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RESPONSE TO THE REPORT ON THE ELECTORAL REFORM EFFORT BY THE GROUP COMPRISING LEADERS OF CHURCH, BUSINESS AND CIVIL SOCIETY (THE REPORT) 

by: - August 21, 2019
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Introduction

 

 

  • Some days ago I had a very brief meeting with the Observers via videoconference when I was asked I believe two questions. Following this meeting I was shown a copy of the report by the group comprising leaders of Church, Business and Civil Society, which I have now read. 

 

 

 

  • This report is in effect asking the observers to ignore if not repudiate bills presented to the Parliament after consultation with the Commission, and notwithstanding the commendations of the Commonwealth expert Miss Pauline Welsh.  They seek to do so with a report deeply flawed with grave misstatements of fact and law. 

 

 

 

  •  Simply put, the speculation, misinformation and falsehoods in the report is unquestionably astonishing. Simply put, the authors of this report could with any degree of honesty continue to ignore and/ or in many cases misstate the facts and fundamental principles of election law simply to deceive the public and observers.  Also, there are many express misrepresentations of fact and law in several paragraphs of the report. 

 

 

 

  • Further, this group has provided not a shred of evidence to substantiate its allegationsUndaunted it has sprayed the seed of mischief by suggesting at least implicitly there is some electoral devil hidden somewhere in the dark, and that unless its farfetched and baseless demands are met, Dominica will plunge into utter chaos. This stripped to its bare essence is naked politics.

 

 

 

  • Accordingly, I would have been in serious dereliction of my duty as a citizen and Counsel if I failed to respond to it. 

 

 

Some of the facts misrepresented, ignored or false

 

  1. Some of the facts ignored or misstated in the report are 

 

    1. Every list and register of electors are in fact published at periods prescribed by law to the public with a notification of the right to object to electors;

 

    1. There have been, and are, very few, IF ANY, objections to electors and none on the basis that a person has been overseas for a period of more than five consecutive years;

 

    1. There has been and is no record or evidence of fraudulent voting at any election in Dominica;
    2. The number of new electors who were duly registered every five years since 1980 is conveniently set out in the first report by Miss Pauline Welsh, a consultant from the Commonwealth dated April 2018, at Table 1 of her report as follows

TABLE 1 – INCREASE IN NUMBER OF REGISTERED ELECTORS

Year Total Percent Increase over previous

year

1980 Number of Electors 38,452

1985 Number of Electors 47,018 22.28%

1990 Number of Electors 50,557 7.53%

1995 Number of Electors 57,632 13.99%

2000 Number of Electors 60,266 4.57%

2005 Number of Electors 65,889 9.33%

2009 Number of Electors 67,223 2.02%

2014 Number of Electors 72,533 7.90%”

 

    1. Miss Welsh also set out  the number of actual votes cast in Table 2 as follows 

TABLE 2 – SUMMARY OF VOTES CAST

Year Total Percentage

1980

Number of Electors 38,452

Number of Ballots Cast 30,842 80.21%

Number of Accepted Ballots 30,595 79.57%

Number of Rejected Ballots 247 0.64%

Number of Electors Not Voting 7,610 1 9.79%

1985

Number of Electors 47,018

Number of Ballots Cast 33,565 71.39%

Number of Accepted Ballots 33,281 70.78%

Number of Rejected Ballots 284 0.60%

Number of Electors Not Voting 11,453 24.36%

1990

Number of Electors 50,557

Number of Ballots Cast 33,696 66.65%

Number of Accepted Ballots 33,442 66.15%

Number of Rejected Ballots 251 0.50%

Number of Electors Not Voting 16,864 33.36%

1995

Number of Electors 57,632

Number of Ballots Cast 37,563 65.18%

Number of Accepted Ballots 37,187 64.52%

Number of Rejected Ballots 376 0.65%

Number of Electors Not Voting 20,069 34.82%

2000

Number of Electors 60,266

Number of Ballots Cast 36,264 60.17%

Number of Accepted Ballots 35,804 59.41%

Number of Rejected Ballots 460 0.76%

Number of Electors Not Voting 24,002 39.83%

2005

Number of Electors 65,889

Number of Ballots Cast 38,934 59.09%

Number of Accepted Ballots 37,913 57.54%

Number of Rejected Ballots 1,021 1.55%

Number of Electors Not Voting 26,954 40.91%

2009

Number of Electors 67,223

 

