Tuesday, November 11, 2014

Elections - 7. Nominations

Nomination is the procedure by which a political candidate becomes an official contender in general elections.  To be placed on the ballot so that voters can have the option to vote for a candidate, he or she needs to be validly 'nominated'.
The law on nominations is found in two places, the Constitution, and the Elections Act.  The relevant provisions of the Constitution are sections 36 and 37.  Section 36 is straightforward.  It is titled “Qualifications for elected membership”.
Qualifications for elected membership
36. Subject to the provisions of the next following section, a person shall be qualified to be elected as a member of the Assembly if, and shall not be qualified to be so elected unless, he is a person who belongs to Anguilla of twenty-one years or upwards who is registered as a voter in an electoral district in Anguilla and either—
(a) was born in Anguilla and is domiciled there at the date of his nomination for election;
or
(b) has resided in Anguilla for a period of not less than three years immediately before the date of his nomination for election and is domiciled there at that date and is the son or daughter of parents at least one of whom was born in Anguilla.
You will notice that section 36 contains 4 qualifications for a person to be capable of being validly nominated as a candidate for elections in Anguilla.  First, he or she must be a belonger of Anguilla.  Second, the candidate must be not less than 21 years of age.  Third, he or she must be registered as a voter.  That means registered as a voter in any constituency or district.  It does not say that the candidate must be a registered voter in the constituency in which he or she is running.  We all remember a few years ago, Mr Ronald Webster used to change the constituency in which he ran.  He was confident that no matter in which constituency he ran he would command the majority of voters in it.  However, as you can imagine it is more normal for a candidate to run in the constituency in which he or she lives.  But, it is important to note that that is not a legal requirement.
Fourth, the candidate must be either born in Anguilla and domiciled in Anguilla at the date of nomination, or, if the candidate was born outside of Anguilla, he or she must be the son or daughter of a born Anguillian and have resided in Anguilla for not less than 3 years before nomination.
What does that requirement for residence mean in practical terms?  Take the case of Sir Emile Gumbs who was a successful candidate in Road North constituency for many years.  As I recall, he was born in St Kitts.  But, both his mother and father were born Anguillians.  If he was resident in St Kitts and wanted to return to Anguilla to contest elections, he would have had to have resided in Anguilla for at least 3 years before he could have been qualified. 
On the other hand, take the case of a candidate who was born in Anguilla, but who resided in the USA for many years, and who decides to run as in general elections in Anguilla.  That would not present any obstacle, as the person is a born Anguillian.  Once that person returns to Anguilla before the elections, and has the intention of making Anguilla his or her home, that person does not need to have resided here for any particular number of years before being nominated. 
Not so with the Anguillian who was born outside of Anguilla.  If a candidate was born, eg, in the USA to Anguillian parents, he or she may be qualified to run as a candidate.  But, there is a residence qualification.  He or she must come back to Anguilla and reside here for at least 3 years before he or she can be validly nominated. 
I am not going to touch on the requirement for domicile.  Domicile is for all intents and purposes an impractical test.  You are domiciled where you intend to spend the rest of your life.  If you are resident in New York, but intend to come back to Anguilla one day and spend the rest of your days here, you are said to be 'domiciled' in Anguilla.  Once you tell me that it is your intention to die in your old age in Anguilla, I have to say that you are domiciled in Anguilla.  But, who is able to get into your head to test the truthfulness of your assertion that, although you are residing in New York, and have no further apparent connection with Anguilla, you intend to spend the balance of your life here?  So, domicile exists only in the mind of the person who claims it.  It is not something capable of independent, objective testing.
This fourth qualification of birth and residence has to do with the candidate's connection with Anguilla.  It is not enough that he or she is a belonger of Anguilla.  It that was so, it would mean that any one of the many non-Anguillians who have become belongers over the past four decades would be able to run as a political candidate.  In fact, they will not meet this fourth qualification, and a belonger who has no connection by birth with Anguilla is disqualified from being a candidate in elections.
