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Tuilimu v Attorney General [2003] TVHC 11; Case No 23 of 2002 (17 February 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 23/2002

LAGITUPU TUILIMU

v

THE ATTORNEY GENERAL
AND
SIO PATIALE

Hearing: 15^th February 2003
Judgment: 17^th February 2003

James Duckworth for the petitioner
Attorney General far the respondents

JUDGMENT

On 25 July 2002, Tuvalu held a General Election. By section 3 and Schedule 1 of the Electoral Provisions (Parliament) Act, Cap 102 (the Act), Nanumea is entitled to return two Members of Parliament and, in the 2002 General Election, seven candidates stood to contest those seats.

When the result was declared, the second respondent, Sio Patiale, lead the poll with 332 votes followed by Maatia Toafa with 309. They were declared the duly elected Members of Parliament for Nanumea.

The petitioner came third in the poll with 162 votes. He brings this petition under section 56 of the Act, seeking three orders from the Court:

1. that the election of the Member of Parliament for Nanumea be declared to be null and void pursuant to section 58(3) of the Act

2. that the said seat be declared to be vacant and that the petitioner be declared to be the Member of Parliament as he was the third placed candidate

3. further and in the alternative, that a bye-election be declared for the vacant seat at the election that took place on 25 July 2002.

Despite the wide terms of the first order sought, it is only the election of the second respondent which is challenged. Counsel for the petitioner has advised the court that there is no intention or reason to challenge the election of Maatia Toafa.

The foundation of the petitioner's case is that the second respondent was not a registered voter at the time he was nominated as a candidate - a requirement under section 5(3) of the Act - and so he should not have been a candidate.

There is little dispute about the events that took place prior to the election but considerable dispute as to the meaning and intention of the provisions of the Act and of the Electoral Provisions (Parliament ) Regulations, 1980 (the Regulations).

Prior to the General Election as part of the overall preparations, the, then, Prime Minister, as Minister responsible for elections, ordered a general revision of the register of electors for each electoral district.

At a very late stage in the proceedings the respondents were given leave to file further submissions replacing those originally filed in November. The grounds raised in those submissions question the nature and effect of the Prime Minister's order for a general revision of the electoral register given in a notice to the Registration Officers of each electoral district on 12 April 2002.

The procedure for registration of electors

By section 5(1) of the Act, there ‘shall be a register of electors for each electoral district’ for the purposes of the Act and section 90(1) of the Constitution. The manner in which the voters are to be registered is set out in the Regulations and the Forms prescribed in the Schedule to those Regulations.

In brief, the Regulations provide that, following notice from the Minister under regulation 8(i) that the registers are to be generally revised, the Registration Officer shall publish a notice advising the public of the registration period within which application must be made; regulation 9.

Once that period and a further 5 days to allow for notification of any applications from other electoral districts has expired, the Registration Officer shall, as soon as possible and in any event within 14 days of the expiry of the registration period, publish the list of applicants on Form E and keep it displayed for 7 days; regulations 11, 12 and 13.

Any applicant who is dissatisfied with the omission of his name from the list may give notice of objection within 10 days of the publication of the list. Similarly, any person whose name is on the list or whose name already appears in the electoral register may, within the same time, object to the inclusion of any name in the list; regulation 14.

On receiving any such objection, the Registration Officer must then send a notice to the Revising Officer of all objections; regulation 15. That Officer fixes a date for the holding of a public enquiry; regulation 16, and, at the conclusion of such enquiry gives his decision, which must include a direction to the Registration Officer to add or delete the name from the list of applicants or that the list should remain unchanged; regulation 18.

If there are no objections, the Registration Officer shall immediately on the expiration of the objection period re-sign and date the list of applicants under the words, "I hereby certify that this is the final list of names to be included in the Register." If there are objections, he shall make any necessary deletions or additions and similarly certify the corrected list of applicants; regulation 19.

The events in 2002

The registration period in this case ran from 15 April to 6 May 2002 and it is admitted that the second respondent did not register during that period.

The list of applicants was published on 10 May 2002 and, on 16 May during the objection period, the second respondent gave notice of objection to the omission of his name from the list using the prescribed form, Form F. In that notice he explained he had not registered within the registration period because:

"1. I did not remember to register as I had other commitments to attend to including the preparation for my trip to Nanumea with regards to the election.

2. It was my understanding that if I wanted to stand for election I was to register my name, but I did not know that I had to register like every other voter."

