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Singh v Prasad - Decision [2002] FJSC 7; CBV0001.2002 (25 April 2002)

IN THE SUPREME COURT OF FIJI
AT SUVA


Civil Appeal No. CDV 0001/2002
(on Appeal from a Judgment by the Fiji Court of Appeal)
in Appeal No. ABU006 of 2002


IN THE MATTER of the Parliamentary election to
the House of Representative s of Fiji for the Nadi
Open Constituency Seat held from the 25th day of August
to the 1st day of September, 2001 pursuant to the Constitution of Fiji.


AND IN THE MATTER of a
Petition by Krishna Prasad, son of
Ram Nand of Malolo, Nadi,
Fiji Retired FSC Employee,
in the Court of Disputed Returns.


BETWEEN:


PREM SINGH.
father's name Pritam Singh of Bellup Road, Nadi.
PETITIONER
(Original Appellant)


AND:


KRISHNA PRASAD son of Ram Nand of Malolo,
Nadi, Fiji Retired FSC Employee.
FIRST RESPONDENT
(Original First Respondent)


AND:


RUPENI NACEWA of Lautoka,
Fiji Commissioner Western and Returning officer
for the Nadi Open Constituency.
SECOND RESPONDENT
(Original Second Respondent)


AND:


WALTER RIGAMOTO of Suva, Fiji, Supervisor of Elections
THIRD RESPONDENT
(Original Third Respondent)


Mr. D.S. Naidu, Mr. S. Kumar and Mr. R.P. Singh for the Petitioner/Appellant
Mr. R. Prakash for the First Respondent
Mr. S. Banuve for the Second and Third Respondents


DECISION


A Summons for stay of execution filed by the Petitioner was heard in Chambers on 20 March 2002. The summons sought "An order that the execution of all further proceedings to enforce the Judgment delivered by the High Court on 8 February 2002 in the matter be stayed pending the determination of the Petition for Special Leave to Appeal to the Supreme Court of Fiji" and costs to be in the cause.


After the hearing on 20 March 2002 I granted an Interim Order for Stay of Execution pending a substantive Decision. This was to allow written submissions to be made by First Respondent in reply to the written submissions filed by the Petitioner in support of the Summons. The Petitioner was given liberty to file a reply if necessary. I am most obliged to counsel on both sides for their learned submissions on the stay application. The application was adjourned for Decision which I shall now proceed to deliver.


Background to the Application for Stay of Execution


The Petitioner (Prem Singh s/o Pritam Singh) was a candidate in the General Election held between 25 August and 1 September 2001 in the Nadi Open Constituency. On 5 September 2001 the Petitioner was declared the winner after six rounds of counting votes in that constituency. At the 6th Count only two candidates remained, the Petitioner and the First Respondent (Krishna Prasad s/o Ram Nand). In the result the Petitioner won by 82 votes from the First Respondent. Of the votes counted 1734 votes were declared invalid. The Petitioner was appointed Leader of the Opposition by the President. Meanwhile on 17th September 2001 the first Respondent filed an Election Petition with the High Court at Lautoka exercising special jurisdiction as a Court of Disputed Returns. In a 27-page Judgement delivered on 8 February, 2002 the Court held that the ticks below the line in 1278 votes previously declared to be invalid by the Returning Officer were valid and should have been included in the count. The Court's findings were made on its interpretation of section 116 of the Election Act 1998. In the result the first Respondent now polled more votes than the Petitioner and the first Respondent was declared to be the validly elected member for that constituency in place of the Petitioner.


The Petitioner appealed to the Court of Appeal against the decision of the High Court on its interpretation of section 116 of the Act. The Court granted a stay for 7 days so that appeal papers could be filed with the Court of Appeal.


The Court of Appeal (Barker, JA and Davies JA) heard the purported appeal on 21 February 2002 and delivered its judgment on 1 March 2002 in the course of which in dealing with the question of right of appeal the Court observed:


"Section 73(7) of the Constitution (quoted above) is clear and unambiguous when it states that there is no right of appeal from a decision of the High Court under s. 73(l)(a) as Gates J.'s decision clearly was. That statement in the Constitution is reinforced by s.153(2) of the Act which indicates the obvious when it says: "The right of appeal against any decision of the Court is governed by section 73(7) of the Constitution."


