By Anthony W Astaphan, SC
Power of the Parliament
1. The Constitution vested the exclusive power in the Parliament to make laws for election matters by sections 40(5) and 41 of the Constitution. It is also the exclusive authority of the Parliament to legislate on matters which it considers ought to be illegal or offences, or which the public interest requires be clarified or enacted into law.
The purposes of the amendments
|Anthony Astaphan SC practices in the OECS. He was made Senior Counsel by the Eastern Caribbean Supreme Court in 1999. He is the former President of the Bar Association of Dominica|
2. The purposes of the amendments in summary are:
2.1. to clarify and codify the law in relation to bribery and treating;
2.2. to provide for confirmation of electors, and the reconstruction of the lists with persons who do not confirm or meet the requirements, are dead or overseas for more than five years immediately preceding confirmation are removed from the list; and
2.3. to provide for ID cards for the purposes of an election.
The five-year rule and right to vote
3. In Quinn Leandro v Dean Jonas the Court of Appeal ruled that a person duly registered has a constitutional right to vote.
4. In John Abraham v Kelvar Darroux the High Court held a person who has resided overseas even for more than five years has a right to vote unless objected to and an objection has been successful.
5. In Parry v Brantley, the Court of Appeal held that no elector who is duly registered can be removed from the register without strict compliance with the statutory regime for hearings and due process.
6. The confirmation process proposed by the amendments will lead to the due process removal of persons in the Diaspora who have been away from Dominica consistently for five years prior to their application for confirmation.
The history of the offences of bribery and treating in election law
7. The law of bribery has never existed without the essential ingredient of the corrupt intention. More importantly, the common law and statutory offences of bribery and treating in Dominica have always required strict proof of a corrupt intention; i.e. an intention to corruptly induce a person to vote for a candidate which he would not otherwise vote for.
8. Section 55 of the House of Assembly ( Elections ) Act provides:
“The following persons shall be deemed guilty of bribery within the meaning of this Act:
(a) every person who, directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure any money or valuable consideration to or for any elector, or to or for any person on behalf of any elector, or to or for any other person in order to induce any elector to vote or refrain from voting, or corruptly does any such act as mentioned above on account of any elector having voted or refrained from voting at any election;
(b) every person who, directly or indirectly, by himself or by any other person on his behalf, gives or procures, or agrees to give or procure, or offers, promises, or promise to procure or to endeavour to procure, any office, place or employment to or for any elector, or to or for any person on behalf of any elector, or to or for any other person in order to induce such elector to vote or refrain from voting, or corruptly does any such act as mentioned above on account of any elector having voted or refrained from voting at any election;
(c) every person who, directly or indirectly, by himself or by any other person on his behalf, makes any such gift, loan, offer, promise, procurement, or agreement as mentioned above to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person as an elected member of the House of Assembly, or to vote of any elector at any election;
(d) every person who, upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procures or engages, promises or endeavours to procure the return of any person as an elected member of the House of Assembly or the vote of any elector at any election;
(e) every person who advances or pays, or causes to be paid any money to or to the use of any other person, with the intent that the money, or any part thereof, shall be expended in bribery at any election, or who knowingly pays or causes to be paid, any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any such election;
(f) every elector who, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any such election;
(g) every person who, after any election, directly or indirectly, by himself or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting at any such election.”
9. As shown in section 55 of the House of Assembly (Elections) Act above, the existence of a corrupt intent or motive to induce is the golden thread that transforms an otherwise legal act into the offence of bribery.
10. The law as to the provision of travelling expenses for a voter is summarised in Halsbury’s Laws of England 4th Edition, Volume 15, para. 770 at page 421:
“The unconditional payment, or promise of payment, to a voter of his travelling expenses is not bribery, but the payment or promise of payment to a voter of his travelling expenses on the condition, express or implied, that he would vote for a particular candidate is bribery.”
11. Section 57 B of the proposed amendments to the offence of bribery provides:
For the avoidance of doubt the transportation of electors or the facilitation of the transportation of electors to or within Dominica for the purposes of an election does not constitute an offence unless the transportation was provided or facilitated with the intention to corruptly induce an elector to vote for a particular candidate or party for which the elector would not otherwise have voted.”
