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Attorney General v Electoral Commission - Judgment [2015] FJHC 420; HBM40.2015 (8 June 2015)

IN THE HIGH COURT OF FIJI
SITTING AS THE COURT OF DISPUTED RETURNS
(CENTRAL DIVISION) AT SUVA

HBM No: 40 of 2015

IN THE MATTER
of section 66(1)(a), (2) and(3)(iii)
of the Constitution of the Republic of Fiji

AND

IN THE MATTER
of the vacant seat in the Parliament of Republic of Fiji
pursuant to section 63(1)(a) of the Constitution of the Republic of Fiji

AND

IN THE MATTER
of a Petition by the Attorney General,
Office of the Attorney General, Level 7, Suvavou House, Suva
in the Court of Disputed Returns

BETWEEN:

ATTORNEY GENERAL
Petitioner

AND:

ELECTORAL COMMISSION
First Respondent

AND:

MIKAELE ROKOSOVA LEAWERE
Second Respondent

Before : The Hon. Mr Justice David Alfred
Counsel : Mr. D Sharma and Ms N Choo for the Petitioner
Mr. B C Patel and Mr C B Young for the First Respondent
Mr. J Apted, Ms M Fong and Mr S Valenitabua for the Second Respondent

Dates of Hearing : 2 and 3 June 2015
Date of Judgment : 8 June 2015

JUDGMENT

[1] The matter before me has far reaching implications beyond the decision itself. It involves a complex interaction between the various constitutional issues that arise.

[2] I am therefore called upon to construe the Constitution of Fiji, a document with which I am conversant with and which I now have been able to observe closely and for myself how it's provisions translate to the realities of the life of the nation. Therefore every part of my Judgment will be based on the Constitution.

[3] This is an Application by the Attorney-General of Fiji wherein he questions the entitlement of Mr. Mikaele Rokosova Leawere to be a member of the Parliament of Fiji, as a result of being awarded a seat declared vacant by the Electoral Commission.

[4] Now that the Parties have been identified they shall be referred to in the Judgment as follows:

The Attorney General is the Petitioner, the Electoral Commission is the First Respondent and referred to herein as the Commission, and Mr Leawere is the Second Respondent.

[5] Before I go into the facts and the constitutional and legal principles which come into play and consider the issues that fall for my decision as the Court of Disputed Returns, I shall state that the lodestar for me in reaching my decision is what Lord Hewart C.J said in Rex v Sussex Justices, Ex-Parte MacCarthy [1924] 1K.B 256, 259, "that it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly, be seen to be done". This is because as Counsel for the Petitioner stated at the outset in his oral submission there is an important constitutional issue here which affects all political parties.

[6] My judgment will consist of three parts viz:

A. The historical background of the Constitutions and Parliament.

B. The factual background of the Petition.

C. The Judgment itself.

Part A - The Historical Background

[7] All nations which are functioning democracies and where the rule of law prevails subscribe to the Doctrine of the separation of powers. This means the Government has three arms or organs or branches. The Constitution of Fiji (The Constitution) uses the last term (see Section 6(1)) These are the legislative, the executive and the judicial branches.

[8] The Doctrine, the Rule of Law and the Constitution place restrictions on the powers of the legislative and the executive branches to interfere with the exercise of judicial power which is interdependent with the independence of the judiciary. It is the evincing of its impartiality and independence manifestly and undoubtedly, rather than its articulation that equips the judiciary for its role of being the arbiter of the Constitution and justifies its separation from the other branches.

[9] The judicial power and authority of the State is vested in Courts by Section 97(1) of the Constitution. The underpinning of the Rule of Law means the application of the laws through a process in which the parties involved have confidence that the Courts will interpret and apply laws including the Supreme Law (the Constitution) in proceedings to which the other Branches of Government may be parties.

[10] Section 97(2) states: "The courts and all judicial officers are independent of the legislative and executive branches of Government, and are subject only to this Constitution and the law, which they must apply without fear, favour or prejudice." Finally, Section 97(4) requires that Parliament and Cabinet "must assist and protect the courts to ensure their independence, impartiality, accessibility and effectiveness."