Council for the Appellant submitted that there was a right of appeal to this Court notwithstanding the unambiguous indications to the contrary in s.73(7) of the Constitution and s.183(2) of the Act on the following grounds:


(a) S.121(2) of the Constitution gives a right of appeal to this Court from a final judgment of the High Court to any matter arising under the Constitution or involving its interpretation.


(b) The function exercised by the High Court sitting as a Court of Disputed Returns is an original jurisdiction of the High Court conferred on it by the Constitution. The said function is consistent with its jurisdiction in deciding other civil cases. Hence there is a right of appeal under s.121(2) of the Constitution.


(c) The Judge in his interpretation of s.116 of the Act has "acted as a legislator" by allowing votes to be counted which the Act does not permit to be counted.


(d) The Judge thereby contravened section 54 of the Constitution which mandates the preferential system of voting known as the alternative vote.


S.121(2) of Constitution


S 121 of the Constitution provides as follows:


(1) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.


(2) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.


(3) The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the parliament prescribes. "


It is important to note in s.121(1) that the jurisdiction of the Court of Appeal is "subject to this Constitution and to such requirements as the Parliament prescribes." Where the Constitution has specifically stated that there is to be no right of appeal from the Court of Disputed Returns, that provision (s.73(7) overrides a general provision such as s. 121(2). In other words, s121(1) governs the interpretation of s.121(2). As will be seen later in this judgment, a provision denying an appeal from an electoral Court is fairly universal. In this Court's view, therefore, s.121(2) of the Constitution cannot give a right of appeal to the Court of Appeal from a decision of the High Court sitting as the Court of Disputed Returns.


A provision forbidding any appeal from a decision of a Court required to adjudicate on disputed parliamentary elections is by no means novel. Cases where such a provision has never even been queried emanate from many Commonwealth jurisdictions. The reason for such a provision was stated as long ago as 1876 by the Privy Council in a Canadian appeal, Theberge v. Laudry (1876), 2App. Cas 102, 106 in these words:


"A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known."


The Court of Appeal then concluded that for the reasons it gave "section 73(7) of the Constitution precludes an appeal being taken from a judgment of the Court of Disputed Returns to the Court of Appeal". The purported appeal was accordingly dismissed by the Court of Appeal for want of jurisdiction.


On 13 March 2002 the Petitioner filed a petition for special leave to appeal to the Supreme Court under section 122(2)(b) of the Constitution and the Supreme Court Act 1998. The petition seeks to raise the following issues:


"Whether a decision from a Court of Disputed Returns which involves and raises serious Constitutional issues can be appealed pursuant to section 121(2) of the Constitution. And also whether decision of the Court of Disputes Returns which is contrary to the Constitution can be appealed pursuant to section 121(2) of the Constitution.


The validation of single ticks below the line on a Part II ballot paper defeats section 54(1) of the Constitution which mandates a preferential system of voting known as the alternative vote.


The public should know the proper method of voting under the Electoral Act 1998 as do the Supervisor of Elections Office.


For the future protection of the citizens vote a decisive decision is necessary in the interpretation of S 54 of the Constitution and section 116 of the Electoral Act 1998.


That the voters who voted in the Nadi Open Constituency are constitutionally entitled to have their member to the House of Representatives elected under the preferential voting system called the alternative vote as the voters in other Constituencies have had their members elected to the House of Representatives in the 2001 General Elections by the preferential voting system called the alternative vote.


That the decision of the Trial Judge has the potential to drastically change he composition of the House of Representatives.


That by reason of the foregoing the Petitioner has suffered substantial and grave injustice."


GUIDING PRINCIPLES FOR STAY OF EXECUTION PENDING APPLICATION FOR SPECIAL LEAVE TO APPEAL
- CASE FOR PETITIONER


Counsel for the Petitioner relies on the principles which have been variously described by the authorities typically of which is the statement by Brennan J (as he then was) in Jennings Construction Ltd. v. Burgundy Investments Pty Ltd. (No.1) (1986) 161 CLR at 685


"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of the court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider -first, whether there is a substantial prospect that special leave to appeal will be granted, secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. "


Also pertinent in this context is Mason CJ's suggestion that there should be "significant prospect of the applicants succeeding in obtaining special leave" (Evans v. CBPC Ltd. (1993) 68 at LJR 125 at 126).


