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Butadroka v Attorney-General [1992] FJHC 19; Hbc0214d.92s (30 April 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 214 OF 1992

Between:

SAKEASI BUTADROKA
Plaintiff

- and -

1. ATTORNEY GENERAL
1st Defendant
2. ELECTORAL COMMISSION
2nd Defendant

Mr. T. Fa for the Plaintiff
Mr. F. Jitoko Solicitor General for the Defendants

RULING

In this application the plaintiff who is president of a political party which hopes to field candidates in the impending general elections and who is supported in the application by senior members and officials of no less than 4 other political parties who also hope to field candidates in the general election, seeks a declaration that Regulation 15(10) of the Electoral (Conduct of Elections) Regulations 1992 made pursuant to the Electoral Decree 1991 is unconstitutional and therefore null and void to the extent of its unconstitutionality.

It is unfortunate that the time constraints for which the plaintiff must bear the larger share of the responsibility does not permit me to give full and complete reasons for the ruling I must make or for the Attorney General and Electoral Commission to give the Court the assistance it would have liked to have had on the matter.

The arguments submitted and the constitutional issues raised are important and fundamental to the very essence of our democratic society which by the 7th preamble to the Constitution envisages inter alia "... a democratic society in which all peoples may to the full extent of their capacity play some part in the institutions of the national life and thereby develop and maintain due deference and respect for each other and the rule of law".

One such institution of the highest importance must be the elected Parliament of this country the representatives for which elections will be held next month.

Regulation 15(10) of the Electoral (Conduct of Elections) Regulations 1992 states:

"No nomination shall be valid unless accompanied by the sum of $1,000 in legal tender or in a banker's cheques."

It is made pursuant to powers granted to the Electoral Commission pursuant to S.3 of the Electoral Decree 1991 which in terms empowers the Commission to make regulations for the purpose of carrying into effect the provisions of the Constitutions generally and in particular to fix: "forms and fees and charges".

In my view in fixing any fees the Commission is required to bear in mind the general purpose of carrying into effect the provisions of the Constitution which includes the rights and freedoms of individuals, and whilst unlike in other Constitutions where there is a clear express right to contest or stand for public office, nevertheless in my view such a right is fundamental in a democratic society and of the essence of a persons right to vote as envisaged by Section 50(1) of the Constitution and the right to freely associate without hindrance.

In my view restrictions on candidacy for elective office impairs and hinders the right of voters to cast a ballot for the candidate of their choice and the right of persons to associate in the expression of views in a political campaign.

From the evidence before me which includes the oral testimony of the chairman of the Electoral Commission I can say that whatever sum may be reasonable (which is not a matter this Court can assess) this Court is firmly of the view that the sum of $1,000 is so unreasonably high as to deny the right of a large proportion of eligible citizens of this country the opportunity to participate as candidates in the forthcoming general elections.

Accordingly I hold that Regulation 15(10) of the Electoral (Control of Elections) Regulation 1992 in so far as it seeks to impose a deposit of $1,000 on candidates contesting the election is unconstitutional and to that extent cannot stand and is accordingly declared to be void.

The practical effect of this decision is that subject to the Electoral Commission fixing another sum candidates in the forthcoming general election are NOT required to pay $1,000 as a deposit on filing their nominations.

The court will in due course give full reasons for this decision.

(D.V. Fatiaki)
JUDGE

At Suva,
30th April, 1992.

Hbc0214d.92s