PART III: THE CASE AGAINST THE ELECTORAL COMMISSION:
A layman’s Interpretation and Application of the Rules of law
Ensuring that Dominicans exercise their right to vote in a system that is free and fair has been and remains the responsibility of the Electoral Commission. The Commission is responsible for taking timely and proper actions to ensure that an electoral system for free and fair elections is in place in Dominica before any elections are called.
The question, therefore, is whether our Electoral Commission has ensured that everything is in place as per existing laws to ensure the integrity of our electoral process. Indeed, notwithstanding the recent statement of the Chief Elections Officer, the Commission itself has admitted that it is not ready based on the many unimplemented recommendations of international bodies such as the OAS, CARICOM and the Commonwealth, without ignoring the repeated calls from local civil society groups like the CCM and other private sector organizations.
The Commission cannot use the excuse of costs and the rapidly approaching constitutional deadline for its inability to deliver a clean voter’s lists to ensure free and fair elections. `
The correctness and/or propriety of a decision, which includes failure or delay to act is within the jurisdiction of the court to determine i.e., does the decision of the Administration breach the rights of citizens or is contrary to law? Whether a decision is capable of being litigated in the judicial system, is governed by law and depends upon whether it is asserted to be in breach of the rights of the citizens. However, not every failure to act or excessive delay in the completion of certain procedures, constitutes an administrative decision subject to judicial review.
In addition to the negligence of the Electoral Commission, it has also engaged in unreasonable, undue and inordinate delay in ensuring that the electoral system of Dominica is ready to ensure that free and fair elections are held in Dominica by May 2020. This excessive delay, failure and/or omission of the Commission to ensure the cleansing of the voters register and ensuring Voter ID card for the proper identification of voters are all challengeable administrative decisions with detrimental direct legal consequences.
The Chairman of the Electoral Commission has advised that since the 1980s, successive Electoral Commissions and Chief Elections Officers have sought funding from government for the purchase and implementation of an identification card system. Funding was eventually provided a few years ago, firstly as part of the OECS led, Multi-Purpose Identification Card system and later, when that OECS initiative ran into difficulties, as part of a direct initiative of the Electoral Commission itself.
The argument of the Commission that the existing law does make provision for the Chief Elections Officer to cause identification cards containing prescribed information to be issued pursuant to section 19 of the Registration of Electors Act, is weak and lacks merit. Notwithstanding the inadequacy of existing legislation to implement the type of ID card that the government and the heavily influenced Commission desire to roll out, the existing legislation presents a reasonable framework for issuing satisfactory Voter ID that the Commission wishes to utilize for the purposes of conducting elections.
The law gives the power to the Commission to issue ID cards for voting. The Commission has failed to issue a Voter ID card within the ambit of the provisions of the law. It is not an absolute necessity to introduce an identification system with accompanying cards that include the wide range of biometric data of each elector as desired by the government. Such an elaborate card is not necessary for proper voter identification.
The Commission is empowered under existing legislation to issue ID cards and where the legislation is deemed inadequate; the Commission is empowered by law to establish its own rules to conduct its affairs under the act. It can do so with or without statutory intervention specifically allowing for the taking of personal biometric data and ensuring the security and management of such data.
As the Commission itself has stated and noted in the facts of this case, it has requested and received the funding for the new identification card system in the tune of over EC$ 3 million. The system has been developed to the Commission’s specifications and the Electoral Commission currently has at its disposal, all of the equipment and software necessary for the implementation of the system.
The Commission has addicted its legal duty by awaiting the passage of a proposed amendment to the existing law to carry out its legal mandate. The Commission must act per existing law. It is not the responsibility of the Commission to introduce and pass laws in parliament to govern its conduct.
PART IV: THE CASE AGAINST THE ELECTORAL COMMISSION
Conclusion – Hold the Commission and by extension the Government to Account
The objective is to ensure that we hold the Electoral Commission and by extension the government of Dominica to account legally for failing to act in accordance with the expectations and mandate of our Constitution and electoral laws, which set the framework for conducting elections in our young, democratic, developing state.
Concerns about democracy undergird administrative law’s emphasis on judicial review of the conduct, actions and decision of government and other public bodies and officials, which includes failure to act and/or unreasonable or excessive failure to act.
Under well-accepted legal principles, the Courts serve as key enforcers both of the substantive laws that public authorities are charged with implementing as well as the procedural requirements that these same officials must follow in their implementation of substantive laws.
The Courts also impose their own additional procedures on administrators based on constitutional and sometimes common law principles.
As noted in this layman’s presentation, the Constitution of Dominica establishes the Commission as an independent body, which is supposed to be insulated from partisan politics in the conduct of its work.
Therefore, there can be no excuse for the failure of the Commission to take timely and appropriate action in accordance with the laws of Dominica in achieving its mission, vision and legal mandate.
It seems clear that the lack of resolve, failure to act and/or delay in acting by the Commission are due, in part, to its lack of independence and the undue political influence exerted on it by the Government of Dominica in the execution of its functions.
This case demands accountability from the Commission to exercise its responsibilities and its obligation to serve in the best interest of the citizens of Dominica in ensuring that democracy is alive and well.
The Commission has failed in the exercise of its responsibility and this continues to have fundamental legal, political, social consequences on the ability of the citizens of Dominica to exercise their right to vote for their elected officials in a system of integrity that is fair and reliable yielding the intended outcome of the electors.
In our democratic system, the principle of accountability holds true that government and Constitutional bodies MUST answer to the people who they serve, especially where the public officials and/or the government manifest potential of arbitrary, self-serving and corrupt practices.
Accountability is a part of good, transparent governance. Therefore, the time is now, to file an administrative complaint against the Electoral Commission, the Chief Elections Officer and the Government of Dominica seeking constitutional/legal relief on the basis of the neglect and negligent conduct to act as mandated in law to ensure that we have fair and free elections in Dominica.