Butadroka v Attorney-General [1992] FJHC 29; Hbc0214j.92s (31 July 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 214 OF 1992

Between:

SAKEASI BUTADROKA
Plaintiff

- and -

1. ATTORNEY GENERAL
1st Defendant
2. ELECTORAL COMMISSION
2nd Defendant

Mr. T. Fa for the Plaintiff
Mr. F. Jitoko Solicitor General for the Defendants

JUDGMENT

On the evening of the 30th of April this Court delivered a short 3 page ruling declaring that "... Regulation 15(10) of the Electoral (Conduct of Election) Regulations 1992 in so far as it seeks to impose a deposit of $1,000 on candidates contesting the election is unconstitutional and to that extent cannot stand and is accordingly declared to be void."

Owing to the constitutional importance and extreme urgency in the matter this Court reserved to itself the opportunity to give full reasons for its decision. This I now proceed to do.

The originating summons seeking the above declaration was filed and served on all relevant parties on the 24th of April 1992. The application was supported by 5 affidavits filed by senior members and officials of 5 major political parties that were seeking to contest the then impending General Elections which were subsequently held between the 23rd and 30th of May 1992.

There was no affidavit in reply filed by any of the respondents but the Chairman of the Electoral Commission gave sworn evidence (under protest) at the hearing and the learned Solicitor-General addressed the Court in opposing the application.

The application bears a fairly narrow ambit and necessitates an examination of the provisions of the Electoral Decree 1991. The Electoral (Conduct of Elections) Regulations 1992 made pursuant to the Electoral Decree and the Constitutional provisions protecting the Fundamental Rights and Freedoms of the Individual especially those relating to an individual's right to assemble and associate freely and to be protected from discrimination.

In this latter regard learned counsel for the applicant argued that a nomination fee of $1,000 unlawfully discriminated against "the poor" as opposed to "the rich". I cannot agree. The requirement of a $1,000 refundable deposit on nomination is a general requirement which applies to all persons who are nominated for election to parliament. It applies to both rich and poor

alike and although it may cast an unequal burden on the latter that does not in my view render the requirement "discriminatory" in terms of Article 16 of the Constitution.

I propose at this stage to set out in some detail the evidence which was produced before the Court at the hearing of the case. The Court had before it the following affidavits in support of the application:

(1) Sakeasi Bakewa Butadroka the President of the Fijian Nationalist United Front;

(2) Navin Maharaj the General Secretary of the Fiji Labour Party;

(3) Osea Turaga Gavidi a member of the Soqosoqo Ni Taukei Ni Vanua;

(4) Kinijioji Maivalili a member of the New Labour Party; and

(5) Sitiveni Ligamamada Rabuka a member of the Soqosoqo Ni Vakavuilewa Ni Taukei.

In addition the Court heard oral evidence from Sakeasi Butadroka and Josaia Waqa to the effect that they had written to His Excellency the President (both copied to the Electoral Commission) expressing their concern at the amount of the nomination fee required and seeking a reduction. Neither has been favoured with a reply.

In opposing the application the Chairman of the Electoral Commission Mr. Qoriniasi Babitu Bale testified that the requirement of a nomination fee or deposit was considered a common universal practice in all democracies and is imposed on aspiring candidates standing for elections. The primary concern being to try as far as possible to ensure an orderly and fair election by discouraging frivolous candidates.

This reasoning was doubted however in the judgment of Chief Justice Burger when he delivered the opinion of the Supreme Court of the United States in Lubin v. Panish [1974] USSC 61; (1974) 415 U.S. 709 at p.717 when he said:

"Filing fees, however large, do not, in and of themselves, test the genuineness of a candidacy or the extent of the voter support of an aspirant for public office. A large filing fee may serve the legitimate function of keeping ballots manageable, but, standing alone, it is not a certain test of whether the candidacy is serious or spurious."

Then in words that might equally apply to the present situation the learned Chief Justice said at p.718:

"As we have noted, the payment of a fee is an absolute, not an alternative condition, and failure to meet it is a disqualification from running for office ... Selection of candidates solely on the basis of ability to pay a fixed fee without providing any alternative means is not reasonably necessary to the accomplishment of the State's legitimate election interests. Accordingly, we hold that in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay."

