IN THE COURT OF APPEAL OF THE COOK ISLANDS
AT WELLINGTON

BETWEEN

CHARLIE MAIRI and Others
of Manihiki, Electors
Appellants

AND

SPINOSA TOMA
of Manihiki, Parliamentarian
First Respondent

AND

ANDREW MATA TURUA
of Rarotonga, Chief Electoral Officer
Second Respondent

AND

THE RETURNING OFFICER
for Manihiki
Third Respondent

Before: The Right Honourable Sir Thaddeus McCarthy (Presiding)
The Honourable Sir Peter Quilliam
The Honourable Sir Barry O'Regan

Hearing: 6 March 1989
Judgment: 28.3.1989

(a) Appeal against order of the High Court striking out part of an Electoral Petition or alternatively

(b) Application to this Court for special leave, pursuant to Article 60(3) of that Constitution, to appeal against such order.

Counsel: HT Puna for Appellants
M C Mitchell for Respondent
The Second and Third Respondents took no part in the proceedings

JUDGMENT OF THE COURT

At the General Election held in the Cook Islands on 19 January 1989, the First Respondent was duly declared the successful candidate for the constituency of Manihiki. Following that declaration, the appellants filed in the High Court, a petition demanding an inquiry as to the conduct of the Election. The Petition alleged four specific grounds upon which the complaint was founded, three of which are not our immediate concern. In the other ground it was alleged that the First Respondent was not qualified to be an elector or a candidate at the Election.

The First Respondent filed an application to have the Petition struck out. That application came on for hearing before Dillon J. on 16 February 1989 when the learned judge ordered the striking out from the Petition of the ground presently under consideration.

Before stating the reasons for his decision of discussing them, we find it convenient to record relevant events which preceded the election. Some three days before Election day, the appellants had filed an application in the High Court for a declaration pursuant to the Declaratory Judgments Act 1908, that the First Respondent, for the reason that he lacked the qualifications as to residence prescribed by Article 28 of the Constitution, was not qualified to be either a candidate for the Election or an elector. That application was also met by an application to strike out brought by the First Respondent.

When the appellants' application was filed there was no Judge of the High Court within the jurisdiction and no likelihood of one being there before Election day. In these circumstances, it was deemed necessary to arrange a hearing of both applications by telephone, with the Judge in New Zealand and Counsel and the Registrar in Rarotonga. That hearing took place on 18 January 1989 when the learned Judge upheld the motion to strike out and dismissed the appellants' originating application.

We do not have the full text of the learned Judge's reasons for his decision. It suffices for our purpose to say that it was common ground that he did not deal with the merits of the application.

He resolved the matter on the ground that any determination of the matter could not, at that time, two days before the Election, affect the status of the First Respondent either as an elector or candidate for election because of the provisions of subs (5) of s. 23 of the Electoral Act which prohibits amendments to the Electoral Rolls "later than 14 clear days before the day appointed for the Election".

We also find it convenient next to refer to Sections 14, 15 and 17 of the Electoral Act.

Sections 14 and 15 have to do with objections to persons being on the Electoral Roll, brought by other electors (s.14) or the Registrar of Electors (s.15) and they provide procedures and time prescriptions designed to resolve the issues; but if they do not do so, the sections provide that the objections and other specified data be referred to the High Court.

S. 17, so far as it is relevant to these proceedings, provides:

"Determination of objections - a Judge...of the High Court shall determine any objection transmitted to him...and every such determination shall be final and conclusive and without appeal, whether to the Court of Appeal of the Cook Islands or to Her Majesty the Queen in Council or otherwise, and shall not be questioned in any way".

The underlining is ours.

Against that background we now refer to the reasons for the judgement given by Dillon J. He said:

"...Mr Mitchell refers to a previous application under the Declaratory Judgments Act 1908 which came before Quilliam J. just two days before the election. That application, according to the record, was dismissed. While this application was not brought under the provisions of the Electoral Act, nevertheless it was clearly in the nature of an objection to Mr Toma's qualifications to be either an elector or a candidate. Section 17 of the Electoral Act provides that every determination of such an objection to a person being an elector shall be final and conclusive and without appeal. Section 17 goes on to say that shall not be questioned in any way. Quilliam J. has dismissed a previous application in respect of Mr Toma's qualification as an elector. Since a further application on the same issue has now been raised and included in this petition it of course comes within the provisions of Section 17 which provides that any earlier determination shall not be questioned in any way."

Mr Puna submitted that the only determination which can occasion the bar to appeal or to question provided by s.17 is a determination of an objection made under either s.14 or s.15 after the procedures and the prescriptions of these sections have been carried out.

We uphold that submission. S.17 first speaks of "any objection transmitted" to the High Court Judge. There is a clear nexus between that provision and the requirements in both sections 14 and 15 that the Registrar when all other prescribed avenues for resolution have proved unavailing, "shall transmit the objection...to the High Court Judge..." And it is only "every such determination" - that is, a determination "of any objection transmitted" - which is accorded the bar against appeal in question.

That, however, is not the end of the matter.

Section 82 of the Electoral Act, which does not appear to have been cited to the learned Judge, provides:

"Every determination or order of the Judge in respect of or in connection with an Election petition shall be final and conclusive and without appeal, whether to the Court of Appeal of the Cook Islands or to Her Majesty in Council or otherwise, and shall not be questioned in any way."