12. The section must be read in context and as a whole. It is manifestly wrong to focus only on the first part of Halsbury’s or the intended amendments. Once properly construed, the sameness and similarities between the law set out in Halsbury’s are clear. There are no substantive legal differences at all; transportation will constitute bribery if provided or facilitated with the required corrupt intent. The existing laws and proposed amendments therefore contain the same critical corrupt intention of inducement.
13. It should be noted that in December 2009 Sir Brian Alleyne, SDC was quoted on the Dominican.net as having said:
“What would be illegal is bribery as defined in section 55 of the House of Assembly (Elections) Act Cap. 2:01. Valuable consideration is consideration that confers a pecuniarily measurable benefit on a person. Paying for an airline ticket to Dominica would fall within the definition.
“If the motive is to induce an elector to vote, that, to my mind, would amount to bribery under the section and would attract criminal sanctions of a hefty fine and imprisonment on both the briber and the bribe.
“The briber, if convicted, would also be disqualified from being registered as an elector, or voting, or being elected to parliament, and if elected, he would be disqualified from retaining his seat. The matter is very serious indeed. (Sections 55 and 61).”
14. Significantly, Sir Brian made it clear that the transportation of electors must be accompanied by the corrupt intention or motive, namely, “the motive is to induce an elector to vote” in order to cross the threshold of the criminal offence of bribery. This clear exposition of the law in Halsbury’s and by Sir Brian notwithstanding, Reverend William Watty has by the stroke of his nakedly partisan pen in his opinion Corruption – No doubt ravaged the definition of the offence of bribery that has stood the test of some 100 years or more.
15. The intellectual tragedy of Reverend Watty’s opinion lies in complete ignorance of the law. Stripped naked, Reverend Watty’s recently crafted definition of bribery is committed by a person once he makes an offer to transport supporters or electors to Dominica or the polls regardless of the facts, motive or intent. On the other hand, if a request is made for transportation by an elector, there is no bribery, regardless of the facts, motive or intent.
16. Significantly, Watty went on to say that motive and intention are irrelevant. This is forensic nonsense, if not legal heresy, fabricated to make his fake point of corruption. Test the absurdity of Watty’s position by considering this; if he is right, and he is not, it means that politicians and political parties will commit an offence simply by offering transportation to supporters. It gets worse if you reflect over the years. Watty’s pronouncements would mean in substance and effect that parties have since 1967 been committing the criminal offence of bribery simply and only by the provision of transportation of supporters or electors to the polls. If this is truly his position, and I doubt it, it means that throughout all this politicking and mobilization over the last decades the good Reverend kept his moral sanctity to himself, and said not a word, until now, in spite of the fact that candidates and parties had advertised free transportation publicly, on bullhorns, and radio etc!
17. I will add this. It is a fact that in Dominica, and the free world, political parties mobilize and bring out the vote on election day in accordance with a cardinal rule and practice of essential democratic politics. This mobilization has never ever depended on a request by an elector or supporter, until this self-serving dispensation by Reverend Watty. Should we heed the good Reverend, and Lennox Linton, any provision of transportation, unless requested, will constitute a crime. This is absurd.
18. Back to the amendments. Notwithstanding the substantial similarities with Halsbury’s, the proposed amendments in fact go further than the existing definition of bribery because:
18.1. Prior to the proposed amendments the High Court would have had no jurisdiction to entertain a claim of bribery allegedly occurring outside the territorial boundaries of Dominica. The High Court has no extra-territorial jurisdiction. The words “the transportation of electors or the facilitation of the transportation of electors to …. Dominica” suggests that the High Court may, after the amendments, be able to ascertain an extra-territorial allegation, if the allegation is alleged to have occurred in the Diaspora, and with the requisite intention;
18.2. The inducement required under the proposed amendments is extended to include inducing a person to vote for a party as well as a candidate. Under the existing law, the inducements can only be in relation to a particular candidate. This will now be extended to include a party.