Under cross-examination Mr. Bale testified that the $1,000 figure arrived at "... was the Commission's own deliberate decision". (Whatever that might mean.) He accepted however that the nomination fee for previous elections was $100 but that figure was considered '... too low'. In any event this was a "... new fee ..." being set under a "... new Electoral Decree ..." made under a "... new Constitution ...".

He frankly admitted that in setting the figure the Commission had not considered individual income levels, or earning capacities nor had it sought representations or public comment or consulted with any interested parties. Neither does there appear to have been any effort made to obtain any 'statistical data' which might have assisted the Commission in its deliberations.

If I may say so after hearing and considering the evidence of Mr. Bale this Court was left with the distinctly unfavourable impression that the figure of $1,000 was an entirely arbitrary one quite unrelated to the 'economic realities' of the situation prevailing in Fiji.

Having said that however the Court accepts that some regulation is envisaged in the legislative scheme of enactments and is necessary in the holding of orderly parliamentary elections, particularly, in regard to the number of candidates standing for election.

Many legitimate reasons may be advanced in support of such a restriction including, limiting the size of the ballot; reducing the potential for voter confusion; ensuring that the candidate who eventually wins is the choice of the majority of the popular vote; meeting the costs of the election and maintaining the integrity of the electoral process.

This Court is also mindful that alternative methods exist for controlling and qualifying persons who seek nomination for public office such as residency restrictions, and demonstrated support limitations e.g. by requiring every aspiring candidate to be nominated by 100 voters or a reasonable percentage of registered voters in his constituency.

It is true as was pointed out by the learned Solicitor-General that the Constitution nowhere expressly recognises a 'right' to be a candidate for election to parliament as opposed to a 'right to vote' at elections, but as was said in the opinion of the Supreme Court of the United States in Bullock v. Carter [1972] USSC 39; 405 U.S. 134 (again delivered by Chief Justice Burger) at p.142:

"The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters ... Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they may be, and no matter how broad or enthusiastic their popular support. The effect on voters is neither incidental nor remote.

Then there is the question of an individual's freedom of assembly and association which is clearly recognised in Article 14 of the Constitution in the following relevant terms:

"... no person shall be hindered in his enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests."

The learned Solicitor-General (and Mr. Bale) could see no necessary link between the requirement of a $1,000 deposit and the "right to associate", nor was the enjoyment of the "right" impaired in anyway by the deposit. With all due respect I cannot agree.

To 'hinder' is defined in the Shorter Oxford English Dictionary as meaning (amongst others):

"To delay or frustrate action; to be an obstacle or impediment."

In the circumstances of this case can be truly said that the $1,000 deposit required of election candidates does not 'hinder' their freedom to associate with other candidates in a political campaign under a common party? or with voters who may wish to vote for them? I think not.

In Kusper v. Pontikes [1973] USSC 235; 414 U.S. 51 Mr. Justice Stewart in delivering the opinion of the Supreme Court of the United States said of the 'right to associate freely' at p.55:

"There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of (protected) orderly group activity. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom.

To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. But in exercising their powers of supervision over elections and in setting qualifications ... the States may not infringe upon basic constitutional protections ..."

In that regard this Court too is firmly of the opinion that in fixing a nomination deposit of $1,000 without any alternative means of seeking nomination for election, the Electoral Commission has substantially and effectively "hindered" the enjoyment of the right of voters and candidates to associate freely for the advancement of their common political interests.

In my view the right to vote and the right to stand for election are so inextricably bound up that any form of restriction imposed on candidates seeking nomination for election directly impacts on the right of voters to form political associations with and vote for like-minded persons of their choice in the pursuit of their legitimate political and ideological interests.

Needless to say a nomination deposit which is so high as to effectively debar the nomination of serious (albeit impecunious) candidates hinders in a not insignificant manner the availability of sympathetic persons with whom "the poorer voter" may wish to associate in the furtherance of his interests.

As was said by Chief Justice Burger in Lubin v. Panish (op cit) at pp. 715 and 716:

"This legitimate state interest however, must be achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity. The interest involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is inter twined with the rights of voters ..."

and later

"It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues. This does not mean every voter can be assured that a candidate to his liking will be on the ballot, but the process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars."

In dealing with the issues raised in this case I have also been much assisted by the judgment of the Full Supreme Court of Papua New Guinea in Supreme Court Reference No. 2 of 1982 in which the Ombudsman's Commission referred to the Court for its opinion, a law not unlike our Regulation 15(10) increasing the deposit for parliamentary election candidates from 100 to 1000 Kina.