To the same effect is McHugh J's assertion in Collier v. Sengos (1993) 67 ALJR 8I0 at 811:


"To obtain a stay of proceeding the applicants would have to persuade me that they at least have a real chance of obtaining ................ special leave."


Counsel for Petitioner also referred to other principles for stay of execution.


These are discussed below:


Whether the appeal would be rendered nugatory if the stay is not granted and whether the first Respondent would suffer any prejudice if the stay is granted.


It was submitted that the first Respondent would not suffer any prejudice if a stay order is granted. This is because if the first Respondent is successful in this appeal, his parliamentary remuneration would be back-dated to when the trial judge ruled in the first Respondent's favour in the election petition.


On the other hand the Petitioner would be severely prejudiced if he is not granted a stay and if his appeal is successful he would be severely prejudiced. The result would be the Petitioner's appeal would be rendered nugatory.


The Petitioner is not only a member of Parliament but he also occupies the important constitutional office of 'Leader of Opposition' by virtue of being a member of the House of Representatives. As the Leader of Opposition, the Petitioner is consulted over various constitutional appointments.


Much confusion would result in parliamentary affairs if the Petitioner's application for stay was not granted.


Whether the balance of convenience demands that the status quo be maintained pending the determination of the appeal.


It was submitted that the balance of convenience lies with the Petitioner. If this application for a stay of execution is not granted then, as already noted the Petitioner and the people that he represents in Parliament would be severely prejudiced.


On the other hand the first Respondent would not suffer any financial inconvenience if a stay was granted because if he should be successful in this appeal any parliamentary remuneration due to him would be preserved and back-dated to 8th February, 2002.


Whether an appeal is an arguable one and whether the applicant has good prospect of obtaining special leave to appeal.


As regards this principle for stay of execution reference was made to section 7(3) of the Supreme Court Act which states that special leave may not be granted unless the case raises –


(i) a far-reaching question of law;


(ii) a matter of great general or public importance; and/or


(iii) a matter that is otherwise of substantial general interest to the administration of civil justice.


(1) far-reaching point of law


The Petitioner submitted that the matters set out in his petition concern far-reaching points of law. It is said the case involves the true interpretation of section 73(1)(a) as read with section 121(2) of the Constitution. The argument is that the Petitioner was elected to the House under the Electoral Act 1998 which is based in fact on the preferential system of voting known as the alternative vote under section 54 of the Constitution. The questions of law that the Supreme Court would be invited to determine are these:


"(a) What is the ambit of the power of the Court of Disputed Returns under section 73(1)(a) of the Constitution?, and


(b) What is the nature of the power of the Court of Disputed Returns under section 73 (1) (a) of the Constitution?, and


(c) What is the ambit of the appellate jurisdiction under section 121 of the Constitution?


(d) Is there sufficient nexus between section .54(1) of the Constitution and section 116(3) (d) of the Electoral Act 1998 to bring the interpretation of the latter within the right of Appeal under section 121(2) of the Constitution?


(e) Is there sufficient nexus between section 54(2) of the Constitution and the Electoral Act to bring the interpretation of the Electoral Act within the right of Appeal under section 121(2) of the Constitution?


(f) Is the power of the Court of Disputed Returns under section 73(1) (a) of the Constitution, of such a nature as to allow that Court to unilaterally and without review of any kind whatsoever decide on the interpretation of section 116(3)(d) and thereby effectively define the alternative vote mandated by section 54(1) of the Constitution and, define the intention of Parliament in the Electoral Act as mandated by section 54(2) of the Constitution?


(g) Does the special jurisdiction of the Court of Disputed Returns give it power to unilaterally and without review of whatsoever kind, interpret provisions and/or powers (including incidental powers) under the Constitution?"


(2) matters of great general or public importance


Counsel for the Petitioner submitted that the intended appeal would raise matters of great general or public importance. Some of the reasons for this contention are as follows:


(a) Three election petitions are pending before the Court of Disputed Returns in Suva High Court have yet to be determined in pursuance of the powers of the Court under section 73(1))(a) of the Constitution. These three election petitions would also involve the interpretation of section 116 of the Electoral Act No. 18, 1998. They concern ballot papers of about ninety (90) thousand voters and these have to be re-examined if the Suva High Court interpreted the section.


