Mr.agin for the Applicant
Mr. J. Apted for the Respondent, the Supervisor of Elections
REASONS FOR DECISION
On the 5th of August 1997 this court delivered a Preliminary Ruling granting to the applicant an order for 'certiorari' to quash a decision of the Supervisor of Elections. On that occasion the court reserved to itself the opportunity to deliver detailed reasons for its decision. This I now proceed to
do.
On the 24th of February 1997 the Honourable Mr. Harilal Manilal Patel a well-respected and highly regarded member of the legal profession was found dead at his home in Toorak, Suva. He was at the time, the sitting member in the House of Representatives for the Suva City Central Indian Constituency (the Suva City Constituency'). He had won the seat on a National Federation Party (NFP) ticket and had occupied it since 1992. With his death, the seat became vacant.
On the 24th of March 1997 the Acting President issued a Writ of Election commanding the relevant Returning Officer for the 'Suva City Constituency' to hold a by-election to fill the vacant seat. The Writ was made returnable 'on or before the 3rd day of October, 1997' and fixed the 25th of August 1997 as the 'nomination day' and the period 'between the 26th day of September and the 27th day of September, 1997' as the polling days should one prove necessary.
In terms of the Writ the Returning Officer had slightly over 6 months in which to conduct the election; 5 months in which to prepare the necessary roll and accept nominations; and thereafter, one (1) month in which to hold a poll. Such were the time constraints within which the respondent was obliged to perform his duties and functions.
No period for the registration of voters was provided for in the Writ nor, on my reading of the Electoral (Conduct of Elections) Regulations 1992, is one required to be held prior to an election.
That is not to say however, that the holding of a voter registration period is, subject to the annual registration required in terms
of Regulation 6(1), entirely at the discretion of the Supervisor of Elections. It is not, and the respondent very properly concedes in his written submissions "... that in a proclaimed democratic society like Fiji some fundamental or basic right to vote must exist whether or not it is
expressly provided in the Constitution" and furthermore: "It is conceded that a right (to register) must exist in some form and to some extent because otherwise the right to vote becomes meaningless."
In my considered opinion the 'right to register as a voter' is fundamental to our parliamentary system of government and is implicit in a number of Constitutional provisions including Section 41(2); 49(1); 50(1) and 53(1) which envisages amongst other functions of the Electoral Commission, 'the registration of voters for the election of members of the House of Representatives ..."
Similarly, the 'right to vote' is of the very essence of democracy and our parliamentary electoral system in which members of the House of Representatives are "... elected from among persons who are registered on (a) roll of voters ..." In my view, such a 'right' is implicit in Section 41(2), and explicit in Section 50 of the 1990 Constitution. Furthermore and contrary to the respondent's submission, the use of the word 'entitled' in the latter section does not belie the existence of the constitutional 'right', it is merely a convenient expression which recognises that there is no mandatory requirement that the 'right' must be exercised.
As for the 'right to be a candidate' in parliamentary elections (to borrow the respondent's terminology) in addition to what this Court said in Butadroka v. The Attorney General and Anor. Civil Action 214 of 1992, this 'right' is implicit in the requirements of Sections 41(3) to (6) and is fortified by Sections 42(3) to (5) where the expressions: 'stand for election'; 'stand as a candidate'; and 'stand as a candidate for election as a member of the House of Representatives' appears.
That is not to say however that there can be no control or regulation of the above 'rights'. Parliamentary elections would prove unmanageable and chaotic in the absence of some form of organisation or regulatory process,
but the supremacy of the Constitutional provisions and the 'rights' derived thereunder means that the regulations, devices and procedures that are put in place must necessarily safe-guard and promote
those 'rights'.
Registration procedures should therefore, within the available resources, impose the least possible burden upon voters consistent
with the achievement of two primary objectives namely, facilitating the enrolment of qualified voters and safe-guarding against the registration of unqualified voters.
Despite the absence of a requirement to hold a voter registration period, and perhaps seizing the opportunity to undertake an overdue
nation-wide registration of voters, the respondent in the exercise of powers contained in Regulation 6(1) of the Electoral (Registration) Regulations 1991 published a general Notice in the Fiji Republic Gazette of the 3rd of April 1997:
"... calling upon every person who is duly qualified to be registered as a voter on a Parliamentary electoral roll and who is
not already so registered to apply (Between April 7, 1977 and April 25, 1977) to the registration officer of the constituency in which you ordinarily reside to be registered as a voter ..."
