Ali v Tikoca; Kalou v Tikoca; Padarath v Tikoca [2002] FJHC 320; HBC0407J.2001S; HBC0417J.2001S; HBC0409J.2001S (18 October 2002)

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JOHN ALI s/o Sher Mohammed of Lot 111,
Kalia Court, Nakasi Park Estate, Nasinu,
Fiji, Travel Agent.
Petitioner

ISOA TIKOCA of Suva, Fiji, Commissioner
Central and Returning Officer for Nausori/Naitasiri
Open Constituency.
1st Respondent

JOELI KALOU of 98 Vesivesi Road, Laucala
Beach Estate , Suva, Fiji, Industrial Relations
Officer.
Petitioner

ISOA TIKOCA of Suva, Fiji, Commissioner
Central and Returning Officer for Nausori/Naitasiri
Open Constituency
1st Respondent

SOLOMONI NAIVALU of 144 Tabua Street,
Cunningham, Suva, Fiji, General Manager
3rd Respondent

LAVENIA KAU PADARATH of 57 Duncan Road, Suva, Fiji,
Nurse Administrator.
Petitioner

ISOA TIKOCA of Suva, Fiji, Commissioner
Central and Returning Officer for Nausori/Naitasiri
Open Constituency.
1st Respondent

ASAELI MASILACA of Nakini Village,
Nausori, Fiji, Retired General Manager.
3rd Respondent

Counsel for the Petitioners `: V. Mishra and - R. Prakash, Mishra Prakash & Associates
Counsel for the 1st and 2nd Respondents `: Ms N S Baswaiya, Attorney-General’s Chambers
Counsel for the 3rd Respondent `: J. Apted, Munro Leys & Co.

When the Petitions were first called before me on 15 May 2002, the Counsel agreed that since legal issues were the same in all 3, they were more conveniently dealt with together. There were in addition similarities in some factual issues raised by each of them.

The Court had earlier ordered all the parties to file submissions on preliminary legal issues although there was yet to be an agreement on the procedures to be adopted thereafter. On 15 May 2002, the Court ordered that submissions on the legal issues were to be dealt with in the first instance to decide whether prima facie cases had been established to allow further proceedings under the Electoral Act, 1998.

In HBC 407 of 2001 John Ali vs. Isoa Tikoca & Ors., the Petitioner in his Amended Petition states that he was a Labour Party candidate for the Nasinu/Rewa Open Constituency in the August 2001 General Elections. The elections held from 25th August 2001 to 1 September 2001, was conducted under the preferential system of voting otherwise known as alternative vote. On 5 September 2001, the Nasinu/Rewa Open Constituency result was announced by the Returning Officer, the First Respondent, with Peniasi Silatolu, the Third Respondent being declared the winner and duly elected as a Member of Parliament representing the Constituency. The successful candidate received under the preferential system, 6652 votes, whilst the Petitioner received 6362 votes. The majority required under the system was 6,508 votes. Significantly, from the Petitioner’s point of view, of the total 14,654 ballot papers cast, 1,640 were declared to be invalid.

In HBC No. 417 of 2001 : Joeli Kalou vs Isoa Tikoca & Ors., the Petitioner states that he was a Labour Party candidate for the Cunningham Open Constituency in the August 2001 General Elections. On 6th September 2001 the result was announced by the Returning Officer, the First Respondent, with Solomoni Naivalu, the Third Respondent being declared the winner and duly elected as Member of Parliament for the Cunningham Open Constituency. The successful candidate received 6902 votes whilst the Petitioner received 5382. The majority required under the system was 6143 votes. Of the total 13,674 ballot papers cast, 1390 were declared by the Returning Officer to be invalid.

In HBC 409 of 2001 : Lavinia Kau Padarath vs Isoa Tikoca & Ors., the Petitioner was one of the six candidates in the August 2001 General Elections for the Nausori/Naitasiri Open Constituency. On 6th September 2001, the Returning Officer, the First Respondent, declared Asaeli Masilaca the winner and duly elected Member of Parliament for the Nausori/Naitasiri Open Constituency. Mr Masilaca received 6,790 votes whilst the Petitioner received 5140. The majority required for victory was 5,966 votes. Again, as in the case of the other two Petitioners, the number of invalid votes were high being 1,306 of the total 13,236 ballots cast.

All 3 Petition seek declarations and/or determinations by the Court that the persons who were declared elected as Members of Parliament from their respective constituencies, were not in fact and law elected. In addition, the Petitioners ask that the Court instead declare them as the successful candidates and duly elected Members of Parliament. In the alternative, the Petitioners pray that the elections in respect of their Constituencies be declared absolutely void, and the Court to order fresh elections to be held in each one of them.

Each of the Petitions then sets out the facts upon which the Petitioners relied to invalidate the elections or the returns as declared by the Returning Officer, the First Respondent.

In respect of John Ali, the Petitioner’s allegations are detailed at paragraph 12 of the Petition and can be summarised as follows :

(1) That in the Nasinu/Rewa Constituency, there were, in addition to political parties that had endorsed Candidates, 8 other parties without endorsed Candidates for election, but which registered lists of preferences with the Supervisor of Elections and were included on the ballot paper above the line. The Petitioner argues that the votes that were cast for these 8 parties and their registered preferences were influential in the final outcome of the result in favour of the Third Respondent.

(2) That there was no proper verification of postal ballot papers resulting in unverified postal ballot papers being included in the count which in turn compromised the count and the outcome. The particulars of these irregularities are set out at paragraph 12(b) of the Petitioner stating :

“(i) On the 2nd of September 2001 a Postal Ballot Box which was shown to the Petitioner’s agents, to be completely empty was fully sealed.

(ii) On 5th September 2001 at 4.00 a.m. while counting was in progress a Postal Ballot Box was introduced. When this Ballot Box was opened it has 424 ballots. There was no verification process held for this Ballot Box or the 424 ballots contained in it. The Petitioner or his agents had no opportunity to verify these postal ballots.

(iii) A total of 424 unverified postal ballots were introduced into the common bin and countered.

(iv) The election was determined on the basis of 424 invalid and/or unverified votes and the Petitioner only lost to the Third Respondent on the final 6th count by 290 votes. Generally the postal ballots were unfavourable to the Petitioner and the Fiji Labour Party for which party the Petitioner stood.”

(3) That over 900 ballot papers marked with a single tick beside the Fiji Labour Party symbol below the line were ruled invalid by the Returning Officer and should have been declared valid within the meaning of s.75 and s.116 of the Electoral Act 1998 and the Constitution. If they were declared valid, the Petitioner would have won the election comfortably.

(4) That Ballot Box Numbered C1350 from Nakaikogo Polling Station (Station No. 150) contained 696 ballot papers, contrary to the 529 ballot papers indicated in the accompanying documents. This meant that there were an extra 167 ballot papers in the Box. In addition the seal of the Box was broken and found inside it. Objections were made but all 696 ballot papers were included in the count.

(5) That 47 ballot papers were declared invalid and excluded from the count because they “did not have on the back the initials of the presiding officer or clerk and the official mark used for the elections in progress.” They did however have on the back “the official mark used for the elections in progress” and should have been declared valid within the meaning of section 75 and section 116 of the Electoral Act 1998.

In Joeli Kalou’s Petition, the Petitioner alleged that there were 8 other Parties without endorsed Candidates for the Cunningham Open Constituency, but which registered lists of preferences with the Supervisor of Elections and included on the ballot paper above the line. As a result votes were cast for these 8 parties and their registered preferences and which adversely affected the Petitioner in the final count.

The Petitioner also claimed that “over 1000 votes, which only had a single tick beside the Fiji Labour Party symbol below the line on the ballot papers was declared invalid.” These should have been deemed to be valid votes within the meaning of section 75 and section 116 of the Electoral Act 1998 and the Constitution.

