| Fiji Islands - The State v The Supervisor of Elections, Ex parte United National Labour Party - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 0010 OF 1999
THE STATE
v
THE SUPERVISOR OF ELECTIONS
ex-parte UNITED NATIONAL LABOUR PARTY
Mr. H. for pplicanticant
Mr. S. Banuve for the Respondent
t
RULING
There can be no denying that withe new electoral framework envisaged under the 1997 Constitution 'political pcal parties' have acquired a greater significance than in previous elections.
Not only is there now a right of political parties to lodge with the Supervisor of Elections, a list of candidates showing the order of preference in which the registered party would like to see the candidates placed by voters
in a constituency (Section 61 of the Electoral Act 1998) but, more importantly, and additionally, Section 99(5) of the 1997 Constitution requires the Prime Minister in establishing a 'multi-party Cabinet' to 'invite all parties whose membership in the House of Representatives comprises at least 10% of the total membership of the House to
be represented in cabinet ...''
The applicant in this case is the United National Labour Party (UNLP) which, despite a preliminary objection to its application for registration, was registered as a 'political party' by the Supervisor of Elections on the 29th of October 1998.
Not satisfied with its earlier unsuccessful objection, the Fiji Labour Party (FLP) by letter dated the 17th November 1998 sought the de-registration of the UNLP on the ground that it had obtained its registration on the basis of forgery, fraud and misrepresentation in so far as '... Twenty seven (27) people known to us and whose names appear on the UNLP application for registration form ... denied having signed
the application at all'. In support of its claim FLP provided signed statutory declarations from the 27 so-called UNLP members.
Regulation 15(1) of the Electoral (Registration of Political Parties) Regulations 1991 so far as relevant provides:
'If the supervisor is satisfied on reasonable grounds that:
(c) The registration of a political party ... was obtained by fraud or misrepresentation;
The Supervisor shall:
(d) give the registered officer of the party notice, in writing, that he is considering de-registering the party under this regulation
setting out his reasons for considering doing so and the terms of the provisions of paragraphs (2), (3), (4) and (5) of this regulation;
and
(e) publish a notice in the Gazette that he is considering de-registering the party under this regulation, specifying the paragraph
of this regulation by reason of which he is considering doing so.'
and Regulation 15(2) provides:
'Where a notice is given under sub-paragraph (d) of paragraph (1) of this regulation in relation to a political party, the registered
officer of the party ..., may within one month after the date on which the notice was given, lodge with the Supervisor a statement,
in writing, signed by the registered officer ..., setting out reasons why the party should not be de-registered under this regulation.'
Plainly with a view to satisfying himself that reasonable grounds existed for him to invoke the de-registration procedure under Regulation 15, the Supervisor of Elections quite gratuitously referred the FLP's letter of 17th November 1998 to the UNLP for its consideration and response. The letter was referred to UNLP's solicitor who eventually responded by letter dated 11th December 1998.
I say 'quite gratuitously' advisedly because there is no such requirement imposed under Regulation 15(1) on the Supervisor of Elections, to inform or advise anyone prior to a decision being made by him merely to consider de-registration of a political party.
Nor, in my opinion, given the clear procedure provided for in sub-paragraphs (d) & (e) of Regulation 15(1) read with Regulation 15(2) (ibid), is there any justification for this Court to seek to amend or supplement the laid-down procedure by implying an additional right
to be heard at an earlier preliminary stage of the de-registration process.
I adopt as applicable to this case the dictum of Lord Hailsham L.C. in Pearlberg v. Varty (Inspector of Taxes) (1972) 2 ALL E.R. 6 when he said at p.11:
'It is true of course, that the courts will lean heavily against any construction of a statute which is manifestly unfair. But they
have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled
to a larger degree of say in the making of a decision than the statute accords him.'
Furthermore the mere fact that the Supervisor of Elections, perhaps out of an abundance of caution, saw fit to seek the views of UNLP prior to his making a decision to consider its de-registration, does not and cannot, in my view, give rise to any 'legitimate expectation' on the part of UNLP to be furnished with the actual evidence available to the Supervisor at the time. Put simply, in the absence of a clear or implied right to be heard or an established practice or assurance in that regard, there can be no 'legitimate expectations' of a fair hearing.
Be that as it may on 16th December 1998 the Supervisor of Elections wrote to the UNLP advising it of his '... opinion that I should not make a decision until I have had the opportunity to speak to most, if not all, of the 27 persons who
signed the various statutory declarations which were forwarded by the Fiji Labour Party'. A meeting to do that was therefore proposed to be held in the office of the Commissioner Northern at Labasa.