This was passed to the Revising Officer who held a public enquiry on 3 June 2002. He delivered his decision on 7 June 2002 in which he directed the Registration Officer to add the second respondent's name to the list of applicants. This was done and, as a result, he was included in the final list of names included in the register.

He was subsequently nominated as a candidate and contested the election.

The petitioner's submissions

The petitioner's challenge can be stated shortly. There is no suggestion that the second respondent was not qualified to be a candidate under section 5(1) of the Act and section 94 of the Constitution. Neither is it suggested he was disqualified under section 95. However, section 5(3) of the Act imposes additional conditions:

"(3) Every person submitting himself for election shall be a registered elector for the electoral district for which he is a candidate and shall be nominated in writing by 5 persons registered in the same electoral district."

The right to vote is given under section 90 of the Constitution to "any person who is registered under an Act of Parliament as an elector". Again there is no suggestion that the second respondent was not qualified to be registered as an elector under section 91, (apart from to the point raised in this petition) or disqualified under section 92 of the Constitution.

The petitioner's case is simply that, by failing to register during the registration period, the second respondent missed his opportunity to register and the procedure for objection he used was not open to him. As a result, the decision of the Revising Officer and his direction to the Registration Officer to include the second respondent's name on the list of applicants was invalid and he should not have been able to stand for the election.

The right to object to the list of applicants is provided in regulation 14:

"14. (i) Any applicant who is dissatisfied with the omission of his name from any list of applicants published in accordance with Regulation 13 may within 10 days of the date the list of applicants is published give notice of objection in the form set out in the schedule to these Regulations (Form F).

(ii) Any person whose name appears in the list of applicants or whose name already appears in the Register for the electoral district in which the list is published and who is dissatisfied with the inclusion of any name on the list may within 10 days of the date the list of applicants is published give notice of objection in the form set out in the Schedule to these Regulations (Form F)."

The petitioner contends that the second respondent's failure to apply during the registration period could not be remedied by the objection procedure under regulation 14 because the right to do so is limited to persons who have applied to be registered. The reference throughout the regulation is to ‘applicant’. The second respondent submitted his objection on Form F stating that his objection was to the omission of his name and must therefore have been made under regulation 14(i).

In view of the respondents' submissions, it should be noted that the reasons the second respondent gave at that time did not include any suggestion that he did not need to re-apply because he was already on the register of electors. I do not consider, and it was not suggested, that the second reason - that he did not know he had to register like every other voter - is alluding to this point.

Regulation 21(i) provides:

"Subject to the provisions of Regulation 21(ii) any application for registration which is delivered to a Registration Officer other than during a registration period is invalid."

The provisions of 21(ii), referred to there, allow for application within a limited time after the end of the registration period but only on the grounds that the applicant was unable to deliver his application in time because of ill health or because he was absent from Tuvalu or has reached the age of 18 years since the expiry of the registration period or of the election registration period; grounds which the second respondent could not claim.

The respondents' submissions

In their opposition to the petition, the respondents submit that the entitlement to vote exists not only for persons who apply to be registered on a general revision but also to those whose names are already on the register of electors even though they have not applied. It is correct that regulation 14(ii) gives persons whose names already appear in the register a right to object but that is limited to an objection to the inclusion of a name and not, as happened in this case, to the omission of the applicant's own name.

I shall return to the effect of regulation 14(ii) later.

The principal submission of the respondents is that the second respondent was already registered as an elector on the register prepared for the 1998 General Election and so he did not have to register again for the election in 2002.

They start with section 64 of the Act, which gives the Minister power to make regulations to implement the provisions of the Act and, without prejudicing the generality of that provision, for the preparing and keeping of electoral registers, the periodic review of such registers to deal with omissions and objections to them and to "ensure that no elector is registered more than once".

Section 5 of the Act provides that there shall be a register of electors and so, they continue, any direction to revise the register must always take account of the register that is already in existence. Citing the definition of ‘revise’ in the Concise Oxford Dictionary as "to read or look over or re-examine or reconsider and correct, improve and amend" they correctly contend that a revision of any document presupposes the existence of the document to be revised.

Their written submissions continue (paragraphs 4.5 and 4.6):

"Therefore, in the present case 'revision' and its derivatives, must be construed in the context of an existing register of electors. For the purposes of the General Elections of 2002, the existing register of electors was that of the General Election of 1998. It was that register that was to be revised in 2002. A general revision of the register as stipulated under regulation 8 of the Electoral Provisions (Parliament) Regulations should not be construed as an abolition of the existing register. To do so would be inconsistent with the provisions of section 5(1) and section 64 of the Electoral Provisions (Parliament) Act.