The Petitioner further contended that there were no proper verification of postal ballot boxes and as a result unverified postal ballot boxes were included in the count. In addition, the Petitioner claimed that the handling of the postal ballot papers were irregular and unsatisfactory. The particulars of allegations of irregularities are set out at paragraph 13(b) of the Petition as follows :

“(i) On the 3rd of September 2001 a Postal Ballot Box without being shown to the Petitioner’s agent to be empty, was sealed. However, the slot on the ballot box was unsealed and remained open.

(ii) On 6 September 2001 while counting was in progress two Postal Ballot Boxes were introduced. When opened one box had 75 ballots and the other had 508 ballots. There was no verification held for these Ballot Boxes and the verification of a total of 583 ballot papers was unsatisfactory in that the Application for Postal Vote appeared to be photocopied and/or faded and/or unclear and there was no reasonable possibility of identifying the signatures. The verification process was conducted in a hurried manner and the Petitioner or his agents had no real opportunity to properly verify these postal ballots.

(iii) The Second Ballot Box was introduced had two seal numbers, which were different from the numbers recorded by the Petitioner’s agents.

(iv) The ballot papers in the second box did not tally and had 508 ballots instead of 427 according to the accompanying records. An election official admitted that there was an error but took no action on it.

(v) The ballot papers in the second box were bound together in a bundle by a rubber band rather than loose. The bundle was large and could not have been put through the slot in the Ballot Box.

(vi) A total of 583 improperly verified postal ballots were introduced into the common bin and counted.

(vii) The election was determined on the basis of 583 invalid and/or improperly unverified votes.”

Finally in respect of the 3rd Petition, Lavenia Kau Padarath the Petitioner, relied on similar grounds to those raised by John Ali and Joeli Kalou Petitions, to support her prayer for the Court to invalidate
the result of the election for the Nausori/Naitasiri Open Constituency. In particular the Petitioner first alleged that over 1,100 ballot papers which were marked with a single tick beside the Fiji Labour Party symbol below the line were illegally declared invalid by the Returning Officer, the First Respondent. Secondly, the Petitioner contended that 9 Political Parties that did not have endorsed Candidates for election in the constituency, were allowed to register their lists of preferences with the Supervisor of Elections. As a result votes were cast for these 9 parties and their registered preferences, which adversely affected the Petitioner and in favour of the subsequent winner the Third Respondent.

Lastly Lavenia Kau Padarath alleged that there were no proper verification of some postal ballot papers resulting in unverified postal ballot papers being included in the count. The particulars are set out at paragraph 11(a) of the Petition as follows :

“(i) On Tuesday the 4th September, 2001 one Postal Ballot Box was shown to the Petitioner’s agent and sealed. The Petitioner’s agent was informed that it contained 89 postal ballot papers. The verification of these postal ballot papers was unsatisfactory in that the verification process was not held in the presence of the Petitioner’s agent and in non-conformity with the Electoral Act 1998 and the Regulations.

(ii) On Wednesday the 5th September 2001 at about 8.00 p.m. while counting was in progress, another Postal Ballot Box was introduced. When this Ballot Box was opened it had 511 ballots. There was no verification process held for this Ballot Box or for the 511 ballots contained in it. The Petitioner or his agents had no opportunity to verify these postal ballots.

(iii) A total of 600 unverified or improperly verified postal ballots were introduced into the common bin and countered.

(iv) The election was determined on the basis of 600 unverified or unsatisfactorily verified votes.

The Petitioner lost to the Third Respondent on the final 5th count by 1650 votes. Generally the postal ballots were unfavourable to the Fiji Labour Party for which the Petitioner stood.”

The Minutes reflect essentially the factual outlines of the election events and voting figures that pertain in each of the 3 Constituencies that are the subject of these Petitions. It also sets out the fact in dispute and legal issues for determination by the Court. These legal issues are the same that is agreed by Counsel to be addressed in the first instance by the Court.

Counsel for the Third Respondents, who had not been a party to the Agreed Facts, argued that he was not necessarily bound by them. Specifically Counsels had raised an additional legal issue that would tend to go to the root of all the 3 Petitions. This refers to the issue of jurisdiction and specifically whether the requirements of the Constitution (s.73 (3)) and the Electoral Act 1998 (ss.144 and 147) had been complied with. Counsel conceded that s.73 (3) of the Constitution as it relates to the Petitioners’ locus standii and the period of limitation have been met. However the requirements of s.144, Counsel contended, has to be satisfied before the Court can proceed to a hearing.

(1) Subject to this Act, proceedings must not be had on a Petition unless the requirements of section 144 and 145 are complied with.

(2) The Court may at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with section 144 (b).

(3) The Court must not grant relief under sub-section (2) unless it is satisfied that -

(a) in spite of the failure of a petition to comply with section 144 (b), the petition sufficiently identifies the specific matters on which the petitioner relies; and

(b) the grant of relief would not unreasonably prejudice the interest of another party to the petition.”

Counsel referred to 2 Cases before our own Fiji Court of Disputed Returns as constituted by the present Constitution that have held that the requirements of section 144 constitute a “code”. These requirements, subject to provisions provided in s.147 (2) and (3), are mandatory. It constitutes a threshold requirement and failure to comply with them is fatal to the petition (See : Cokanauto vs. Sausauwai & Ors. Suva High Court Civil Action No. HBC 0256 of 1999; Cavubati vs Nailatikau & Ors., Suva High Court, Civil Action HBC 304 of 1999).

It is the Counsel for the Third Respondent’s submission that all the 3 Petitions have failed to satisfy the basic requirements of s.144 (a) and (b). The alleged facts and issues relied upon in all the Petitions according to Counsel are devoid of sufficient particulars and details that not only do they offend s.144, but highly prejudicial to the Third Respondent.

I am however satisfied that notwithstanding the apparent deficiencies in some of the factual issues raised in the Petitions, which I shall revert to later, there are adequate details in others to allow the Court to exercise its discretion under s.147 (2). However the relief is not total but only in part.

As conceded by all Counsel, the following are the issues that the 3 Petitions all share and which for convenience, the Court will address in the first instance.

1. Whether the votes cast for parties that did not put up candidates in a particular constituency were valid and therefore correctly included in the count;

2. Whether the ballot papers which had only a single tick beside a party symbol below the line was a valid vote within the meaning of section 116 of the Electoral Act and should have been included in the count; and

3. Whether there are legal grounds for arguing that the verification process of Postal Ballots under s.106 or verification of ballot paper accounts under s.112 require the presence of the Petitioner or her/his agent.

A brief background on Fiji’s new voting system would assist in the understanding of the complexity of the issues that are raised in the Petitions.

The country’s voting prior to 1998, was the well-known “first-past-the post” system. Voters were required to vote for candidates by the simple system of marking their ballot papers with a tick. Whoever obtained the most valid ticks in the election was declared the winner, regardless of whether the absolute majority of votes has been received by the successful candidate.

Following the 1996 Reeves Commission recommendations a new “alternate vote” system based on the Australian Federal House of Representatives election system was introduced. Under this new system, voters are required to express their preferences for candidates by numbering the name of candidates that appear on the ballot papers, in order of their preferences. The successful candidate is the first to obtain 50 per cent plus 1 of the valid votes cast. If no candidate obtains the required majority after the first count or preferences, the candidate that received the least number of votes is excluded, and the ballot papers belonging to that candidate i.e. ballot papers that had given first preference to the excluded candidate, are re-distributed to the remaining candidates according to the Voters’ second preferences indicated on the ballot paper. This process of exclusions and re-distribution of votes continues until one of the remaining candidates has secured the necessary majority.

A new element supposedly to simply the process of voting was also introduced following the recommendations of the Reeves Commission. The process familiar in the Australian Senate Federal elections, is what is commonly referred to as “above the line” or group system of voting. By this method, political parties as well as independent candidates are allowed to file with election officials their recommended order of preferences. There was however a significant modification to the Australian system which was introduced to Fiji’s process. This was the inclusion into the group of political parties that did not offer candidates in any particular constituency. As will be seen from the 3 Petitions, this new element and the question of its legality forms a major part of the Petitioners’ challenge.