At this stage it need only be observed that Regulation 6(2) of the Electoral (Registration) Regulations 1991 empowers the respondent, in his discretion: "(to)
allow a registration period for a particular constituency only"; Secondly, the Notice calling for applications to register as voters was primarily aimed at qualified persons who are "not already registered" and who presumably are desirous of participating in the electoral process; and Thirdly, the respondent decided for reasons that need not concern the court at present "... to update all the electoral rolls, rather than only the Indian electoral roll for the Suva City Central Indian Constituency".
In this latter regard Section 41(4) of the 1990 Constitution relevantly provides for the election of 27 members of the House of Representatives '... from among persons who are registered on the roll of voters who are Indians', and Section 48(2)(c) clearly envisages that the 27 members of the House of Representatives elected from 'a roll of voters who are Indians' shall 'be divided into twenty seven constituencies each returning one member'. This the respondent submits, necessitated the preparation of not just one (1) roll of voters for the Suva City Constituency but twenty seven (27) rolls of 'voters who are Indians'. I cannot agree.
In the face of the Writ and the clear wording of Regulation 6(2) of the Electoral (Registration) Regulations 1991, the submission must, at best, be of doubtful merit. Furthermore having regard to the qualification of an 'objector' under Regulation 24(2) of the Electoral (Registration) Regulations 1991 namely, that "(his) name appears on an electoral roll", by parity of reasoning a similar argument could be mounted that all rolls would need to be printed for every by-election. That cannot be right.
The decision of the respondent "... to update all the electoral rolls" numbering a total of 52 as opposed to the single roll necessitated by the Writ, is significant.
The applicant who is an aspiring National Federation Party candidate for the seat left vacant by the death of Mr. Harilal Patel deposed:
"... on the 9th day of June, 1997 I went to the Office of the Supervisor of Elections to ensure that my name was on the roll.
After checking the rolls I discovered that my name was not on the roll."
Quite plainly the applicant, not being 'registered on the roll of voters who are Indians', was neither qualified to be nominated as a candidate for the Suva City Constituency [See: Regulation 13(1) of the Electoral (Conduct of Elections) Regulations 1992] nor could he have been elected to fill the vacant seat.
By this time too, the advertised registration period for voters had been closed 5 weeks earlier and provisional rolls had already been sent to the Government Printer for printing.
Undeterred, the applicant on the respondent's advice, completed an application for registration as a voter form seeking thereby the
exercise of the respondent's discretion pursuant to the 'proviso' to Regulation 6(3) of the Electoral (Registration) Regulations 1991 which provides:
"... that all applications for registration as a voter delivered since the close of any registration period shall, unless the Supervisor otherwise decides, be dealt with in the registration period next succeeding that in which they were delivered."
(my underlining)
The underlined words are a new addition to the 'proviso' which existed in the predecessor regulation 5 of the old Electoral Regulations (Cap.4) and governed earlier parliamentary elections held under the 1970 Constitution.
In other words, under the old Electoral Regulations only those voter application forms lodged within the registration period would be entered on the rolls and any applications lodged 'out-of-time' so to speak, would be carried over and dealt with in 'the next succeeding' registration period. With the addition of the underlined words however, the Supervisor of Elections was given a discretion to entertain and enrol late applicants.
Under normal circumstances one would not expect the late delivery of voter application forms to necessarily call for any exercise
of the respondent's discretion, much less, give rise to litigation, but in the present circumstances, with an impending by-election
about to be held and given the applicant's desire and agreement to stand as a N.F.P. candidate in the forthcoming by-election, it was imperative that he be enrolled before the by-election, and not at the 'next succeeding' registration period. But in order to achieve this, the respondent had to agree to exercise his discretion under the 'proviso'.
The discretion is in its terms unqualified but in its nature and effect, it is necessarily an 'inclusive' one meaning by that, that any exercise of the discretion would necessarily result in the inclusion of the late applicant on a 'roll of voters'.
In the leading case of Padfield and Others v. Minister of Agriculture and Others [1968] UKHL 1; (1968) A.C. 997 Lord Reid said in an oft-quoted passage, of the nature of a statutory discretion:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of
the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter
of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of
his having misconstrued the Act, or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects
of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court."
A fortiori where the 'Act' being considered seeks to regulate fundamental electoral 'rights' derived under the Constitution. In this regard Lord Blackburn pertinently observed in Julius v. Bishop of Oxford (1880) 5 A.C. 214 (HL) at p.241:
"... if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the
donee of the power to exercise it for the benefit of those who have that right when required on their behalf."