It follows therefore that when the second respondent's name was omitted in the list of applicants published on 16 May 2002, the second respondent was entitled to object to this omission as his name was already on the existing register - the register of electors for the General Election of 1998."

They ask the court to interpret the word ‘applicant’ in regulation 14 liberally to include any person who may be aggrieved by the omission of his or her name from a document which forms the basis of a voting franchise. A literal interpretation will, it is submitted, "disenfranchise a potential voter, a constitutional right which must be jealously guarded by the court".

The respondents' argument continues (paragraph 4.11):

"Where a person whose name is already on the existing register objects to the exclusion of his name on any of the documents published during the revision of the electoral register, it is submitted that the Revising Officer is at liberty to sustain the objection on the basis that the person's name is already on the existing register after due investigation as required by law."

No other authority is relied upon by either side and the answer plainly must lie within the terms of the Act, the Regulations and the Constitution.

The meaning and effect of the provisions of the Act and Regulations

The major hurdle that confronts the respondents is regulation 8:

"8 (i) The Minister shall when he deems it necessary and in any event not less frequently than once in every four years give notice to each Registration Officer ... that the registers are to be generally revised and such notice shall be in the form set out in the Schedule to these Regulations (Form A).

(ii) The Minister shall when he deems it necessary and in any event once in each year in which a notice of revision is not given, give notice to each Registration Officer ... that the registers are to be open for additional applications for registration and such notice shall be in the form set out in the Schedule to these Regulations (Form B)."

That regulation clearly establishes two procedures; one in which the registers are to be generally revised, 8(i), and another in which the registers are opened to receive additional applications for registration, 8(ii).

By regulation 9, these two procedures also require different notices to be published by the Registration Officer depending on whether the Minister's notice was on Form A or on Form B. The two forms are the only difference between the terms of 9(i) and (ii) and I shall return to their significance:

"9. (i) On receipt of any notice under regulation 8(i) all Registration Officers shall immediately publish a notice dated in accordance with and published not later than the date given in the notice under Regulation 8 as the date from which there shall be a registration period and the notice shall be in the form set out in the Schedule to these Regulations (Form C).

(ii) On receipt of any notice under Regulation 8(ii) all Registration Officers ... shall immediately publish a notice dated in accordance with and published not later than the date given in the notice under Regulation 8(ii) as the date from which there shall be a registration period and the notice shall be in the form set out in the Schedule to these Regulations (Form D)."

By regulation 20, the manner in which the Registration Officer is required to deal with the final list of names to be included in the register after certifying it in accordance with regulation 19, also depends on whether the notices were under 8(i) and 9(i) or under 8(ii) and 9(ii):

"20. (i) The Registration Officer shall immediately upon signing the list under Regulation 19 and in any event within 7 days:-

(a) in the event of there not being a Register in existence or the Minister having ordered a Revision of the Register under Regulation 24 [counsel agree this is a misprint and should read Regulation 8(i)] cause a Register to be prepared in the form set out in the Schedule to these Regulations (Form H) listing all the names included in the signed list provided for by regulation 19 in a numbered list in alphabetical order each name being allotted a number in sequence;

(b) in the event of paragraph (i) of this paragraph not being applicable add in alphabetical order all the names included in the signed list provided for by Regulation 19 numbering those names so that the numbers continue in sequence from the numbers already recorded in the Register;

(c) date and sign the Register after the last name has been included under the provisions of paragraphs (i)(a) or (b) of this Regulation."

If the respondents' submission is correct that any person already on the register from the previous election need not apply again during a general revision, it is hard to see what difference there would be between the two procedures. If all those already on the register from the previous election and any additional registrations since then do not need to apply to register during a general revision, there would only be additional applications for registration. That would mean that the process under 8(i) for a general revision is exactly the same as the opening of the registers for additional applications under regulation 8(ii) and it would never be necessary to use the procedures for a general revision.

I asked the Attorney General to explain what difference would remain if his submission was correct but he, understandably perhaps, did not do so.

Clearly the respondents' case depends largely on the meaning of the word `revision'. Is it, as they contend, a process which can only ever involve a partial alteration of an existing document? If that is right, common expressions such as `total revision' or `complete revision' would have no meaning. Does it mean, as they further suggest, that a total revision must mean the original document is abolished thus causing a breach of the mandatory provision of section 5(1) of the Act that there "shall be a register of electors"?