Number of Ballots Cast 36,883 54.87%

Number of Accepted Ballots 36,294 53.99%

Number of Rejected Ballots 589 0.88%

Number of Electors Not Voting 30,340 45.13%

2014

Number of Electors 72,533

Number of Ballots Cast 41,567 57.31%

Number of Accepted Ballots 41,084 56.64%

Number of Rejected Ballots 483 0.67%

Number of Electors Not Voting 30,966 42 42.69%

 

    1. These figures speak for themselves. They disclose considerable consistency in number of new registrations every 5 years, votes cast, and number of electors not voting. 

 

    1. The Commonwealth Observers at the 2014 election addressed the validity of  the register at page 20 of their report where they said 

“The Mission concludes that, despite its aforementioned shortcomings, the voters’ list did not materially affect the credibility and transparency of the election process and of the results. The list is however widely and publicly discredited and despite, in the Mission’s view, being accurate and appropriate in the eyes of existing legislation, the Mission does not believe it necessarily reflects the reality or the wishes of Dominican society;”

 

    1. There is no evidence to support the criticisms of the register.   Nevertheless, the observers’ findings that the voters’ list did not materially affect the credibility and transparency of the election process and of the results, and that it was (and remains accurate) and appropriate in the eyes of existing legislation are important. They put to rest the suggestion that the register is susceptible to fraud or unfairness, and therefore needs to be “sanitized.”

 

    1. No election petition was filed after the 2014 election;

 

    1. Following the 2014 election Miss Mia Mottley was asked to assist the Commission on reform. Subsequently Miss Pauline Welsh from or recommended by the Commonwealth assisted and prepared a report and addendum to the report;

 

    1. Public consultations were in fact held by the Chairman of the Commission and Government;

 

    1. The Government as required by section 51 of the Constitution in fact consulted the Commission and Chief Elections Officer on the proposed bills;
    2. Miss Pauline Welsh, a consultant from the Commonwealth, reviewed the respective bills and commended the provisions concerning the ID cards and confirmation of electors domestically and in the Diaspora in her Addendum as reflecting recommendations of observers and international best practices;

 

    1. The Government of Dominica has allocated sufficient funds to the Electoral Commission for the acquisition of the required machinery etc to implement the ID cards and confirmation process set in the proposed amendments in the bills;

 

    1. The bills were presented to   the Parliament but their enactment into law was prevented by violence in 2018, and threats of violence and an application for an injunction in 2018.  

 

The existing law ignored or misstated 

 

  1. The indisputable questions or principles of election law ignored or misstated are

 

    1. The Independence Constitution of 1978 vests the authority in the Parliament to make, amend or repeal any law concerning the registration of electors and elections. The sole fetter imposed by section 51 is the obligation to consult the Chief Elections Officer and Commission. It is therefore for the Parliament, subject to the duty to consult, and there was consultation, to decide on the appropriate law required in the public interest for registration and elections;

 

    1. It is therefore nothing short of constitutional heresy for the group to suggest, even implicitly, that the Parliament has no rights or say in these matters; 

 

    1. A duly registered elector has the constitutional right to vote. This right may not be interfered with or repudiated except for significant cause and due process. [ See the judgment of the Court of Appeal in  Parry v Mark Brantley HCVAP 2012/00 the Court of Appeal especially at paragraph 73];

 

    1. This right to vote of persons duly registered, especially in the Diaspora, was expressly recognized by the Commonwealth Observers on their 2014 report. At page 13 of their Report they said:

“The contentious debate seems to rest on the interpretation the law ascribes to the concept of “absence” as used in the legislation referred. As the law refers to absence and not residence, the criteria of five years absence may be casually satisfied by returning to the island once every 4 years, 364 days. The Mission believes therefore that under existing legislation the majority of Dominicans residing overseas would be entitled to receive a national ID card, therein allowing them to vote.”