The actual ballot paper taking all the modifications on board, is divided into two, separated by a bold line. The names of the political parties and individuals who have lodged their order of preferences with the Supervisor of Elections, appear on the top half of the ballot, while the individual candidates’ names and their party’s or individual’s symbols appear on the lower portion of the ballot.

When a voter enters the booth she or he has a choice of personally distributing her or his preferences for the individual candidates by individually numbering each of them below the line, or go for the simplified means of voting by placing a tick above the line and thereby adopting a political parties’ or candidates’ recommended distribution preferences; thus the “above the line” and “below the line” voting system.

It is sufficient at this juncture to note that the new alternative voting system recommended by the Reeves Commission was accepted by the Joint Parliamentary Select Committee that was appointed to consider the Commission’s report and subsequently entrenched in the Constitution. Section 54 of the Constitution states :

(1) The election of a member of each constituency is conducted under the preferential system of voting known as the alternate vote.

(2) The Parliament may make laws relating to elections for the House of Representatives.”

Issue 1: Whether the Votes Cast by Parties, which did not put up candidates in a Constituency ought to have been included in the count.

All the 3 Petitioners argue that the inclusion of political parties list of order of preferences in constituencies where they do not have candidates offends against the constitutional requirements that Members of the House of Representatives be elected from the candidates nominated in a constituency and that the voters vote for actual candidates. A voter who ticks next to the symbol of one such party and not for a candidate nominated for that constituency, amounted in fact to a vote for a party not a person. This was, in the Petitioners’ submission, unconstitutional.

Furthermore, the Petitioners content, that section 46 and onwards of the Electoral Act 1998 speak only of nomination of individuals. Such individuals are required to pay deposits. Under section 59 of the Act, a candidate either for a party or one individual is allocated a symbol registered with the Supervisor of Elections. All of these, in the Views of the Petitioners tend to illustrate very clearly that the Fiji system of election is “candidate-based” system set up by the Constitution and supported by the Electoral Act.

The Petitioners further submit that the inclusion of parties without candidates is contrary to section 61 of the Electoral Act, as amended.

“61-(1) A registered political party may, in respect of any constituency in which it has endorsed a candidate lodge with the Supervisor a list of candidates showing the order of preference in which the registered party would like to see the candidates placed by the voters in that constituency.”

The amended section 61(1) has deleted the underlined phrase. According to the Petitioners, notwithstanding the amendment, a party is still not at liberty to file its list in a constituency where it does not offer any candidate. Even the fact that where, as in section 61(5) of the Act, the Supervisor is required to cause the list to be published and affixed to the outside of every polling station, does not, the Petitioners submit, permit the party without a candidate, from submitting its list.

In their general submissions all the 3 Petitioners say (p.12 of John Ali’s Petition; p.9 of Joeli Kalou’s Petitions; p.9 of Lavenia Kau Padarath’s Petition):

“With respect to the decision to allow preferences by Parties who had no candidate in this constituency by the First and/or Second Respondent has led to certain irrational consequences. Preference of a political party have been counted thereby affecting the result despite the fact they fielded no candidates. It reduces the value of below the line vote and the positions option to those voting below the line and this also leads to certain illogical and unfair consequences. We respectfully submit that these ballots should have been excluded from the count.

We submit that to allow registered political parties to influence the voting in a particular seat without lodging the candidates would do violence to the candidate based system established by the Constitution and the Electoral Act. It leaves the room open for mischief and militates against the overall electoral scheme. It maybe that the removable (sic: removal) of those words by amendment of Section 61 was intended to have the purpose but we submit that would require a far more substantial amendment (perhaps including amendment of the Constitution). The omission of the words in Section 61(1) as mentioned above does not give power to include parties without candidates to be put on the ballot paper.”

Counsel for the Petitioners referred to Faiz Mohammed Khan Sherani vs Latchman & Ors. 14 FLR 31, as authority for the Court not to depart from the natural meaning and clear words of section 61 (as amended). There the Fiji Court of Appeal held (p.32) :

“Where the language of a statute leads to inconvenience, absurdity, hardship or injustice presumably not intended by the legislature, a court may, in appropriate circumstances, depart from the natural meanings and grammatic construction, and even clear words may be made to give way to sense.”

The Petitioners argue that the Court should construe section 61(1) narrowly to coincide with the overall purpose of the Constitution and the Act. In so doing, the Court will not cause inconvenience hardship or injustice. In other words, the interpretation of s.61(1) which allows political parties to file their preferences without offering a candidate in any constituency, the Petitioners submit, necessarily militates against the overall purpose of the Constitution and the Electoral Act.

Counsel for the First and Second Respondents submitted that the inclusion of list of preferences of political parties in constituencies they do not themselves offer candidates, was in accordance with section 61 of the Electoral Act 1998 (as amended). It was, in the Counsel’s view, the clear intention of Parliament in enacting the amendment to section 61 of the Act (Act 12 of 1999) to allow and indeed enable political parties to lodge their list of preferences with the Supervisor of Elections for any constituency whether they offered candidates in them or not.

Counsel for the Third Respondents in each of the 3 Petitions supported the First and Second Respondents’ contention that upon the plain meaning of section 61 (as amended) there was no other interpretation to be placed on the section but the fact that parties were allowed to lodge preferred list of candidates anywhere. The deletion of the phrase “in which it has endorsed a candidate” from the old section 61(1) was a deliberate act of Parliament to give effect to such intentions. The Third Respondents in support of this argument, referred to the Objects and Reasons for the Bill for the Amendment, which sets out very clearly that the intention of the amendment was to extend the right to appear above the line on Part II Ballot Papers to parties that were not contesting in the Constituency. The Objects and Reasons also points to the rationale of the amendment stating that the retention of the phrase will tend to inhibit the promotion of vote pooling arrangements between the political parties and in the process discourage the formation of multi-party governments. In addition the Third Respondents point to the intervention of the then Prime Minister, Sitiveni Rabuka in introducing the Amendment Bill to the House of Representatives on 14 February 1999 (Uncorrected Hansard), in support of the interpretation of s.61 to be favoured. I will refer to this intervention later.

Finally the Counsel for the Third Respondents invited the Court to follow the decision of Gates J in Krishna Prasad vs Rupeni Nacewa & Ors HBC 269 of 2001L in which the Court decided that the inclusion of parties which did not field candidates but, which lodged a list of preferences on the portion of the ballot paper “above the line” was authorised by the amendment made to section 61of the Act by the Electoral (Amendment) Act 1999.

There is no doubt that the new Voting System introduced in the 1997 Constitution has meant a very big change to the thinking and behaviour of the Fiji Voter. Gone was the very simple system of placing a tick besides the name of a candidate. In its place, a voter is confronted with an “either or” proposal. While it may at first appear as a simple matter of choosing one or the other, it is not so easy as it seems to an average voter. It is true that there have been public education programmes organised by the Supervisor of Elections to teach the voters how to vote. The fact of the matter is an average Fiji voter is confronted with a split ballot paper with instructions in the English language to either vote at the top or at the bottom, with different system or style of voting for the top (a tick) from the bottom (applying a number against every candidate but alongside a box bearing the symbol of the party or the individual candidate) and then finally finding out that the numbers of boxes below do not correlate to those in the “above” portion of the ballot paper.

It is not beyond one’s conjecture that given the varying options and instructions that a voter is confronted with, that it is almost inevitable that mistakes were going to made which have in turn directly resulted in the high percentage of invalid votes cast. It is no source of satisfaction to anyone to know that such a high percentage of invalid votes had been recorded for the second successive elections under the new Constitution. If anything, it is an indictment of election process and system that by design became convoluted rather than elaborate.

Gates J in the Krishna Prasad case also underlined some disquietening aspects (at page 11 of the judgment) of the new Voting System and especially what the modification 1999 amendment to section 61 of the Act introduced to the political parties’ role in influencing the voters. It is a concern this Court also shares.

A necessary corollary to the exercise of an individual’s right to vote in a democracy, must be her or his right not to vote for a particular candidate. Such rights to either tick or place a number alongside the name of a candidate is personal t o the voter. It seems to me that to allow a political party to make the selection from the list of candidates in order of priority and for the voter merely to place a single tick alongside the symbol of the party and thereby completes one’s duty to cast a vote such as it is in an alternate vote system of elections, is tantamount to cession of one’s right to vote and more importantly choose individual candidates.