The fundamental rule of statutory interpretation is that words used in an act or regulation should be given their ordinary meaning. If that is not clear or results in ambiguity, the court may look to the intention of the draftsman to determine the intended meaning of the ambiguous word or phrase. However, this is only the case when there is an ambiguity. As was stated by Lord Simon in the House of Lords in Stock v Frank Jones [1978] 1 WLR 231:

"The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsman is correct, these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate step in construction to choose between potential meanings by various tests ...which throw light upon what the draftsman meant to say."

The first of the various tests there referred to is that the words must be read in context. "...words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context." Attorney General v Prince Ernest Augustus [1957] AC 436 per Viscount Simonds.

Ambiguity infers lack of clarity or uncertainty. I do not find any ambiguity in the use of the phrase 'general revision'. I cannot accept that a complete revision of a register means the register itself is abolished. The purpose is to compile an up to date list of electors in that electoral district which is then placed in the register thus revising it generally.

The only ambiguity that I see occurs in regulation 20(i)(a), set out above, when it states that the Registration Officer shall:

"in the event of there not being a Register in existence or the Minister having ordered a Revision of the Register under Regulation [8(i)] cause a Register to be prepared in the form..."etc.

I accept that could be read as meaning that a fresh register is to be prepared after a revision. However, read in the context of the rest of the Regulations, I am satisfied that the whole process prescribed means that paragraph must be read as saying:

"in the event of there not being a Register in existence or the Minister having ordered a Revision of the Register under Regulation [8(i)] cause a Register to be prepared or the existing register to be revised in the form ..."etc.

To read it otherwise would make the procedure set out in regulations 8 to 19 meaningless insofar as it relates to a revision. Far from clearing up any ambiguity, it would produce ambiguity where there was none before.

The forms prescribed under the Regulations and plain logic both support the conclusion I have reached that the intention of this legislation was to establish a procedure whereby the list of people entitled to be registered as electors could be brought up to date not just by the addition of newly qualified persons, as provided for by regulations 8(ii) and 9(ii), but by a complete revision to ensure it did not continue to include names of people who had died or for some other reason were no longer entitled to vote or had permanently left Tuvalu or that particular electoral district or otherwise fail to satisfy the requirements of section 5(3) of the Act.

It is relevant to note that, once the list of electors is signed, it is included in the Register and there is no procedure for objection to the inclusion of any name once that has been done.

Thus, if the respondents' contention is correct that anyone already registered need not re-apply during a revision, the names of deceased voters and of people who had otherwise lost their right to vote cannot be removed. That would mean, for example, that should someone attend claiming the right to cast a vote in the registered name of any such person, his vote could be accepted by the presiding officer under the provisions of section 21(1) of the Act.

Clearly in communities as small as those comprising the electoral districts in Tuvalu, personation of a dead elector is unlikely but I would suggest that once a disqualified person is on the register, he would be able to vote. I am satisfied that the reason for the procedure for a complete revision is to try and ensure that cannot happen.

Equally, if the respondents' case is right, anyone who has ever registered since the Act and Regulations came into effect would be entitled to vote without further application. If that is the case, a cursory examination of the list of voters for the 1998 General Election shows that the vast majority of the 780 applicants listed on Form E on 10 May 2002 need not have re-applied. They must, according to the respondents' argument, have misunderstood the purpose of a general revision - as did the second respondent himself when he first filed his objection, despite his present submissions.

A conclusion that the order for a general revision under Regulation 8(i) requires all electors to re-apply for registration in order to be entitled to vote is supported by the prescribed forms. The Minister's notice under 8(i) is on Form A and clearly states `there will be a general revision'. Where he gives notice under 8(ii), he uses Form B which states that there `will be a registration period for the receipt of applications for additional registrations'.

As has already been pointed out, if the purpose of a general revision was only to receive additional applications, as would be the inevitable effect of the respondents' submission, then there would be no need for Form A because Form B would be appropriate to 8(i) and (ii).

The prescribed form of notice required to be published by the Registration Officer after he has received notice of a general revision under 8(i) is Form C. Again the wording of that clearly shows an intention that all eligible person must make fresh application. It must be published by all Registration Officers and is addressed `To all citizens of Tuvalu' and continues:

"Take Notice that there will be a general revision of the electoral register. This means that unless you apply to be registered in the new register and your application is accepted you will not be entitled to vote in any parliamentary election. The registration period will commence on ... and continue for 21 days.

If you wish to be registered in this or any other registration district you must apply to the Registration officer on the prescribed application form.

