He warned that the judgment, which has reinstated criminal complaints against 15 successful Dominica Labour Party (DLP) candidates, opens the door for winning election candidates to be targeted and persecuted.
Astaphan said the consequences of that decision are “grave, uncertain and liable to cause significant instability in moving forward following an election”.
“And I think every political leader in the OECS and CARICOM needs to be fully advised of the consequences of that decision,” he said.
The senior attorney was speaking on DBS Radio, shortly after the CCJ dismissed an appeal filed by Prime Minister Roosevelt Skerrit and other DLP candidates, reinstating summonses issued for them to appear in the Magistrate’s court on a charge of treating – that is, 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.
Three members of the United Workers’ Party (UWP) who had been defeated in the December 8, 2014 polls – Mervin John Baptiste, Edincot St. Valle and Antoine Defoe, who recently died – claimed that the offence was committed when the DLP hosted two free public concerts in Roseau before the elections. They filed criminal complaints and a Magistrate subsequently issued summonses against Skerrit and the other elected DLP members.
The DLP MPs challenged that and were successful at the High Court, but the Eastern Caribbean Supreme Court overturned the decision. The DLP MPs then went to the CCJ, arguing 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.
Astaphan, who appeared for Prime Minister Skerrit and the other DLP Parliamentarians, said while he respected the CCJ ruling, “what this does is open up the door for political parties who cannot succeed on an election petition, because they don’t have sufficient particulars or information or evidence, to just put something in the Magistrate’s court and take their jolly time and find the evidence that they want to find and have this going all the way to the Privy Council for five years or more”.
The CCJ found that proceedings for treating in the Magistrate’s Court were not brought to determine the validity of someone’s membership to the House of Assembly, but to try someone accused of committing an offence, and therefore hearing a treating case before a Magistrate did not offend the sole power of the High Court to determine questions of membership of the House of Assembly.
“My deepest concern is that…with the culture that we have in Dominica and some of these other islands… every political party, especially the United Workers Party that has had every petition struck out, is going to use the Magistrate as a weapon to harass and to prosecute and persecute and to undermine the continuity of governance and a newly elected government,” Astaphan said.
“Any political party who loses an election could decide to file three, four, five criminal complaints against each of the successful Members of Parliament and drag this thing on for years in the Magistrate’s Court, the Court of Appeal and the Privy Council. And I firmly believe, notwithstanding the CCJ’s judgment which I respect as the final judgment, that was the intention of the parliamentary and election law of Parliament that conveyed this jurisdiction to the High Court.”
Explaining how the post-election period could be disrupted, Astaphan said: “After six months you file two [complaints], after three months, you file another two, after four you file another two, and that keeps going on and then at the end of the day you have the entire Cabinet in a magistrate’s court having to go through a trial and prosecution, unless the DPP intervenes one way or the other, and I don’t think that was contemplated by the law.”
The senior attorney said he had already informed Prime Minister Skerrit, as well as Prime Minister of Antigua and Barbuda Gaston Brown about the risk for future elections.
He said he would be exploring the judgment, which was delivered on behalf of the CCJ by Mr Justice Winston Anderson, in further detail.
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