However there is possibility that the decisions in the other election Petitions may be different from the decision of Justice Gates. In such an event there will be a lot of confusion as to which of the two Courts of Disputed Returns is correct in its interpretation in respect of votes cast below the line in a Part II ballot papers.


(b) The public cannot be left in the dark as regards the proper method of voting under the Electoral Act 1998. This is a problem which is acutely recognised by the Supervisor of Elections Office as noted by the Court of Appeal on 6th February 2002 at page 22 stated the following:


"... the Supervisor would have liked a definitive ruling from this Court, particularly when a by-election in another part of Fiji is imminent. "


(c) For the future protection of the citizens’ vote a definitive ruling in the highest court in the land is necessary in the interpretation of Section 54 of the constitution and section 116 of the Electoral Act 1998. On 15th February 2002 when delivery his Ruling on the application for stay of execution Justice Gates stated at page 14 the following:


"... to deny that there is an alternative interpretation, albeit one that I have felt compelled to reject would be immodest and foolhardy. As I have said, this is not an easy section to interpret. "


(d) The voters who voted in the Nadi Open Constituency are constitutionally entitled to have their member to the House of Representatives elected under the preferential voting system called the alternative vote as the voter in the other constituencies have had their members elected in the 2001 General Election by the preferential voting system.


(e) If Justice Gates' interpretation is assumed to be correct then the general public had been misled by the vigorous advertising and other educational campaign which the public were told that voting below the line was to be numbered according to a voter's preference in accordance with the preferential voting system.


(f) The Decision of Justice Gates holding that ticks below the line on a Part II ballot paper and in the 1999 general elections below the line ticks opposite the name of a single candidate on a Part II ballot paper was also held invalid could potentially change the entire membership of the House of Representatives by the judge's interpretation of section 116 of the Electoral System.


(3) a matter that is otherwise of substantial general interest to the administration of civil justice


The aphorism that, "justice must be done and be seen to be done", is the bulwark of the protection afforded to the 'administration of civil justice'. The 'administration of civil justice' would be adversely affected if the powers of a Court of Disputed Returns were used in a manner for which they were not intended as the issues raised in the intended application for special leave to appeal clearly demonstrated. The Court in this case has purported to usurp the authority of Parliament in purporting to amend the Electoral Act. This cuts across he doctrine of separation of powers.


The issues relating to the nature, ambit and power of a Court of Disputed Returns should be seen in the context of the views expressed by James Madison in the Federalist:


"The accumulation of all powers, legislative, executive and judicial, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."


Counsel for Petitioner submitted that this appeal raises issues that are of substantial general interest to the administration of civil justice and should for that reason be allowed to be entertained in the Supreme Court.


Interpretation of Finality Clauses


The relevant provision which has given rise to this particular issue is section 73(7) of the Constitution which states:


"A determination by the High Court in proceedings under paragraph (1)(a) is final".


Several authorities on this issue were cited by the Petitioner. Suffice it is to refer briefly to a couple of these to show how the law has developed and evolved from its earlier position.


The celebrated case of Anisminic v Foreign Compensation &Anor [1968] UKHL 6; [1969] 1 ALL ER 208 lends support to the contention that the old view on finality clauses has changed. The case was cited with approval in Ratu Jeremaia Natauniyalou v Native Land Commission and Anor (FCA) Civil Appeal No. AB40067 where the Court of Appeal stated at page 4:


"in Anisminic Ltd v Foreign Compensation Commission and Anor [1969] 1 AC 147 Lord Wilberforce's speech in that case is so authoritative as to make two quotations from it sufficient. Speaking of preclusive clauses he said."


"..... The question, what is the tribunals proper area is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality or unquestionability upon its decisions given within the field of operation entrusted to the tribunal. "


In Pearlman v Keepers & Governors of Harrow School [1974] 1 ALL ER 365 where the finality clause was comprised in Section 107 of the County Courts Act 1959 which states.