[11] Judicial independence, then, preserves the integrity of the process provided by the State for the resolution of legal disputes. This fosters the willingness of litigants to submit their disputes to the judicial process and the acceptance of judicial decisions by both the great and the small.

[12] In essence then the judicial power is manifested in its binding determination of rights, duties and other questions by reference to existing laws.

[13] This is clearly what the Constitution wants the courts to do.

[14] The relevant maxim of public policy is expressed in Latin as "fiat justitia, ruat coelum" which is translated into English by Osborn's Concise Law Dictionary as "let justice be done, though the heavens fall".

[15] I return to the Constitution. This is the Supreme Law of the nation (see Section 2(1)). Here Fiji joins the ranks of nations like the United States, Australia, Malaysia and South Africa, the Constitutions of which all expressly state that this is so.

[16] The Constitution, then, is the lodestar for all those who are at the head of affairs of the State, those who hold national office, and those who are lawmakers to chart the course for the ship of state to enable it to sail on an even keel.

[17] Why is it important then that the Petitioner is concerned with who are eligible to sit in Parliament as has been made clear by his Counsel? This needs me to look now at the other two branches of Government because actual governance is through a Cabinet (the Executive) selected from the Legislative branch.

[18] Government is dependent on Parliament. This is made crystal clear by Section 90 of the Constitution which says "Governments must have the confidence of Parliament" and by Section 91(2) that "Cabinet members are accountable individually and collectively to Parliament, for the exercise of their powers and the performance of their functions". This is as it should be because after all a Cabinet is a national controlling body chosen by a legislature from amongst its members to rule the nation.

[19] Parliament is the Legislative branch. Section 46(1) of the Constitution states that "The authority and power to make laws for the State is vested in Parliament consisting of the members of Parliament and the President, and is exercised through the enactment of Bills passed by Parliament and assented to by the President." To enable Parliament to express the mind of the entire people on all matters which come before it, Section 72(1)(b) of the Constitution states that Parliament must "facilitate public participation in the legislative and other processes of Parliament and its committees."

[20] (i) The Presiding Officer of Parliament is the Speaker who is
addressed as Mr Speaker, if male and Madam Speaker, if female following the precedent set by Betty Boothroyd, elected in 1992, who became the first woman Speaker of the House of Commons and was addressed at her request as Madam Speaker.

(ii) The Speaker of the House of Commons is strictly non-partisan and renounces all affiliation with his or her former political party upon becoming Speaker.

(iii) The Constitution by Section 77(6) requires the Speaker under paragraph (a) to be "independent and subject only to this Constitution and any other law" and under paragraph (e) "must act impartially, and without fear, favour or prejudice."

(iv) All these Constitutional safeguards with regard to Madam Speakers and MPs are to ensure the integrity of the legislative process.

[21] The modern Parliament has come a long way from what it was originally. Walter Bagehot in 'The English Constitution", which was first published in 1867, said of the Mother of Parliaments(of his day) that it is a ruling body.

[22] This was a far cry from the medieval Parliament which was an expressive body whose function was to tell the King what the nation wished he should do.

[23] The Parliament of the 21st century is both a ruling and an expressive body.

[24] Members (MPs) are elected by the people to express their wishes and to do that entails MPs being there at their seats not away from their seats. MPs must not have any interests which will conflict with the interests of the people whose interests must always be paramount.

[25] To understand why the Constitution stresses so much on who can be a member of Parliament one has to go to Section 47(1) which provides that any member of Parliament may introduce a Bill in Parliament other than a Money Bill which may introduced only by the Minister for Finance or another Minister authorized by Cabinet.

[26] A Bill that has been passed by Parliament and has been assented to by the President becomes an Act of Parliament under Section 49(1).This means it is now law.

[27] Therefore, it can now been seen why the legislative process has to be kept free from extraneous influences and why the Constitution by Section 63(1) expressly provides that the seat of a MP becomes vacant if he becomes the holder of a "public office" as defined in Section 57. This to prevent any conflict of interest arising.

[28] I have expounded at length on the Constitution and Parliament to show how important are the issues raised in the Petition. The grave and weighty matter it raises ought not to be tossed out of Court in limine (on the threshold) by a striking out application.

[29] On the contrary, the Petition ought be fully heard in Court where all issues can be canvassed in a contested hearing to enable the Court thereafter to make a binding resolution of the matter.

