| Fiji Islands - In re an Application by United National Labour Party - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 16 OF 1999
IN THE MTHE MATTER of an Application by
UNITED NATIONAL LABOUR PARTY
for a Judicial Review under Order 53 of
the High Court Rules 1988
AND
IN THE MATTER of the Decision of the
SUPERVISOR OF ELECTIONS
made on the 1st day of April, 1999.
Mr. H. Nagin fo Appl Applicant
Mr. Banuve for the Respondent
DECISION
This is the United National Labour Ps (the UNLP) application for leave to apply for Judicial Review and for a stay of the decisdecision
of the Supervisor of Elections (the 'respondent') made on 1 April 1999 whereby he purported to de-register the UNLP as a political
party.
Because of the urgency of the matter with the nomination day on 9 April 1999 the Court decided to hear the application as expeditiously
as possible and hence counsel for the respective parties appeared before me at short notice. To assist the Court I decided to hear
it inter partes and that is what has happened so as to conclude the hearing in good time to assist all parties concerned.
The UNLP filed an affidavit in support with affidavits in Reply thereto from the Respondent.
I heard both counsel on the matter of leave and stay. Mr. Banuve for the Respondent objected both to the granting of leave and stay.
I have given due consideration to the arguments put forward by both counsel.
On this application the relevant provisions of Or 53 r3(8) under which the decision has to be made provides:
(8) Where leave to apply for judicial review is granted, then:
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of proceedings
to which the application relates until the determination of the application or until the Court otherwise orders;
(b) .....
Having considered the affidavit evidence before me and having heard both counsel application for leave to apply for judicial review
is granted under Or 53 r8(3).
Having granted leave I shall now consider the application for an order for stay.
The said Order 53 r8(3)(a) does provide that " the grant of leave shall operate as a stay of the proceedings" and that is
dependent upon the Court so directing.
In considering this aspect I have considered the arguments put forward by Mr. Nagin in support and that of Mr. Banuve in opposition.
One has to look at this application in the exceptional circumstances of this case.
This application for leave is a sequel to a previous Judicial Review No. 00010 of 1999, Ruling whereon was given by Fatiaki J on 1
April 1999. I need not reiterate the facts relating to the matter for they are all covered in the said Ruling suffice it to say that
there was no decision which was impugned. But here there is the decision of 1 April 1999 de-registering the UNLP right on the heels
of Fatiaki J's ruling. The same day a "Notice of De-registration of the United National Labour Party" was sent for gazetting
in the Fiji Islands Government Gazette and gazetted on 7.4.99 (Vol. 13 No. 28). This was done by the Respondent pursuant to regulation
15(6) of the Electoral (Registration of Political Parties) Regulations, 1991.
It is to be noted that this is a fresh application for Judicial Review made pursuant to the said decision of 1 April 1999 and has
to be heard as such. This is a reviewable decision and the applicant cannot be debarred from making this application.
On stay in judicial review proceedings I refer to The Supreme Court Practice 1993 Vol I Or 53/1-14/26 at p.855 to the notes thereto.
It states: "on the grant of leave to move for judicial review, the court has jurisdiction, where appropriate, to stay the decision
making process (if it has not yet been completed), the decision itself and its implementation". I also refer to the following
passage from the book "The Applicant's Guide to Judicial Review by Lee Bridges & others on the effect of stay:
"A stay is an order that the judicial proceeding or administrative decision which is the subject of challenge should not continue
or take effect until the judicial review challenge is determined. It is available as a remedy against all public bodies against whom
leave has been granted, including the Crown in the form of a government department or minister." ... (R v. Secretary of State for Education, ex p. Avon County Council (1991) 1 Q.B. 558).
In the exercise of my discretion bearing in mind the nature of the application being an election issue, the constitutional rights
of the Party (the UNLP) and the repercussions if stay is refused I consider that I ought to grant a stay of the said decision. The
UNLP has a lot to lose at this time, when the next election will be after five years, if stay was refused. Whether the UNLP will
succeed on Judicial Review is not something which can be predicted without a hearing and I am not expected to go into the merits
at this stage. I cannot shut the door on the Applicant for it is properly before this Court.
For these reasons as provided for under Or 53 r(3)(8)(a) I direct that the leave granted shall operate as a stay of the proceedings
to which this application relates namely impugning the decision of the Supervisor of Elections made on 1 April 1999 de-registering
the United National Labour Party which order for stay means that the UNLP shall take part in the forthcoming General Elections as
a registered political party as if it has not been de-registered until the hearing and determination of the Judicial Review or until
further order of this Court.
D. Pathik
JUDGE
At Suva
8th April, 1999
Hbj0016d.99s
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