"But even if S 107 does apply to this case, it only excludes certiorari for error of law on the face of the record. It does not exclude the power of High Court to issue certiorari for absence of jurisdiction ... if he makes a wrong finding on a matter on which his jurisdiction depends, he makes a jurisdictional error and certiorari will lie to quash his decision. See Anisminic Ltd v Foreign Compensation Commission by Lord Wilberforce.


Further on at page 372 Lord Denning stated that


"The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunal by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the Complainant but also so as to secure that all courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries this case, or in what court it is heard. The way to get things right is to hold thus, no court or tribunal has any jurisdiction to make an error law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it. "


"On these grounds I am of opinion that certiorari lies to quash the determination of the county court judge, even though it was made by statute 'final and conclusive'.


The concept was further developed in RE a Company [1980] UKHL 5; [1980] 2 ALL ER 634 where the Court of Appeal allowed an appeal rather than a review by way of certiorari, notwithstanding the exclusionary words of a statute.


In this case the finality clause was comprised in Section 441(3) of the Companies Act 1948 which states:


"The decision of a judge of the High Court .....;....... On an application under this section shall not be appealable".


It was held by the Court of Appeal that there was a right of appeal against the decision of the High Court notwithstanding the above finality clause contained in the Companies Act.


The reasons for the above finding can be found in the unanimous decision of the Court of Appeal.


Lord Denning MR at page 286 stated:


"The first question which arises is: can the Director of Public Prosecutions appeal to this court? Section 441(3) provides: "The decision of a judge of a High Court... on an application under this section shall not be appealable". In my opinion, that subsection is not a bar to the appeal to this court. There are many cases now which show that if a judge misconstrues a statute by giving himself jurisdiction when he has none or by refusing jurisdiction when he has it, then he makes an error which goes to the jurisdiction: and there is an appeal to this court, no matter how wide the words which seem to exclude it For authority in this regard, I need only refer to Anisminic Ltd v Foreign Compensation Commission and especially to what was said by Lord Reid, by Lord Pearce and Lord Wilberforce, to which I would add a few words of my own in the later case of Pearlman v Keepers and Governors of Harrow School ........ no court ....... has any jurisdiction to make an error of law on which the decision of the case depends. It seems to me that in this case, if the judge made an error of law in construing the words of the section, if he construed the words "an offence" etc too narrowly, then he made an error of law which made hm refuse jurisdiction when he ought to have entertained it. So the appeal can be entertained here in this court "


Jurisdictional Issue -Chances of Success of Application for Special Leave to Appeal


On this aspect of the matter Counsel for the Petitioner has submitted that the Court of Appeal erred in law in dismissing the Petitioner's appeal for want of jurisdiction on the basis that section 73(7) of the Constitution provides that there is no right of appeal from or decision of the High Court sitting as a Court of Disputed Returns when section 121(2) of the Constitution does give a right to appeal. Moreover, it was submitted that the trial judge misconstrued Section 115 3(d) and Section 116 3(b)(ii) of the Electoral Act 1998 which was an error of law going to jurisdiction which gives the Petitioner a right to appeal the said decision. It was also submitted that trial judge's misconstrution or wrong interpretation of section 116 3(d) and 116 3(b)(ii) of the Electoral Act 1998 is inconsistent with Section 54 of the Constitution and therefore makes the decision of the trial judge a matter arising under the Constitution and therefore the said decision of the trial judge is appealable as of right under section 121(2) of the Constitution. For this and other reasons it was submitted that there is a reasonable prospect of the application for special leave to appeal to the Supreme Court succeeding.


Error of law on interpretation of Electoral Act by trial judge


By misconstruing and/or wrongly interpreting Section 116(3)(d) and (b)(ii) of the Electoral Act 1998 Justice Gates made an error of law going to jurisdiction and therefore appealable as shown by the cases of Anisminic, Pearlman and Re a Company.


Counsel for Petitioner submitted Justice Gates erred in law in declaring the first Respondent to be a validly elected member in the Nadi Open Constituency in place of the Petitioner for the following reasons:


(a) The interpretation and/or construction given to section 116(3)(b)(ii) and section 116(3)(d) of the Electoral Act 1998 by the trial judge is contrary and/or inconsistent with the preferential system of voting as mandated by section 54(1) of the Constitution.