[30] This is not a case of preventing a candidate who has not been elected becoming indigent by being deprived of his constitutional right under Section 32(1) to choose his means of livelihood, while he waits in expectant inactivity for the call from the Electoral Commission for the three years and six months mentioned in Section 64(3) for the call from the Electoral Commission under Section 64(1) which call may never come. There is no restriction on a candidate in such a position from earning his daily bread from the myriad of occupations and professions available in the modern world which do NOT qualify as "public office", if such a prohibition exists.

[31] I was careful not to miss the wood for the trees.

2. THE FACTUAL SITUATION
   

[32] It is common ground that the first General Election under Section 170(1)
of the Constitution was held on 17 September 2014.

[33] In that Election, Ratu Viliame Manakiwai Tagivetaua was elected as a Member of Parliament as shown in the Return of Writ for Election to the President of Fiji, by the Electoral Commission, dated 22 September 2014.

[34] Subsequently the said Ratu Tagivetaua passed away on 5 March 2015. On 27 April 2015, the Electoral Commission pursuant to Section 64(1) of the Constitution awarded the seat declared vacant by the death of the aforementioned Ratu Tagivetaua, to the Second Respondent.

[35] The contentions of the Petitioner as stated in the Affidavit of the Attorney General in verification of Election Petition sworn on 17 May 2015 are that because the Second Respondent was at the time of the vacancy in Parliament and also at the time of confirming his availability and eligibility to fill the vacancy in Parliament, holding a public office as the Acting General Secretary of the Fijian Teachers Association, the Petitioner firmly believed the Second Respondent was ineligible to be awarded that seat in Parliament.

[36] Thus the Petitioner also firmly believed the Commission erred in awarding that vacant seat to the Second Respondent.

This is the Matrix of the Matter

[37] After the matter came up for hearing before me sitting as the Court of Disputed Returns, the Solicitors for the Second Respondent filed a Summons to strike out the Petition. After a full hearing the Summons was dismissed with costs, by my Interlocutory Judgment of 2 June 2015.

[38] Thereafter the Petition proper was heard on 2 June and 3 June 2015 at the conclusion of which I reserved judgment to 8 June 2015. I now proceed to do so.

[39] In the course of preparing my Judgment, I have perused the following:

[i] The Election Petition.

[ii] The Affidavit of the Attorney General in verification of the Election Petition sworn on 17 May 2015.

[iii] The Affidavit of Larry Thomas for the First Respondent sworn on 27 May 2015.

[iv] The Answering Affidavit of the Second Respondent sworn on 27 May 2015.

[v] The Answer of the Second Respondent.

[vi] The Affidavit of Aiyaz Sayed-Khaiyum in response to the Affidavit of the Second Respondent, sworn on 26 May 2015.

[vii] Legal submissions on behalf of the Petitioner.

[viii] Submission by First Respondent.

[ix] Second Respondent's submissions on the substantive issue.

[x] Authority cited by the Petitioner.

[xi] First Respondent's Bundle of Authorities.

[xii] Second Respondent's List of Authorities.

[40] To enable me to arrive at my decision I had recourse to the decision of the Privy
Council in:

C. Devan Nair... Appellant and Yong Kuan Teik ... Respondent [1967] 2 A.C at page 44, an appeal from the Federal Court of Malaysia regarding an Election Petition struck out by the Election Judge.

[41] This decision is important for my present purpose because in delivering their Lordships' Judgment, Lord Upjohn discussed how Courts came to decide election issues. He said:

"Constitutionally decision on questions of contested elections are vested in the assembly for which the contested election has been held, but in the course of the nineteenth century many countries, including this country and many of Her Majesty's possessions overseas, adopted the view that, as the deliberations of the assembly itself were apt to be governed rather by political considerations than the justice of the case, it was right and proper that such questions should be entrusted to the courts. This required legislation in every case, and in many cases the right of appeal after the hearing of a election petition by an Election Tribunal to which those hearings were entrusted was severely limited clearly for the reason that it was essential that such matters should be determined as quickly as possible, so that the assembly itself and the electors of the representatives thereto should know their rights at the earliest possible moment."