There can be no doubt that the determination made by Dillon J. was "in respect of or in connection with an Election petition" and equally clear that the section is not, as is s. 17, limited in its application.

Provisions for appeals from the High Court to the Court of Appeal are to be found in Article 60 of the Constitution which, insofar as it is relevant, provides:

"(1) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.

(2) Subject to the provisions of this Constitution, and except where under any Act a judgment of the High Court is declared to be final, an appeal shall lie to the Court of Appeal from a judgment of the High Court...."

The underlining is ours.

Section 82 of the Electoral Act clearly meets the prescription of those underlined words and accordingly all the various rights as the appeal set out in sub-clause 2 following the extract just cited, are not available to the appellants. It follows that the first limb of their appeal must fail.

Subparagraph (3) of Article 60 of the Constitution provides:

"Notwithstanding anything in subclause (2) of this Article, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to the Court from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit."

Pursuant to this provision, the appellants apply for special leave to appeal to this Court. In support of that application Mr Puna submitted that the jurisdiction to grant such leave is extant notwithstanding the provisions of s.82 of the Electoral Act and the bar provided sub-clause (2) of Article 60 of the Constitution is of no application by reason of the words "Notwithstanding anything in sub-clause (2) of this Article..." in sub-clause (3).

Mr Mitchell submitted that Article 60 of the Constitution is so drafted as to make it clear that it was not the intention of the legislature to override provisions such as s.82 of the Electoral Act and that Article 60(3) cannot be construed so as to empower the Court of Appeal to override that section.

In amplifying these submissions, Mr Mitchell submitted that in the circumstances here obtaining where on the face of things there is a conflict between s.82 of the Electoral Act and Article 60(3) of the Constitution, the Court has power - and should use it in this case - to modify appropriately the meaning of the words in Article 60(3).

In support, he cited a passage from Bennion 1st edn 1984 - para 162 at p.400 where the learned author states that in circumstances involving ambiguity or absurdity, the Courts may make a strained construction. The passage to which he referred, however, goes on:

"Where however, there is only one literal meaning, the position is different. The presumption...is that the enactment is to be given its literal meaning. If this is to be departed from the factors tending in the other direction must be compelling."

In the present case each of the provisions under consideration admit of no ambiguity. Read alone their meanings are clear. With no questions of ambiguity or absurdity arising, the door is not open to the permissible departures from the primary rules of Construction to avoid such, and the Court must address itself to the problems of two provisions which ex facie cannot stand together. If these two provisions were both to be found in Acts of Parliament, the earlier would stand impliedly repealed by the later. That is an inveterate principle enunciated by Coke (Co. Litt 112) and faithfully followed down the long years - see Duke of Argyll V.I.R.C. (1913) LT 893 per Scrutton LJ; Hall v Arnold (1950) 2 K.B. 543. But here, first, we have the supremacy of the constitutional provision over the statute; and secondly - and we think this is decisive - the import of the words "Notwithstanding anything in sub-clause 2 of this Article...". Those words override and eliminate from consideration the words "except where under any Act a judgment of the High Court is declared to be final" which in their turn, by the inclusion of the words "any Act" among them must needs refer to, inter alia, the provisions of s. 82 of the Electoral Act which answers that prescription. So, whilst there is no direct reference to s. 82, there is nonetheless a chain of reference from which it can be deduced that the Legislature intended that Article 60(3) should prevail over s. 82. And we so hold. And we hold that this Court has the power to grant special leave to appeal.

The question next arises whether or not we should exercise our discretion in favour of the appellants. We have been provided with scarcely any background material to assist us in that exercise. Mr Puna told us from the bar that he had sought from the Immigration Department details of the First Respondent's comings and goings from the Cook Islands and the length of his absences but had had no response. Accordingly we have nothing but the bald statement that the first respondent lacks the requisite residential qualifications. And the petition itself, despite the provisions of s.74 of the Electoral Act 1966 and Form 13 in the First schedule to that Act, provides no details.

S.74, so far as it is relevant, provides:

"(1)...

(2)…

(3) The petition shall be in Form 13 and shall be filed in the High Court...

(4) The petition shall allege the specific ground on which the complaint is founded..."

And paragraph 2 of Form 13 reads "2. And your petitioners say (state the facts and the grounds on which the petitioners rely)..."

The petition presented contains no facts and the grounds advanced are little, if anything, more than the words which state the appropriate disqualifying factors set out in the second schedule to the Act or Article 28 of the Constitution.

With the constrictions as to time in the various provisions of the Act and the partial and total bars to appeals from decisions of the High Court provided respectively by s.17 and s.82, and indeed other provisions of the Act, it is easy to discern a legislative intent and policy to avoid delay in the speedy settling of the membership of the Parliament. And that policy inclines us to the view that leave should be given sparingly, in special circumstances. The electoral process goes to the very heart of government and upon government depends the welfare and stability of the State and it is in the public interest that finality in the electoral process be achieved with the minimum delay not inconsistent with the requirements of the law.

In the present case we are of the opinion that the Petition has been advanced in a perfunctory fashion without due regard to the relevant requirements of the law or the policy of the Act and we think it proper that in the circumstances we exercise our discretion against the petitioners.

The appeal is accordingly dismissed. The petitioners are ordered to pay the costs of the First Respondents as fixed by the Registrar.

FOR THE COURT
BARRY O'REGAN J.