On 28 March 2002, the Second Respondent advised the
Applicant of her decision refusing the registration of the Applicant in
the
Anaburu Electoral Roll for the Port-Vila Constituency.
On appeal against the Second Respondent’s decision, the
First Respondent by its decision dated 4 April 2002, upheldpheld the Second
Respondent’s decision refusing to register the Applicant’s name in the
Anaburu Electoral Roll. The First Respondent’s
decision of 4 April 2002 is
final and is not questionable before the Courts pursuant to the provision of
Section 14(7)
of the Representation of the People Act [CAP.146].Section
14(7) of the Representation of the People Act [CAP.146] provides:
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“The Electoral Commission may r dismiss an appeal
under subsection (4) or order ther the registration of the Appellant’s name
in
the electoral list. Its decision shall not be questioned in any Court.”
The Court has two questions to answer:
- Second, the
Applicant further says that in the event that the Court finds Section
14(7) of the Representation
of the People Act [CAP.146] unconstitutional,
then, the Applicant seeks an Order of Certiorari to quash the decision of
the Electoral Commission and Order of Mandamus requiring the Principal
Electoral Officer to include the name of the
Applicant with cards where
necessary.
I deal with the First issue:
1. Constitutional validity of the part of trding of
Section 14(7 14(7) of the Representation of the People Act [CAP.146] under
challenge.
Section 14( that act reads:
“The Electoral Commission may either dismiss an appeal
under subsection (4) or order the registration of the appellant’s name
in
the electoral list. Its decision shall not be questioned in any Court.”
(Emphasis added)
The part of the wording of Section 14(7) of the Act which
is undellenge reads:
p>
<
“… Its decision shall not be questioned in any Court.”
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Is that part e wording of Section 14(7)
unconstitutional?
The Applicant says, that part of the wording of Section
of the Act is unconstitutiitutional because it infringes his right
to vote
and take part in any elections of the Republic of Vanuatu, including the 2nd
May 2002 General Elections and as
such, contrary to Article 4(2) of the
Constitution.
The Applicant says also that, by that part of the Section
14(7) of the Representation of the People Act [CAP.146], he is barred
from
questioning further the decision of the Respondents who also directly
contravenes Article 5(1)(d) [“Protection of
the Law”] of the Constitution in
relation to him.
I have answered the question in the affirm. That
part of the wording of Section 14(7) of the Rehe Representation of the People
Act
[CAP.146], “..Its decision shall not be questioned in any court”, is
unconstitutional for the following reasons.
That part of the wo of the Section 14(7) is an
exclusion clause. Such an exclusion clause in that sectioection is void and of
no
effect as it is a denial of the protection of the law afforded by Article
5(1)(d) of the Constitution. [Emphasis added].
Article 5(1)(d) guarantees a right of access to the
courts whereas that part of the wording of Section 14(7) of Representation
of the People Act [CAP.146] denies it. A right to the protection of the law
must include a right to invoke the jurisdiction
of the Courts to enforce the
right of the citizen. There is no justification for restricting the
constitutional provision
so that it ensures that a citizen may approach the
Courts to seek the protection only of rights conferred by the Constitution.
Further, the protection of the law extends to all rights conferred by the
law. The Parliament has power subject to the
Constitution to take away or
modify rights but while a right exists the citizen may apply to the Courts
to protect it.
In fine, a provision such as Article 5(1)(d) of the
Constitution prevents Parliament from ousting the jurisdiction of the
courts. Authorities in support: Appeal Case No.1 of 1993 Broadcasting and
Television Act No.3 of 1992 and the Business Licence (Amendment) Act No.4 of
1992 Attorney General of the Republic of
Vanuatu (Appellant) v. President Frederick Karlomoana Timakata
(Respondent).
As to whether Section 14(7) of the Act infringes the
right of the Applicant to vote and participate in this up and coming
legislative election of 2 May 2002 is difficult to say. I make no ruling in
this respect at this stage.
I now consider the second question for the Court to
determine.
The Applicant files a NoticMotion seeking leave to
apply for Certiorari and Mandamus. Upon reading the respectivective affidavits
filed in this case, I am of the view that there is a serious question to be
tried and grant the Applicant leave to apply
for prerogative reliefs.
The Applicant applies for an Order for Certiorari and an
Order for Mandamus because he says the Respondent refused to include
his
name in the Electoral list and in the Electoral Roll for the up and coming
legislative election. The Applicant says
that sometimes toward the last week
of March 2002, he went to the Electoral Office to lodge his candidature
application
form. He then found out that his name was not included in the
electoral roll. He then applied to the Principal Electoral Officer
to have
his name registered in the electoral list. By decision of 28 March 2002, the
Applicant was informed that the
Principal Electoral Officer refused to
register his name on the electoral list. The Applicant then appealed to the
First
Respondent, the Electoral Commission. By its decision of 4 April 2002,
the Applicant was informed that the Electoral Commission
has upheld the
decision of the Principal Electoral Officer of 28 March 2002 and, therefore,
his name is not registered
on the electoral list nor on the electoral roll.