[42] The crux of the Petition is whether the Second Respondent was eligible to fill the vacancy in the seat created by the demise of the sitting members.

[43] There is no dispute that he was the highest ranked of the candidates of the same party, as the sitting member since deceased, who did not get elected. Thus he satisfied the first requirement under Section 64(1). But did he satisfy the second requirement under this subsection, which is to be "still available to serve at the time of the vacancy (as may be determined by a written law governing elections)"...?

[44] Both the First Respondent and the Second Respondent obviously thought he did and equally obviously the Petitioner thought he did not, which has given rise to the Petition.

[45] Two issues immediately arise for my consideration:

(i) What is meant by "still available to serve"

(ii) Is there a written law governing elections to determine this.

[46] Regarding the written law to my mind it can only relate to (i) above. It cannot be relating to the vacancy as this is expressly and fully provided for in Section 63 (1 )(a).

[47] Since it appears, the only law that qualifies under (ii) above is the Electoral Decree 2014 (the Decree) I will then confine my consideration to the Constitution and the Decree, and upon these, then, I shall consider the submissions made by Counsels.

[48] Counsel for the Petitioner made a submission which I summarise as follows:

(a) Section 24(2) of the Decree is applicable during the three years and six months of the Parliament that arose after the 2014 Election, and applies to every candidate standing in that Election.

(b) That up to the time a candidate is elected as a member of Parliament if he has taken up a public office his nomination as a candidate becomes invalid and he is disqualified.

(c ) The Second Respondent was disqualified as he was reappointed to a public office on 26 January 2015, was still in public office at the date of death of Ratu Tagivetaua on 5 March 2015 and as well on 13 March 2015 when he declared he was available to be elected to Parliament.

(d) Counsel concluded by submitting the Petitioner had successfully proved the matters in the Petition and asked for the Petition to be allowed with costs.

[49] Counsel for the First Respondent then submitted that Section 24(2) of the Decree did not apply to the Second Respondent at any time after the September 2014 General Election:

(a) This was because the Second Respondent resigned his post with effect from 15 August 2014 which resignation was accepted by his employer, the Fijian Teachers Association (FTA). On 13 March 2015 the President of the FTA informed the Electoral Commission that the Second Respondent had been appointed as Acting General Secretary on 26 January 2015 and was currently holding that position.

(b) The Constitution did not prohibit a public office holder from becoming a candidate. There is no provision in the Constitution dealing with the position of an unsuccessful candidate between the candidate's filing of the nomination and his being awarded the vacant seat.

(c) Section 32(1) and the Bill of Rights in Chapter 2 protect a person's right to choose his own means of livelihood.

(d) The Commission's first task was to find from the Final National Results Tally prepared by the Supervisor of Elections the highest ranked candidate.

(e) It's second task was to find out if that candidate was available at the date of the vacancy. This, the Commission accepts means both willing and eligible. The Second Respondent was willing and he was eligible. This is because the Commission had only to refer to Section 56(2) of the Constitution since that is the only section dealing with the eligibility of candidates.

(f) The Commission has to ensure that for instance the candidate has not taken up citizenship of another country but Section 56(2) did not disqualify a candidate because he holds a public office. In fact it makes no mention of public office at all.

(g) In short the Commission was right to award the vacant seat to the Second Respondent.

[50] Counsel for the Second Respondent in his submission said the Petitioner has the burden of proving on the pleadings and evidence that he is entitled to the specific relief he seeks:

(a) The Petitioner has not pleaded facts relating to the Second Respondent's status as a public office holder at the time the Commission awarded the seat to him. Because the Petitioner has not met the burden, the Petition has to be dismissed.

(b) Alternatively on the authority of Shameem J's decision in Tu'uakitau Cokanauto Petitioner v Viliame Sausauwai & Returning Officer Tailevu North/Ovalau Open Constituency: Civil Action HBC 0256 of 1999 (unreported), the Court cannot make a declaration that is not sought in the Petition.

(c) The Petitioner has not brought any evidence as to the Second Respondent's status on 27 April 2015 (the date of the Award).

(d) Further there was no breach of Section 24(2) of the Decree.

