A Constitutional Perspective on Election Petitions

The most recent flashpoint on the Dominica political landscape is fueled by confusion regarding the jurisdiction of the High Court over electoral petitions, and touches generally on the very status of election law in Dominica.

It all began after a decision was handed down from the ECSC Court of Appeals that would allow a treating complaint from the 2014 elections to go forward. While rumors swirled about plans to appeal this decision to the Caribbean Court of Justice (CCJ) we received news that an application had been made in the High Court to strike out the timely electoral petition to 10 results from the 2019 elections. This application, which was scheduled to be heard on June 10, 2020, triggered an announcement from the Hon. Lennox Linton, Leader of the Opposition, who, as political leader of the United Workers Party, was an interested party in the electoral petition. He laid out the reasons why he believes the judge who had been assigned to hear the application could not provide fair and unbiased adjudication in this matter.

This, to my mind, was highly irregular. I expected such issues to be raised in a motion before the Court by Counsel, rather than have one of the litigants attempting to bring public pressure to bear on the judge. Two rapid responses to this campaign changed my mind and caused me to take a second look at the above events, and I offer my analysis and conclusion for your consideration.

The first response came from Senior Counsel Anthony Astaphan, who is not an attorney of record in the matter. He characterized Mr. Linton's efforts as an attack on the learned judge and called on the authorities, including the police, to investigate. This was followed by a public statement by Prime Roosevelt Skerrit who himself was not a respondent in the matter. Without direct regard to this public campaign the judge recused herself on her own motion and this, in turn, triggered a letter from the Attorney General to the Chief Justice seeking to disqualify the other resident judge on the island, to whom the matter automatically passed. This is where my analysis begins.

All electoral petitions are heard before the High Court but they are not bona fide legal complaints. They are part of the electoral process in Dominica.

This electoral process is managed by the independent Electoral Commission. It begins when Parliament is dissolved, either on the recommendation to the President by the Prime Minister or naturally at the end of its five year life, and it ends when the next Parliament is sworn in. The details of that process are described in the Constitution and the House of Assembly (Elections) Act. After the House stands dissolved the President issues the Electoral Writ in which he discloses the dates of Nomination Day and Election Day. After Nomination Day the Electoral Commission is required by law to publish the Final Electors List, leaving us with a validated list of candidates and a validated list of electors. On Election Day electors go to the polls in the constituencies where they are registered and vote for their choice of candidates by secret ballot. It is the responsibility of the Electoral Commission to ensure that all the rules of a fair poll are followed, and to disqualify candidates or electors as the case may be. At the end of voting the Electoral Commission, through its agents, conducts a count of all ballots cast, in presence of witnesses, the results are returned and the winners of the poll in all constituencies are declared.

Section 68 of the House of Assembly (Elections) Act allows for a period of 21 days during which anyone who has evidence of a violation of any of the rules of the electoral process that could adversely affect the results of any poll (28 days for cases involving payment of money) may bring it to the attention of the Electoral Commission. This can only be done by way of an electoral petition to the High Court. It is important to note that a petitioner does not come before the Court seeking protection or enforcement of individual rights. The petitioner comes with the same authority under which the Electoral Commission conducts the electoral process. The provision for electoral petitions is a reflection of the value that The People, the original authors of the Constitution, place on the electoral process.

Even though the House of Assembly (Elections) Act was given effect under the powers of the Constitution (Chapter 2 and Chapter 1 of the Laws of Dominica, respectively), it must be noted that the House of Assembly (Elections) Act dates back to 1951. The electoral petitions provisions must be understood within the context of the Constitution, which was written in 1978. Three provisions of the Constitution now take on added significance.

Context

Regarding responsibility for elections: "the Chief Elections Officer shall not be subject to the direction or control of any other person or authority" and "The question whether the Chief Elections Officer had acted in accordance with the directions of the Electoral Commission shall not be enquired into in any court of law." §§ 38(5), (6). (Emphasis mine).