19. The litigation on transportation and bribery in the OECS has been clear:
19.1. In St Kitts and Nevis, allegations of transportation and bribery including the alleged use of the US Mission to facilitate transportation to St Kitts were thrown out in the post 2004 election petitions by Justice Baptiste on the ground that, on the pleadings, the allegation did not constitute bribery;
19.2. In Dominica, allegations of bribery were thrown out by Justice Rawlins on an application to strike in the post 2005 election petitions;
19.3. In Dominica, allegations of transportation and bribery were thrown out in the post 2009 election petitions by Justice Thomas. Justice Thomas held that the allegations constituted no more than “a fishing expedition”;
19.4. In Antigua and Barbuda, allegations of transportation and bribery were thrown out in the post 2009 election petitions by Justice Blenman. This is significant as the jet charter from Cuba was arranged by the ambassador in Cuba, Bruce Goodwin, and Prime Minister Spencer. It was paid for by the state. After the election Goodwin bragged on radio that, had he not brought the students to vote from Cuba, the UPP would have lost the 2009 election. Justice Blenman held that this did not constitute the offence of bribery;
19.5. In Canada, a court held:
“To drive to the poll a voter who has already decided how he will vote, or to persuade him to come to the poll, cannot be considered as equivalent to inducing such a voter to vote.”
20. It cannot be over-emphasized that the rulings mentioned above were delivered within the context of the existing laws, i.e., laws without the proposed amendments. In order words, the High Courts have ruled that the transportation of voters and especially supporters under the existing laws to a particular country to vote is not and never has been bribery unless done with a specific intention. This is now, as I write, the law of the land. Nothing has or will change with the amendments; a corrupt intention is required, and must still be pleaded and proved by any petitioner. This therefore must mean that this mantra of “legalizing bribery” is fake news, misinformation, and utter rubbish.
21. In Dominica, Justice Errol Thomas in the John Abraham case (the 2009 election) struck out the allegation of treating. He said food, drinks (and I include entertainment) are everyday events, and therefore could not constitute an offence of treating unless done with a corrupt intention.
22. What does the proposed amendment to the offence of treating actually say?
23. The proposed section 57 A provides that sections 55 and 56 shall not extend to any monies paid, etc. on account on any lawful expenses “incurred in good faith” at or on the calling of an election. The inclusion of “in good faith” is important. It does not include a payment in bad faith, which includes any possible corrupt intent. Section 57 A (2) concerns what is included in lawful expenses.
24. The important sub section of 57A (2) is (d), which concerns payments made in respect of public entertainment. By stating “public entertainment” the Parliament is ensuring that only payments made in good faith for “public entertainment” are excluded, i.e. entertainment to which the public at large are invited even though the entertainment is sponsored or provided by a political party. In short, “public entertainment” was never and could not be a corrupt or illegal practice.
25. The United Workers Party is objecting to these amendments too. These objections are baseless. For a start, the United Workers Party has mastered the craft of public entertainment with Etana in St Joseph, and Spice in the Kalinago territory in 2009. More recently, in 2014 KKK and WCK were the UWP’s bands of choice. The political leader Mr Linton was himself part of the entertainment when he came on stage to show his most unbalanced dance moves. Now he says, when confronted on Q95, that what he did in 2014 was wrong, and he confessed to having committed a crime in 2014. His current position is that there must be no entertainment at all. This stunning reversal of mind will leave funerals with more music and singing than a political campaign; an idea which I am sure will bring great join to Reverend Watty! But the fact is that the amendments do not legalize what was previously considered the criminal offence of treating.
The alleged unfair advantage
26. An elected Member of Parliament, who is an attorney at law, criticized the amendments because he alleged it gives “an unfair advantage to the governing party.” This is disingenuous forgetfulness for the following among other reasons:
i. The Act and amendments favour no one and no party;
ii. In 2000, the UWP was in government. They lost;
iii. In 2005, the leader of the UWP secured some EC$3 to 6 million for campaign funding. This assertion made multiple times has never been denied by Mr Edison C James. [See for example https://www.dominicavibes.dm/readers-224442/];
iv. In 2009, the UWP’s campaign was managed by SCL whose US$1.5 million was paid for by external forces;
v. In 2014/2015, there were no election petitions following the 2014 general election, absolutely no election petition or allegation of bribery. I should add that the misconceived complaints in the Magistrate’s Court make no allegation of bribery.
27. More importantly, electors in the Diaspora have the right to vote. As a result, political parties have courted them for years, until now. Now that it appears that the UWP and its leader’s ability to raise funding has sunk, except to pay his legal bills and damages, the UWP and Mr Linton now believe that the practice of providing transportation to supporters to Dominica, and on polling day to the polling stations, is now a corrupting “evil”. This change of mind based on a party’s financial fortunes simply cannot be the litmus test of legality, constitutionality or free and fair elections. This tells me that what we have here with these proposed amendments is a fight over nothing fueled by partisanship and misinformation.