(b) The judge acted ultra vires by giving section 116(3)(d) and section 116(3)(b)(ii) of the Electoral Act 1998 an interpretation which validated the below the line single ticks on Part II ballot papers opposite the names of the individual candidates.


(c) The trial judge erred in law by taking into consideration extraneous matters whilst interpreting and giving effect Section 116(3)(b)(ii) and Section 116(3)(d) of the Electoral Act 1998.


Section 75 of the Electoral Act 1998 provides the correct manner of marking the ballot papers in a General Election.


Section 75(2)which deals specifically with Part II ballot paper provides:


"(2) If a ballot paper handed to a voter is Part II ballot paper (and this is the case here), the voter may mark his or her vote on the ballot paper:


(a) either in the manner described in subsection (I) or


(b) by placing a tick in one of the boxes which appear at the top of the ballot paper opposite the name of a registered political party or independent candidate


But subject to s 116(3) may not do both."


Section 75 defines where a tick is placed on a Part II ballot paper. Section 75 clearly states that a tick should be placed above the line opposite the name of a registered political party or an independent candidate and numbers should be placed below the line on a Part II ballot paper.


Section 75 is explicit in establishing the meaning of the "tick" and "numbers" which are the same words used in s 116(3). This provision of the Electoral code is mandatory. There are no exceptions to this. This is in line with the preferential system of voting. In a system such as ours, the purpose of voting on a Part II ballot paper above the line to allow the party being voted for to give preferences on our behalf whereas when one votes below the line one is giving his/or her own personal preferences.


The qualifying words in section 75 are


"Subject to s 116(3), may not do both"


In other words section 116(3) is a saving provision provides instances when the voter may do both, that is, place a tick above the line and also provide numbers below the line.


Counsel for the Petitioner submitted that there are no provisions for single ticks below the line. To allow this would defeat the purpose of voting below the line which is that the voter provides his/her own preferences when voting below the line.


To properly understand the meaning of section 116(3)(b)(ii:) and section 116(3)(d) and one must attempt to understand the entire section.


Generally section 116(3) of the Electoral Act 1998 provides the "saving provisions" for votes that would be invalid in terms of section 75 of the Electoral Act.


One has to look at section 116(3) of the Electoral Act 1998 in its entirety to understand the meaning of the provisions in question and also to illustrate which votes are to be treated as valid despite section 75 of the said Act. It should be noted that section 116(3) deals with Part II ballot papers.


Section 116(3)(a) of the Electoral Act provides:-


"If the voter has placed numbers opposite the names of the individual candidates, the rules set out in sub-section (2) apply for ascertaining whether the ballot paper is valid in respect of individual candidates."


Section 116(2) applies to Part II ballot paper only where one can place numbers as it does not have an 'above-the- line' section as in a Part II ballot paper. So if the voter places the numbers 'below-the- line' and these numbers are in accordance with Section 116(2), then that vote is valid as per Section 116 (3)(a).


Section 116(3)(b)(i) and (ii) of the Electoral Act provides:-


"If the voter has placed numbers as aforesaid and –


(i) by applying the rules set out in subsection (2 ) the ballot paper would be invalid in respect of individual candidates; but


(ii) there is a tick opposite the name of and only one registered political party or independent candidate which or who has lodged a list of candidates under section 61,


the order of preference shown on that list in respect of individual candidates is to be treated as the voter's order of preference in respect of those candidates. "


CASE FOR FIRST RESPONDENT IN OPPOSITION TO PETITIONER'S STAY APPLICATION


The first Respondent cited in support of his submissions the Fiji Court of Appeal case of Krishna Murti v Atul Kumar Ambalal Patel FCA Civil Appeal No. ABU0014 of 2000 where at pages 2 and 3 of the decision it was stated:


"A number of considerations have to be taken into account by a judge exercising his discretion whether or not to grant a stay of execution. Prima facie the party succeeding in the High Court is entitled to enjoy immediately the fruits of this success. However, if an appellant shows that he has a good arguable case to present on the hearing of the appeal and if refusal of the stay will cause detriment to the appellant which cannot be effectively remedied if his appeal succeeds, so that the appeal will be rendered nugatory, it may be appropriate for the discretion to grant a stay to be exercised in his favour.