 

    1. The law places the obligation on political parties to ensure the accuracy of the lists by invoking and complying with the  law including notices and the right to object to any person who ought not to be on the list or register. [ See Frampton v Pinard  Rawlins J at paragraph 40 and  Lindsay Fitzpatrick Grant v Rupert Herbert and Others, Belle, J delivered on the 12th July 2006  at paragraph  [61]

 

    1. The right to objecthave not been exercised in accordance with the law; 

 

    1. The political parties, persons and groups who now complain have wholly failed to exercise the rights and obligations mentioned in 7.5 and 7.6 above;

 

    1. There is no such thing under our law as automatic disqualification. This argument was expressly rejected by Justice Errol Thomas in   John Abraham v Kelvar Darroux CLAIM NO. DOMHCV2010/0003 Justice Thomas, an election petition matter from Dominica at paragraph 78;

 

    1. It is now settled law that no name may be deleted or removed from the lists or register without the strictest compliance with due process, and any reckless or intentional removal without due process has, as the appellants in  Parry v Mark Brantley HCVAP 2012/00 discovered, serious civil and financial consequences. [ See the judgment of the Court of Appeal in  Parry v Mark Brantley HCVAP 2012/00 the Court of Appeal especially at paragraph 73];

 

    1. There ought therefore to be no question that the allegation in paragraph by a simple process of notification, and without due process, is inaccurate. It  flies in the face of basic fairness and the rulings of our High Court and Court of Appeal which make it clear that strict compliance with due process is required  

 

The misrepresentations on ID Cards

 

  1. The group argues that the existing law provides for ID card. This is 1% accurate in that section 19 of the Registration of Electors Act mentions ID card. But the argument is 99% misleading for the following among  other reasons

 

    1. Section 19 of the Registration of Electors Act provides

 

“ The Chief Registering Officer may cause identification cards containing prescribed information to be issued in accordance with the Regulations, or may employ other suitable methods of preventing electors from voting more than once.”

 

    1. There is no provision in the existing law making an ID card a mandatory  requirement for registration or voting;

 

    1. There is no provision in the existing law whether under the existing section 25 of the Registration of Electors Act or otherwise requiring the Chief  to ask for or an applicant or elector to provide photographs, biometrics data, or for a person  to apply for an ID card on registration or at any other time;

 

    1. Section 12 of the proposed Registration of Electors  (Amendment) Act   seeks to amend the existing section 25 by adding the following important sub-paragraphs after the existing sub-paragraph (d)

 

“(e) national identification cards including the procedure to be followed in the issuing of national identification cards; 

 

(f) the issuance of national identification cards in place of those which are lost or destroyed whether free of charge or on payment of the prescribed fee in respect of the replacement;

 

 (g) the manner in which any person seeking registration or confirmation of registration under this Act may be identified, including the taking of photographs and finger impressions or scans;

 

 (h) the manner in which any person seeking to vote may be identified, including the taking of finger impressions or scans;

 

 (i) the form and manner of the keeping and maintenance of registration records.”

 

    1. These amendments seek to extend the authority and powers of the Commission, and provide the “prescribed information” mentioned in section 19 and more. 

 

    1. The absence of any existing provision providing for  the “prescribed information” including a mandatory process,   photographs and biometrics was recognized by the group when they suggested, at paragraph 2.1/3, bottom of pages  6 and 26 of the report, that the expression “prescribed particulars” in section 19 may be construed to include “biometric data.” This is startling for the following reasons;

 

  1.  The first is that the word “prescribed” requires that the details be provided for in a law;

 

  1.  Second, one cannot by mere construction add words to laws which were not provided for by Parliament.  This is wholly unsupported by law; and

 

  1.  In any event, the bill provides not only for biometrics but other matters as well including photographs, and making such information and ID card parts of the process for registration and voting;  

 

    1. There is no provision in the existing law requiring an elector to produce an ID card as the means of identification on election day;

 

    1. There are no relevant or applicable constitutional fetters which  prevent Parliament from exercising its constitutional power to amend the existing law to provide expressly for the Electoral Commission to issue  ID Cards. [ See sections 41 and 51 of the Constitution];

 

  1. The aforementioned matters set out in 8 above suggests, loudly, that

 

    1. The group’s allegation  in paragraph 2 of page 7  misses the point as the Parliament intends   to amend section 25 in terms of section 12 of the proposed Registration of Electors  (Amendment) Act  2018 to provide  the required process and prescribed information, and therefore enhance the authority of the Commission; 