UNLP's solicitors responded immediately by Fax expressing their concern that interviewing the 27 persons who had signed the statutory declarations would serve no useful purpose as 'those people have already been bought by the Fiji Labour Party' (whatever that may mean).
By letter dated 17th December 1998 the Supervisor of Elections confirmed the date and venue of the meeting and invited the UNLP to attend. Unfortunately no UNLP representative attended the meeting at the Commissioner Northern's Office on 21st December 1998 despite having had three (3) clear days notice of it.
It is common ground that by letter dated December 28, 1998 the Supervisor of Elections complied with sub-paragraph (d) above and a week later, by notice in the Gazette of 8th January 1999 he complied with the requirements of sub-paragraph (e) of Regulation 15(1).
The applicant's attention was also drawn to the provisions of paragraphs (2), (3), (4) & (5) of Regulation 15 which together sets out the procedure available to a political party to challenge, and required to be followed by the Supervisor after he has notified the political party and publicly advertised his intention to consider its de-registration and after he has
reached a 'determination' on the matter.
By letter dated 25th January 1999 addressed to the Supervisor of Elections and signed by its registered officer, the UNLP lodged a STATEMENT in compliance with Regulation 15(2) (op. cit.) 'setting out reasons why (it) should not be de-registered ...''
Thereafter there was a brief exchange of correspondence between the applicant's solicitor's and the Supervisor of Elections culminating in the Supervisor's letter of February 17, 1999 in which he advised of his intention 'to make a decision on this matter on 26.2.99'.
On 24th February 1999 (two (2) days before the Supervisor's deadline) UNLP lodged the present application for leave to issue judicial review proceedings against the 'decision made by the Supervisor of Elections on the 28th day of December, 1998 ... to consider de-registration of the applicant as
a political party'. By a separate ex-parte motion a stay of all proceedings consequent upon the so-called 'decision' pending the determination of its application for judicial review, was also sought.
The particular orders sought in the application are: Certiorari to quash the Supervisor's decision of 28th December 1998; Prohibition to prevent him continuing with the process of de-registration; and a Declaration that Regulation 15 of the Electoral (Registration of Political Parties) Regulations 1991 is ultra vires the 1997 Constitution and the Electoral Act 1998.
The grounds inter alia advanced by the applicant are that the Supervisor of Elections acted unfairly and in breach of the 'Rules of Natural Justice' in making the decision to consider de-registration of the applicant; that he abused his powers and discretion in failing to consider various relevant matters and in considering several irrelevant matters;
that he acted arbitrarily and/or unreasonably and contrary to the 'legitimate expectations' of the applicant.
Owing to the relative novelty and importance of the matters raised, the application was ordered to be short-served on the Supervisor of Elections on 25th February 1999 and on the 26th February 1999 the Supervisor appeared and verbally indicated his opposition to it. Upon his undertaking not to reach a final determination on the matter affidavits
were ordered to be filed together with a proper Notice of Opposition.
By Notice of Opposition filed on the 8th of March 1999 the Supervisor of Elections opposes the grant of leave on the grounds that:
'... (he) has not made a substantive decision on whether or not to de-register the applicant;' and
'the applicant does not have an arguable case on the merits.''
The application for leave was extensively argued before me on the mornings of the 16th and 23rd of March 1999. I record my appreciation to counsels for their valuable assistance.
At the outset it must be noted that the particular decision sought to be judicially reviewed by the applicant was taken on the 28th of December 1998. Accordingly, the present application cannot be said to have been taken at the earliest opportunity nor in my opinion, can it be
said that, in the words of Order 53 r.4(1), 'there has (not) been undue delay in making (the) application for judicial review'.
In R. v. Strafford-on-Avon D.C. ex-parte Jackson (1985) 1 W.L.R. 1319 Ackner L.J. said of the meaning of 'undue delay' in the context of the English equivalent of Order 53 r.4, at p.1325:
"... we have concluded that whenever there is a failure to act promptly or within three months there is 'undue delay' (and) even though the Court may be satisfied in the light of all the circumstances ... that there is good reason for that failure, nevertheless
the delay, viewed objectively remains 'undue delay'. The Court therefore retains a discretion to refuse to grant leave ..."
Earlier at p.1322 (ibid.) his lordship observed of the 'three months time limit':
"The essential requirement of the rule is that the application must be made 'promptly'. The fact that the application has been
made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been
made promptly."
In the present case although the application is within the 'three-month limit', no attempt has been made in the primary affidavit in support of the application, to explain why? the applicant had delayed for almost two (2) months before lodging its application.
