the Group expressed “dissatisfaction with the introduction of a multi-purpose card, instead of a card dedicated solely for use as a voter identification card. This report holds the belief that the card system as is proposed seems sufficient for voter identification purposes. However, SC Astaphan commented that “Section 19 of the Registration of Electors Act would clearly satisfy the requirement for the Chief Registering Officer to cause identification cards to be issued to electors. The clear benefit is that the use of an identification card will allow the Presiding Officer to identify with some degree of certainty, the person(s) applying for ballot paper as against the entry on the Register of Voters. This will enhance the integrity of the electoral process and minimize instances of Personation. He quoted Miss Welsh as stating, at page 19 of her report, “Comments and Observations: The introduction of a new section 19 aligns with the recommendation made in the Legal Consultant’s main report. It also fulfils the recommendation of the several Election Observation Reports which respectively called for the need to introduce proper identification cards for the identification of voters. The effort in this regard is commendable.”
The Group argued that the existing law provides for ID cards for voting and the Electoral Commission has legal authority to issue such cards. This is 1% accurate in that Section 19 of the Registration of Electors Act mentions ID card. But as far as SC Astaphan is concerned, the argument of the Group is 99% misleading for the following among other reasons.
§ There is no provision in the existing law making an ID card a mandatory requirement for registration or voting;
§ There is no provision in the existing law whether under the existing Section 25 of the Registration of Electors Act or otherwise requiring the Chief to ask for or an applicant or elector to provide photographs, biometrics data, or for a person to apply for an ID card on registration or at any other time;
§ Section 12 of the proposed Registration of Electors (Amendment) Act seeks to amend the existing Section 25 by adding the appropriate provisions to facilitate the preparation and issuance of National ID Cards. These amendments seek to extend the authority and powers of the Commission, and provide the “prescribed information” mentioned in Section 19 of the principal Act;
§ The absence of any existing provision providing for the “prescribed information” including a mandatory process, photographs and biometrics was recognized by the group when they suggested, at paragraph 2.1/3, bottom of pages 6 and 26 of the report, that the expression “prescribed particulars” in section 19 may be construed to include “biometric data.”
SC Astaphan considers the statement of the Group regarding “Clause 13 of the 2018 Bill…” as false and/ or misleading because the procedure under the proposed Regulation 10 places the burden on the elector. Regulation 10A (7) provides, “The Enrolment Officer shall prior to allowing or refusing the elector’s claim to be confirmed as an elector, further consider and take into account all written representations, grounds and additional information provided by the elector.”
SC Astaphan derided and disparaged parts of the summary of the Group’s report as, “senseless and calculated mischief-making motivated by the group’s common position with the United Workers Party that persons in the Diaspora ought to be stripped of their right to vote which is unacceptable.” He further scoffed at other specific paragraphs of the report as “false and deceptive” such as:
i. Paras 3 &4, page 7: Contained allegations that were pure malice as the Draft Bill, which was vetted by the Commonwealth expert and discussed in her Addendum., makes express provision for the enrolment officers to refuse to confirm, a person’s registration if they fail to show they had not visited Dominica it least once on the last five years;
ii. Paras 2 & 5, page 8: The allegations therein are baseless and premised on self-serving speculation, and are misleading and false. For example, Miss Welsh accepted in her Addendum that, the proposed amendments are in keeping with recommendations and best international practices; and as set out above, the Constitution vests the power to make laws in the Parliament and not the Commission. The only obligation of the Government is to consult which it did. The Commission simply cannot make regulations on its own initiative in any post constitutional context. However, this is not exactly correct as the word “consult” has a less onerous meaning in law compared with the constitutional requirement of commenting and advising on any legislation pertaining to the conduct of elections in Dominica by the Electoral Commission before that legislation is tabled before Parliament;
iii. Para.1, page 9: The vague and blanket assertion repeated elsewhere in the report that indelible ink is not fool proof is silly. Nothing is fool proof. But what is incontrovertible, is that there has been no evidence presented either in the past, or by this report, of voters voting twice in elections in Dominica. There has been no fraudulent voting or personation;
iv. Page 15. The allegation that most of the recommendations in the elections observer reports have been left untouched is patently false. The key and essential recommendations have been comprehensively addressed in the draft amendments, as accepted Miss Pauline Walsh;
v. Para. 1-3, page 18: The group’s conclusion that the stakeholders are in agreement with the group’s conclusions is completely false;
vi. Page 23. The references to the National Panel Discussion are significantly false and represents an alternate universe version of what in fact transpired at the function;
vii. Para.3, page 25: The “legal conclusions” made in this paragraph are not premised on fact or the correct interpretation of our legislation or principles of election law;
viii. Para.2.13, Pages 28-29: Infiltrated with numerous inaccuracies. For example, the Group is being deceptive. The law requires the publication of all lists with notifications for objections. No objections have been filed on the basis that a person has been overseas without at least one visit for more than five years;
In his conclusion, SC Astaphan stated that the Commonwealth Observers at the 2014 election believed the Register was accurate and in accordance with the law, notwithstanding selective criticisms that the register included Dominicans overseas. He concluded that the voters’ list “did not materially affect the credibility and transparency of the election process or the results.” Hence, the suggestion of the Group on page 28 of the Group’s report that “it is reasonable to believe that a relevant register of electors is likely to become inaccurate due to unintentional administrative errors” reflects deep rooted ignorance of the law or malice,stated SC Astphan. He, therefore, concludes that for all the reasons outlined above, it is his respectful view that any reliance on the report of the Group would be manifestly unfair, contrary to genuine reform based on fact and the law, and the public interest.
Whatever one may think of Senior Counsel, some of his arguments are solid, albeit his tone and language could be much more professionally tempered. Clearly, Senior Counsel’s vision is politically screwed and highly partisan. For instance, on the issue of the ID, the focus ought to be on the necessity for a photo voter ID during elections as international electoral best practice. Therefore, although ID cards are not stipulated as a mandatory legal requirement, it is best practice and should be adopted and reflected in the law. The law should be amended to make photo ID mandatory, whether it be Voter ID or National ID with or without biometrics and where necessary empower and/or enhance the legal authority of the Electoral Commission.