In the present instance the appellant and his family will suffer detriment, as they reside on the land and have no other residence. Also that farming of the land is the appellant's only source of income; if the lease was not effectively terminated, it has over three years to run. However, if the stay is granted, the respondent will be kept out of enjoyment of possession of the land until the appeal is heard. As the statement of events and the applicable law which I have set out above discloses, the appellant's prospect of success which the appeal is heard is extremely poor.


I have decided that in all the circumstances of the present case the interest of justice will he best served by refusing to grant a stay of execution. "


In Atul Kumar Ambalal Patel v Krishna Murti (unreported) Civil Action HBC0225.99L in ruling against the grant of a stay, the High Court stated at pages 2-3:


"Once successful, the litigant should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle [1886] UKLawRpPro 31; (1886) 11 P.D. 114 at 116CA;


Monk v. Bartram (1891) 1 AB 346. The power of the Court to grant a stay is discretionary. The Attorney-General v. Emerson and Others [1889] UKLawRpKQB 190; (1890 24 QBD 56; and it is "an unfettered discretion " Winchester Cigarette Machinery Ltd v. Payne and Anor. (No. 2) (1993) TLR 647 at 648.


If a stay, was not granted by the Court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy: Tuck v Southern Counties Deposit Bank [1889] UKLawRpCh 149; (1889) 42 Ch. D. 471 at 478 per Kay J; Atkins v. G W. Railway (1886) 2 TLR 400; Barker v Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769. In the Winchester Cigarette case (supra) at 648 Lord Justice Hobhouse put it "The appellant had to show some special circumstances which took the case out of the ordinary."


In this matter the High Court gave full and reasoned decision in its role as the Court of Disputed Returns. In the result it declared the first Respondent the lawfully elected member for the Nadi Open Constituency. Section 73(1)(a) of the Constitution gives the Court jurisdiction to hear and determine the questions related to whether the person has been validly elected as a member of the House of Representatives.


The judge granted a stay for seven days to file and appeal to the Fiji Court of Appeal and expressed doubts whether a right of appeal existed against the final decision of the Court of Disputed Returns under the provisions of Section 73(7) of the Constitution which provides:


"A determination by the High Court in proceedings under paragraph 1(a) is final".


The Court of Appeal (Barker JA and DaviesJA) in dealing with the stay application fully considered the question whether any right of appeal existed from the decision of a Court of Disputed Returns. The Court of Appeal held that it had no jurisdiction to consider the appeal and dismissed the appeal for want of jurisdiction.


It was submitted on behalf of the first Respondent that the present application for stay can only be considered and granted if a right of appeal exists from the decision of the Court of Disputed Returns. If no such right of appeal exists then this Court would have no jurisdiction to deal with the present application and a stay order cannot be granted. It was also submitted that this Court has no inherent jurisdiction to grant a stay on the present application. The Supreme Court's jurisdiction to deal with the stay application is conferred by Section 14 of the Supreme Court Act 1998 and it can exercise all powers and authority of the Court of Appeal. Section 20 of the Court of Appeal Act empowers the Court to deal with stay applications. Counsel submitted that unless a right of appeal exists the Supreme Court cannot exercise this jurisdiction which is granted under statute. The Court of Appeal explained the question at page 4 as follows:


"Before considering the application for stay, the Court must decide whether there is a right of appeal from the Court of Disputed Returns. If there is no right of appeal, then there can be no stay and the purported appeal will have to be dismissed. "


Counsel submitted further that the Court of Appeal correctly ruled that no right to appeal existed under section 73(7) of the Constitution under the circumstances of this case. At page 4 of its judgment, the Court of Appeal observed:


"Section 73(7) of the Constitution quoted above is clear and unambiguous when it states that there is no right of appeal from a decision of the High Court under Section 73(l)(a) as Gates J's decision clearly was. The statement in the Constitution is reinforced by Section 153(2) of the Act which indicates the obvious when it says: 'The right of appeal against any decision of the Court is governed by Section 73(7) of the Constitution.' "


It was claimed on behalf of the Petitioner that by virtue of section 121(2) of the Constitution there is a right of appeal from a final judgment of the High Court in any matter arising under the Constitution or involving its interpretation. Section 121 of the Constitution provides as follows:


"(1) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.