The second section of the Constitution which governs who can be nominated as a candidate is section 37.
Disqualification for nominated or elected membership
37. (1) No person shall be qualified to be nominated or elected as a member of the Assembly who—
(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;
(b) is a minister of religion;
(c) holds or is acting in any office of emolument in the service of the Crown;
(d) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any country;
(e) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in force in Anguilla;
(f) is under sentence of death imposed on him by a court of law in any country or is under a sentence of imprisonment (by whatever name called) exceeding twelve months imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court, provided that the acts constituting the offence for which such sentence was imposed would, if committed in Anguilla, have constituted an offence under the law of Anguilla; or
(g) is disqualified for membership of the Assembly by any law in force in Anguilla relating to offences connected with elections.
(2) In this section “minister of religion” means any person in holy orders and any other person the functions of whose principal occupation include teaching or preaching in any congregation for religious worship.
These are what are called the disqualifications for membership in the House of Assembly.  The first one is what we call the foreign naturalisation clause.  It says that if after being born as an Anguillian you have come under an acknowledgment of allegiance, obedience or adherence to a foreign power or state, then you are disqualified from running as a candidate.  Note that the fact that a candidate has a second passport does not automatically disqualify the candidate.  He or she might have been born in a foreign country.  Even if he or she has become a foreign naturalised person, or taken out a passport in a foreign country, that does not mean that a candidate is automatically become disqualified.  It will take a witness who is an expert in the foreign citizenship law to testify before the judge that taking out, eg, US citizenship by an Anguillian, amounts to that coming under acknowledgment of allegiance, obedience or adherence to that foreign power or state which is prohibited.  It is not for the Supervisor of Elections or the Returning Officer to decide, but for a judge.
The reasons for the disqualification for swearing allegiance to a foreign power are historical.  They do not make much sense to us in Anguilla, except in a historical way.  It appears it was originally meant to stop Englishmen who had become German or French citizens, these countries being traditional enemies of England, from becoming members of the British Parliament.  In the case of us in Anguilla, where for generations our young people were forced for economic reasons to emigrate overseas and to live in, and take out rights in, other countries such as the USA, that objection to foreign citizenship is in my opinion no longer valid.  The fact that an Anguillian takes out a foreign citizenship in order to fit in, and earn a good living, in a foreign country should never disqualify that Anguillian from coming back home and using the benefits of his broadened education and experience for the benefit of his fellow Anguillians.  However, it is presently the law.  Until the Constitution is changed, any Anguillian who has taken out a second citizenship, where the evidence is that that foreign naturalisation amounts to acknowledging allegiance, obedience, or adherence to that foreign power or state, must validly renounce that second citizenship prior to nomination day to be qualified to be nominated as a candidate to run in general elections in Anguilla.  If he or she fails to successfully renounce the foreign citizenship prior to nomination day, an expert witness in the foreign law is likely to testify at any subsequent trial that he or she was disqualified at the time of nomination under this section of the Constitution.
Note that the Anguillian who was born in a foreign country, and has acquired a second citizenship as a result of birth, is not disqualified.  An example of such an Anguillian would be the child of an Anguillian father and mother who have emigrated to the USA, and who have had their children born there as US citizens.  Such parents may continue to be British citizens under British law, and their children may continue to be entitled to British citizenship and Anguillian belongership.  As a result of this provision, the late Mr Jeremiah Gumbs, who had emigrated to the USA, and had been granted US citizenship in the early stages of the Second World War as a result of his enlisting in the armed forces of the United States, was considered disqualified from running in general elections in Anguilla.  But, his son Alan Gumbs, who was born and brought up in the USA, and was a US citizen by birth, was considered fully qualified some years ago to run as a candidate for election to the House of Assembly of Anguilla when he opted to return to live in his father's home island of Anguilla.