The reasons of the Second Respondent’s decision of 28 March 2002 was
produced and annexed to the Applicant’s affidavit of 6 April 2002. There was
no reason produced for the decision of the First
Respondent of 4 April 2002.
I proceed on the assumption that the reasons are same as those of 28 March
2002.
The Applicant’s complaint lies on the fact that he lives
asides at Ohlen Seven Star atar area since 1980. He was registered
to vote
on the Electoral list of Anaburu area and he voted in all elections from
1980 up to the general election of 1998.
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In 2001 election registration, registration ofs
visited his house (2 mand a woman). That That That visit took place on 30 March
2001 when he was at work. Two women who stayed with the Applicant got
registered at that time. Because he and other members
of his family were not
at home at that time, registration officers told them to come back at the
Applicant’s residence
on Saturday 31 March 2001. On 31 March 2001, the
Applicant and members of his family waited but the registration officers did
not come.
The evidence in this case, was brought by way of
affidavit materid the deponent is subject tect to cross-examination by the
other side. The applicant file two (2) affidavits respectively on 5 and 6
April 2002 in support of his case. Three other
affidavit materials were file
by Isaiah Lucy, the Applicant’s wife, Anita Kolen, one of the two (2) ladies
who got registered
on 30 March 2001 during the visit of three registration
officers and Linda Robert, who is one of the three registration officers
who
visited the house of the Applicant on Friday 30 March 2001, in support of
the Applicant’s case.
The Respondents filed the following affidavits: that the Principal Electoral Officer, Ms Jeannette Bolenga, nga, of 5 April 2002,
filed on the same date, that of Tom Alick Kalo, the Acting Deputy Principal
Electoral Officer of 6 April 2002 and that
of Tony Bule, who was one of the
registration officers who visited the house of the Applicant during the
registration
period of 1999.
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There is no greal of factual dispute in this case.
The only fact in dispute between the parties is whis whether or not the
registration officers told the Applicant’s families to come in order to
register the Applicant and other members of his
families on Saturday 31
March 2001. The evidence establishes that on 30 March 2001, 3 registration
officers namely Daniel
Pakoa, Oliver and Linda Robert visited the
Applicant’s house. The Applicant was not at his residence. He was at work.
The registration officers got registered 2 ladies. One of the ladies was
Anita Kolen (her evidence). As the Applicant was
at work and other members
of his family were not at home, the two other registration officers told
Anita Kolen who was
at that time at the Applicant’s house, that they will
come back the next day which was Saturday 31 March 2001 to check the
electoral card and got the Applicant and others registered.
I have read the affidavit of Tony Bule filed by the Respondents on 6 April 2002. The deponent, Tony Bule says says at:
Ҥ2. In 1999, I was one of tgistration Officers
responsible for Anaburu area.
§3. We visited euben Titek’s residence at
approximately 9.00am one mone morning. There was no one at home except a woman
who is also residing at Mr. Titek’s residence.
§4. We left message with the woman to i Mr. Titek to
call atll at the Electoral Office as soon as possible in order that we
may check
all the electoral cards that Mr. Reuben had in his possession.
…”
Mr. Bule’s affidavit t really assist me in this
factual dispute because the complaint of the Applicant is t is based on the
registration officer’s failure to attend his residence as they promised on
31 March 2001, whereas Mr. Bule’s affidavit
related to matters occurring in
1999.
The fact as I find it is that the registration officers
had failed to visit the Appl’s house to check the electelectoral cards
and
got the applicant and other members of his family registered on 31 March
2001 as they promised and issued them new
electoral cards. The inference
that I can draw from the conduct of the registration officers on 30 March
2001, is that
they knew that the applicant and other members of his family
need to be registered and issued with new electoral cards. The
Applicant and
other members of his family have waited on Saturday 31 March 2001. There is
no contrary evidence to rebut
this. It is accepted as such. The Principal
Electoral Officer failed to take that crucial fact into consideration on 28
March 2002.
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The last general election held was that of 1998that
election there were lots of discrepancies which hich import a lot of problems
into the election system, the Electoral Commission decided to apply strictly
Section 9(1) of the Representation of the
People Act [CAP.146] which stated
that a proposed voter should be registered to vote in the polling station
where he/she
is residing. (Affidavit of Principal Electoral Officer §2).
In 1999, the Electoral Commission decided to put in place
a new registration system the issuance of new electolectoral cards.