Be that as it may, no objection has been taken on this score and nothing further needs be said about it. Suffice it to say that given
the impending general elections in May 1999 time is clearly of the essence. Indeed counsel for the applicant forcefully submits that de-registration of the applicant at this
stage would effectively deny it the opportunity to participate in the forthcoming general elections.
Of greater concern however, is the plain fact that after receiving the Supervisor's notice pursuant to Regulation 15(1)(d), the UNLP proceeded in accordance with Regulation 15(2) by producing to the Supervisor of Elections a comprehensive STATEMENT setting out its reasons why it should not be de-registered.
In doing so, I am satisfied that the UNLP accepted the Supervisor's decision to consider de-registration, and thereby effectively waived any objections it might have had or taken (if any) against the
process adopted by him in arriving at his decision.
Indeed I am inclined to the view that the present application for judicial review was filed largely because the UNLP perceived, whether rightly or wrongly, from the Supervisor's actions and letters after the 28th of December 1998, that his final 'determination' (which had not yet been taken) would be unfavourable to it.
This conveniently leads me to a consideration of the Supervisor's first ground of opposition, namely, '(that he) has made no substantive decision on whether or not to de-register the applicant' and accordingly counsel for the Supervisor forcefully submits no reviewable decision as yet exists.
In this regard Lord Diplock said in CCCSU v. Minister of the Civil Service [1983] UKHL 6; (1984) 3 ALL E.R. 935 at p.949:
'To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations
of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which
either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted
to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an
opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should not be withdrawn.'
Relying on the above dictum counsel for the Supervisor submits that the 'decision' (if one can call it that) to consider de-registration under Regulation 15(1), as opposed to a 'determination' under Regulation 15(5), is not amenable to judicial review in so far as it is a 'decision' having no adverse effects or consequences on the applicant which, until a final adverse 'determination' has been made, continues to enjoy all the rights and privileges of a duly registered political party.
Counsel for UNLP for his part submits that the mere advertisement of the Supervisor's intention to consider de-registration gives rise to some uncertainty in the minds of UNLP members, potential voters, and aspiring candidates seeking UNLP endorsement to contest the forthcoming elections. That, it is claimed (in the absence of any evidence), is an inevitable consequence
of the Supervisor's decision sufficient to make it amenable to judicial review.
As to why? the mere advertisement of the Supervisor's intention should give rise to 'uncertainty' beyond that which attends any interim or preliminary decision, is not entirely clear, but in any event, I cannot agree that such
an 'effect' is sufficient for the purposes of judicial review.
In the first place, to be amenable to judicial review, a decision must, either alter existing rights or obligations or deprive some benefit or advantage presently enjoyed by the applicant. A decision or intention merely to consider de-registration
of a political party does not and cannot in my view be said to give rise to either consequence. In short it is a decision without
finality or effect.
What's more the notification to the applicant and gazetting by the Supervisor that he is considering de-registrating [sic] the applicant has no element of discretion in them in so far as both events are mandatory
requirements of Regulation 15. Neither results from the exercise of a statutory power of decision rather they are an integral part of the Supervisor's statutory function in the de-registration process provided for in Regulation 15 and accordingly are non-justiciable.
In this regard I respectfully adopt the observations of Lord Reid when he said in Wiseman v. Borneman (1971) A.C. 297 at p.308:
'Every public officer who has to decide whether to prosecute or raise proceedings (in this case to consider de-registration of a political party) ought first to decide whether there is a prima facie case (in this case, be satisfied on reasonable grounds) but no one supposes that justice requires that he should first seek the comments of the accused or the defendant (in this case, the UNLP) on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.
Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the
need to give full opportunity to the defendant to see the material against him.'
A fortiori where the Supervisor's decision occurs at an initiating or purely preliminary stage and there will be a full chance given at a later stage, to the political
party concerned, to deal fully and adequately with the subject-matter of the Supervisor's decision.
Indeed I would go so far as to say that any failure by the Supervisor to comply with both requirements would result in a void determination reviewable on that ground alone.
For the foregoing reasons this application for leave to issue judicial review proceedings against the decision of the Supervisor of Elections to consider de-registration of the UNLP must be and is hereby refused.
Having thus upheld the Supervisor's first ground of objection it is unnecessary for me to deal with the second ground in any detail. Suffice it to say that after careful
consideration of the submissions of both counsels concerning the provisions of Sections 163 & 164 of the Electoral Act 1998; and Articles 31 & 32 of the 1997 Constitution, I have no hesitation in upholding both the vires and constitutionality of the Electoral (Registration of Political Parties) Regulations 1991.
D.V. Fatiaki
JUDGE
At Suva,
1st April, 1999.
Hbj0010d.99s
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