(See also: per Lord Morris of Borth-y-Gest in Padfield's case (ibid) at p.1039E)
Finally in Practical Shooting Institute (N.Z.) Inc. v. Commissioner of Police (1992) 1 N.Z.L.R. 709 Tipping J. said, in rejecting a complete ban imposed by the Commissioner of Police on the importation into New Zealand of certain types of fire-arms, at p.718:
"The cases suggest that there are two, possibly three, categories into which discretionary powers of this kind can be put:
(1) First there are those powers which require an individual case by case examination without any predetermined fetter on the exercise
of the discretion, other than what might be explicit or implicit in such criteria as may be set out in the enabling instrument.
(2) Second there are those powers which by dint of the nature of the subject-matter justify the establishment as a matter of discretion
of a carefully formulated policy, but always with the reservation that no case is to be rejected automatically because it does not
fit the policy. In this category all cases must be considered to see if they are sufficiently special to warrant a departure from
the general policy.
(3) The third category, if it exists at all, represents cases where the discretionary decision maker is implicitly authorised to exercise
his discretion to establish for himself an immutable policy admitting of no exceptions.
The only tenuous authority of which I am aware for the suggested third category comes from Viscount Dilhorne's words in British Oxygen.
But rigid policy is really the antithesis of the exercise of discretion and I for one would need to see the power to adopt such a
rigid policy for a discretionary assessment appear by clear and necessary implication from the enabling legislation before I was
prepared to place a case into the possible third category."
Adopting that convenient categorisation, there is not the slightest doubt in my mind that the Supervisor's discretion in this case, falls within the first, and possibly the second, of the above 'categories'.
Having said that however, in this case, we are not dealing with the exercise of the discretion, rather we are dealing with the respondent's
failure or refusal to exercise his discretion.
In this latter regard on June 10th, 1997 the Supervisor of Elections wrote to the applicant in the following terms:
"Dear Mr. Narsey,
Yesterday, you applied for registration as a voter and sought to have your name included in the forthcoming provisional roll for the
Suva City Central Indian Constituency.
As I explained to you yesterday, the 1997 voter registration period closed on April 25, 1997.
The period was specifically timed to allow all qualified persons who were not already registered as voters, but who wished to vote
or stand as a candidate in the forthcoming Suva City Central Indian Constituency by-election, to have their names included on the
rolls.
The general rule under regulation 6(3) of the Electoral (Registration) Regulations, 1991 is that applications for registration received
after the close of a registration period are to be dealt with in the next following registration period.
I do have a discretion to decide that your application should be dealt with earlier than the next period. However, I regret that I
have, after much consideration, decided that this is not a proper case in which to exercise the discretion in your favour.
I take the view the discretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all
concerned.
Preparation of the provisional rolls are now well advanced. The originals were sent to the Government Printer last week, and we expect
copies to be delivered today. These are expected to go on display throughout Fiji this Monday June 16, 1997.
There have also been other applications made after the close of the 1997 voter registration period, and if I were to take special
steps to have your name included, fairness demands that I include the names of others on their respective provisional rolls as well.
Please be advised that although there is no formal system of appeals against my decision, under section 53(2) of the Constitution,
I am subject to direction by the Electoral Commission. You may therefore wish to request the Commission to consider this matter.
Yours faithfully,
(Sgd.) Jon Apted
Supervisor of Elections"
In his letter the Supervisor of Elections who would have had only the applicant's verbal information and request and his application form before him to consider, advanced
several 'reasons' for refusing to exercise his discretion, including:
"(that) the discretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all concerned."
(the 'Administrative efficiency' reason)
and in this latter regard:
"... if I were to take special steps to have your name included, fairness demands that I include the names of others on their
respective provisional rolls as well."
(the 'Fairness to Others' reason)
I confess to some difficulty in understanding what is meant by the phrase 'the discretion must be exercised objectively'. If it means that the personal ('subjective') circumstances of the applicant are to be ignored in arriving at a decision whether or not to exercise the discretion then quite plainly
that view would be wrong. If it means that the applicant's circumstances are to be compared with the 'objective' standard of a 'reasonable late applicant' (whatever that might be) or be judged against some pre-ordained policy or administrative guideline for the exercise of the discretion,
then that too, would be wrong. If it means that the 'purpose' for the exercise of the discretion is to 'ensure' some objective other than the enrolment of the late applicant then that also would be wrong. But if it means that the Supervisor is required to undertake a balancing exercise between relevant competing interests including that of the applicant, then the phrase
would appear to be unobjectionable.