Regarding restrictions on the law making power of the Legislature: "Every proposed bill and every proposed regulation or other instrument having the force of law relating to the registration of electors for the purpose of electing Representatives or to the election of Representatives and Senators shall be referred to the Chief Elections Officer at such time as shall give them sufficient opportunity to make comments thereon before the bill is introduced in the House or, as the case may be, the regulation or other instrument is made." §51.

These are serious conditions. The rationale for Section 51 is not only to inform the Electoral Commission on the plans of the Legislature but to ensure that no legislation contravenes the provisions of Section 38. That extends to any interpretation or gloss that a court may feel led to apply to any law.

Administration of the Electoral Petitions Rules must be conducted with these Constitutional provisions on mind. When the High Court hears an electoral petition it does not sit as part of the Judiciary. The judge does not sit as a sitting High Court judge but as an adjudicator for the Electoral Commission. The instrument of an electoral petition only grants authority to the High Court to assist the Electoral Commission in its supervision of the electoral process. An electoral petition is not a case or controversy before the court. There can be no appeal from a ruling on an election petition because no court has jurisdiction over the Chief Elections Officer's exercise of his duties. Because the court is acting as a proxy for the Electoral Commission, criticism of the judges assigned to hear the electoral petition cannot be construed as criticism directed at their judicial office.

The Court must also operate under the same constraints that guide the Electoral Commission. As indicated above, the Electoral Commission must adhere to the dates set forth by the President in the Electoral Writ and the responsibilities set forth in the Constitution and the House of Assembly (Elections) Act. Also, the Electoral Commission cannot refuse to hold a poll of Electors on Election Day, and the results must be returned as soon as they are available. Because the High Court acts as an agent of the Electoral Commission, the Court cannot refuse to hear an electoral petition for any reason and must deal with any petitions before it as soon as is practicable.

Conclusion

Based on this analysis. the application to strike out the electoral petition arising from the 2019 General Elections should not have been accepted by the Court as a matter of law, and the Court should also deny the plea without a hearing as a matter of law. The Court should move expeditiously to hear and rule on these petitions. The High Court probably is not to be blamed for taking the logical position that the House of Assembly (Elections) Act should be interpreted as a standalone law rather than as an extension of the section of the Constitution that deals with the Electoral Commission. Unfortunately, that position places both the Court and the Executive at odds with the very Constitution they are sworn to defend.

Respect for the Constitution

The electoral petition from the 2019 elections may not have been necessary if the President had followed the law. Recall that the Constitution places specific obligations on the Chief Elections Officer after the President issues the Electoral Writ. In 1990, 11 years after Hurricane David destroyed most of the buildings on the island, including polling stations. the 1951 House of Assembly (Elections) Act was amended to release the Chief Elections Officer from these obligations should certain specific conditions exist - four delineated emergencies that would make it impossible for citizens to get to the places identified for nomination or to the polls. The four emergency situations are 1) a state of war, §19(1)(a), 2) a state of emergency, §19(1)(b), 3) the occurrence of various forms of natural disasters or an outbreak of various types of epidemic diseases, §19(1)(c), or 4) the inability to produce the Final Voters List on time, §19(1)(d). There is no hierarchy among the four conditions. Each is of equal effect. And "if the President is satisfied that it is expedient to do so he … may by Proclamation adjourn the holding of the poll for some other day specified in the Proclamation not being more than 30 days after the date specified in the writ issued under section 12." (Emphasis mine).

Readers may recall that many objections had been lodged with the Electoral Commission with respect to recent additions to the Voters Registration List leaving the Chief Elections Officer unable to produce the Final List on time. The President refused to act. When conscientious citizens approached the High Court seeking an injunction compelling the President to follow the law the ruling was that the only relief available was through an election petition.

This is where we are now. I await June 18 with great anticipation to learn where the High Court, the third branch of our government, holds the Constitution in as high regard as I think it should.