THE CASE AGAINST THE ELECTORAL COMMISSION: PART I & 2

An Introduction, the Facts, the Relevant Rules of Law, Interpretation and Application thereof and Conclusion.

PART 1

The time is now to file an administrative complaint against the Electoral Commission, and the Chief Elections Officer for failure and /or omission to act as mandated in law so as to ensure that we have fair and free elections in Dominica. 

The Court must be moved/petitioned for a declaration that the Commission and the Chief Electoral Officer have failed to act and to exercise its constitutional and statutory responsibilities in accordance with the laws of the Commonwealth of Dominica and in keeping with international practice.  The Commission has failed to exercise its independent authority in ensuring that there is proper, free and fair elections in the Commonwealth of Dominica.  

In light of this unlawful and unreasonable conduct of the Commission, must be compelled to comply with its constitutional and statutory duty to act as required by the laws of the Commonwealth of Dominica. 

The Constitution of Dominica, the House of Assembly Elections Act, House of Assembly (Disqualification) Act, and the Registration of Electors Act, are the main pieces of legislation governing the election process in Dominica.  These pieces of legislation have been amended over the years and have accompanying regulations made by the Electoral Commission pursuant to the statutes. 

In a democratic system, the principle of accountability holds that government MUST answer to the people who it serves, especially where the public officials or statutory bodies and government manifest potential of arbitrary, self-serving and corrupt practices. 

Accountability is a part of good, transparent governance, which a government, statutory bodies and public officials are expected to ensure under public administrative law. 

It is an obligation or willingness to accept responsibility and to account for one’s actions in accordance with established norms. Therefore, it is incumbent on the people to check those with legal authority and ensure that they reasonably, in good faith and in best interests of society or the public. Where they fail to do so, there must be political, social, legal and other fundamental consequences.

Public officials are to be held to account for their words and deeds or even their failure, omission to act or where they act with unnecessary, inordinate, unreasonable or undue delay in taking appropriate actions that they are so mandated to take in the best interest of the public. 

Public accountability means the obligation to answer publicly, to report timely and truthfully on the discharge of their responsibilities.  Good governance, demands accountability and answerability as a moral and legal imperative.

Accountability in our system of democratic governance constitutes the other side of the process of exercising authority that has been bestowed on public officials with their responsibilities. It is the degrees to which those in positions have to explain or justify what they do or say to the people they serve. Administrative agencies and statutory bodies make decisions affecting citizens’ lives and the conduct of national affairs. Administrative law constrains and directs the behavior of officials in statutory bodies that are responsible for implementing constitutional /legislative agendas.

In the instant case, the Commission cannot seek to hide behind his own refusal to act nor can it blame the failure of the government to provide funding or to pass amendments to existing legislation for its lack of action. It cannot hold the belief that by withholding or frustrating electoral reform and ignoring the many requests by civil and political groups on behalf of the citizens of the country, it can insulate itself from accountability. 

This becomes even more egregious when the Respondent later attempts to put a different spin on its actions to imply that no action has been taken while keeping the citizens of the country in limbo….waiting until the passage of time removes the obstacles to a predetermined outcome. This represents a violation of the basic duty of care of the Commission to act fairly, timely, reasonably, proficiently in accordance with the Constitution and relevant rules of law.

THE FACTS

We all know the facts of this case and can find them in several documents. Simply put the Commission has failed to achieve its stated mission and vision and has failed to properly exercise or has engaged in unreasonable, inordinate delay in so doing thereby failing to ensure that there is a clean, reliable register of voters and the issuance of ID cards to voters in order to ensure free, fair, efficient general elections in Dominica. In facts the government has chronicled its efforts towards electoral Reform in Dominica and so to can the Opposition, CCM and other groups. See the following link.

https://m.facebook.com/story.php?story_fbid=994673094205813&id=100009893943062

 

PART II

Continuation-THE CASE AGAINST THE ELECTORAL COMMISSION: The Relevant Rules of Law.  

Principles of Public Administrative law     

Concern about democracy undergirds administrative law’s emphasis on judicial review of the actions of public authorities, including failure to act, omission to act and or excess, unreasonable inordinate delay in taking action).

 Under well-accepted legal principles, courts serve as key enforcers both of the substantive laws that public/statutory /government officials are charged with implementing as well as the procedural requirements that these same officials must follow in their implementation of substantive laws. 

Courts have imposed their own additional procedures on administrators based on their inherent constitutional and sometimes common law principles. It is also generally believed that some credible oversight by the courts bolsters compliance of statutory public bodies and agencies’ with administrative law and improves their overall performance. 

An administrative decision is one that is made pursuant to or in violation of established laws, regulations, rules or generally accepted longstanding standards and principles. It involves the violation of the legal rights of individuals and implies the presence of imminent or actual injury to those affected. Within this definition, the refusal or omission of the Commission to take timely and appropriate action or to exercise a lawful discretionary authority or failure to undertake a statutorily prescribed procedure within the plain meaning of the term, directly affects the rights of a citizen.  

A non-decision or failure to take a decision or to act in accordance with the law is an administrative decision subject to legal challenge. A non-decision or failure or excessive delay to take a decision that has significant legal impact on citizens is considered as an administrative decision, which is challengeable. 

Officials cannot hide behind his own refusal to act…..believing that by withholding information, ignoring requests and refusing to take action, he can insulate himself from accountability. This becomes even more egregious when the public body or government  later attempts to put a different spin on his actions to imply that no decision has been taken while keeping the public waiting until the passage of time removes the obstacles to a predetermined outcome. This represents a violation of the basic duty of care of the public authority to act fairly in a treasonable timely manner in accordance with the established rules. 

What constitutes an administrative decision ultimately depend on the nature of the decision, the legal framework under which the decision was made and the consequences of the decision. The Commission must honour its Constitutional obligations to the citizens of Dominica. It must act independently and free from undue political influence.

 Any failure to do so constitutes a fundamental breach of duty which estoppes the administration from claiming difficulties in making a timely decision. 

The legal and judicial system must be interpreted as a comprehensive system, without lacunae and failures, so that the final objective, which is the protection of the rights of citizens are guaranteed.

As a general principle of procedural and indeed of Administrative law,  the right to contest an administrative decision before the Courts of law and to request redress for a perceived threat to one’s rights and/or interests is predicated upon the condition that the impugned decision is stated in precise terms. Any confusion surrounding the proper of untimely implementation of a process with respect to the conduct of our elections is the responsibility of the Commission and therefore the Commission must be estopped from arguing that the laws are unclear in ensuring free and fair elections in Dominica.

 

PART 3 & 4 TO FOLLOW 

 

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