Be that as it may, the question before the Court is whether the votes that were cast for parties in constituencies where they had not fielded candidates should be included in the count.

Counsel for the Respondents argue that the 1999 amendment to s.61 of the Electoral Act was specifically enacted to allow for such eventuality.

The Objects and Reasons for the Bill amending section 61(1) of the Electoral Act and referred to by Gates J at p.11 of his judgment would seem to indicate very precisely the general object and reason which tends to support the Respondents’ arguments.

In introducing the Amendment Bill to the House of Representatives oon 14 February, 1999 the then Prime Minister, Sitiveni Rabuka had this to say (Uncorrected Hansard).

“Hon. Major-General S.L. Rabuka - Sir this Bill is important as part of our preparation towards the general elections in May this year. These elections will be the first under our new Electoral Act which we passed last year (and is now Act No.18/98), to implement provisions of the new Constitution of the Republic of the Fiji Islands related to elections.

In our new electoral system, we have incorporated several interesting new features. One of them is the listing of preferences by political parties. This arises out of the alternate Vote System which require voters to place candidates in a list of preferences. Traditionally, political parties have encouraged their supporters to vote in a particular way by placing a tick against their preferred candidate. That is no longer correct and voters will now need to place candidates in order of preference by placing numbers against the names of these candidates. This system is being modified in the Fiji Islands in order to simplify the voting procedures and to give political parties an appropriate role in the electoral process.

What we have included is the above-the-line and below-the-line system which means that voters can either tick a box above the line or place numbers below the line. Below the line is the list of candidates, above the line are symbols of the political parties to which they belong. A tick for the party above the line means the voter is voting for the candidates in the order of preference lodged with the Supervisor of Elections by that party. When the votes are counted, a tick for the party above the line is treated as placing candidates in the order listed by that party.”

After having discussed the then existing section 61 of the Act, the then Prime Minister explained the reason behind the Amendment thus :

“The Legal Select Committee on Constitutional Consequential Amendments take the view which is shared by Cabinet, that the formation of coalitions and the negotiation of seat sharing arrangements would be inhibited by these limitations as parties may be reluctant to share seats if they cannot be sure how their voters will vote. The solution is for parties to be able to lodge orders of preference and for their symbols to appear on the ballot paper in every constituency if they so wish.”

The Counsel for the Third Respondent also invited the Court to take judicial notice of the Reeves Commission’s report in its stated criteria used for evaluating an appropriate voting system for Fiji. At paragraph 10.29 of the Report it states :

“10.29 The consistent theme of this report, developed in Chapters 2 and 3 and sustained throughout, is that the encouragement of multi-ethnic government should be the overriding objective of constitutional arrangements for the Fiji Islands. It must therefore appear at the head of the list of criteria. The Voting System must be one that promotes the emergence of multi-ethnic governments.”

“10.53 We evaluate the ability of the AV System to promote the goal of multi-ethnic government by looking at the extent it encourages cooperation amongst parties based in different communities, or support for a multi-ethnic party, through vote pooling. We therefore look at whether voters will have both the opportunity and incentives to vote for some candidates not of their own ethnicity.

10.54 Obviously the best method of inducing vote-pooling is to avoid inter-ethnic competition. A multi-ethnic of pre-election coalition can put up a multi-ethnic slate of candidates. Ethnic parties based in different communities can agree not to contest a particular seat in a constituency where one community is outnumbered, in return for a corresponding favour in another constituency where the same community predominates. Such arrangements are more likely to be made between moderate parties than between those with extreme policies.”

It seems clear from one’s reading and understanding of the Objects and Reasons of the Amendment Bill of 1999 amending S.61 of the Act together with excerpts from the Hansard on the debate in Parliament in the introduction of the Bill, that there can be no other interpretation put on the amendment then the plain meaning of one’s reading of the section. The Reeves Commission’s criteria analysis of the intention and general objective of the A.V. System, gives weight to the argument advanced by the Respondents in that not only should the section be given its plain and ordinary meaning, but in so doing the Court would be acting in accordance with the Constitution and its objects and spirit.

I am persuaded by Gates J’s conclusion in the Krishnan Case, notwithstanding the views this Court may express on the Fiji’s new Voting System and its efficacy, that other jurisdictions that have similar electoral laws have upheld the election procedure as validly giving the voters the same right to vote and choose albeit in the case of latter a somewhat indirect one. Gates J also usefully referred to the Australian decision McKenzie vs The Commonwealth of Australia & Ors. [1984] HCA 75; (1985) 59 ALJR 190 where a similar provision to our section 61 came under scrutiny. There the plaintiff submitted firstly, as is the case of the Petitioners in the present proceedings that the electors who used the voting ”above-the-line” were in fact voting for the parties and not for the candidates contravened S.16 of the Constitution which provided for the qualification of a senator. Secondly, the plaintiff argued, the provision disseminated against individuals who were not members of any political party. Gibbs C J found in respect of the first that it was not right to say that the Constitution forbid the use of such a system. No indication of its prohibition is contained anywhere in the Constitution. As to the second, the learned Chief Justice said :

“In my opinion, it cannot be said that any disadvantage caused by the sections of the Act now in question to candidates who are not members of the parties or groups so offend democratic principles as to render the sections beyond the power of the Parliament to enact.” (P.191)

Earlier the Court in the McKenzie Case had referred to Stephen J’s judgment in Attorney-General (Cth); Ex rel. McKinlay vs. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 who at pp.57 - 58 stated that

“It is not for this Court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government and is within the power conferred by S.51 (xxxvi) of the Constitution.”

I have no doubt that there can only be one way to interpret S.61(1) of the Electoral Act if it is to accord with S.71 of the Constitution. It is that the section 61(1) allows political parties to lodge with the Supervisor of Election their list of candidates in constituencies where they are themselves not represented by candidates.

Accordingly, I rule that the votes cast by parties that did not put up candidates in a constituency are valid. These parts of the 3 Petitions are hereby dismissed.

Issue No. 2: Whether the ballot papers which had only a single tick beside a party symbol below the line was a valid vote within the meaning of the Electoral Act and should have been included in the Count.

All the 3 Petitioners submit that a single tick below the line should have been treated as a valid vote within the meaning of sections 75 and 116 of the Electoral Act, and in particular section 116(3)(d). Briefly section 75 instructs the voter what to do if she or he is handed a Part I ballot paper (below the line), or Part II (above the line).

Section 116 represents the law makers attempt to save votes that would have otherwise being declared invalid, except that the intentions of the voters seem very clear from looking at the ballot paper.

Section 116(2) sets out four (4) scenarios that are most likely to result from the exercise of one’s vote under Part I ballot paper and what the Returning Officer’s decision should be in each of them.

Scenario 1 (S.116(2)(a))	A voter indicates first preference and continues thereafter excepting the last block against a candidate which the voter leaves blank.
	Decision : A valid vote. It should be assumed that the voter intended the unmarked candidate’s block to be her or his last preference.
Scenario 2 (S.116(2)(b))	There are only 2 candidates and the voter indicates first preference for one but leaves the second blank or put a number other than 2 against the second candidate.
	Decision : A valid vote. It should be assumed that the voter has clearly indicated her or his preference.
Scenario 3: (S.116(2)(c))	There are 3 candidates and the voter indicates first and second preferences, but leaves the third blank.
	Decision : It is a valid vote for the same reason as Scenario 2.
Scenario 4 (S.116(2)(d)	There are 4 or more candidates and the voter has indicated her or his preference in order, with no repetition of numbers, but has left unmarked up to 25 per cent of the squares opposite the names of candidates.
	Decision : A valid vote. The voter’s preference is clearly indicated from number 1 through to 75 per cent of the list.