The second disqualification is for Ministers of Religion.  A minister of religion is defined by the law as one in holy orders or any other person the functions of whose principal occupation include teaching or preaching in any congregation for religious worship.  The expression 'holy orders', as I understand it, applies to Anglican and Roman Catholic priests.  Baptist and Pentecostalist ministers are caught by the second arm of the section.  So, Pastor Ambrose Gumbs of Blowing Point is as disqualified from running in elections as is Bishop Brooks of the Anglican Church.  But, a retired minister of religion such as Dr Clifton Niles is, in my opinion, not disqualified.
The third disqualification applies to persons holding an office of emolument under the Crown.  That is just a fancy expression to cover civil servants, or public servants who receive a salary from the government.  If a public servant wants to run in elections, he or she must first resign from the service.  And, there is no guarantee that he or she will be allowed back into the service if the elections are lost. 
The other disqualifications apply to bankrupt persons, persons of unsound mind, persons under sentence of death or imprisonment; and persons who have been convicted of election offences.
Since the passage into law by the Anguilla House of Assembly of the Elections (Amendment) Act, 2014, the procedural requirements for nomination under the Elections Act have become more significant.
Previous to the coming into effect of the Amendment Act on 31 October 2014, the provisions for nomination were governed by section 29 of the Elections Act.  This provides for the Nomination Papers to be supplied by the Returning Officer in Form 5.  Candidate must be nominated by at least 2 registered voters in the Electoral District.  The candidate has to sign, consenting to be nominated.  And, on the form, the nominators had to certify that to the best of their belief the candidate was qualified for election as a member of the House of Assembly.  There was no requirement for the candidate to certify that he was in fact qualified to be nominated.  Form 5 has now been replaced.  The most significant change in the new form is that the nominee must now declare that he or she meets the requirements of section 36 of the Constitution, and is qualified to be elected as a member, and is not disqualified from being elected as a member.
A new section 76A creates the offence.
False Declaration
76A Every person who knowingly or negligently makes a declaration as to their qualification to be elected as a member of the House of Assembly pursuant to sections 36 and 37 of the Anguilla Constitution Order 1982 and that declaration is false, is guilty of making a false declaration within the meaning of this Act.”
This new section says that every person who knowingly or negligently makes a false declaration as to their qualification to be elected as a member of the House of Assembly is guilty of the offence of making a false declaration. 
In my view, this is one of the most important reforms in recent history to Anguilla’s elections law.  Before section 76A was introduced, if a voter in Anguilla believed that a candidate was not qualified to be elected, eg, by having taken out a foreign nationality and swearing allegiance to a foreign power, the only way that candidate could be challenged was if he won the election.  Then, the losing candidate could bring an Election Petition before a High Court Judge against the disqualified winning candidate.  The petition had to be filed within 21 days or it would be dismissed.  This petition procedure is very expensive and cumbersome.  It is almost impossible in a short period of time to gather proof that another person is naturalised in a foreign state.  Candidates for elections don’t normally wave their second passport about for all to see.  On the contrary, they keep it very quiet and secret, for obvious reasons.
What this amendment does is to create a new offence which can be prosecuted by the police.  The police have much greater resources for investigating and bringing a case than any citizen, whether a political candidate or not, can possibly have.  Also, the police are not limited by the 21 day deadline for bringing an election petition.
Unfortunately, the section does not make the offence triable summarily before the Magistrate, like most of the other election offences, but requires the offence to be tried in the High Court before a judge and jury.  That is a very expensive and cumbersome process in comparison to a trial before the Magistrate.  The police are unlikely to happy about using up their resources and energy in prosecuting such offences, unless there is evidence of a blatant breach of the law.  However, it is noteworthy that the offence can be committed not only by a winning candidate but also by a losing one.