Similarly I fail to see why the registration of the applicant's late application should per se oblige the Supervisor to 'include the names of others (i.e. late applicants) on their respective provisional rolls'. I cannot accept that in the absence of a request by such other late applicants, the respondent should consider himself constrained
by the 'demands' of some abstract paradigm of 'fairness' or 'justice', to act in regard to such other late applicants. As the respondent has so rightly pointed out in his written submissions "... a person cannot complain that he did not get a hearing if he, himself, did not take the necessary steps to avail himself
of the opportunity ...", more so in a case such as the present, where the late applicant would still be registered without the Supervisor's intervention albeit in the 'next succeeding' registration period.
It goes without saying that the respondent should and would be 'fair' in considering any application for the exercise of his discretion but, in my view, he may not treat 'fairness' as a justification for declining to exercise his discretion.
Be that as it may the respondent's 'reasons' are further espoused and expanded upon in his first affidavit especially at paragraphs 40 to 49, where he deposes inter alia:
In para. 41:
"In considering the ambit and purpose of my discretion under the said regulation 6(3), I considered that the discretion exists
to mitigate any unfairness or unreasonable infringement of rights which might occur if this general rule (relating to late applications) were to be applied strictly.";
In para. 42:
"... my discretion allowed me to make exceptions to the general rule in order to give effect to the right of individual late
applicants where justice or fairness required it, but the rights and interests of other voters and citizens also required that such
exceptions had to be made on consistent, fair, impartial grounds and in circumstances that did not undermine the effectiveness of
the general rules, and the system of registration periods and the publication of rolls which they prescribe."; and
In para. 43:
"In practice, ... I have exercised my discretion relatively leniently up until the compilation of the rolls is completed and
they are sent for printing."
Then in paras. 45 & 46 the respondent dealt with the 'two options' available to him in the event he should exercise his discretion in favour of the applicant viz recalling and recompiling the roll or compiling and printing a supplementary provisional roll.
In rejecting both options the respondent referred, as to the first option, to "... the administrative and financial consequences ... as well as the precedent that this would set". As to the second option, the respondent instanced that the 'only ground' when he had done this previously was "where through the fault of (his) administration voters had been mistakenly omitted or deleted from the roll", and he suggested in para. 47 that another 'good reason might exist where there is clear evidence that the late applicant was not at fault because he or she did not have a real
opportunity to make an application, for example, in a case in which he or she was ill or overseas or in a remote part of Fiji' or where, although the application form was completed on time, it was negligently delivered 'out-of-time' but before compilation of the rolls was completed as in the case of N.F.P. parliamentarian Niraj Sumeshwar Yadav.
Needless to say the respondent did not consider that the verbal information provided by the applicant and as reported in paras. 25 & 26 of the affidavit, was "a sufficiently good reason to justify his (the applicant's) late registration and inclusion in a supplementary roll".
Upon receiving the respondent's letter, the applicant no doubt acting on the advice contained in the final paragraph, immediately
sought, by letter, the intervention of the Electoral Commission in terms of its power under Section 53(2) of the 1990 Constitution to give mandatory directions to the Supervisor of Elections 'concerning the exercise of his functions'. The Electoral Commission through its Chairman declined the applicant's request in a letter dated June 12, 1997.
Five (5) days later the applicant issued an application for leave to issue 'judicial review' of both refusals to act. Upon the respondent's written intimation that he was not opposing the application, leave was granted to
the applicant. At the hearing of the substantive application it was further agreed, to only pursue the application in so far as it
related to the respondent's decision, and to limit the relief sought to a Declaration.
The grounds advanced by the applicant are set out as follows in the Statement filed pursuant to Order 53 r.3(2) of the High Court Rules 1988:
"21. The grounds upon which the Applicant is seeking relief against the SUPERVISOR OF ELECTIONS ... as follows:
(a) That the SUPERVISOR OF ELECTIONS ... failed to give any proper reasons for (his) decisions.
(b) That the SUPERVISOR OF ELECTIONS ... abused (his) discretion in that:
(i) That (he) took into consideration irrelevant matters and
(ii) (He) did not take into consideration relevant matters and;
(iii) (He) acted unreasonably and/or arbitrarily.
(iv) (He) acted in breach of the Doctrine of Legitimate Expectations.
(c) That the SUPERVISOR OF ELECTIONS ... acted in excess of (his) jurisdiction or failed to exercise (his) jurisdiction."
