State v Supervisor of Elections, ex parte Narsey [1997] FJLawRp 31; [1997] 43 FLR 197 (14 August 1997)

[1997] 43 FLR 197

HIGH COURT OF FIJI ISLANDS

THE STATE

v

THE SUPERVISOR OF ELECTIONS

ex-parte:

WADAN LAL NARSEY

[HIGH COURT, 1997 (Fatiaki J) 14 August]

Revisional Jurisdiction

Constitution- elections- registration of voters- application for registration out of time refused by Supervisor of Elections- whether discretion properly exercised- Constitution (1990) Sections 41 (2) & 50 - Electoral (Registration) Regulations 1991 Regns 6 (2) & 6 (3).

The applicant wished to stand in a forthcoming by-election but failed to register as a voter within the period stipulated by the Supervisor of Elections. The Supervisor rejected his application for late registration. The High Court examined and explained the relevant statutory provisions and HELD: that in all the circumstances the Supervisor’s discretion had miscarried and accordingly his decision to refuse the late registration would be quashed.

Cases cited:
&#16>

Butadroka v The Attorney-General & Anr Civ.on 214/92

Juli>Julius v. Bishop of Oxford (1880) 5 214 (HL)

Padfield and Ors v. Minister of Agriculture 7 Ors [1968] UKHL 1; [1968] AC 997

Practical Shg Institute (NZ) Inc. v. Commissioner of Police [1992]

<60; #160;< ټ&##60;&< &60; 1 NZLR 709

i

<. Countyounty Licensing (Stage Plays) Committee of Flint ex-parte Barret

҈&
#160;&##160;;
;ټ [1957] 1 All ER 112

Motion for judiciadicial review.

H. Nagin&#16 ther the Applicant
J. Apted for the Respondent
&#1r>;
Fatiaki J:

On the 5th of August 1997 this court deli a Prnary Ruling grantgranting to the applicant an order for cerr certiorari to quash a decision of the Supervisor of Elections. On that occasie court reserved to itself the opportunity to deliver detaidetailed reasons for its decision. This I now proceed to do.

e 24th of February 1997 1997 the Honourable Harilal Manilal Patel a well-respected and highly regarded member of the legal profe was found dead at his home in Toorak, Suva. He was at the time the sitting member in the Hthe 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 rch 1997 th97 the Acting President issued a Writ of Election commanding the relevant Returning Officer for the Suva City Constituency to hold a by-election to fhe vacant seat. The Writ was made returnable ‘on or b 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 of the Writ the Rete 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, onth in which to hold a poll poll. Such were the time constraints within which the respondent was obliged to perform his duties and functions.

No period he registratitration 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.

In my considered on then the right to register as a voter is fundamental to our parliamentary system of government and is implicit in a number oftitutional provisions including Section 41(2) ; 49(1) ; 50(1) and 53(1) which envisages amos amongst other functions of the Electoral Commission, ‘the registration of voters for the election of members of the House of Representatives ...”

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 Att Geny General and Anor.l Action 214 of 1992, this this right is implicit in the requirements of Sections 41(3) to (6) and is fortified by Sections 42(3) to here the expressions : ‘stand for election’ ; &; ; ‘stand as a candidate’ and ‘stand as a candidate for election as a member of the House of Representatives’ appear.

That is not tohowever tver that there can be no control or regulation of the above rights. Parliamentary elections would prove unmanageable and chaotic in the absence of some of organisation or regulatory process, but the supremacy oacy 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.

Despie absence of a reqa 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 exercf powers contained in RegulRegulation 6(1) of the Electoral (Registration) Regulations 1991 published a general Notice in the Fiji Republic Gazette of the 3rd of April 1997 :

&#822 calling upon 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 Apr, 1977) to the registrationation officer of the constituency in which you ordinarily reside to be registered as a voter ...”

At this stage it need bnly 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 d Sectioection 41(4) of the 1990 Constitution relevantly provides for the election of 27 members of the House of Representatives ‘... from among persons we registered on the roll of voters who are Indians’, 17;, 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 roll of voters for the Suva City Constituency but twenty seven rolls of ‘voters who are Indians’. I cannot agree.
all&#1lls would need need to be printed for every by-election. That cannot be right.

The decisf the respondepondent to update all the electoral rolls numbering a total of 52 as opposed e single roll necessitated ated by the Writ, is significant.

pplicant who is an aspi aspiring National Federation Party candidate for the seat left vacant by the death of Mr. Harilal Patel deposed :

“...he 9th dath day of June, 19went to the Office of the Sthe Supervisor of Elections to ensure that my name was on the roll. After checking the rolls I discovered my name was not on the roll.”