Warning

Only those persons whose names appear on the electoral register of an electoral district can vote in a Parliamentary election in that district."

As has been stated, the respondents' answer to the fact that only applicants have the right to object to omission of the applicant's name is to ask the Court to read the word `applicant' liberally to include any person who is not an applicant but who may be aggrieved by the omission of his name on a list which clearly should not have included it because he was not an applicant. That would not be a liberal reading; it would require the substitution by the Court of a word with a wholly different meaning from that used in the legislation. I am not prepared to do so. The list referred to is the list of applicants and the objection is limited to 'his (i.e. the applicant's) name'. It is perfectly clear and unambiguous that the intention of the provision was to limit the right of objection to an applicant.

The interpretation I have suggested does not require any alteration to the meaning of `applicant' and must, therefore, be preferred.

If everyone seeking the right to vote is required to apply during a revision, everyone who does so will be entitled to object if his name is omitted from the list of applicants. He has that right because he is an applicant. He can also, for the same reason, object to the inclusion of any other name.

If the respondents are correct in their suggestion that any person registered for the previous election or elections need not apply and can expect his name to be automatically included in the register, the right to object to the omission of his name would be given in similar terms to those used in regulation 14(ii) in relation to the inclusion of any other name. However, the right to object there would be an objection to omission from the register, not the list of applicant to which regulation 14 refers. I have already pointed out there is no procedure to challenge the list for omission or inclusion of names once it is on the register.

I am satisfied the use of different words in the two sub-regulations, 14(i) and (ii) was deliberate for the clear reason that the right to object to the inclusion of a name must also be applicable to lists of additional applicants published following an opening of the Registers under regulation 8(ii). Any such new applicants can object both to the omission of his name and to the inclusion of any other name but it is important that the right to object to the inclusion of any applicant who is not entitled to be registered should be extended to all electors.

In a general revision under regulation 8(i), every elector should be an applicant and so he will have the right to object to the inclusion of other names but, when the notice is issued under regulation 8(ii), other electors would not be able to object to the inclusion of additional applicants and so the extra words `whose name already appears in the register' needed to be added to cover the list of applicants under regulation 8(ii). That also supports the conclusion that the intention of the legislation was to require everyone to re-apply in a general revision.

For all the reasons I have set out, I am satisfied that the true meaning and intention of the terms of the Act and the Regulations drive me without any doubt to the conclusion that the second respondent:

1. was required to apply to be registered in the revision ordered in 2002 if he wished to vote in the 2002 General Election;

2. did not apply to be registered within the registration period;

3. was correctly not included in the list of applicants published in Form E on 10 May 2002;

4. did not have a right, in consequence of not being an applicant, to give notice of objection to the omission of his name from the list of applicants;

5. was not entitled to a public enquiry as was carried out by the Revising Officer;

6. should not, therefore, have been added to the list of applicants by the Registration Officer on the direction of the Revising Officer; and

7. was not entitled to be and should not have been included on the final list of names to be included in the Register.

The consequence is that he was not qualified under the terms of section 9(3) of the Act and was not, therefore, entitled to submit himself as a candidate for election in the 2002 General Election.

In accordance with the proviso to section 58(3) of the Act, I must determine the election to be void and the seat, hitherto filled by the second respondent, vacant and I shall so certify my decision in writing to the Prime Minster. I do not consider I have a discretion to make an order in the terms of the second order sought by the petitioner. Even if I had, I would not have considered it appropriate when the will of the electorate as shown through the ballot box was so overwhelmingly in favour of the second respondent. I shall, therefore, further advise the Prime Minister that there should be a bye-election for the electoral district of Nanumea for the single vacant seat.

It is a decision for the Prime Minister but I would respectfully suggest that, in view of the time that has elapsed since the revision of the register of electors in the Nanumea electoral district for the 2002 General Election, it would be proper and equitable for him to make an order under regulation 8. It is his decision alone whether there is need for a general revision under regulation 8(i) or whether he need only order that the registers be opened for additional applications under 8(ii). Whichever course is adopted, it would be appropriate to ensure this is done in time to allow it to be completed before nominations are to be lodged. He will be aware that the provisions of regulation 8A allow him to make any such direction in respect of the Nanumea electoral district only.

I would finally add that, at a bye-election, anyone who satisfies the criteria under sections 94 and 95 of the Constitution and section 5 of the Act is entitled to stand as a candidate whether or not he stood in the General Election.

Dated this 17^th day of February 2003.

Gordon Ward
Chief Justice