The United Workers Party is deeply concerned about criticisms of the Caribbean Court of Justice (CCJ) by the Government of the Commonwealth of Dominica accusing the country’s highest court of departing from sensibility and time-honored judicial practice to make “gratuitous commentary on political affairs” which has caused “unnecessary discord in Dominica”. These statements are reprehensibly dishonest and absolutely unbecoming of a government sworn to serve the public interest.

In its July 5 th, 2022 ruling in the matter of the strike out the 2019 election petitions filed by members of the UWP, the CCJ upheld the decision of the Court of Appeal that it had no jurisdiction to hear the complaints of the petitioners against the decision of the trial judge. But this being the second matter to come before the CCJ in less than two years regarding the conduct of elections in Dominica, the apex court felt compelled to offer guidance on the way forward based on its own assessment of the facts and evidence of an electoral process unfit for the purpose of free and fair elections.

The nation will recall that in December 2020 Government’s lead attorney Anthony Astaphan advised the CCJ that legislative reform for the electoral process was necessary and Government had contracted former CCJ President Sir Dennis Byron to make recommendations. It is therefore quite alarming that less than two years later, the same lead attorney for Government appears to have directed the Attorney General’s Chambers to unleash a most vicious attack on the CCJ for stating plain truth and offering honest advice at paragraph 108 of the ruling:

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“There remain areas of grave concern about how the process of these elections was conducted. Future elections in Dominica ought not to proceed with these or similar taints”

The statement from the Attorney General’s Chambers avers that the “taints” are “allegations on which no findings have been made by any court of law”. We disagree. The “taints”, even though inquiry into their impact on free and fair elections have been stifled by judicial discretion, are well known to the court. For example:

1. The taint of using the wrong list for the 2019 election was described by strike out judge Justice Glasgow as a patent non-compliance with section 17 of the Registration of Electors Act. But he set aside the unlawful conduct of the election authorities because he claimed the petitioners did not show how using an illegal list affected the outcome of the election. In paragraph 88 the CCJ insists: “This is a matter of the most serious concern that ought to be investigated irrespective of the outcome of this appeal and of these petitions”. In paragraph 100 the CCJ emphasizes its view “that non-compliance of electoral laws in this regard is an eventuality that ‘the court must resolutely set its face against’.
2. The taint of bribing thousands of Dominicans resident overseas to vote in the 2019 elections was admitted by the Dominica Labour Party. In their defense they simply said yes, we brought in people to vote, but they are our supporters. Strike out judge Justice Glasgow saw no offense notwithstanding the clear definition of bribery at section 55 of the House of Assembly Elections Act and the generally accepted legal principle that “the payment or promise of payment to a voter of his traveling expenses on the condition, expressed or implied, that he would vote for a particular candidate is bribery”.
3. The taint of treating thousands of Dominicans to free concerts with high priced international artistes to corruptly influence their votes could not be challenged. Strike out judge Justice Glasgow simply said it was not properly pleaded.
4. The taint of denying the opposition access to state owned DBS radio could not be denied. Strike out judge Justice Glasgow only said the petitioners did not show how the conduct of DBS affected the outcome of the election rendering it a sham or a travesty. This preoccupation of Justice Glasgow with the impact of illegalities and irregularities on the outcome of the election with no interest whatsoever in their impact on the process emerged as a serious concern for the justices of the CCJ whose ruling notes at paragraph 105: “Equally if not even more important than pure outcome, is the process by which elections are conducted, and in particular, that that process be seen and known by the citizenry to be free and fair and in conformity with the core constitutional values of
   equality, freedom and fair participation, values that underpin the constitutional vision of democracy…”
   The CCJ entitled Justice Glasgow to the presumption of judicial competence but raised issues of “gross substantive incompetence, or clear miscarriages of justice” and the likelihood that egregious judicial errors, “patent on the face of the record, were such as to result in a striking out of what is objectively and reasonably an arguable election petition”. At paragraph 27 the CCJ appears concerned about compliance with the generally accepted expectations for judicial conduct in applications to strike out election petitions: “Striking out pleadings altogether could deprive a Petitioner entirely of the right to a trial. A judge should therefore very sparingly adopt such a draconian measure. Imposing
   tight timelines for the production of suitable particulars, coupled perhaps with an ‘unless’ provision, is often a more just alternative. Further, at this interlocutory stage, the judge is not expected to conduct a mini trial on contested facts. Indeed, the judge is in no position to decide at this stage the merits of a contested case. Nor should a judge strike out pleadings if there are enough facts pleaded that, if established, would show that the elections were a sham or that a different result would have been declared and the Respondents have a reasonable appreciation of the evidence with which they would be faced at trial”.
   In the final analysis and for reasons best known to himself, Justice Glasgow embraced the draconian measure of striking out all ten petitions after a mini trial on contested facts at a stage in the process where he was in no position to decide on the merits of the case. Notwithstanding the legal technicality of jurisdiction on which the appellate court ruled, the CCJ saw enough to ground the suggestions of the CCJ President that there are problems with the electoral process in Dominica which require urgent remedial attention:
   It would be remiss if the Court did not, however, offer the following observations. Some of the allegations raised by the Appellants are serious and, if true, would be troubling. Periodic elections that are free and fair are the lifeblood of a country’s democracy. Every effort must be made by a State scrupulously to adhere to the legislative provisions governing elections… We would hope that the relevant authorities would seriously reflect on the allegations made in these proceedings and consider… steps that… should be taken to improve the elections machinery so that, as far as possible… such allegations as were made here would not arise in the future.
   We urge the Government to refrain from its unwarranted attacks on the Caribbean Court of Justice and focus its efforts on comprehensive electoral reform to ensure that future elections in Dominica will not be tainted by illegalities, irregularities, corruption and electoral misconduct.