Cara Shillingford,rt, and Anthony Astaphan
Cara Shillingford,rt, and Anthony Astaphan

Three judges, two decisions.

Judges one and two of the Eastern Caribbean Supreme Court (ECSC) tell Judge Bernie Stevenson: You have made a mistake.

Judge number three says: Bernie, you're right on target. In the final judgement, from the Caribbean Court of Justice (CCJ), three more judges will decide whether a case about treating during an election campaign of 2014 goes to court.

The ECSC delivered its decision last week and ordered the court in Dominica to allow a magistrate to hear the case. Anthony Astaphan, lawyer for the government ministers, said he will appeal.

How the case began

This contentious case began after the Dominica Labour Party (DLP) won the 2014 general elections by grabbing 15 of the 21 seats; the United Workers Party (UWP) won six.

After the poll, in May 2015, UWP supporters Mervin Jno Baptiste, Antoine Defoe and Edincot St. Valle, filed criminal complaints against DLP candidates for treating in the run-up to the election.

In his complaint Mervin Jno Baptiste alleged that government ministers worked together to corruptly, directly and/or indirectly influence the results of the poll.

He pointed to two free concerts, one featuring three-time Grammy Award winner and international gospel star, Donny McClurkin, and the other by Jamaican Reggae group, Morgan Heritage, that the DLP allegedly used to "corruptly influence" the outcome of the election.

He said that this was in contravention of Section 56 A of the House of Assembly Elections Act.

All 15 elected members of the DLP were named in the complaint.

The matter was then taken to a magistrate in Roseau who issued summons to the ministers named in the case.

Judicial review filled

On behalf of his clients, Astaphan filed a judicial review claim in which he sought to squash the complaints of Jno Baptiste and others. He argued that the summons issued by the magistrate did not disclose an offence under Section 56 of the Elections Act. He further argued that the complaints were time-barred since they were filed after the 21-days limitation period for the filing of Election Petitions. And he contended that the magistrate acted in excess of his jurisdiction when he issued the summons. After Judge Bernie Stephenson heard the judicial review claim, she agreed with Astaphan.

Judge Stephenson dismisses case

In her judgment, Judge Stephenson said the magistrate who signed the summons erred in law.

In her 20-page decision, Justice Stephenson said where the House of Assembly Elections Act (HOAE) Act makes reference to "summary conviction" for the offence of treating which would mean the complaint is to be heard by the Magistrate, is in conflict with section 40 (1) of the Constitution which provides that any question regarding the election of a candidate to the House of Assembly must be dealt with by the High Court and that this must be done by way of election petition which are subject to very strict rules and procedure, including the requirement that the complaint must be brought within 21 days of the election.

"The interveners, cannot in the circumstances of this case try to circumvent the requirements of the Constitution of Dominica and the HOAE Act by seeking to file complaints against the Claimants in the Magistrate's Court and charging them for the offence of treating," the Judge wrote.

"I am satisfied that the jurisdiction to question elections or the jurisdiction to question the Constitution of the House of Assembly lies solely in the High Court and therefore the Learned Magistrate acted in excess of his jurisdiction when he signed the complaints, thus his actions are therefore liable to be quashed".

Cara Shillingford, the lawyer representing Jno Baptiste et al, appealed.

ECSC hearing

Judges of the ECSC heard the matter in early October 2019 and reserved their decision. At the hearing before the ECSC, Shillingford told the court that the Section 59 of the House of Assembly Elections Act is "clear and unambiguous. Treating is a summary offence and the learned Magistrate had proper jurisdiction to issue the summons."

She added that what the individuals are charged with is "an election offence" and cannot fall under an "election petition."

"They are not above the law…the law must apply to everyone equally," she said.

Shillingford called on the court to give effect to the wording of the constitution. "The duty of the court is to interpret the constitution, election petition is not an issue, what happened was an election offence," Shillingford said.

But Astaphan SC disagreed saying that the appellants "cannot bypass the Election Petition and also the 21-28 days under the Election Petition." "The Magistrate has no jurisdiction to deal with election matters…they are also not ordinary citizens and have to be treated differently," Astaphan SC said.

Astaphan maintained that the matter ought to have gone to the "High Court" through an "election petition" and the appellant's view that the Learned Magistrate has jurisdiction was wrong.

ECSC judgement

Last week three ECSC justices of appeal, The Hon. Mde. Louise Esther Blenman, The Hon. Mr. Mario Michel, and The Hon. Mr. Paul Webster presented their judgement.

Judge Blenman gave a dissenting opinion.

The other judges set aside the order of the judge, ordering the reinstatement of the complaints filed by the appellants and the summonses issued by the Magistrates' Court. They further discharged the stay of proceedings granted by the High Court, and directed the Chief Magistrate to assign a magistrate to hear the complaints filed by the appellants.

Each party is to bear his or her own costs in the appeal and in the High Court.

"Having found that the Magistrate did not have the jurisdiction to hear the criminal complaints, the judge was justified in quashing the summonses and complaints against the respondents," wrote Judge Blenman in her dissent. "I have had the benefit of reading, in draft, the judgment of my learned brother Webster JA [Ag.], with which my learned brother Michel JA has concurred, and I am unable to agree with his reasoning and conclusion".