Section 116(3) deals with Part II ballot paper and again usefully illustrated with the following scenarios:

Scenario 1 (S.116(3)(a)	A voter places numbers opposite individual candidates and Part I is not infringed.
	Decision : A valid vote.
Scenario 2 (S.116(3)(b)	Under Scenario 1 the ballot paper is invalid but the voter has in addition, ticked a box above the line (representing political parties and independents which/who had already lodged list of preferences).
	Decision : A valid vote. The order of preference of the box above the line applies.
Scenario 3 (S.116(3)(c))	The ballot paper is deemed valid under Part I but in addition, the voter has gone ahead and placed a tick or ticks opposite one or more political parties or individuals above the line.
	Decision : A valid vote (under Part I)
Scenario 4 (S.116(3)(d))	A voter does not place any numbers opposite the candidates’ names, but nevertheless places a tick in a box above the line.
	Decision : A valid vote. The list of preferences lodged by the political party or individual applies.
Scenario 5 (S.116(7)(e))	A voter does not vote below the line, but ticks more than 1 box above the line.
	Decision : An invalid vote.

Finally section 116(4) clarifies that any repetition of a number, whether they be in sequence or consecutive, will be disregarded and these including those that follow will be deemed invalid.

The issue for this Court to decide is whether the tick placed opposite a candidate’s name to the exclusion of others that is leaving blank the blocks opposite all the other candidates, falls within one of the scenarios envisaged under Section 116(3) and consequently be considered valid.

The Petitioners in their submissions all argued that a ballot paper with a tick beside a candidate’s name and party symbol below the line is a valid vote and should have been counted in accordance with the party’s preferences lodged with the Supervisor of Election as required under Section 61. They added that

“The Electoral Act recognises that there are voters who are illiterate and makes provision for votes to be valid when the intention is clear.” In their view, “nothing is clearer than a single tick against the symbol of the symbol of the FLP and/or the Petitioners’ names even when the vote is below the line.”

Counsel for the Petitioners expounded in details the law relating to the rules of interpretation and what this Court ought to follow in interpreting the so-called single tick below the line and Section 116(3)(d). In Amalgamated Society of Engineers vs Adelaide Steamship Co. Ltd. (1920-21) 28 CLR 159, Higgins J said (at pp.161-162) :

“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and where we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think that the result to be inconvenient or impolitic or improbable.”

Counsel for the Petitioners contended that Section 116(3)(d) should be interpreted liberally and “in a way that gives it meaning and in accordance with the intent of Parliament”. As to the intent of Parliament, Counsel referred to the debate in Parliament on 25 March 1998, when the Electoral Bill was being introduced by the then Prime Minister, Major-General Sitiveni Rabuka. On Section 116, he had this to say, (Uncorrected Hansard P.1938) :

“Mr Speaker, Sir, the question of whether a ballot paper is valid or invalid is, of course, of great importance and also attracted much of our attention on Monday afternoon, especially when a new system of alternate voting and above or below the line voting is being used for the first time. The principles in Clause 116 of the Bill follows established rules in countries where the alternate vote system are currently being system (sic: used).

There is an overriding principle that so far as possible, a ballot paper will be treated as valid but I would encourage members of the public to familiarise themselves with the correct method of making ballot papers so that a few papers as possible will be rejected.”

The Petitioners also referred to American cases of Reynolds vs Sims 377. US 554 and Westbury v Sanders 376 US1, 84 SCT 536 to illustrate how the Courts view the importance, of ensuring that the exercise of the individual’s right to vote is not unduly restricted by impreciseness of legislation.

In summary the Petitioners’ argument is that the single tick against their names and the FLP symbol below the line, should be construed as if the tick is above the line against the FLP symbol. In other words, Section 116(3)(d) should be read and interpreted as allowing a voter who has placed a single tick below the line and therefore fails to be saved by one of the 4 scenarios in Part I ballot paper, to have her or his vote treated as belonging to the class of votes under which Section 116(3)(b)(ii) applies.

There is support for this view in our own Court of Disputed Returns decision of Gates J on 8 February 2002 in the Krishna Prasad Case. The Court in that case first compared the simplicity in which S.116(3)(e) is drafted to the more convoluted S.116(3)(b)(ii). By so doing the Part II ballot paper becomes almost unnecessarily intermingled with Part I ballot paper which is enough to cause confusion if not to the officials then certainly the voters of the country.

Gates J in Krishna Prasad Case took the view that section 116 is mandatory and states as follows (p.24):

“I have approached this interpretation on the basis of the Act being a code, and I interpret section 116 to be mandatory rather than directory. I have arrived at a decision that the ballot papers marked with a simple tick below the line should not have been discounted as invalid, by looking solely at the mandatory instructions of the Electoral Act 1998".

Gates J then referred to the decision of Rooney J in Rakha vs The Returning Officer (Lautoka Indian Constituency) Civil Action No. 289 of 1985, where the Court, with assistance of English authorities per Lord Denning MR in Rutle vs Rodgers (1982) 3 WLR 143 and our own FCA in Maan Singh vs Town Clerk of Suva & Or. (Unreported) Fiji Court of Appeal Civil App. No. 23 of 1984 per Speight VR, emphasised the need to exercise vigilance to protect the voter’s right in circumstances where the intention is clear but for minor technical infringements of the voting instructions. Finally the Court cited various US authorities (Greidlinger vs Davis 9887 Fed 2nd 1344 (4th Cir. 1993); Reynolds vs Sims 377 US 544; and Wesberry vs Sanders 376 US1 [1964] USSC 31; 84 SCT 526) in support of the right in a democratic society to have and enjoy the freedom to choose those that govern. This right of suffrage is unfretted and cannot be denied or impeded when the voter’s intention is clear, by mere technical error. The Court at the end decided that the ballot papers marked with a single tick below the line should not have been declared informal. Instead the 1278 votes falling into this category were to be counted in accordance with the preferences lodged by the Petitioner’s party (“above the line”).

While I have followed very carefully the Court’s arguments and reasoning in the Krishna Prasad Case, I regretfully and respectfully have to differ from its conclusion and ultimate finding.

The concept of preferential system of voting or alternative vote as entrenched under section 54 of the Constitution envisaged a very elaborate and deliberate system of voting. There is a detailed legislature framework for such alternative vote as contained in sections 75 and 116 of the Electoral Act. These sections certainly provide the “code” under which the Fiji voter was to be adjudged. The comprehensiveness of the scheme strongly suggests that these provisions, as Gates J found in Krishna Prasad’s Case, are mandatory. There can be no room for manouvering even to the extent of applying the common law approach that would give a directory interpretation as to the manner and style of voting. For example, the common law rule as recognised in Woodward vs Sarsons [1875] UKLawRpCP 68; LR 10 CP 733 would have allowed incorrectly marked ballot papers to be treated as valid so long as the intentions of the voter to vote for a particular candidate is clear. Should the single tick below the line be construed in the same way? To do so strikes at the very heart of the election system and voting method that had been crafted and designed for the country and introduced under the new Constitution.

Having held that sections 75 and 116 are mandatory, there cannot surely be any possibility of entertaining the common law approach of attempting to interpret voter intention. The whole voting scheme would fall apart if such an approach were to be favoured.

The learned Counsel for the 3rd Respondents has referred the Court to the Supreme Court of New South Wales case of McBride vs Graham (1991) (unreported) which Gates J also referred to in judgment. There the Court also sitting as a Court of Disputed Returns had to rule on a similar situation. The New South Wales ballot papers were also in Part I and Part II Ballot Papers, with the voter being required to number the paper.

The Petitioner in McBride Case submitted that ticks on a ballot paper used for an alternative vote election, should be treated as valid. The Court per Slatery A J said (at p.64):

“I reject the petitioner’s submissions that the use of ticks and crosses on a ballot paper is a valid way to record a valid first vote for a candidate.

A matter which has always been at the forefront of the issues of the petition of Mr McBride and which has been averted to, is whether the current statutory provision as to the manner in which a voter is to mark a ballot paper is mandatory or directory. Mr Hely submitted that the statutory requirement to record a vote in the manner directed was mandatory.