A losing candidate who has evidence that a winning candidate was disqualified under the Constitution from being nominated or elected to the House of Assembly still always has the option of filing the traditional election petition before the High Court for the judge to declare the seat vacated.  This, as I have said, is an expensive and difficult option, and he has only 21 days to file his petition.  With the new offence having been introduced in 2014, it is more likely that in future persons who have the evidence will take it to the police and request an investigation and prosecution.  It is highly unlikely, in my view, that a losing candidate who has the evidence that another candidate was disqualified under the Constitution will in future bring an election petition to vacate the seat.  It is much more likely that he or she will take the evidence to the police and request an investigation and prosecution.  However, there always remains the possibility that the police will decline to investigate and prosecute a candidate where there is evidence that he or she was a naturalised foreign citizen.  Once the police are backed up by the Attorney-General in declining to prosecute, there is nothing a citizen can do to demand that they prosecute someone they have decided not to prosecute.
Note, however, that this offence can be prosecuted whether or not the candidate has won the seat.  If any person has the evidence that any candidate in the election was disqualified under the Constitution, by any of grounds we have looked at above, from voting, he or she can bring the evidence to the police and file a complaint.  The police can then bring the prosecution.
The penalties for a conviction under this section are provided by a new section 78A, and the old section 79 as amended.
Penalty for False Declaration
78A   “Every person who is guilty of false declaration, is liable, on conviction, to imprisonment for 2 years”.
Section 78A says that every person who is guilty of a false declaration is liable on conviction to imprisonment for 2 years. 
It is because new section 78A does not use the words “is liable on summary conviction” to imprisonment for 2 years, as in the other offence sections of the Elections Act, that we can say that the section requires the offence to be tried indictably, before a judge and jury.
The old section 79 as now amended provides a further penalty for the offence of making a false declaration.
Disqualification for bribery, etc
79.    “Every person who is convicted of bribery . . . or false declaration . . . shall, in addition to any other punishment, be disqualified during a period of 7 years from the date of conviction from being –
(a) registered as a voter or voting at any election; and
(b) elected or appointed a member of the Assembly or, if elected or appointed before his conviction, of retaining his seat as such a member.”
Section 79 provides that every person who is convicted of making a false declaration shall, in addition to any other punishment, be disqualified during a period of 7 years from being either registered as a voter, or voting in any election, or being elected or appointed a member of the Assembly.  If the disqualified candidate has been elected or appointed to the House, that candidate must give up his or her seat in the House.
So, there are several reasons why these amendments to the Elections Act should be considered a major improvement over the old law.  Previously, it was not a criminal offence for a disqualified candidate to offer himself or herself for nomination.  There was no downside for a disqualified person running as a candidate in an election, unless he happened to win.  Then, only if he or she won, the elected member faced the possibility that his losing opponent might have the evidence of his disqualification and bring an election petition to unseat him.  His seat might be ordered vacated, but he did not face any jail time.  He would have gained a little time, and if his renunciation of his foreign citizenship came through before the by-election was called, he could run as a candidate again, and hope to win again. 
Under the previous law, if the disqualified candidate did not win, there was no proceeding, either civil or criminal, that could be brought against him.  Now, whether he wins or loses, if he swears out a false declaration, he faces the possibility that the police authorities may take up the case, and investigate his foreign citizenship using all the formidable resources at their disposal, and bring criminal proceedings against him.  Now, whether he wins or loses the election, he faces not only being disqualified from running again for another 7 years, but also of paying a fine or facing imprisonment for up to 2 years.  I hope you will agree that this is a pretty significant reason why candidates who know they are disqualified will in future ask their followers and supporters to refrain from nominating them to run in elections in Anguilla.
One last caution about this amendment.  There is always the possibility that the police may, for whatever reason, refuse to proceed against a candidate for making a false declaration.  They may, for example, consider they do not have sufficient evidence of the commission of the offence.  In such a case, it may be wise for a candidate who lost to a person he knows to be disqualified to bring an election petition even while filing a complaint with the police.  Expensive though it is, and constrained as it is by a tight timetable, by proving before the judge that the winning candidate made a false declaration when he or she was nominated, the police will have the evidence they need to bring criminal proceedings against the disqualified candidate.