Registration officers were sent in all constituencies including the
constituency of Port-Vila. Mr. Tony Bule is one the
registration officers
responsible for Anaburu Area. He and others visited the Applicant's
residence on a day at approximately
9.00AM one morning. There was no one at
home except a woman who is also residing at Mr. Titek’s residence.
Registration
officers left a message with the woman to inform Mr. Titek to
call at the Electoral Office. Whether or not that message was
passed on to
the Applicant, we do not know. The Applicant explained that in 1999, he
accompanied his wife for medical
treatment overseas (Australia) for a period
of one month and that was during the registration period. There is no
dispute
about the Applicant’s explanation. In any event, registration
officers visited the Applicant’s residence toward end of March
2001.
From 1999 to 2000, there were a total ,515
registered voters having in their possession elen electoral cards issued in 1999
and 2000 for the constituency of Port-Vila.
In 2001, other registration of voters occurred (evidence
of Linda Robert, Anita Kolen). That is the occasion where the registration
officers visited the Applicant’s house on 30 March 2001 and failed to go
back on 31 March 2001 as expected.
It follows then that once the registration of voters have
been completed, the Principal Electoral Officer must establish the
electoral
roll for each polling district and the Principal Electoral Officer has to do
that by 26 November 2001 as mandatorily
imposed on her by law. (Section
20(2)(a) (as amended) No.20 of 2001.)
In this case, it was clear that the name of the
Applicant, Jackleen Reuben Titek Ambil Masdan, was not on the electoral
roll. As the evidence shows, the Applicant and other members of his family
have never been registered on 31 March 2001 as
promised by the registration
officers.
It is not true that the Applicant’s name has been removed
the Principal Electoral Ofal Officer. That cannot be right. What is
certain is
that by 26 November 2001, when the Principal Electoral Officer has to
establish the electoral roll, the name
of the Applicant was not on the
electoral list and on the electoral roll. That is the reason why, the
Applicant’s name
was not on the electoral list nor on the electoral roll.
Had the Principal Electoral Officer applied her mind on the facts
as alleged
by the Applicant on 27 March 2002, she would have come to a different
decision.
The Applicant’s submission based on Section 15(1), (2) of
thresentation of the People Aple Act is not relevant and must be rejected
and I so rule.
The only remaining fact it the Applicant has in his
possession his electoral card which was issued in 1993. He3. He has used
that
card to exercise his right to vote in the 1998 general elections. And since
the registration officers did not come
to his residence and checked his
electoral cards on 31 March 2001 as they promised, the Applicant thought
that his 1993
electoral card is still valid. Before this Court, there is no
dispute that the electoral list was made available for inspection
by the
public during a period of 14 days in pursuance to Section 16 of the
Representation of the People Act [CAP.146].
The relevant provisions of the law are set out
below
Article 20(1), (2) of the Constitution pe:
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“(1)   ElectoraliCommission sion shall have general
responsibility for and shall supervise the registration of electors
and the
conduct of elections to Parliament, the National Council oefs,
ernmentnment and and municmunicipal councils.
The Commission shall have such powers and
functions relating to such registration and elections as may be prescribed
by Parliament.
Section the Representation of the People Act
[CAP.146] says:
“(1) rincilec Eral officer shal shall be
responsible for tfor the registration of electors and the conduct of elections.
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(2) &nhe Principle Electoral Ofal Officer shall in
particular be responsible for-
(a) dividing Vanuatu into registration areas for the
se of registering voters;
(b) instruction and supervisionegistration
officers;
(c) transport, travel and equt for registration
officers;
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(d) the design and pri or electoral cards, forms
and other materials;
(e)ngements for voters resident overseas;
(f) production, diution and publication of
electoral lists;<
(g) proviinformation to voters and the general
public;
…”
Section 6(1), (2), (3), (4) read:
“(1) The Principal Electoral Officer shall appoi
registration officer icer for each constituency.
(2) Regtion officers shall each year draw up
electoral listslists for the purpose of compiling electoral rolls.
(3) Registration officers may employ assistant
registration officers to assist them in carrying out their duties under this
Act.
registration officer may call upon any two
inhabitanbitants in any place to assist him in determining the age or place of
residence of any person or any other matter for the purpose of drawing up an
electoral belief.”
Sectiof the Representation of the People Act says:
<
“Every person called upon to assist
Section 6(4) or t to give information concerning himself for determination
whether or not his name should be included on an electoral list shall
give
such assistance or information without undue delay and to the best of his
knowledge and belief.” [Emphasis added]
Section 16 of the Act reads:
“(1) Thetoral list shall be made available for
inspection by n by the public each calendar year during a period of not less
than
14 days which shall end on or before the 15th day of June.