[51] It is time to come back to the facts of the Petition. In arriving at my conclusion with regard thereto, I shall rely on the Privy Council Appeal No. 37 of 1981 from the Fiji Court of Appeal: The Attorney General... Appellant v Director of Public Prosecutions... Respondent. Lord Fraser of Tullybelton in giving the advice of the Board to Her Majesty (The Queen of Fiji) made reference to, and further stated:

"The judgment of the Board delivered by Lord Diplock in Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648, 669, which repeats the well-known passage in the Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] A.C. 319, to the effect that:"the way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but 'as sui generis calling for principles of interpretation of its own, suitable to its character ... without necessary acceptance of all the presumptions that are relevant to legislation of private law."

Their Lordships fully accept that a constitution should be dealt with in that way and should receive a generous interpretation. But that does not require the courts, when construing a constitution to reject the plain ordinary meaning of words. Proper construction of a constitution or of any other document would be impossible if the court could not assume that the reader was reasonably intelligent and that he would read with reasonable care."

[52] It now falls upon me to make my determination. The issue is the definition of "available". According to the Australian Concise Oxford Dictionary (5th Edition) "available (of a person)" means "free, not otherwise occupied." The Oxford Advanced Dictionary of Current English defines "free" as including "not held back" or "not controlled by rules, regulations or conventions."

[53] Is holding a public office at the time of the vacancy a legal impediment? To answer this question I need to peruse Section 24 of the Decree whose subsection (1) repeats Section 57(1) of the Constitution viz that such a candidate is deemed to have vacated that office at the time of delivery of his signed nomination except here it is to the Supervisor.

[54] But neither Section applies in the instant case since the Second Respondent had already resigned his public office before that time i.e. on 15 August 2015.

[55] So I look at Section 24(2) of the Decree which talks of a person continuing to hold a public office inspite of Section 57(1) of the Constitution or Section 24 (1) of the Decree (the same thing really) or is appointed to any public office after delivery of his signed nomination to the Supervisor. Then his nomination is deemed to be invalid and he is "regarded as not been nominated for the election to which the nomination relates."

[56] Thus it is clear that the invalidity is for that election only and therefore cannot have any life or effect after that election is over. To fortify my conclusion thus, I only need to turn to Section 33(1) of the Decree which provides that if a candidate duly nominated in any election ceases under the Constitution or the Decree, to be eligible to be nominated for election at any time before the polling date, the Commission shall disqualify that candidate and the Supervisor must remove his name and number from the National Candidates List and if ballot papers have been printed, the Supervisor must ensure that notices are placed at every polling station.

[57] Section 33(3) of the Decree provides that no new nomination may be made to replace any candidate in any election who is disqualified before the polling day.

[58] I therefore, find that these words all indicate clearly and unambiguously that the disqualification is only for that particular election and no other and no later.

[59] (i) It is significant to note that holding a public office is not one of the
disqualifications in Section 56(2) preventing a person from standing as a candidate for election to Parliament. This is unlike being a member of the Electoral Commission where current membership or membership at any time during the 4 years preceding nomination is an express bar. (see Section 56 (2) (e)).

(ii) The importance given to this prohibition by the draftsmen of the Constitution is emphasized by it being repeated in Section 57(2) where a person who has held office as a member of the Electoral Commission or as the Supervisor of Elections is ineligible to be nominated as a candidate for election to Parliament for 4 years after ceasing to hold that office.

[60] And nowhere is holding a public office mentioned in Section 56(2).

[61] Therefore if the Commission and the Second Respondent were to read, as they obviously have done, Section 56(2) with regard to the Second Respondent's availability to serve, it will be hard to fault either or both of them for their conclusion.

[62] And further if they were to look at the Decree as they would be required by Section 56(4), they will see its Section 23(4) is on all fours with the Constitutional provision.

[63] To say that Section 24(2) of the Decree applies with no time limit would be straining its meaning and in any case cannot stand in the light of the related Constitutional provisions and especially of Section 33(1) of the Decree.

[64] Further what would be the need for Section 63(1) of the Constitution if it was true as contended by Counsel for the Petitioner Section 24(2) has no end and continues even after nomination, even after the General Election, even after the return of a candidate to Parliament and even after he becomes a member after taking his oath as is the case with the Second Respondent. This proposition is clearly untenable and is held inacceptable.

