In re Manihiki Electoral Roll [1988] CKHC 3; MISC 28.1988 (16 December 1988)

IN THE HIGH COURT OF THE COOK ISLANDS
MISC. 23, 26, 27, & 28/1988

IN THE MATTER
of the Electoral Act 1966

AND

IN THE MATTER
of an objection by MEIRI CHARLIE
to the registration of IOANE DORA,
TEREAPHII OKOTAI, NAPARA TIHAU and HELEN TIHAU
as electors on the Manihiki Electoral Roll

Counsel: McFadzien for Chief Electoral Officer
Mr Puna for Objectors
Mr Sceats for Respondents

Date: 16 December 1988

RULING OF QUILLIAM J

There are before the Court nine objections brought by an elector registered on the Manihiki Electoral Roll to the registration of certain electors on that roll. In four of those cases the electors have appeared and given evidence. In the remaining five they have not. I understand that they are in New Zealand at present. I find myself in a difficulty in dealing with these latter five. I am reluctant to make any fording against the electors without being satisfied that they have been served and have had an opportunity to be heard. I think I ought to leave those applications unheard.

The other four cases all proceed upon the same basis. Each has applied for registration in the Manihiki electorate but none has resided continuously in that electorate during the period of three months prior to such application. A single issue of law arises in respect of each objection and it turns upon a question of interpretation of the relevant legislative provisions.

The matter is not an easy one but I have had the advantage of full argument by Counsel. In the ordinary course I should have preferred to reserve my decision in order to give the matter careful consideration. That would mean however that a decision would not be given until too late to be effective because the General Elections are to be held very shortly. In these circumstances I have felt it necessary to give the best consideration I could to the matter in the time available. I have reached a reasonably clear view on the question of interpretation and I will give my fording on it although with reasons more briefly expressed than I should have wished.

The qualification required by an elector in the Cook Islands is governed for the most part by the Electoral Act 1966. Section 8 of that Act so far as is material for present purposes provides:-

"8. (1) In addition to the qualifications as to nationality and residence provided for elections by Article 28 of the Constitution, every person shall be deemed to be qualified to be registered as an elector of any constituency, if he -

(d) In the case of a constituency in the Cook Islands -

(i) Has resided in that constituency for a continuous period of not less than three months immediately before the date of his application for registration...."

That section directs attention to Article 28 of the Constitution. This Article contains the basic provisions for qualification as an elector in the Cook Islands and Clause 1 provides:

"28. Qualification of electors - (1) Without limiting the provisions of any law prescribing any additional qualifications not inconsistent with any provision of this Constitution, a person shall be qualified to be an elector for the election of a Member of Parliament for any constituency other than the Overseas Constituency, if, and only if, -

(a) He is a Commonwealth citizen, or he has the status of a permanent resident of the Cook Islands as defined by the Act; and

(b) He has been resident in the Cook Islands throughout the period of three months immediately preceding his application for enrolment as an elector and has not subsequently qualified as an elector under sub-clause (2) of this Article; and

(c) He has at some period actually resided continuously in the Cook Islands for not less than 12 months."

It is unnecessary for present purposes to make further reference to this Article except to say that in terms of the Article there are additional qualifications not inconsistent with the Constitution. These are the ones in Section 8 of the Electoral Act as already mentioned.

Section 8(1) (d) contains the expression "resided" and Section 2(1) of the Electoral Act defines "to reside" as having the same meaning as in Article 1(1) of the Constitution. It is necessary therefore to return to the Constitution and to observe that "to reside" in relation to the Cook Islands or to any constituency in the Cooks Islands is defined as meaning "to have a usual place of abode in the Cook Islands or as the case may be in that constituency notwithstanding any temporary absence for the purpose of undergoing a course of education or of technical training or instruction and notwithstanding any occasional absence for any period not exceeding three months for any other purpose".

