Re: SITIVENI KINIKINIan>
Applicant in Person
S. Banuve for the Respondents
DECISION
This is an opposed application for leave to move for Judicial Review of the rejection by the Returning Officer for the Naitasiri Fijian
Provincial Constituency (the Commissioner Central - the Commissioner) of the Applicant’s nomination as a candidate for the forthcoming
by-election which is to be held on the 17th and 18th of this month.
According to the Order 53 Rule 3(2) Statement the Applicant also sought to challenge the decision of the Supervisor of Elections (the
Supervisor) and of the Electoral Commission but as will later be seen these challenges were not pressed.
In addition to the Applicant’s supporting affidavit there was an answering affidavit by the Commissioner. In view of the very short
time before election day I also heard evidence both from the Applicant and from the Commissioner. Three Exhibits were produced:
(i) A copy of the writ of elections;
(ii) A bundle of documents: the Applicant’s nomination
paper, a certificate of registration on the Vola ni Kawa Bula and a Certificate of Demonstrated Support; and
(iii) A copy of the Supervisor’s Instructions to Candidates dated 20 August 1997.
The facts may be summarised. On 18 August His Excellency the President issued a Writ of Election (Exhibit 1). This Writ required the
Commissioner as Returning Officer to “cause an election to be held according to law” in the Naitasiri Fijian Provincial Constituency
and, in the event that the Election was contested, to “cause a poll to be taken between the 17th day of October 1997 and the 18th
day of October 1997" and “to make a return to me” of the name of the member elected no later than 25 October 1997.
On 19 August the Supervisor published a Notice of Nomination day in the Fiji Republic Gazette (Volume 11 No. 48). This Notice specified
that nominations would be received by the Commissioner at Government Buildings, River Road, Nausori on Monday 25 August between the
hours of 8 a.m. and 1 p.m. and 2 p.m. and 4 p.m. (See Commissioner’s affidavit - Exhibit A).
The Applicant wished to stand in the by-election on behalf of the Fiji Democratic Party. On 21 August, the Thursday before nomination
day, he went to see the Commissioner and discussed the nomination formalities with him. The Commissioner told me that he had given
the Applicant a copy of Exhibit 3 and also a copy of the Electoral (Conduct of Elections) Regulations 1992 (LN27/92). The Applicant
denied receiving copies of these documents from the Commissioner but he did tell me that he had been given “a sort of gazette” and
the blank nomination paper. The party President had also given the Applicant “some documents on how to stand for Parliament” and
the Applicant accepted that he was aware that in order to be nominated he required a completed nomination paper, a certificate of
registration on the Vola ni Kawa Bula and, in the absence of a $500.00 deposit “500 names”.
On nomination day the Applicant returned to the Commissioner Office. He arrived at about 10.30 a.m.. He showed his papers to the Assistant
Commissioner who pointed out that he had not tendered a Certificate of Demonstrated Support provided by the Supervisor and that therefore
his nomination could not, at that stage be accepted.
The Applicant went to Suva to the office of the Supervisor. He arrived at the Supervisor’s office at about 11.45 a.m. but did not
obtain his certificate until just after 3.00 p.m. The Supervisor’s office faxed a copy of the Certificate to the Commissioner at
3.21 p.m. (See Exhibit 2). After receiving the Certificate the Applicant set off once more back to Nausori. He arrived at the Commissioner’s
office at 4.10 p.m. The Assistant Commissioner told him that 4.00 p.m. having passed nominations had closed and that his late nomination
could not be accepted.
The Applicant was extremely upset and asked to speak to the Commissioner. At 5.06 p.m. he spoke to him. The Applicant accepted that
he had been very angry at this stage. The Commissioner had told him that he would not accept his nomination because although the
papers had arrived on time the Applicant, who was required to lodge the papers personally or through an agent nominated in writing
had not done so.
It will be noted that there is no evidence supporting any allegation against the Electoral Commission while paragraph (c) of the Applicant’s
affidavit does not in fact allege that the Supervisor committed any offence. During the course of the hearing the Applicant conceded
that while he was complaining that the Supervisor had provided him with the necessary certificate very late his main complaint was
that the Commissioner had not accepted his nomination at 4.10 p.m. given the fact that his nomination papers had been lodged well
before 4 o’clock.
Mr. Banuve opposed the application for leave and offered two fundamental submissions. First, it was said that the application was
bad in law and secondly, it was said that it was in any event devoid of merit. Leave should be accordingly refused.
Mr. Banuve argued that the application was bad in law because the Applicant’s grievance could only be brought before the Court by
way of an election petition. He relied on Section 3(e) of the Electoral Decree 25/1991, on Regulation 3(1) of the Electoral (Election
Petitions) Regulations 1992 (LN 39/92) and on Josefa Rusaqoli v the Attorney-General Suva HBC 149/94 where the following words appear:
“... in Fiji must the questioning of elections exclusively be by petition, as is the position in England and Wales? I am satisfied
that it must.” “The hitherto accepted procedure for challenging the decision of a returning officer or of the Election Commission
has been to proceed by way of election petition. In my view that procedure should remain the path to follow.”
