Shockwaves at the Caribbean Court of Justice

Seismic ripples coursed through the Caribbean Court of Justice on Thursday December 10, 2020 when it finally heard oral arguments in the election treating case from The Commonwealth of Dominica. For me it was an early Christmas gift as it demonstrated just how important a correct understanding of the Constitution is, and why justice depends on the Court being properly guided by the attorneys who appear before the court.

Thirty minutes into the presentation of Mr. Anthony Astaphan, appearing for the appellants, the President of the Court went straight to the heart of the matter: "So you are saying that the election petitions process can be transformed into a criminal process?" It was a disapproving question that almost required Mr. Astaphan to respond as he did, "No." But with that simple response Mr. Astaphan also abandoned a position that he had argued before various courts since 1997, and on which he had built his career in election law. It will become obvious that every time he advised a client to move to strike out an election petition he was, as the President's question revealed, misconstruing the state of the law.

I took note of this development because only two months earlier, in October, Mr. Astaphan had reiterated that position when he went on the radio to express his disgust with a letter I had written to the OECS Bar Association. In part my letter read:

"While I may agree with your call for the Leader of the Opposition in Dominica to withdraw his statement I draw attention to your silence on what he has repeatedly complained about on Q95 in the last several months. I refer to the unconstitutional imposition of a 21-day statute of limitations on Dominica because of a misreading or misinterpretation of the Constitution of Dominica by members of your association who practice in Dominica.

"The House of Assembly (Elections) Act allows complainants 21 days after the holding of an election in Dominica, during which to file election petitions. This law was to meet the requirements of Section 40 of the Constitution which states that "The High Court shall have jurisdiction to hear and determine any question whether (a) any person has been validly elected as a Representative or Senator." This must be interpreted in light of Section 38(6) which says that "The question whether the Chief Election Officer has acted in accordance with the directions of the Electoral Commission shall not be enquired into in any court of law." When election petitions are filed the Court sits as commissioners, not as judges. (Technically, Mr. Linton did not opine on a judge.)

"I understand that Caribbean courts have been treating election petitions as if they were lawsuits, but the intent of the framers of the Constitution is clear that election petitions do not have to show a cause of action and must be tried in the High Court subject to the rules that govern the Electoral Commission (Section 40(5) of the Constitution.) Even without these constitutional provisions you must agree that a 21-day statute of limitations would be unconstitutional. Your association must speak up on this and get the courts to take judicial notice that election petitions are not suits at law".

Mr. Astaphan took particular objection to my suggestion that "election petitions do not have to show a cause of action and must be tried in the High Court subject to the rules that govern the Electoral Commission."

He opined that my letter proposed such rubbish that it was not worth the paper on which it was printed. But the fact that he chose to attack me publicly even though I had not mentioned his name in my letter, indicated to me that he recognized the truth of what I had expressed.

The President's direct question forced him to make common cause with the lawyers who are now seeking to reverse the results of the recent presidential elections in the US, by offering to the Court a position that is the opposite of what he had publicly espoused on the radio. In addition, he also suggested that he was prepared to appear during the upcoming electoral reform hearings to be held by Justice Byron, to argue that the 21-day period was too short. For some reason he was reluctant to advise the Court that it was a truncated statute of limitations period on a criminal matter. But to the extent that he had previously relied on the underlying position of equivalence when appearing before the Court, he may not have served the Court well.

Mr. Astaphan's case appears to hinge on the misguided notion that the court needs to modify an antiquated colonial law. A little history is helpful here. Before 1868 the House of Commons took exclusive jurisdiction to settle questions over the validity of elections to the House. A few constituencies were tainted by corruption, but soon those questions were tainted by partisan interests in the House. To correct this the House of Commons proposed to delegate the hearing of election petitions to a tribunal presided over by judges. The result of that proposal was the Election Petitions and Corrupt Practices Act of 1868, even though the Judiciary was very reluctant to participate in these non-judicial proceedings. Mr. Astaphan himself called it "a hybrid parliamentary jurisdiction assigned to the High Court."

When adult suffrage was granted to Dominica in 1951, the House of Assembly Elections Act was enacted, but no equivalent of the Election Petitions and Corrupt Practices Act of 1868 was enacted in Dominica. However, it is obvious that election petitions were never thought to be the same as election offenses.

Matters were complicated with the attainment of Associated Statehood and then Independence. Since the adoption of the Constitution of the United States new nations have adopted their own unique Constitutions which, in every case, were of more recent provenance than the laws that were on the books. At the attainment of Associated Statehood and then at Independence, Great Britain had no written constitution and Dominica (later the Commonwealth of Dominica) did not have an Election Petitions and Corrupt Practices Act. The drafters of the country's new Constitution decided to incorporate the legal basis of election petitions in the new Constitution. Having expertise in the Law but not in the Constitution, they were not aware of the possible effect of that decision.