 

    1. The group’s statements in paragraph 3 of page 7   of the report exposes a clear failure to truly appreciate if not understand what the proposed amendments provide for or mean.  For example 

 

  1. Miss Welsh after reviewing the proposed amendment to introduce the National ID cards said  at page 6 

“General Comments and Observations 

With respect to the proposed amendment to section 19 of the Registration of Electors Act this would clearly satisfy the requirement for the Chief Registering Officer to cause identification card to be issued to electors. The clear benefit is that the use of an identification card will allow the Presiding Officer to identify with some degree of certainty, the person(s) applying for ballot paper as against the entry on the Register of Voters. This will enhance the integrity of the electoral process and minimise instances of Personation. 

This report wishes to note that a recommendation to amend section 19 was put forward in the earlier version. 3 It is further noted that this amendment fulfils that earlier recommendation. 

This report wishes to further state that: 

Dissatisfaction was expressed (at some stakeholder’s meetings with the Consultant) about the introduction of a multi-purpose card, instead of a card dedicated solely for use as a voter identification card. This report holds the belief that the card system as is proposed seems sufficient for voter identification purposes. 

 

  1. Miss Welsh also said   at page 19

Comments and Observations 

The introduction of a new section 19 aligns with the recommendation made in the Legal Consultant’s main report. 

It also fulfils the recommendation of the several Election Observation Reports which respectively called for the need to introduce proper identification cards for the identification of voters. The effort in this regard is commendable.”

 

    1. The group’s allegation’s collide frontally with the comments of Miss Welsh and her comments.

 

The confirmation process 

 

  1. Miss Pauline Welsh dealt exhaustively with the confirmation process in her Addendum. Nevertheless, I must again point out the group’s mischief making at paragraph 2.2, page 29 of its report. The group alleges, wrongly and falsely, that there is no provision for the removal of names during the confirmation process. This is false and dishonest for the following among other reasons

 

    1. The Parliament seeks to introduce the confirmation of  an elector’s registration by PART III and sections 30 and  31 of Registration of Electors (Amendment)  Act ;
    2. The confirmation process is dealt with in the draft Registration of Electors (Amendment) Regulations; 

 

    1. This process requires a person to confirm his registration. [Section 5 of the draft Registration of Electors (Amendment) Regulations];

 

    1. The proposed Regulation 10 A (6) of the draft Registration of Electors (Amendment) Regulations shows that an enrolment officer may refuse to grant an application to confirm once the proposed Regulation 10 () (a) to (c) is triggered.  Once he or she has so decided, he or she must inform, the elector of his right to appeal.

 

    1. Section 5 of the draft Registration of Electors (Amendment) Regulations seeks to insert a new regulation 10 A. Sub-regulation 10A (10)   of the proposed amendment provides 

 

“(10) The enrolment officer shall not refuse

to confirm the registration of the elector unless he is

satisfied that:

 

(a) the person is not the elector whose

name is mentioned in the register;

(b) the details required to be provided in

Form 3A have not been provided or

are inadequate; or

(c) the applicant is not entitled to remain

registered by virtue of his having been

absent from Dominica for a continuous

period exceeding five years.”

 

    1. There ought to be no doubt that an enrolment officer is required to refuse to confirm the registration of the elector if  he or she is not satisfied the applicant is entitled to remain registered because he has been absent from Dominica for a continuous period exceeding five years. This process is infused with fairness because there is a right of appeal, and the right of access to the High Court remains unfettered. Consequently, the allegation in the last paragraph on page  29 and top paragraph on page 30 of the report that there is no power to remove is misleading because if a person is not able to satisfy the enrolment officer that he or she in fact returned at least once in the preceding five years, that person will not be confirmed. Consequently, that person’s name will not appear in the new Register;

 

    1. The Commonwealth consultant Miss Pauline Welsh reviewed sections 30 and  31 of Registration of Electors (Amendment)  Act  and at page 22 and 23  of her Addendum wrote 

“Comments and Observations 

The insertion of this new section 30 is critical to the achievement of a voter’s register which reflects the voting population with some degree of accuracy and correctness. Coupled with proper administrative and other guidelines from the Commission, the achievement of the creation of an acceptable voter’s register can become a short to medium term objective of the Commission. This amendment fulfils one of the important recommendations  made in the earlier report for a full reverification/reconfirmation exercise. 

