Maoate v Attorney-General [1999] CKHC 2; HC Civil Case 029 of 1999 (26 April 1999)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

Case No. 29/99

IN THE MATTER of the Declaratory Judgments Act 1994

AND

IN THE MATTER of Sections 106A and 106B of the Electoral Act 1998
(as inserted by Section 7 of the Electoral Amendment Act 1999)

BETWEEN:

TEPEPAI MAOATE of the Democratic Alliance Party
Applicant

AND:

THE ATTORNEY GENERAL
Respondent

Counsel: M.C. Mitchell for Applicant
P.M. Manarangi for Respondent

Hearing: 26 April 1999

JUDGMENT OF QUILLIAM C.J

This is an application for a declaratory order to determine the constitutional validity of Sections 106A and 106 B of the Electoral Act 1098, as inserted by Section X of the Electoral Amendment Act 1999. That amendment received the consent of the Queen's Representative and came into force on 24 March 1999 in anticipation of the general election which has been fixed for 16 June 1909.

The relevant part of s. 106A provides:

"106A. Interpretation - (1) For the purposes of this Part unless the context shall otherwise require-

"Election political activity" in relation to a candidate or a party at an election in any constituency, means any activity open to or directed at the general public, and which relates principally to the campaign for the return of a candidate or the promotion of a political party and which comprises:-

(a) advertising or promotion of any kind; or

(b) radio or television broadcasting; or

(c) publishing, issuing, distributing, or displaying addresses, notices, posters, pamphlets, handbills, billboards placards;

"Campaign period" means the period of 5 weeks immediately preceding 6th on the day before polling day..."

Section 106B provides:

"106B. Campaign period - (1) It shall not be lawful for any person or political party to undertake any election activity except within the campaign period.

(2) Nothing in this section shall preclude a person or political party from undertaking or performing anything authorised by this Act before or after the campaign period.

(3) Every person who knowingly undertakes or causes to be undertaken any election activity before or after the campaign period in contravention of subsection (1) of this section commits a corrupt practice and upon conviction shall, in addition to any other penalty for which that person may be liable, also be liable to a fine not exceeding $10,000."

These provisions are attacked on several grounds. Having regard to the urgency of the application, I refer mainly to one of those grounds which I consider to be in itself determinative of the matter.

The Parliament of the Cook Islands has power to make laws subject to the provisions of this Constitution for the peace, order and good government of the Cook Islands" (Article 39(1) of the Constitution). "Parliament may not make any provision inconsistent with any provision of this Constitution..." (Article 41)

Article 64 protects the "fundamental rights and freedoms" which include "freedom of speech and expression" and "freedom of peaceful assembly and association".

The question is whether s. 7 of the Electoral Amendment Act 1999 is inconsistent with any provision of the Constitution.

Whatever was the intention of Parliament at the time of the statute must be interpreted upon the basis of the plain words contained in it.

Section 106E prohibits any person or political party from undertaking any "election activity" at any time except within the campaign period, namely during the period of 5 weeks immediately preceding 6 pm on the day before Polling day. This means that throughout the whole life of a parliament (normally 5 years) there may be election activity for a period of 5 weeks only. It follows that any overt attempt to form a new political party or for the promotion to the public of a proposed political candidate is prohibited except for 5 weeks between elections.

On behalf of the Respondent it was submitted that the legislative limitation of the "fundamental freedoms" referred to in Article 64 are permissible if such limitations are-

- imposed by law,

- for protecting the rights and freedoms of others...,

- or in the interest of "the general welfare...of the Cook Islands"

It was argued that there were four principal tests to determine the dividing line between permissible and impermissible incursions into the fundamental freedoms:

1. The objective of the legislation must be a pressing and substantial concern in a democratic society.

2. There must be a rational connection between the objective and the Act, and that the Act is reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic process.

3. That the regime enacted impairs the fundamental freedoms affected as little as possible in achieving its purpose

4. That the proportionality of good and bad effects is in favour of the good effects.

It was argued further that the effect of the 1999 Amendment: was to promote equality and fairness by restricting excessive expenditure on election activity and to spare the public the "pain of elections".

These submissions must be considered against the result which, the Amendment has achieved. Whether or not it was recognised by Parliament that the real effect of the provision was to limit election activity to a single period of 5 weeks between elections, this is the result of what was enacted.

Section 7 of the Amendment Act was passed in purported adoption of a recommendation made by the Commission of Political Reform established by Order in Council on 6 August 1998, namely:

"This Commission therefore recommends that the period of campaigning before an election be reduced from the present three months to a minimum of 4 weeks and a maximum of 6 weeks,"

This recommendation has been explained in an affidavit by the Chairman of the Commission to have been intended to refer only to reducing the period of time between the election of Parliament and the following general election. That period is fixed at 3 months by the Constitution and it is this which the Commission apparently considered should be shortened.

The Chairman's explanation cannot, of course, determine the interpretation to be given to the statute which must depend if it can be the plain words used. There does not appear to be any ambiguity in the Amendment and so the Chairman's comment is of incidental interest only.

What was actually achieved, however, was a restriction on almost any form of overt political activity for all but the briefest of periods between elections. As I have said, this would prevent the forming of new political parties or the announcement of any prospective candidature for election. The result is so comprehensive that, no matter how much relief that may give the public, I am unable to accept that it meets the tests posed on behalf, of the Respondent and referred to above. Nor can I accept that it is consistent with the rights and freedoms conferred by the Constitution.

I should observe that it has hot been suggested on behalf of the Respondent that the Amendment does not have the very wide effect to which I have referred. Rather the Respondent sought to meet this with the submission that the Amendment was within reasonable bounds in its effect, and was in the end to the benefit of the public. I am unable to accept that this can be so.

I think I should add that I do not in any way seek to define just what degree of limitation on election activity would be permissible. That would depend upon the precise nature of any further legislation which may be passed.

I should also stress that the need to give a decision as a matter of urgency has prevented me discussing a number of other matters canvassed by counsel. As I have indicated, I regard the very wide extent of the enactment to be in itself fatal to its validity.

There will accordingly be a declaration in terms of the Statement of Claim, namely that Sections 106E and 106$ of the Electoral Act 1998 (as inserted by Section 7 of the Electoral Amendment Act 1999) are invalid and unenforceable.

The question of costs is reserved.

QUILLIAM C.J.