As Section 40 of the Constitution shows, the jurisdiction that first resided in the House of Commons was given to the High Court. It was not, as Mr. Astaphan argued, a transfer of original jurisdiction from the magistrate's court to the High Court.

To maintain that historical distinction the drafters did not identify the jurisdiction as being either original or appellate jurisdiction. Section 22 gives the Court of Appeal the same type of ordinary jurisdiction regarding qualifications to be nominated, or elected, as President. This is a marked difference from Section 16 (1) which explicitly says "the High Court shall have original jurisdiction." Sections 103(1) and 103(2) gives the High Court special jurisdiction in constitutional questions but Section 103(7) distinguishes that jurisdiction from the jurisdiction given in Section 40.

The jurisdiction given in Section 40 is an anomaly. The Constitution does not place election petitions in the same legal framework as election offenses. It is only with that understanding that the 21-day requirement does not serve as a truncated statute of limitations. The same understanding also vitiates the argument offered by Mr. Astaphan that by choosing to prosecute treating and bribery on election matters as election offenses meant that the respondents were forum shopping.

Unfortunately, it is on the basis of this argument that the Court was led to explore this issue of forum shopping with Ms. Cara Shillingford, appearing for the Respondents.

Another example of the importance of correctly guiding the Court occurred during the presentation by Ms. Cara Shillingford. She expressed the view that, even though section 40(1)(d) of the Constitution applies to any situation under which a member of parliament may need to vacate her seat, Section 40(1)(a) applies only to election petitions. She needed that argument to counter the argument from Mr. Anthony Astaphan that cases that allege treating and bribery should be heard by the High Court and not by the magistrate's court.

The panel pointed out that Section 40(1)(b) applies to elected Members of Parliament and appointed Senators, and wondered aloud whether there were independent Senators in the Dominican Parliament. After consulting subsections (a) and (b) of Section 34(1) Miss Shillingford weakened her position by stating that only half of Section 40(1)(a) applied to election petitions.

This was an unfortunate misreading of the Constitution for the paragraph that follows subsection (c) contains a proviso which says "provided that, if it is so prescribed by Parliament the Senators shall, instead of being appointed … be elected." None of the other lawyers at the hearing brought this misreading to the attention of Miss Shillingford or the pabek. As far as we can tell from these hearings the Court does not now understand that it was not necessary for Ms. Shillingford to revise and weaken her stated position. Whether the court will inform itself on this matter and what impact this misreading may have on the Court's judgement is left to be seen.

It was refreshing to hear the panel note that previous opinions may have overreached. "Overreach" must be considered in terms of its impact and I would like to consider two examples. During oral arguments the President of the CCJ expressed his unease at the prospect of the election petitions process being used to try a criminal offense. This is only possible if no legal distinction is made between election offenses and election petitions. As I stated in my letter to the OECS Bar Association courts in the OECS have blurred the procedural lines between the two. Section 40(5) clearly provides that in dealing with election petitions the High Court cannot use rules formulated by the Chief Justice, but rules made by Parliament.

Even though we cannot tell if the other members of the panel share the same sentiment, we do have the President on record. But we have a situation where the President appeared to be exploring forum shopping even though that is only possible if one assumes an equivalence between election offenses and election petitions.

In the second example, the form of election petitions arising out of the 2019 general elections in Dominica was influenced by reliance on a Court of Appeal case, Ferdinand Frampton v. Ian Pinard (2005), which held that any election petition that names the Prime Minister should also name the Attorney General. A careful reading of section 40 of the Constitution shows that in arriving at its conclusion the Court did not consider the Constitution. Section 40 identifies four conditions under which an application for an election petition may be brought. In every case the Attorney General is named as one of the parties by whom an application may be made. In all but one it specifies that if the application "is made by a person other than the Attorney General, the Attorney General may intervene and may then appear and be represented in the proceedings."

The clear intent of the drafters was that the Attorney General was never to be a respondent to an election petition, that the Attorney General ought preferably to make the application, and that election petitions should not be private prosecutions. No one appears to have brought these provisions of Section 40 to the attention of the Court, especially subsection (8) which states that " in the exercise of his functions under this section, the Attorney General shall not be subject to the direction or control of any other person or authority." This is not possible if he is serving as the Prime Minister's defense counsel as the opinion in Frampton now requires.

Constitutional Power

The truth around Section 40 of the Constitution is that it transformed election petitions, which were legal matters before Independence, into Constitutional matters thereafter. Such is the power of the Constitution which is the Supreme Law in Dominica and not at the same level as the other laws of Dominica. It is a power that was unknown to the British drafters and appears to be foreign to Mr. Astaphan, who made the strange argument before the panel that "the Constitution should be construed subject to the principles of the election law," thus placing the House of Assembly Elections Act above the Constitution. The implications of this argument was not lost on the Court. The Court understands that the Constitution cannot be modified to fit the contours of any law.

Maybe an apology to the Court from Mr. Astaphan is in order.