As for ground (a) I say at once that as drafted, it has no chance of success both as a matter of law and as a matter of fact. In my view there is no
such duty imposed on the Supervisor of Elections to furnish 'proper reasons' (whatever those might be) for his refusal to exercise his discretion under the 'proviso' to Regulation 6(3) (op.cit). The fact that he has chosen to give his reasons in writing is all that can be expected of him. This ground is accordingly rejected
'in liminie'. As for ground (b) the absence of any details or particulars renders it quite unhelpful even misleading, and ground (c) suffers from an inherent irreconcilable inconsistency.
Be that as it may the application was supported by an affidavit deposed by the applicant in which he referred to the circumstances
surrounding his agreement 'to be a N.F.P. candidate' for the vacant seat; the late discovery of his non-registration on the electoral rolls; and the unsuccessful steps he took thereafter
to be registered.
The affidavit also categorised the respondent's refusal as '... unreasonable in the circumstances', but, what the applicant's particular 'circumstances' are or were, is unclear from the affidavit except for the following paragraph which is to be found in the applicant's letter to the
Electoral Commission of 10 June 1997 where he states:
"My failure to be registered seems to have resulted from my (erroneous) understanding that once a person was registered, that
registration continued until the death of the individual. I certainly was registered in 1987 and therefore did not see any reason
to register when calls were made recently by the Elections Office. My name does not appear in the current rolls, and I am told that
all registrations were cancelled in 1992 and fresh registrations were called for, in the newly defined constituencies. During 1991
and 1992 I was engaged in considerable regional and international travel while undertaking an 18 month World Bank-funded Project
on Higher Education in the Pacific, and it is likely that I was not in-country when the calls for new registrations were made then."
This is further expanded upon and particularised in the applicant's affidavit in reply where he annexed a summary of the dates on
which he was absent from Fiji between the 31st of December 1989 and 14th November 1994 during which time he "... was practically living out of a suitcase to do (his) regional consultancy work and (he) was continuously travelling and in between (travelling) was writing some 10 reports for regional governments and the World Bank".
In considering this application I have borne in mind that the discretion and the decision whether or not to enrol any particular late
applicant as a voter, is entrusted to the Supervisor of Elections alone and the Court ought to exercise restraint in overturning his decision save where he has misconstrued the enabling legislation,
or abused his discretion or otherwise acted unreasonably or perversely.
I have earlier commented upon the respondent's 'reasons' given his letter to the applicant and having had the benefit of further clarifications in the respondent's two (2) affidavits and comprehensive 47 page written submissions, I am reluctantly driven to the following additional conclusions:
(1) That the respondent was unduly preoccupied by the notion of creating an 'undesirable precedent' in a situation where no precedent could be created and thereby imposed an unwarranted fetter on his discretion;
(2) The respondent's views regarding the publication of a supplementary roll and his thinly-disguised fear of being 'closely scrutinised by voters and political parties' coupled with his concerns for 'accountability' are in my view, considerations that Lord Upjohn in Padfield's case (op.cit) said at p.1061F:
"(are) alone sufficient to vitiate the Minister's decision (not to refer the applicant's complaint to a committee of investigation) ... (since) ... he must be prepared to face the music ... if a statute has cast upon him an obligation in the proper exercise of
a discretion conferred upon him to order a reference ...";
(3) The respondent's continuous references to the interests of other late applicants and voters in 'consistency and impartiality' leaves me with the distinctly unfavourable impression that he misdirected himself. In the words of Jenkins L.J. in R. v. County Licensing (Stage Plays) Committee of Flint CC ex-parte Barrett (1957) 1 ALL E.R. 112 in rejecting a claim that the same rule should be applied in all cases said at p.122:
"I cannot think that that method of approach fulfils the requirement that the matter should be heard and determined according
to law ... (insofar as) ... it wrongly pursues consistency at the expense of the merits of the (applicant's case).";
(4) The respondent's references to 'administrative and financial consequences' and to 'maintaining the integrity of the electoral registration system' discloses a failure on his part to understand the 'object' of the Regulations or to appreciate the inclusive nature of the discretion given to him under the 'proviso' to Regulation 6(3) and his duty thereunder;
(5) Furthermore the reference to 'fault' in the context of a discretion which is granted so as to facilitate the attainment and the exercise of fundamental constitutional
'rights' is, to my mind, both inappropriate and misconceived.
For the foregoing reasons the application was granted and a writ of certiorari was issued quashing the decision of the Supervisor of Elections as contained in his letter of 10th June, 1997.
D.V. Fatiaki
JUDGE
At Suva,
14th August, 1997.
Hbj0016d.97s
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