By Shermain Bique-Charles
In what can be described as an historic decision, the Caribbean Court of Justice (CCJ) dismissed an appeal yesterday in an election treating case in Dominica.
In his ruling, Justice Andrew Burgess ordered the Court of Appeal to reinstate the magistrate’s summons for the appellants to appear to answer the charge of election treating.
Treating refers to directly or indirectly providing food, drink or entertainment to a person, during or after an election, with the aim of corruptly influencing that person’s vote. The court heard the appeal on December 10 2020.
Antiguan attorney Wayne Marsh said the decision will have far-reaching consequences for the conduct of elections in the region, including Antigua and Barbuda.
“The court was unanimous in its dismissal in the appeal filed by Roosevelt Skerrit and others. It means in countries such as Antigua and Barbuda, with similar provisions in its legislation, these persons who present themselves for elections must be very careful lest they be [accused] of the corrupt practice of treating,” Marsh told Observer yesterday
He said the judgement also underscores the competence of the CCJ and should be a signal to fully embrace the jurisdiction.
“It is a court that I believe in and there is absolutely no reason why those Caribbean jurisdictions who have not embraced it as their final court of appeal should continue to do so,” Marsh said.
Shortly before the elections, the Dominica Labour Party (DLP) held two free public concerts in Roseau. Three members of the United Workers’ Party (UWP) who had been defeated at the polls alleged that Skerrit and the other elected DLP members committed the offence of “treating” contrary to the Elections Act by hosting the concerts.
The UWP members claimed that the aim of the DLP members was to corruptly influence the public to vote for the DLP.
The law in Dominica states that a person convicted of treating is disqualified from sitting in the House of Assembly and cannot run for elections for seven years.
The UWP members filed criminal complaints in the Magistrate’s Court and a magistrate issued summonses against Skerrit and the other elected DLP members who then sought judicial review of the magistrate’s decision to issue the summonses.
They argued that the magistrate lacked the authority to issue the summonses because the offence of treating concerned the validity of the election, and only the High Court could decide this question.
The High Court decided in favour of Skerrit and his colleagues, ruling that the summonses were invalid. The UWP members appealed to the Court of Appeal.
By a majority, the Court of Appeal found in favour of the UWP members. The court decided that the Elections Act created a summary criminal process and gave the magistrate power to try and convict any person for treating.
That power did not intrude on the power of the High Court to rule on questions of the validity of elections and thereby the membership of the House of Assembly.
The members of the DLP appealed the decision of the Court of Appeal. Their counsel argued that the magistrate was not entitled to issue the summonses or try the alleged offences because only the High Court could determine questions regarding the qualification of persons to sit in the House of Assembly.
Justice Andrew Burgess, in a concurring judgment, found that the appeal should fail because it was not properly before the court.
The Constitution established a system for constitutional redress and interpretation in sections 103 and 104.
The appellants were not entitled to raise a question concerning constitutional redress and interpretation by a segue, that is in a claim for judicial review, as they had attempted to do in this case.
The appeal was therefore dismissed and the summonses and complaints against the appellants for treating, reinstated.