[65] Surely a nomination is only for a particular election and after that election is held and there is no dispute regarding its outcome at the end of the requisite period, the nomination becomes a dead letter.

[66] Therefore, I shall have to find and I so hold that when the Commission offered the vacant seat to the First Respondent, that when he wrote on the 13 March 2015 accepting the offer and that when the Commission awarded the seat to him on 27 April 2015, that at all three times the Second Respondent was eligible to be elected to Parliament.

[67] I find and so hold that the above provisions of disqualification are spent by the time the poll or election is over as is shown by the necessity for the draftsmen of the Constitution to put into it Section 63, subsection (1) of which provides that the seat of a member of Parliament becomes vacant if the member – (b) with the member's consent becomes the holder of a public office. The fact that Section 63 is there at all and only mentions a member of Parliament (not a candidate) can only mean that Section 24(2) of the Decree is spent and no longer in effect after the election.

[68] Counsel for the Second Respondent has cited to me the persuasive authority of Tu'uakitau Cokanauto v Viliame Sausauwai & Returning Officer Tailevu North/Ovalau Open Constituency, Suva High Court Civil Action No. HBC 0256 of 1999. (Unreported).

[69] In this case Madam Justice Nazhat Shameem ruled that it was not open to the Court to grant relief that was not the subject of the Petition. She also referred to the decision in Cameron v Fish [1904] HCA 49; 1 CLR 314,where the High Court of Australia held that the Petitioner must be kept strictly to the case made by the Petition since allowing new matters to be raised during the hearing, could in principle allow new relief to be sought after the lapse of the statutory time limit.

[70] In this context I have also perused the authority cited by Counsel for the Petitioner viz Hyams v Victorian Electoral Commission and Buchanan [2003] VSC 156 a decision of the Court of Disputed Returns of Victoria, Australia. Having perused the decision of Gillard J, I do not see how it advances his cause both on the facts and the law.

[71] In fact Gillard J, decided that the Second Respondent therein who was disqualified from the moment she was nominated for the seat because at that time, she held an office or place of profit under the Commonwealth Crown, was relieved by the relevant section of the Victorian Act from the said disqualification "and her election was not void by reason of her holding an office or place of profit under the Commonwealth Crown at the date of her nomination and election day." The judge therefore dismissed the petition that disputed the validity of her election as a member of Parliament.

[72] How much more so for the Second Respondent here who had already resigned his "public office" before his nomination.

[73] I am therefore now in a position to announce my decision. It is my findings and I so hold that:

(1) The Electoral Commission did not err in offering the seat that had become vacant by the death of Ratu Tagivetaua to the Second Respondent.

(2) The Second Respondent based on Section 56(2) of the Constitution was not wrong when he considered and informed the Commission that he was still available to serve.

(3) Therefore the Commission, again based on the said Section 56(2) was correct to award the said vacant seat to the Second Respondent.

[74] In the event I am unable to grant the reliefs sought in the Petition for Declarations viz:

(a) That the Commission erred in awarding the vacant seat to the Second Respondent.

(b) That the Second Respondent was ineligible to be awarded the seat.

[75] The Petition is therefore hereby dismissed.

[76] There only remains for me to consider the question of costs.

[77] The Commission, through their Counsel have stated they are not asking for costs.

[78] The Counsel for the Second Respondent is asking for costs on a lump sum basis.

[79] In the normal course costs follows the event. Here I have a few words to say.

[80] This is apparently the first Petition of its kind since the first General Election held under the Constitution.

[81] The Petitioner had misgivings regarding the eligibility of the Second Respondent to be awarded the said seat. The Petitioner addressed his concerns to the proper forum, the Court of Disputed Returns.

[82] He desired this Court in a hearing to consider his Petition on its merits after which the Court would make its determination. This has now been done.

[83] In these circumstances I feel I shall have to depart from the normal course. I shall therefore order that each party is to bear its own costs.

[84] Finally I order that the Chief Registrar send a copy each of this Judgment to:

(1) Madam Speaker of Parliament.

(2) The Hon. Attorney General.

(3) The Electoral Commission

(4) The Supervisor of Elections.

Dated at Suva this 8th day of June 2015

David Alfred
JUDGE
High Court of Fiji