Veitata v Attorney General [1977] FJSC 71; Civil Action 228 of 1977 (7 November 1977)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 228 OF 1977

BETWEEN:

TANIELA VEITATA
Plaintiff

AND:

THE ATTORNEY GENERAL
1st Defendant

and

SUPERVISOR OF ELECTIONS
2nd Defendant

JUDGMENT

This is an action begun by Originating Summons seeking determination of the construction of section 33(1)(d) of the Fiji Constitution and whether on the facts the plaintiff was qualified to be elected as a member of the House of Representatives at the forthcoming general elections. There is no dispute as to the facts alleged in the plaintiff's affidavit filed in support.

The plaintiff was duly nominated as a candidate for the Kadavu/Tamavua and Suva Suburban Fijian Communal Constituency and his name appeared with other candidates in the Fiji Royal Gazette dated Friday the 12th August 1977.

On the 6th August 1977 the plaintiff was convicted by the Magistrates Court Suva of four offences under the Trade Disputes Act and sentenced to six months' imprisonment in respect of each offence the sentences to be served concurrently.

By letter dated the 24th August 1977 the Supervisor of Elections advised the plaintiff's solicitor that in the Supervisor's opinion the plaintiff was not now qualified to be elected by virtue of section 33(1)(d) of the Fiji Constitution which reads:

"33(1) No person shall be qualified to be elected as a member of the House of Representatives who -

(d) is under sentence of death imposed on him by a court in any part of the Commonwealth, or is under a sentence of imprisonment (by whatever name called) for a term exceeding twelve months imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court;"

In coming to this opinion the Supervisor of Elections either did not consider section 33(2)(a) of the Constitution or misinterpreted the section.

Section 33(2)(a) reads as follows:

"33(2) For the purposes of paragraph (d) of the preceding subsection -

(a) two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms;"

This subsection makes it clear that consecutive sentences are aggregated and are to be regarded as a single term for the purposes of section 33(1)(d).

In the instant case the four sentences of six months each were ordered to be served concurrently. The effect of this order was a sentence of imprisonment for six months and not sentences totalling 24 months.

The plaintiff was not by virtue of his convictions for the four offences disqualified as he was not sentenced to imprisonment for a term exceeding twelve months.

I hold therefore on the facts that the plaintiff is qualified to be elected as a member of the House of Representatives.

Mr. Bale has queried whether the Electoral Regulations 1977 should be amended to cover the situation where it becomes known to the Supervisor of Elections after a person is nominated that he is not qualified or where disqualification arises after a candidate has been nominated and before election.

In my view the Regulations are adequate. Under Regulation 19 any voter in a candidate's constituency may object to the nomination of that candidate on the grounds that he is not qualified. If the returning officer disallows the objection his decision is final. If however he allows the objection his decision is subject to reversal on a petition questioning the election or return. Under section 37 of the Fiji Constitution the Supreme Court has jurisdiction to hear and determine any question whether any person has been validly elected. When a candidate is nominated and there is no objection by any voter in that candidate's constituency or if there is an objection which the returning officer disallows the Regulations permit of no challenge as to whether a candidate is qualified before the election is held. After the election the law provides the machinery to challenge whether the successful candidate has been validly elected.

There should not in my view be any amendment of the Regulations to permit the Supervisor of Elections to take any action after a candidate has been duly nominated to declare that candidate not qualified.

If after a candidate is nominated the Supervisor of Elections is of the view that that candidate is not qualified, as appears to be the position in the instant case the Supervisor must proceed with the election and if that person is duly elected recourse must be had to the Supreme Court to determine whether that parson has been validly elected.

Under Section 33(1)(d) of the Fiji Constitution a sentence of imprisonment for a term not exceeding twelve months means either a single sentence exceeding twelve months or by virtue of subsection 2(a) the aggregate of two or more sentences to be served consecutively which exceeds twelve months. Concurrent sentences cannot be aggregated and it is the effective period of over 12 months that a person has to serve for one or more offences that section 33(1)(d) is concerned with.

R.G. Kermode

JUDGE

Suva

7^th November, 1977