The amendment requires verification of the electors living overseas at embassies, missions and at other places as designated by the Commission. In order to achieve this overseas verification, wide scale logistic planning will be required. There are several countries that have successfully implemented similar programmes from which the Commission may seek to adopt best practices and lessons learned. Case in point the Dominican Republic employed Voting Coordinators to operate overseas to effect registration. Mexico adopted a similar approach as is being suggested. It means therefore that there are several international cases best practices that the Commission may rely on in order to inform itself how best to give effect to section.. Such an exercise if not managed and administered properly can become a logistic nightmare. There are examples of jurisdiction where overseas registration was poorly managed and the exercise had to be eventually abandoned. 

The Electoral Commission may wish to seek further assistance in this regard from the breadth of existing Commonwealth expertise.’

 

    1. Miss Welsh after her review of the  new section 30 (Clause 13 of the Bill) to allow for confirmation,   also said in her Addendum 

 

This amendment fulfils one of the important recommendations  made in the earlier report for a full reverification/reconfirmation exercise.”

 

    1. The third paragraph on page 30 beginning with the words “ Clause 13 of the 2018 Bill…” is false and/ or misleading  because the procedure under the proposed regulation 10 places the  burden on the elector. This is reflected in regulation 10A (7) which provides  

 

“The enrolment officer shall prior to allowing or refusing the elector’s claim to be confirmed as an elector, further consider and take into account all written representations, grounds and additional information provided by the elector.”

 

    1. Frankly, the penultimate paragraph on page 30 beginning with the words “ In summary..,” and last paragraph on page 30, which concludes on page 31 make  absolutely no sense to me;

 

    1. The second paragraph on page 31 beginning with the words “ The Group has been advised…” is calculated mischief making motivated by the group’s common position with the United Workers Party that persons in the Diaspora  ought to be stripped of their right to vote which is unacceptable. 

 

Some other specific paragraphs of the report: false and deceptive

 

  1. The following are some of the  several paragraphs of the report which contain false, deceptive and misleading statements

 

    1. Page 7, 3rd and 4th paragraph from the top. These allegations are   pure malice. As shown above, the draft bill, which was vetted by the Commonwealth expert and discussed in her Addendum, makes express provision for the enrolment officers to refuse to confirm, a person’s registration if they fail to show they had not visited Dominica it least once on the last five years;

 

    1. Page 8 , 2 nd  to 5th  paragraphs. The allegations therein are baseless and premised on self-serving speculation, and are misleading and   false. For example

 

  1. As accepted by Miss Welsh in her Addendum, the proposed amendments are in keeping with recommendations and best international practices; and 

 

  1. As set out above, the Constitution vests the power to make laws in the Parliament and not the Commission. The only obligation of the Government is to consult which it did. The Commission simply cannot make regulations on its own initiative in any post constitutional context;

 

    1. Page 9, 1st paragraph. The vague and blanket assertion repeated elsewhere in the report that indelible ink is not fool proof is silly. Nothing is fool proof. But what is incontrovertible, is that there has been no evidence presented either in the past, or by this report, of voters voting twice in elections in Dominica. There has been no fraudulent voting or personation;

 

    1. Page 15. The allegation that most of the recommendations in the elections observer reports have been left untouched is patently false. The key and essential recommendations have been comprehensively addressed in the draft amendments, as accepted Miss Pauline Walsh;

 

    1. Page 18. Paragraph 1.3. The group’s conclusion that the stakeholders are in agreement with the group’s conclusions is completely false. Kindly see my response to the group’s interim report in my book;

 

    1. Page 23.  The references to the National Panel Discussion are significantly false and represents an alternate universe version of what in fact transpired at the function;

 

    1. Page 25. Third paragraph from the bottom. The “legal conclusions” made in this paragraph are not premised on fact or the correct interpretation of our legislation or principles of election law;

 

    1. Pages 28 to 29, paragraph 2.1.3 are infiltrated with numerous inaccuracies. For example

 