Quite plai plainly tpliapplicant, 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 Elel (Conduct of Elections) Res) Regulations 1992] nor could he have been elected to fill the vacant seat.

By this time too advertdvertised registration period for voters had been closed 5 weeks earlier and provisional rolls had already been sent to tvernment Printer for printing.

Undeterred, the applicant on the respondentRt’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 Rtion 6(3) of the Electoral oral (Registration) Regulations 1991 which provides :

&#8.. that all appl applications for registration as a voter delivered since the close of any registration period shall,unless the Supervisor otherwise decides
In other words, under the old Electoral Regulations only those voter application forms lodged within the registration period would be entered on the rollsany applications lodged ‘out-of-time’ so to speak, would be carried over and dend 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 circumst oces 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 thsent circumstances, with anth 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.

Thcretion is in its ters 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 tading case of #160;Padfield ahers v. M v. Minister of Agriculture and Others [1968] A.C. ord Reid said iaid in an oft-quoted passage, of the nature of a statutory discretion :

8220;Parliament mave cave cred the discretioretion with the intention that it should be used to promote the policy andy and objects of the Act ; the policy and ts of the Act must be determined by construing the Act as a 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 for where the Act beit being considered seeks to regulate fundamental electoral rights derived under the Constitution. In this regard Blackburn pertinently observed in Julius v. Bishop of Oxford (1880) 5 A) 5 A.C. 214 (H p at p.241 :

&#8220if the objectbject for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast e don the to exeo exercise it for the benefit of those whoe who have that right when required on then their behalf.”

(see a per Lord Morris rris of Borth-y-Gest in Padfield’s;cas0;case (ibid) at p.1039E)

Finally in actical Shootintitute (N.Z.(N.Z.) Inc. v. Commissioner of Police [1992] 1 NR..L.R. 709 TippiTipping J. said, in rejecting a ete bposedhe Comm Commissioner of Police on the importation into New Zealand of certain typn types ofes of fire-arms, at p.718 :

8220;ases suggest that that that there are two, possibly three, categories into which discretionary powers of this kind can be put :<160;

(1) ټ&##60;& F60; First trst there are those powers whic 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.

) Sechere are those powers wers which by dint of the nature of the subject-matter justify the establishment as a matter of discretion of a carefuormulpolict always whe retion no case is to s to be rebe rejectejected autd automatiomaticallycally 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)&##160;
h0; Tird category, if itif it exists at all, represents cases where the discretionary decisaker is implicitly authorised to exercise his discretion to establish for himself an immutammutable policy admitting of no exceptions.

Tly tenuous authorithority of which I am aware for the suggested third category comes from Viscount Dilhorne’s words in&#16British Oxygen. But rigid pois really the athe antithesis of the exercise of discrdiscretion 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 thet, and possibly the second, of the above categories.

Havaid that however,ever,ever, 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 discretio>
In this latter rter regard on June 10th, 1997 the Supervisor of Elections wrote to the applicant in the following terms :

“Dear Mr. Narsey,

Yesterday, you ad fied 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 ysterday, the 1997 voter regr registration period closed on April 25, 1997.

The period wasificaifically timed to allo qualified persons who were not already registered as voters, but who wished to vote or star stand as a candidate in the forthcoming City Central Indian Constituency by-election, to have theirtheir names included on the rolls.

The general rule urder regulation 6(3) of the Electoral (Registration) Regulations, 1991 is that applications for registration received after the 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 ceration, decided that this is not a proper case in which to exercise the discretion in your your favour.

I take the the disc discretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all concerne>

Preparation of the provisional rolls are now well advanced. The originals wels 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 bthn 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.

Yours faithfulr>&#1r>

(Sgd.) Jon Apted

>

Supervisor of Elections”

In his lethe Supervisorvisor of Elections who would have had only the applicant’s verbal iationrequest and his ahis application form before him to considensider, advanced several reasons for refusing to exercise his discretion, including :

“( the discreiscretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all concerned.”

(the &#82ministratitrative efficiency’ reason)

and in this r regard :

&#82. if I were to e to take special steps to have your name included, fairness demands thinclue names of othersthers on their respective provisional rolls as well.”

(the &#he ‘fairness to others reason)

Similarfail to see why 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 withoutng that 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 #160;:

&

&#82>“In considering the ambit and purpose of my discretion under the said regulation 6(3), I considered that the discretion exists to mitigay unfss or unreasonablonable infringement of rights which might ight occur if this general rule (relating to late applications) were to be applied strictly.” ;

In para. 42<160;#160;:

&#822 my discretionetion allowed me to make exceptions to the general rule in order to give effect to the right of individual late applicants where justice or fss red it, but the rige rights and interests of other voters ands 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;#160;:

“Ictice, ... ... I have exercised my discretion relatively leniently up until the compilatiothe rolls is completed and they are sent for printing.”

or&#160 comp anngprinting a supplempplementary provisional roll.

