SUMMARY
Ten election petitions were filed in the wake of the Dominica General Elections held on 6 December 2019. The Petitioners claimed that in the ten constituencies, the candidate declared to be the winner had not been validly elected. They alleged that the elections were plagued with election offenses, breaches of electoral laws, and other irregularities.
The Respondents (among whom were the Chief Elections Officer, various Returning Officers, the Commissioner of Police, members of the Electoral Commission, the Prime Minister, and the Attorney General) applied to strike out the petitions.
They claimed that the petitions were insufficiently particularised and disclosed no case to answer. The High Court judge agreed that the petitions lacked sufficient particulars and accordingly struck them out.
The Petitioners filed Notices of Appeal against the judge’s decision and the Respondents applied to strike out the notices on the ground that the Court of Appeal lacked jurisdiction to hear the appeal. That court’s jurisdiction is found in s 40 of the Constitution.
According to ss 40(6) and (7) of the Constitution, an appeal lies as of right to the Court of Appeal from any final decision of the High Court determining a question concerning the validity of an election. The Court of Appeal found that the High Court judge did not decide the petitions on their merits and that his decision was therefore not a final decision. The Court of Appeal accordingly declined jurisdiction to hear the appeal.
The Petitioners then applied to the Caribbean Court of Justice (CCJ) for Special Leave to appeal against the decision of the Court of Appeal. Before addressing the Special Leave Application, this Court determined on written submissions that it had jurisdiction to entertain the application.
The judgment of the Court was delivered by Saunders PCCJ. The central issue in the case was whether the decisions of the trial judge were ‘final’ in the sense in which that word is used in s 40(6), or ‘interlocutory’. The Court noted that English common law had developed two competing tests (the ‘order test’ and the ‘application test’ respectively) to assess whether a decision was final or interlocutory. The Court also noted that the Eastern
Caribbean Court Civil Procedure Rules 2000 expressly state that the application test is to be employed in determining whether an order is final or interlocutory.
The Court held, however, that the meaning of ‘final’ in the context of the right of appeal granted by s 40 of the Constitution is to be determined by construing ss 40(6) and (7). This exercise would involve, among other things, an examination of the meaning, aim, and history of the constitutional provisions. One must look to the rationale for and the context in which the Constitution deprives a litigant of the right to appeal all but a final
determination of the question as to whether any person has been validly elected as a Representative or Senator.
The Court noted the wealth of jurisprudence which asserted that disputed election proceedings were to be determined expeditiously so that the legitimacy of a government does not remain in question. The constitutional provisions reflect a policy to have elections petitions fully determined as quickly as possible and that policy rests on the presumed competence of professional judges who are not infallible. The Court found that the petitions
before the judge were not determined on their merits. They were determined at an intermediate stage, before the taking of evidence and before the judge rendered any determination on whether any person was or was not validly elected as a Representative. Accordingly, the orders made by the High Court judge were interlocutory.
The Court disagreed with the Petitioners’ argument that their appeal should be heard in light of the importance of the petitions. The Court noted however that the Constitution affords every person in Dominica the right to a fair hearing within a reasonable time by an independent and impartial tribunal. A very high value is placed on that fundamental right and therefore if a Petitioner complains, in the hearing of an interlocutory aspect of their petition, that their right to a fair hearing was contravened, the Court of Appeal should assume jurisdiction to hear that complaint.
That exercise of jurisdiction by the Court of Appeal does not conflict with the provisions of ss 40(6) and (7). Instead, it demonstrates compliance with a constitutional provision that guarantees access to the courts to safeguard a fundamental right. The Petitioners did attempt to advance the point that they were deprived of the right to a fair hearing, but this was rejected. The Court found that they were afforded a fair or reasonable opportunity to be heard.
In a concurring judgment, Jamadar JCCJ found that the limitation on the right of appeal in ss 40(6) and (7) against a final decision of the High Court had to be construed against the purpose of general elections in a liberal democracy and the right to question how elections are conducted and their outcomes. In that regard, there were two analytical perspectives, a quantitative analysis, and qualitative analysis. In determining what is a final order
therefore a pragmatic, purposive approach driven by the objectives of elections and election petitions, and the two analytical perspectives is the appropriate approach.
In law, and especially constitutional law, context is vital to both analysis and application. Jamadar JCCJ stated that the holding of free and fair elections is part of the basic deep structure of Dominican constitutionalism, and integral to that is the right to vote. The Constitution established the Electoral Commission which, among other things, has the responsibility of maintaining the integrity of the lists of electors. In this case, a complaint
that appeared in nine of the ten petitions filed was that the election officials failed to use the revised annual list and the supplementary register in accordance with s 17 of the Registration of Electors Act. Also, the High Court acknowledged that based on the pleadings there was patent non-compliance with that law. Jamadar JCCJ opined that the Court of Appeal arguably may have had jurisdiction on constitutional grounds, irrespective of whether the decision was considered, in the contexts of ss40(6) or (7), final.
The right to be registered to vote is about the legitimacy of the voters’ lists. It is at the heart of free and fair elections. The Application for Special Leave was refused, and the orders of the Court of Appeal dated 21 May 2021 were upheld. The Court made no order as to costs.
https://ccj.org/wp-content/uploads/2022/07/2022-CCJ-12-AJ.pdf