On my construction of the Act, marks, e.g. an oblique stroke or other symbols and a tick or a cross are not valid ways of casting a vote for the election of a member of the Legislative Assembly. My opinion that the requirements of the Act regarding a vote are mandatory and not directory confirms this construction.”

“Decisions of courts in countries outside Australia e.g. New Zealand and England, as to whether provisions about the manner of voting are mandatory or directory differ from Australian decisions. Without examining the authorities here it could be said that this is due to different Legislation.”

“Whether a statutory provisions about the manner in which a voter marks a ballot paper is mandatory or directory requires a consideration of the subject matter of the relevant statutory provisions, their amendments and general object of the Act.

The nature and extent of the relevant sections and amendments regarding the manner of voting have been traced at some length elsewhere in this judgment.

On an examination of the scheme of the Act and its language, I am satisfied that the provisions as to the manner in which a voter is to record a vote is mandatory. The Act directs that the only way a voter is to show a first preference is by marking a ballot paper with the number “1". If it is not so marked it is informal and should be rejected at the scrutiny.” (emphasis added)

Clearly, the decision is McBride is relevant and persuasive to the 3 Petitions before this Court. The New South Wales Court of Disputed Return distinguished the English and New Zealand authorities on the simple basis that the legislative provisions in these countries were different:

The same is certainly the case for Fiji. No longer do we have the first past the post system of voting and for which the common law rule providing directory interpretation on the manner of voting apply. In its place, we have an alternative vote system build around a detailed “code” to be found in sections 75 and 116 of the Electoral Act.

This Court is further persuaded by the argument for the exclusion of the common law “intention” rule in favour of the mandatory interpretations by the changes to the earlier Electoral Regulations. Regulation 55(2) of the Electoral Regulations made under the Electoral Act 1971 provided:

“(2) Notwithstanding anything contained in regulation 34, if a returning officer is satisfied that the intention of a voter is clear beyond reasonable doubt, he may at his discretion accept and count as valid the ballot paper of such voter, and the decision of the returning officer shall be final.” (emphasis added)

The new equivalent, Regulation 81 of the Electoral (Conduct of Elections) Regulations 1992 states:

shall not for such reason be deemed to be invalid or uncertain if, the returning officer is satisfied that the intention that the vote be one or other of the candidates clearly appears beyond reasonable doubt, and the way that the ballot paper is marked does not of itself identify the voter and it is not shown that he can be identified by it”. (emphasis added)

The difference is the wording of the 1971 Regulation 55 to Regulation 81 of 1992, is a reflection of the changes that have been made to Fiji’s system of voting. The previously existing discretionary powers of the returning officer to include questionable ballot papers on the basis of perceived intentions, has been in the Court’s view, taken away by the combined effects of Regulation 81 and section 116. At the end, it cannot but leave no doubt whatsoever that it was Parliament’s intention to exclude the common law rule from the new system of voting.

The issue of voter intention has extensively been canvassed by Counsel in their submissions. Under normal circumstances, the intention of the voters can only be ascertained from the face of the ballot paper itself. It is true, as the learned Counsel for the Petitioners argued, that in the Fiji context there would obviously be voters who are illiterate, and in section 116 Parliament gave due recognition to it. The question surely is, should the returning officer, treat for example, all the single ticks below the line as authored by illiterate voters and attempt as best as one can to deduce intentions. What about the voters who do so deliberately not only to cast invalid votes but to protest at the new electoral system? After all, they could not very well stay away since they are required by law to vote. The danger therefore is, by treating favourably the single tick below the line, the Court is drawn to a delicate situation of possibly treating such ballot paper against the intention of the voter.

In Bush vs Gore 531 US (2000) the United States Supreme Court was confronted with the similar problem of ascertaining the intention of the voter, although the Florida State ballot papers were in fact ballot cards designed to be perforated by a stylus. Either through error or omission some cards had not been perforated with sufficient precision and against candidates names, for the machine to count them. Instances where a piece of card (“a chad” as it became famously known) were left hanging, and only indentation of sorts instead of separation, were numerous.

The US Supreme Court (majority decision) having found that the recount mechanisms of the State “do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right” added (p.5):

“The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered a vote during the machine count. The fact finder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.”

On further observing that in following a general statutory rule, standards for accepting or rejecting “contested ballots” is bound to vary from one county to another, the Court conceded that only the legislature can make rules about finding out the intention of the voter. But, it added that such rules should be capable of uniform application to protect the voting rights of its citizenry.

It could very well be that the wordings of S.116 may require refinement, but there is no doubt as to its purpose and object. The section lays down specific standards that can be strictly and uniformally applied without breaching the right of an individual to vote. This Court would be reluctant to even begin to contemplate intruding into the role of the legislature in re-defining the shape and form of Fiji’s electoral laws.

Finally in respect of this issue, Counsel have referred to the recent decision of the Supreme Court in Prem Singh vs Krishna Prasad CBV00001/2002S, where the Court unanimously rejected Gates J’s interpretation of S.116(3). On its application to S.75 the Court (majority decision) stated: (pp.16-17)

“Section 75(2)(b) is subject to S.116(3), but only in a limited way. In general, to cast a valid vote a voter must not state both a numerical order of preference and place a tick opposite the name of a registered political party or independent candidate; but S.116(3) provides a limited dispensation. Nothing in S.75 however enables S.116(3) to authorise a departure from the requirement that a tick, to be valid, must be placed in one of the boxes which appear at the top of the ballot paper.

The names of the registered political parties appear only to the top half of the ballot paper. Even without recourse to S.75(2)(b), there would be a strong argument that S.116(3)(b)(ii) applied only to the top half of the ballot paper. But when S.75(2)(b) is taken into account, the argument becomes conclusive. No other interpretation is possible.” (emphasis added)

The Rt. Hon. Dame Sian Elias, delivering her minority judgment agreed that there can be no other interpretation to S.116(3)(d) than as prescribed to it by reference back to S.116(3)(b)(ii). In her view the Court of Disputed Return was clearly in error on the interpretation and added (p.18).

“The error was material. The declaration the Court made as to the result of the election was based upon it. The error was also substantive. It was not a consequential or collateral question of law. It was integral to the function exercised by the Court of Disputed Returns. The error of law meant that the judge asked himself the wrong question in carrying out his responsibilities, with disfranchising effect for those whose valid votes counted equally with invalid votes.”

Counsel for the Petitioners submit that the views of the Supreme Court on Gates J’s judgment is obiter as indeed the majority of the Court acknowledged, and this Court should not consider it as binding in its present deliberations. I am however mindful of the provisions of the Constitution that tend to suggest otherwise. Specifically section 122(4) states:

“(4) Decisions of the Supreme Court are, subject to sub section (5), binding on the Courts of the state.”

Sub-section 5 merely allows the Supreme Court to review its own judgment, pronouncement or order.

It would seem to me that while the utterances of the Supreme Court on the issues before this Court, were deemed obiter dicta, the issues are grave matters of state that affect the very fundamental and human rights of Fiji’s citizens, that this Court or any other for that matter, would be unwise not to follow. At the very least the Supreme Court’s views are powerfully persuasive.

In the ultimate, I find the issue 2 whether the single tick below the line ought to be included as valid vote, in the negative. These parts of the Petitions are therefore dismissed.

Issue 3 : Whether there are legal grounds for arguing that the verification process of the Postal Ballots under s.106 or of ballot paper accounts under s.112 require the presence of the Petitioner or her/his agent.

I now turn to the verification of the ballot papers and the 3 Petitioners’ allegations of procedural anomalies, the details of which are set out above.

There are two processes of verification under the Electoral Act 1998. There is firstly the verification of postal ballot papers required under section 106 of the Act. The second is the verification of ordinary ballot papers, referred to as “verification of ballot paper accounts”, and governed by section 112.