In rejecboth options thns the respondent referred, as to the first option, to “... the administrative and financial consequences ... as well as the precedent that would set”. As to the second option, the respondent dent 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.

Needto say the respondepondent did not consider that the verbal information provided by the applicant and as reported inparas. 25 & 26 of the affidavit, sufficieficiently good reason to justify his (the applicant’s) late registration and inclusion in a supplementary roll.

Upon receiving the respondent’s letter, the apnt no doubt acting on the athe advice contained in the final paragraph, immediately sought, by letter, the intervention of the Electoommission in terms of its power under Section 53(2) of the 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 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 cation, leave was granted to the applicant. At the hearing ring of the substantive application it was further agreed, only to 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 b the applicant are set out as follows in the Statement filed pursuant to Order 53 r.3(2) of the High Court Rules 1988 :
&#160 groungrounds upon whhe Appl Applicant is seeking relief against the Supervisor oftions&#/u> ... as follows :<160;

(a) ҈&
#160; That the&#the&#160 S; f160;failed to give any proper reasons for (his) decisions.

(b);ټ&##160;< That the Supervisor of E oftions ... abused (his) discretionetion in that:

(ii) &<0;;&#did ndid not intt into consideration relevant vant matters and;

(iii) &ii) #160; &##160; (He) act) acted unrendrbitdrbitr.

(iv)&##160; <;e; (He) acted in d in breach of the Doctrine of Legitimate Expecta.
;

c) ; n&#That that the& the& the Super of Elections&#/u>&#/u> ... in excess of (his) jur) jurisdiction oled trcise) jurtion.”

As for ground (a) I s o at once thae that as t as draftdrafted, ied, it has no chance of success both as a mattelaw and as a matter of fact 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 limi>. As for ground ound (b) the absence of any details or particulars renders it quite unhelpful even misleading, and ground (c) ss from an inherent irreconcilable inconsistency.

Be thatt may the applicpplicaplication 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 vacaat ; the late discovery of y of his non-registration on the electoral rolls ; and the unsuccessful steps he took thereafter to be registered.

The affidalso categorisgorised 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 expaupod 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 Nov 1994 during which time he e 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 considerins applicatlication 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 cted upod upon the respondent’s reasons given his letter to the applicant and having had the benefit of further clarifications in the respondent’s two affidavits and comprehensive 4e written submissions, I am I am reluctantly driven to the following additional conclusions :

(1) n&##160;;< T60; That the respondentunas unduly preoccupied by the notion of creating an undesirable precedent in a sion wno prnt could be created and thereby imposed an unwarranted fetter on his diis discretscretion ;ion ;

(2) ټ&##60;& T60; The rese respondent’s views regarding the publication of a supplementary roll and his thinly-disguiser of closcruti by voters and political parties coupled with his concerns fons for accr accountaountabilitbility are in my view, considerations that Lord Upjohn in Padfield7;s cas0;case (op.cit) said 106p.1061F:

“(alone suffisufficient to vitiate the Minister’s decision (not to refer the applicant’s complaint to a committee of investigation) ... (since) . mustrepared to face tace the music ... if a statute has cast upst upon him an obligation in the proper exercise of a discretion conferred upon him to order a reference ...” ;

(3); The ndeno’s continuotinuous references to the interests of other late applicants and voters in consistency and impartiality leaves me with the nctlyvourampression he micted lf. In thIn the wore words ofds of Jenk Jenkins Lins L.J. i.J. in R. v. County Licensing (Staays) Cys) Committee of Flint CC ex-parte Barrett [1957] 1 All E.R. 112 in reject cg a claim laim taim that the same rule should be applied in all cases said at p.122:

8220;I cannot think thnk that that method of approach fulfils the requirement that the matter should be heard and determined accg to law ... (insofar as) ... it wrongly pursues consistency at the expense of the merits oits of the (applicant’s case).” ;

(4) &##160; < The respondent’srencerences to administrative and financial consequences and to maintaining the integrity of the electoral registration system discloses a failure on his part to understand the t of egula or to appreappreciateciate the the inclusive nature of the discretion given to him under the proviso to Regulation 6(3) and his duty thereunder ;

(60; Fumore the reference to &#to ‘fault’ in the context of a discretion which is granted so as to facilitate the attainment and the exercise of fundamental constitutional right to md, boappropriate and misconisconceiveceived.
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.

(Certiorari d; den qion quashed).