This is the provision which is at the heart of the present objections. It is undoubted that some at least of the electors objected to have been absent from the electorate of Manihiki for a period exceeding three months immediately before their applications for registration. On behalf of the Chief Electoral Officer it has been argued that this fact alone is not a disqualifying circumstance but simply means that there is no presumption of residential qualification and that it still remains for a decision to be made in each case whether the absence of over three months ought to amount to a disqualification. In other words it is said that Article 1(1) does not impose any automatic cut-off point. In support of this argument reference was made to several decided cases in New Zealand and to one in England. I have looked at those cases to the extent that time has permitted. It must be said at once that in none of them was the Court required to apply a statutory provision in terms similar to Article 1(1). For instance reliance was placed on the decision of Cooper J in Taumarunui Election Petition 1915 NZLR 563. The statutory provision in that case was "a person shall be deemed to have resided within the district wherein he has his usual place of abode notwithstanding his occasional absence from the district". This is of course altogether different from the present case and it is not surprising to find that Cooper J regarded the provision as an enabling and relieving clause rather than a disabling one. The Cook Islands legislature has however put an express limit on the period during which absence can be excused.

It was argued further that the wording of Article 1(1) is to be contrasted with the expression found in several places in Article 28, namely, "actually resided" or "actual residence". Certainly it is true to say that such an expression indicated something more than simply "resides", particularly where there is a degree of flexibility allowed in respect of occasional absence. This submission however must give way to the well-recognised cannons of statutory construction.

It is a fundamental proposition of statutory construction that if the words of the statute are clear and unequivocal they must be given their natural and ordinary meaning. It is only where the words are in some way obscure or ambiguous that the Court may look for some aid to construction. It is necessary therefore to approach the present matter first by considering the words used.

The words used which have relevance here are:

1. "Has resided in that constituency for a continuous period of not less than three months immediately before the date of his application for registration" (Section 8(1) (d) (i)).

2. The qualifying words in Article 1(1) defining the expression "to reside".

In order to ascertain the qualification of an elector it is necessary to proceed on a two step basis.

1. First it must be determined what is the electors "usual place of abode". For this purpose considerable assistance may be derived from the decisions of the Courts in New Zealand and other countries because the expression has been frequently used and often interpreted.

2. Once a decision has been made as to the electors usual place of abode and it is found that the elector has been absent from that place on a temporary basis then the enquiry shifts to the circumstances in which absence may not be regarded as a disqualifying factor. That inquiry involves a consideration of whether there was:

(a) any temporary absence for the purpose of undergoing a course of education or of technical training or instruction. For this purpose there is no limit in time to the length of the absence.

(b) any occasional absence for any period not exceeding three months for any other purpose.

If either of these situations exists then the decision as to the usual place of abode will remain undisturbed.

I am unable to see that there is anything ambiguous or obscure in the words of Article 1(1) and I consider they must be given their natural and ordinary meaning. It was argued that to do so could result in anomalies and some examples of such anomalies were given. I accept that this is so but I do not consider that to be any reason for departing from the well recognized principles of construction. If there are anomalies then that is a matter for correction by Parliament and not by this Court.

Accordingly I am satisfied that occasional absence from an electorate for a period exceeding three months means that the elector may not be registered as an elector in that electorate.

I am mindful of the fact that Electoral Courts have traditionally leaned against decisions which will result in disenfranchisement. I observe that such a result does not necessarily follow from the conclusion I have reached. The electors are not disenfranchised as they may still apply if other circumstances permit for registration in another electorate. I realize that in the present cases the fact that the rolls have closed may preclude them from doing that and so in that sense they may for the moment be disenfranchised. But that cannot alter the clear view I have formed as to the application of the legislation.

In view of my findings I understand that it must be accepted that the objections in respect of Ioane Dora, Tereapii Okotai, Napara Tihau and Helen Tihau must be allowed.

As to the other five cases I prefer to stand them down at present. It may be that the findings I have given will enable them to be resolved by Counsel. I am not prepared to dispose of them finally now as it may be possible for the objections to be heard yet perhaps in New Zealand.

QUILLIAM J