Lavenia Kau Padarath’s petition alleges unverified and/or improperly verified postal ballot papers that were included in the Count. Some 89 postal ballot papers on Tuesday 4th September 2001 and an additional 511 from a postal ballot box brought in the next day 5th September, were all included into the common bin and counted. The Petitioner alleged that these 600 postal ballot papers were not verified in accordance with the requirements of s.106 of the Electoral Act. The Petitioner contended that contrary to the requirement of the Act, neither she nor any of her agents were present at the time the envelopes containing the postal ballot papers were opened by the returning officer. While the Petitioner does not specify the provisions of the Act she is relying upon the Court can only assume that her submission is based on alleged non-compliance with section 106 of the Act. I shall refer to the other process later.

Under s.106 (1) the returning officer is required to prominently display a notice in writing of “the day time and place at which postal ballots will be verified.”. In addition sub-sections 2 and 3 states:

“106-(2) After the close of the poll in a constituency, on the day and at the time and place referred to in sub-section (1), the returning officer must produce unopened all envelopes containing postal ballot papers received before the polling day, or if the writ specifies dates between which the poll is to be held, the last polling day for the election in the constituency to which the postal ballots relate, and those envelopes must be opened in the presence of the candidates or their counting agents (if any) if they wish to be present.”

“(3) The following persons and no others may be present at the verification of postal ballot papers –

These provisions taken together clearly establishes, in the Court’s view, that the presence of either the candidate or one of the agents, at and during the verification of the postal ballots, was not obligatory. The legislature, with the use of the word “may”, in s.106(3), can only be presumed to intend that the process be permissive not mandatory. It would seem to me that the whole object of the Scheme of verification of postal ballots envisaged under s.106 is not only to ensure that each ballot paper is valid, which the returning officer is required to independently evaluate and decide, but that such process must be expeditiously carried out and in so doing contribute to the efficient counting of the ballot papers. That is possibly why under s.107 of the Act, the decision of the returning officer is made final.

In the Court’s view, so long as the returning officer has fulfilled her or his duties required under s.106 then the verification of postal ballots may legally proceed with or without the presence of a candidate or her or his agent.

But even if the allegation by the Petitioner of verification procedural anomalies refer to s.112 requirements, the Court is of the view that the construction of s.111 (who may be present at the count) must be given the same permissive interpretation held in respect of s.106.

Furthermore, the Court is convinced that the verification of ballot paper accounts required under s.112 do not apply to postal ballot boxes. The section refers only to “the ballot boxes and packets received from each polling station” and no other.

While there may be specific facts that the Petitioner will allege that supports her submissions on irregularity of verification process, there is no particular claim that these ballot papers were invalid or included informal votes; only that the candidate or her agent was absent from the process.

In Cole vs Lacey [1965] HCA 11; [1964] 112 CLR 45, the High Court of Australia sitting as the Court of Disputed Return was confronted with a similar situation. There the Petitioner alleged that

“No complete scrutiny of the votes was conducted by or on behalf of the candidates and your Petitioner says that on such a complete scrutiny, a greater number of ballot papers would be rejected as informal.” Taylor J delivering the judgment stated: (p.49):

“I confess to some difficulty in appreciating the precise meaning or relevance of the first part of this paragraph but I take it to acknowledge that scrutineers appointed by the respective candidates exercised their rights under Pt XIV of the Act to some unspecified extent but either that they were not present during the whole period of the counting or that in some other manner they failed to exercise their rights to the fullest extent. To what extent this occurred is, however, left to speculation. But there is no suggestions in the Petition that any scrutineer objected to any ballot papers or class of ballot papers nor is there any direct allegations that any informal votes or classes of informal votes were admitted.”

There is in addition, considerable legal authorities sufficiently summarised in Ambrose J’s judgment in Gary Bernard Fenlon vs. Ted Radke & Electoral Commissioner of Queensland [1995]
QSR 292 to support the proposition that the Courts all over are reluctant to declare formal votes informal through disregard of some statutory requirements by election officials.

In my view, upon the proper construction of the Electoral Act and specifically the verification provisions of sections 106 and section 112, the facts alleged by the Petitioner cannot at law amount to a breach of duties on the part of the returning officer.

I turn next to Joeli Kalou’s petition on the same issue of verification anomaly allegation. Again as in the Lavenia Padarath’s Petition, the “irregular and unsatisfactory” verification process is with regards to the postal ballots. The particulars are set out above but essentially the allegation relates to two (2) postal ballot boxes which were brought in on 6 September 2001, one containing 75 ballot papers the other 508.

“There was no verification process held for these Ballot Boxes and the verification of a total of 583 ballot papers was unsatisfactory in that the Application for Postal Vote appeared to be photocopies and/or faded and/or unclear and there was no reasonable possibility of identifying the signatures.”

The law applicable to verification of postal ballots under s.106 and ballot paper verification accounts under s.112 has already been fully explored in the Lavenia Padarath petition.

It is sufficient to reiterate that while sections 106 and 112 recognise the right of a candidate or her or his agent to be present at the verification process, absence of either from its conduct, will not of itself make the action of the returning officer unlawful nor will it constitute a breach of the requirements of the Act.

Insofar as the allegations of irregularity of the verification of postal ballots and ballot papers accounts contained in Joeli Kalou’s petition are based on the same alleged factual situations as those in Lavenia Padarath’s petition, this Court is drawn to the same conclusion as in the latter.

There are however additional and specific alleged facts contained in paragraphs 13 (b) (iii), (iv), (v) of Joeli Kalou’s Petition. But the alleged facts are not clear and enough for the Court to determine whether they represented sufficient grounds to constitute breaches of any legal requirement under the Act. At worst they, in the Court’s view, constitute mere procedural irregularity by the returning officer. At any rate the insufficient particulars of these allegations, would certainly fail the requirements of section 144 (a) of the Act.

Finally I deal with John Ali’s petition on verification. The particulars relate to postal ballot papers and are specified in paragraph 12 (b) (i) and (ii) of the Petition. As to 12 (b) (i), the claim that a postal ballot box “shown to the Petitioner’s agent to be complety empty was fully sealed” is unclear. It lacks any details that would tend to show that the action was illegal or in breach of the law.

The Petitioner further alleges that on 5 September, a Postal Ballot Box was introduced and opened. It contained 424 ballots. The Petition stated that “The Petitioner or his agents had no opportunity to verify these ballot papers;” hence his submission of non-verification.

As has been fully explored and decided in the Court’s deliberation in the other two Petitions, the absence of a Candidate or her/his agent does not provide any legal impediment to prevent the Returning Officer from proceeding with the verification process. The fact that the Petitioner or agent was not present at the process cannot operate to invalidate the process nor the very ballots in question.

In summary, therefore in respect of the legal issues posed by the 3 petitions, the Court decides as follows :

1. On Whether the Votes given above the line in respect of the Parties which did not put up candidates in the Constituency but appeared on the Ballot Paper, were valid and ought to have been counted.

The Court finds the ballot papers valid and were properly included in the count.

2. On whether the ballot papers which had only single ticks beside the names of candidates and party symbols below the line, were valid within the meaning of s.116 of the Electoral Act and ought to have been included in the count.

The Court finds the ballot papers invalid and were properly excluded from the count.

3. On whether there are legal grounds for arguing that the verification process of Postal Ballots under s.106 or verification of ballot paper accounts under s.112, require the presence of the Petitioner or her/his agent.

The Court does not find any legal support to such an interpretation of the two sections.

Having ruled against the Petitioners on the preliminary legal issues, the question is whether there is, sufficient grounds remaining in the two Petitions of Joeli Kalou and Lavenia Kau Padarath, to allow them to proceed. Those that are left, are basically allegations of facts which can only be substantiated at a hearing.

The Court is however minded that in deciding whether to proceed to a full hearing, it must be guided by the proposition that sufficient number of ballots remain in contention which will affect the results of the election. (See (Gary Bernard Fenlon Case (supra)

In respect of Mrs Lavenia Padarath petition, a total of 600 “unverified or improperly verified postal ballots” were alleged to have been included in the count. The Petitioner conceded that she lost to the winning candidate, the Third Respondent by a margin of 1650 votes. Given the fact that any hearing of the Petition will only involve the 600 ballots and even if such numbers were excluded from the count, the result will not affect the final outcome of the Nausori/Naitasiri Constituency as declared by the Returning Officer on 6th September, 2001, the Court has no alternative but to dismiss the Petition in its totality.