  1. The group is being deceptive. The law requires the publication of all lists with notifications for objections. No objections have been filed on the basis that a person has been overseas without at least one visit  for more than five years.;

 

  1. The Commission is not empowered to initiate the process of removal for whatever reason as it acts in such matters as a tribunal of appeal;

 

  1. As established by the High Court the laws of the Commonwealth of Dominica places the burden on parties and others to object to names of the voters list;

 

  1. In Frampton v Pinard  Rawlins J at paragraph 40 said 

 

“With respect, I shall follow Radix v Gairy. In the first place, it is a Judgment of our Court of Appeal. Any statements of principle that it contains must be treated by this Court with the deference which the doctrine of precedent requires. In any case, it is my view that the statement is sound in principle. Where there is a legislative regime, which provides a detailed procedure for registration and for the hearing of claims and objections in relation to the electoral Register, the procedures set out in the legislation must mean something. Candidates and political parties are expected to be ever vigilant. By acting in accordance with the procedures which the regime provides, they would assist elections officials to provide an accurate Register of the persons who are entitled to vote according to law. The Registration of Voters Act, Cap.2:03 and the Registration of Voters Regulations made there under provide such a procedure in Dominica…”

 

 

  • In  Lindsay Fitzpatrick Grant v Rupert Herbert and Others, Belle, J delivered on the 12th July 2006  said at paragraph  [61] 

 

 

He Supervisor of Elections being the Chief Enrolment officer can be blamed for certain problems relating to the list. However the scheme of the legislation places the onus on all voters and the supporters of political parties to object to any apparent false, erroneous, or illegal listings. If they fail to discharge this duty they cannot be heard to complain thereafter as to the consequences and indeed the Supervisor’s hands would be tied with regard to any cleaning up of the Register of Voters in the circumstances. See the Rawlins J statement on this issue in Ferdinand Frampton v Ian Pinard.”

 

  1. Persons duly registered are entitled to remain on the register except if dead or removed in accordance with an objection  and due process. Since 1984/85 there have been minimal if not zero objections in accordance with the Registration of Electors Regulations. On the other hand, there have been and continue to be, a number of new registered electors every year since 1984/85. The result is that the number of electors on the Register has continuously increased over the last few decades with little or no removals except by way of death. For example, in 1995 the number of registered electors was 57,632, in 2000 the number of registered electors was 60,266, in 2005 the number was 65,889, in 2009, the number was 66,923, and 72,277 in 2014. These figures show over 5000 additions to the Register between 2000 and 2005, and some 5,354 additions between 2009 and 2014. That is over 10,000 additions in 14 years.  Consequently, if one adds the new registrants since 1995 with little or no objections, it will be obvious that the Register will increase by an average of 3000 to 5000 every year; and

 

  1. As shown above, the Commonwealth Observers at the 2014 election believed the Register was accurate and in accordance with the law; this notwithstanding selective criticisms that the register included Dominicans overseas, and at page 20 concluded that  the voters’ list “did not materially affect the credibility and transparency of the election process or the results”. 

 

    1. The suggestion in the report, page 28, that “ it is reasonable to believe that a relevant register of electors is likely to become inaccurate due to unintentional administrative errors”, reflects deep rooted ignorance of the law  or malice;

 

    1. Page 29. 1st  paragraph. I am not aware of any of the discussions between the group and Commission. However, I have heard the Chairman and previous Chief Elections Officer   explain publicly the manner in which the Electoral Office goes about removing the names of deceased persons from the registers, including the fact that the information from the Civil Registry has been greatly increased;

 

    1. Page 31, 2nd  paragraph from the top.  The allegation relating to the profiling of registered voters and facilitating electronic surveillance is ridiculous, another of their conspiracy theories;

 

    1. Page 33. References to verification exercise conducted in 2014 is a clear reference to the exercise conducted by the Commission during the attempt to  introduce MPID, when an attempt was made to enroll persons in process of testing the system. This process has long been abandoned. 

 

Conclusion

 

 

  • For the reasons set out above, it is my respectful view that any reliance on this report would be manifestly unfair, contrary to genuine reform based of fact and the law, and  the public interest.

 

 

Dated the 20th Day of August 2019

 

Anthony W Astaphan, SC