In its preliminary ruling on the reference the Court held that the law in question was made in a manner not allowed by the Constitution and was therefore invalid.

Then in its more detailed reasons (provided later) the Court held, that the requirement of a K1000 nomination fee denied to a majority of eligible citizens their reasonable opportunity to stand for elections and further that 'the law' in question, was not "reasonably justifiable in a democratic society".

Needless to say unlike in the present case, in that case the Papua New Guinea Supreme Court was provided with a great deal of statistical material which dealt inter alia with various well-recognised economic indicators such as - the proportion of the population wholly engaged in subsistence agriculture; minimum wage levels; the proportion of population earning a regular cash income; average wage levels of public servants and average per capita income figures.

Even if it were arguable that Regulation 15(10) of the Electoral (Conduct of Elections) Regulations 1992 requiring the $1,000 nomination deposit was "a law in the interests of public order", nevertheless the Regulation would need, in addition, "... to be reasonably justifiable in a democratic society".

In this latter regard Kapi J. in the afore-mentioned Papua New Guinea case in a comprehensive and detailed analysis of the phrase "... not reasonably justifiable in a democratic society ..." adopted the test of "reasonableness" formulated by Patanjali Sastri C.J. in The State of Madras v. V.G. Row [1952] INSC 19; AIR (1952) S.C. 196 when he said at p.200:

"... the test of reasonableness, wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern, ... can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict ..."

With respect I too would adopt the above "test" as applicable to the interpretation of what is "reasonably justifiable" in the context of the present Constitution. Furthermore insofar as the 'rights' claimed to be infringed are designated 'fundamental', this Court in my view is called upon to adopt an attitude of 'strict scrutiny'.

A tangible illustration of what is NOT "reasonably justifiable" occurred recently in Papua New Guinea where its Full Supreme Court in Supreme Court Reference No. 1 of 1992 (unreported) again on a reference from the Ombudsman's Commission struck down an electoral law which required the forfeiture of the deposit of an unsuccessful candidate for election.

In so holding the Court said at p.10:

"In our judgment, the sum of K1000 deposit is a very high one in a democratic society, given the circumstances of the country ... even where it may be said that a communal life means that individuals will be supported and be able to obtain this amount. It would certainly have the effect of ensuring that the act of nominating is regarded with appropriate seriousness. But for what reason should it be forfeited if a candidate remains unelected? In our judgment it is not 'reasonably justifiable' for the purpose of regulating the right to a reasonable opportunity to be elected to elective public office."

Conversely in Morgan v. Attorney General for Trinidad and Tobago (1988) 1 W.L.R. 297 the Privy Council upheld as "reasonably justifiable" legislation which infringed a landlord's right to enjoy his property by depriving him of higher rent otherwise obtainable.

Lord Templeman in delivering the judgment of the Court observed at p.299:

"Statutory rent restrictions imposed on dwelling-houses have long been features of many societies which maintain proper respect for the rights and freedoms of the individual, including the right to enjoy property. The legislature of such a society considers that it is reasonably justifiable to limit the income which a landlord derives from his investment in order to limit the rent which a tenant must pay for his home. Rent restrictions are justified by the need to prevent a landlord exploiting a shortage of housing accommodation."

And further at p.300:

"Every administration in a democratic society retains power to counter rent rises by rent control. The likelihood of rent control legislation and the form of rent control legislation depend on the current state of housing shortages and on the current political and economic philosophy of the administration."

In the present case whilst the Court accepts that the Electoral Commission was properly empowered to enact 'a law' requiring a nomination fee the amount fixed however prima facie contravenes a voter's 'right to vote' and hinders the applicant's 'freedom to associate' freely.

The Solicitor-General as the proponent of the law in question accordingly has the burden of proving that the law in question satisfies the criteria laid down in Article 14(2) of the Constitution. This he has failed to do and the Court is driven to conclude that the amount of $1,000 is not "... reasonably justifiable in a democratic society in which all peoples may to the full extent of their capacity play some part in the institutions of national life".

For the above reasons this Court made the declaration set out in the beginning of this judgment.

(D.V. Fatiaki)
JUDGE

At Suva,
31st July, 1992.

Hbc0214j.92s