Similarly, Mr Joeli Kalou’s petition contended that a total of 583 postal ballots were introduced into the count without proper verification process having being satisfied. The margin of the Third Respondent’s victory was 1520 votes. Again if the Petition were to proceed to a hearing, it will be only in respect of the 583 postal ballots. Even if they were to be declared as invalid votes, the final figures will not affect the result of the Cunningham Open Constituency as declared by the Returning Officer on 5th September, 2001.

There remains the final of the 3 Petitions, that of John Ali’s. The Court’s ruling on the three (3) preliminary legal issues, affecting the other two Petitions, apply equally in this case. There are however additional issues raised by the Petitioner which sets it apart from the other two. These are set out in details at paragraph 12(b) (d) of the Petition and is summarised as follows:

(a) that does not have on its back the initials of the presiding officer or clerk or the official mark referred to to section 73 (1) (c);

is, subject to this section, invalid and any votes marked on it must not be counted.” (emphasis added)

Section 73 deals with voting procedure s.73 (1) stipulates the duties of the presiding officer or clerk and specifically she or he must:

“Mark the back of the ballot paper with the initials of the presiding officer or clerk, or with an official mark to be used only for the elections in progress” (s.73 (1) (c). (emphasis added)

The voter’s responsibilities on the other hand, is set out under s.73 (2) as follows:

(a) upon receipt of the ballot paper, retire to a compartment or place within the polling station.

(b) privately mark his or her vote on the paper in the way prescribed by section 75.

(c) fold up the paper so as to conceal his or her vote but so as to show the initials of the presiding officer or clerk or the official mark on the back of paper;

(d) show the presiding officer or clerk the initials or mark on the back of the paper; and

(e) place the paper in a ballot box in the presence of the presiding officer.” (emphasis added)

The Petitioner alleged that a number of ballot papers were declared invalid and excluded from the count as they failed to have both the initial of the presiding officer or clerk as well as the official mark used for the election. In other words the election officials had interpreted the requirements of s.73 (1) (c) conjunctively instead of an “either or” arrangement. The ballot paper should bear the initials of either the presiding officer/clerk or “or an official mark to be used only for the election in progress.”

The First and Second Respondents have conceded in the Agreed Facts already filed, that a number of ballot papers were excluded from the count because they did not bear the initials of the presiding officer or clerk and the official mark used for the election. They agreed that in so doing there had been mistakes made.

Counsel for the Third Respondent while conceding that both section 116 (1) (a) and section 73 (1) (c) should be read disjunctively, submitted that the phrase “an official mark to be used only for the election in progress” when read together with the definition of “election” in section 2 of the Act (which means individual election in any given constituency and not a general one), can only make sense for the purposes of s.116 (1) if such a mark is used exclusively for the election in a particular constituency.

Counsel in addition argued that it was common practice for Returning Officers to put their stamps on the back of all ballot papers. However since such stamp was used for all the ballots in the Division for which she or he is the Returning Officer, this stamp does not qualify to be an “official mark” for the purposes of s.116 (1) (a). In the Counsel’s view, there was no official mark as strictly required under the Act, and therefore only the presiding officers’ initials were required in order to mark the ballot papers valid.

After having carefully considered the submissions made on this issue plus the First and Second Respondents concession on the same, the Court believes that there may have been ballot papers rejected because they did not have both the initials of presiding officer or clerk and as well as the official mark of the election.

The second issue is whether there were irregularities committed in respect of Ballot Box Number C1350 and if so, whether the irregularities complained of affected the result of the election. The Petitioners alleged that contrary to “documentation” the Ballot Box contained an extra 167 ballot papers, instead of the 529 expected to be in the Box. Furthermore, according to the Petitioner, the seal of the Ballot Box had been broken and the seal found inside the Box. There are no other details contained in the Petition.

Counsel for the Third Respondent submitted that there is insufficient particulars on the allegations for it to satisfy the requirements of s.144 (a). For example, the Petitioner referred to “documentation” that “expected” the 529 ballot papers, instead of the 696 that were found in Box C1350, but failed to specify what or whose documents is being referred to. The complaint against the broken seal found inside the Ballot Box, according to Counsel, did not only contain insufficient details given that there are 3 types of seal on a Ballot Box, but the Petitioner himself failed to point to any particular provisions of the Act that had been breached. This applied to both allegations of the extra ballots and the broken seal, and how they would have affected the result of the election. The same argument on insufficient particulars apply to the allegation set oout at paragraph 12 (b) (i) of the Petition. The First Respondent the Returning Officer, in turn has in his affidavits, attempted to clarify that misunderstanding not only of the alleged discrepancies in the number of ballot papers, but how it arose.

The demands placed on the Petitioner by section 144 of the Act are very stringent indeed. It requires not only facts that the Petitioner will rely upon, but the facts are to be specific and sufficient in details and particulars for the parties including the court, to readily identify the matters which the Petitioner is relying upon for the grant of relief.

There are a number of Australian Court decisions (Pavlekovich-Smith vs Australian Electoral Commission (1993) 115 ALR 641; Cole vs Lacey (Supra) McLure vs Australian Electoral Commission (1999) HCA 31) that have ruled on their equivalent to our s.144, that the Petition should not only allege “sufficient material or essential facts” but at the same time specify the breach to the Act.

It is clear from the Petitioner’s alleged facts that additional evidence will need to be adduced to lend support and give clarity to the allegations. Counsel for the Petitioner agreed that these allegations can only be substantiated and proved in evidence. There is no doubt that the only way for the Court to truly ascertain the full details of the allegations is through the hearing of evidence. But the question really is whether the Petitioner has passed the test of s.144 (a) and (b) to enable the process to go a stage further.

Having regards to all the arguments, the Court hold the view that the allegations by the Petitioner for irregularities in respect of Ballot Box Number C1350, do not contain sufficient details and particulars so as to conform with the requirements of s.144 (a) and (b) of the Act.

But even if the Court were to assume for a moment that there are sufficient particulars of the alleged facts to allow the matter to proceed further, the question to be asked is whether the additional votes found in Ballot Box C1350 would have affected the result of the election. There were 167 alleged additional votes in Box C1350 which were included in the common bin and counted. Again assuming that the total 167 ballot papers were found to be invalid votes for the Third Respondent, these still would not alter the result of the elections.

I am fully aware of the argument by Counsel for the Petitioner that the additional ballot papers and broken seal of the Ballot Box suggests that irregularities were of a substantial nature, perhaps not necessarily localised to Box C1350. The fact remains however that there had been insufficient particulars for the Court to identify the specific matters alleged. At any rate the Returning Officer, on the circumstances surrounding the Box C1350 had in his affidavit confirmed that all the ballot papers had been verified in the presence of all candidates or their agents.

(1) Whether there were Irregularities Committed in respect of Ballot Box Number C1350 and if so, whether the irregularities complained of affected the result of the election.

(2) Whether the ballot papers which were declared invalid and excluded from the count because they did not have on the back the initials of the presiding officer or clerk and the official mark of the election.

Having found that there is sufficient grounds for the Petitioner to proceed further in respect of paragraph 12(e) of its Amended Petition, the Court is nevertheless aware that the numbers of ballot papers that are involved is only 47. The number of votes between the Petitioner and the Third Respondent is 290 votes. So even if this Court were to order a re-count in respect of these, excluded ballot papers, the result would not affect the final outcome of the Nasinu/Rewa Open Constituency as announced by the Returning Officer on 5th September 2001. I am therefore satisfied that the failure of the First Respondent to include these ballot papers, would not have affected the result of the election. As a result, these parts of the Petition are dismissed.

The Court under all the circumstances, concludes that all 3 Petitioner have failed to establish prima facie cases that would enable the Petitions to proceed further. These Petitions are therefore dismissed.

High Court of Fiji

Ali v Tikoca; Kalou v Tikoca; Padarath v Tikoca [2002] FJHC 320; HBC0407J.2001S; HBC0417J.2001S; HBC0409J.2001S (18 October 2002)