As I see it there is a crucial difference between the circumstances in Rusaqoli’s case and the present and the difference is that in the former the poll had actually taken place whereas in the present case the poll
is yet to be held. In Rusaqoli the time for petitioning had expired but the Applicant sought to invoke the jurisdiction of this Court by commencing proceedings
by Writ seeking declarations. It was a clear case of attempting to circumvent a restriction on proceedings laid down by Parliament.
As pointed out in Rusaqoli’s case the laws of Fiji and of England and Wales while similar are not identical. In England and Wales Section 107 of the Representation
of the People Act 1949 specifically provides that no parliamentary election or return shall be questioned “except by a petition”
presented in accordance with the Act.
In Fiji, by contrast, Section 3(e) of the Decree merely authorises the Election Commission to make regulations governing election
petitions while Regulation 3(1) of 1992 regulations is clearly permissive rather than mandatory:
“A petition complaining of an undue return or undue election of a member of the House of Representatives may within 21 days after
the Returning Officer has declared any candidate or candidates to be elected, be presented to the Court by any voter.”
The reason for excluding non-petition proceedings challenging undue returns or undue elections after the return has been made is the rule that where a specific method for questioning a particular activity is provided by law then that specific method must
be adopted. This means proceedings cannot be commenced by a writ or by judicial review (see e.g. R v Birmingham JJ ex parte Ferrero [1993] 1 All ER 530 and Harley Development Inc v CIR [1996] 1 WLR 727).
The question which immediately arises is whether a complaint of an unlawful rejection of a nomination lodged before the return has
been made can be a complaint either of an undue return or an undue election. I do not see how such a complaint could be one of undue
return since no return takes place until after it has been determined who has won the seat. Mr. Banuve suggested that the term “undue
election” covered the whole process set out in the Conduct of Election Regulations and not merely the proceedings on election day
and while I agree with this proposition and also agree that it seems that almost any breach of the Conduct of Election Regulations
could give rise to a complaint of undue election I can see no reason why a complaint arising from a decision taken very early in
the process such as the rejection of a nomination cannot be placed before the Court before the poll takes place.
Assuming for the sake of argument that it is conceded that a nomination has wholly wrongly been rejected what good purpose would be
served by allowing an obviously defective election to proceed any further? Mr. Banuve submitted that the Court had no jurisdiction
to stay a writ of election or to halt or postpone a poll once a writ has been issued. Assuming those statements of the law to be
correct there is still no good reason that I can find for not enquiring into and determining the value of a complaint lodged before
election day. I can see no reason to suppose that a writ once issued cannot, for sufficiently good cause shown, be revoked, stayed
or amended; apart from anything else Regulation 5(b) of the Conduct of the Election Regulations makes the issuance of a writ subject
to resolution to the contrary by the House of Representatives.
In my view proceedings in Fiji for Judicial Review of breaches of duty by a Returning Officer commenced before election day do not
fall foul of either the Decree or the Petition Regulations or any other rule or principle of law. Whether or not leave would, in
any particular case, actually be granted would naturally continue to depend among other things on the merits of the complaint, the
promptness of its making and the balance of justice and convenience as between proceeding by way of judicial review prior to election
day or proceeding by way of petition after election day as is the much more usual course.
The remaining matter is the merits of the Applicant’s case. Elections to Parliament are highly important and frequently highly contentious
proceedings. Any semblance of bias or favouritism by the Returning Officer must be vigorously avoided. Standing for Parliament is
not a matter to be taken lightly or without sufficient care and preparation. Candidates have an obligation thoroughly to familiarise
themselves with the applicable rules.
In the present case the Applicant presented papers which were defective in that they did not include a Certificate of Demonstrated
Support as required by Regulation 15A(1)(b) (see LN1/1994). Arrangements to obtain this Certificate could have been made at any time
after 18 August (see Regulation 15A(3)(a) as amended by LN 97/97).
The Applicant admitted that the letter of explanation tendered by him to the Commission (see Annexure B to the Commissioner’s affidavit)
was “only partly true”. I am satisfied that the central truth of this affair is that the Applicant of his entire own fault organised
himself for his nomination so indifferently that he could not comply with the plain requirements of the Conduct of Election Regulations
which were that he present himself in person or as otherwise as provided by Regulation 15(9) between the hours of 8 a.m. and 4.00
p.m. with his nomination papers in order. While I consider that a Returning Officer probably has a discretion in wholly exceptional
case to allow late nominations where the lateness is caused by the default of the intended candidate himself it would be quite wrong
to exercise that discretion in his favour.
In my opinion the Applicant has failed to demonstrate any reasonable grievance against any of the Respondent. The Application for
leave fails and is dismissed.
M.D. Scott
Judge
10 October 1997
Hbj0028d.97s
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