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(a) each registration officer having a copy available
on request; and
/p>
i>(b) copies being lodged at such places or with such
other personersons both in Vanuatu and outside as the Electoral Commission
shall
direct or cause to be lodged.
(4) Before the end of the inspection period any person
may make application to the Principal Electoral Officer for-
(a) the sion or deletion of any names from an
electoral list;list;
(c) ddition or deletion of any matter in a list;
or
(d)correction of any matter or the addition or
removal oval of any matter in any electoral card.”
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By perusing tnguage of Section 3(2)(b), (c), (d) and
Section 6(1), (2), (3), (4) and Section 7 of 7 of the Representation of
the
People Act [CAP.146], it transpires that the registration officers need to
travel, move toward electors. For the
registration of electors to be
effective, complete and fairly done, registration officers travel and visit
electors.
They check electors’ electoral cards and call for information for
determining whether or not the name of a person should be
included on an
electoral list and they issue a new electoral card to the newly registered
elector. This coupled with
the provision of information to voters and the
general public (Section 3(2)(h)) can represent an expensive exercise (see
evidence of the Acting Deputy Principal Electoral Officer, Tom Alick Kalo
about the expenses of such operations). The period
of registration of
electors ended up with the inspection period of 14 days by the public in
pursuance to Section 16 of
the Act.
In this case, the registration officers called upon the
Applicant for him to give information concerning himself for determination
whether or not his name should be included on an electoral list of 2001.
That call was done by the registration officers
on Friday 30 March 2001 to
come back and visit the applicant and his family on the next day which was
Saturday 31 March
2001. The Applicant and his family waited but the
registration officers did not come at the Applicant’s residence on 31 March
2001 as the evidence shows.
Although, there is evidence that messvia Radio
Vanuatu were sent to inform the public abou about the inspection of the electoral
list for a period of 14 days in July 2001 in pursuance to Section 16 of the
Act (Affidavit of Acting Deputy Principal
Electoral Officer Mr. Tom Alick
Kalo), there is no evidence before this Court that the Applicant knew or was
aware of
the said radio messages to avail himself for inspection in July
2001. For the factual finding in this case, the registration
period
1999–2000 are not helpful because the disputed period was during the
registration period of March 2001.
The facts of this are peculiar. I would have no
difficulty to find otherwise if the registration officefficers have not committed
themselves to come back to the Applicant’s residence on 31 March 2001 after
their visit there on 30 March 2001 to check
the Applicant’s electoral card
and call for information for determining whether or not the Applicant’s name
should be
included on an electoral list. The Applicant and his family relied
on that promise. Further because, the Electoral Commission
(First
Respondent) decided to proceed with new electoral cards for the new
elections in the country, in order to deal
with discrepancies referred to by
the Principal Electoral Officer (her affidavit referred to earlier), it is
within the
responsibility of the Principal Electoral Officer via the
registration officers to facilitate the process of change with the
issuance
of new electoral cards. Furthermore, the inspection of the electoral list by
the public for a period of 14 days
which shall end on or before the 15th day
of June is not limited to inviting the public for the inspection of the
electoral
list at the Electoral Office for a constituency such as Port-Vila.
This is particularly more so for Port-Vila constituency
where, electors have
to use the same card for local elections (Municipal Elections) and
legislative elections.
Section 16(2)(b) provides for copies to be lodged at such
places or with such other persons (both) in Vanuatu (and outside)
as the
Electoral Commission shall direct or cause to be lodged.
By Section 16(2)(ap; (b) Parliament intended that the
inspection of the electoral list be undertaken inen in such a way to reach
many
electors as possible but not confine the inspection at the Electoral Office.
This may be seen to be done at the
convenience of the Electoral Office and
place potential electors in some difficult position.
In this case, the registratioicers failed to perform
their duties and obligations ions as required by the Representation of
the People
Act [CAP.146].
It follows then that the Applicant was put into this
invidious position. In normal circumstances, I may refuse the order of
Mandamus but I consider this to be an exceptional case. I allow the
application of the Applicant to apply for prerogative
reliefs. For the
foregoing reasons, the Court makes the following Orders:
1. THAT the Court has power to review the decision
of the Electoral Coal Commission.
2. THAT the decisions of the Principal Electoral
Officer, Second Respondent, dated 28 March 2002 and the decision of the
Electoral
Commission, First Respondent, dated 4 April 2002 be brought up and
quashed.
3. THAT the Principal Electoral Officer shall
include the of the Applicant in the Anhe Anaburu electoral roll and provide
the
Applicant with electoral cards where necessary.
4. THAT the costs of the proceedings are for the
Applicant. Costs are assessed at Vatu 60,000 to be paid by the Respondents.
DATED at PORT-VILA, this 8th DAY of APRIL, 2002
BY THE COURT
Vincent LUNABEan>
Chief Justice
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