(2) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.


(3) The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the Parliament prescribes. "


On proper reading of Section 121, it is obvious that the jurisdiction given to the Court of Appeal is "subject to the Constitution itself and such requirements as the Parliament prescribes": For this reason Section 73(7) would prevail over Section 121(2). Counsel submitted that Section 121(2) does not give the Petitioner a right of appeal as explained by the Court of Appeal in these terms:


"It is important to note in s.121(1) that the jurisdiction of the Court of Appeal is 'subject to this Constitution and to such requirements as the Parliament prescribes.' Where the Constitution has specifically stated that there is to be no right of appeal from the Court of Disputed Returns, that provision (s. 73(7)) overrides a general provision such as s.121(2). As will be seen later in this judgment, a provision denying an appeal from an electoral Court is fairly universal. In this Court's view, therefore, s.121(2) of the Constitution cannot give a right of appeal to the Court of Appeal from a decision of the High Court sitting as the Court of Disputed Returns. "


The reason why there is no right to appeal from the decision of the Court of Disputed Returns is to ensure that the rights of the electorate and their Parliamentary representatives are known as quickly as possible. This view is reinforced by Section 153(1) of the Electoral Act which requires that the Court of Disputed Returns must give its decision and make an order on the petition as soon as practicable.


The Court of Appeal elaborated in its judgment its reasoning at pages 6 and 7 as follows:


"A provision forbidding any appeal from a decision of a Court required to adjudicate on disputed parliamentary elections is by no means novel. Cases where such a provision has never been queried emanate from many Commonwealth jurisdictions. The reason for such a provision was stated as long ago as 1876 by the Privy Council in a Canadian appeal, Theberge v Laudry (1876), 2 app. Cas 102, 106 in these words:


"A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known. "


"A similar perspective was taken by the Privy Council in a Malaysian appeal. in Nair v. Teik, [1967] 2 A.C. 31, at pp.39-40, their Lordship noted previous decisions from such disparate countries as Ceylon and British Honduras (as Sri Lanka and Belize then were).


In similar vein is the comment of the Election Court (consisting of 3 High Court judges) in the New Zealand case of Re Wellington Central Election Petition [1973] 2 NZLR 470, 477-8: 'That assembly itself and the electors of the representatives hereto should know their rights at the earliest moment Because of the finality of the decision of the Election Court, the New Zealand legislation mandates a Court of 3 Judges."


According to counsel Section 121(2) of the Constitution does not give unlimited jurisdiction to appeal but only gives a right to appeal those matters which arise under the Constitution or involve its interpretation.


Counsel for first Respondent submitted that when coming to his decision and in making the declaratory orders Justice Gates did not deal with the provisions of the Constitution or interpreted the provisions. The mere fact that the Judge sat as a Court of Disputed Returns which is established by the Constitution does not mean that the Court is dealing with matters under the Constitution or interpreting constitutional provisions. The provisions the Judge was concerned with and interpreted were in effect the provisions of the Electoral Act. His decision was based on his interpretation of Section 116 of the Electoral Act. The Judge gave his decision and made the order on the petition pursuant to Section 153(1) of the Electoral Act and not under any provisions of the Constitution. Counsel submitted that the Court of Appeal was correct in arriving at its conclusion when it stated:


"Gates J. was required to interpret the provisions of the Electoral Act 1998. He did so in some detail, criticising the drafting of s. 116, the crucial section. The Judge did not purport to interpret any part of the Constitution. The fact that the subject matter of the case, namely an election, is a topic discussed at length in the Constitution is irrelevant. The case is no different from Kulavere's where the subject of the case i.e. the right of a fair trial, also featured in the Constitution. Neither case 'involved or entangled' the Constitution in the words of Starke, J. cited earlier. Nor was any provision of the Constitution essential or relevant to the question of statutory interpretation arising."


It was further claimed that the Petitioner was wrong in submitting that Justice Gates misconstrued and/or wrongly interpreted Section 116(3) (d) and (b)(ii) of the Electoral Act 1998 and that he made an error of law going to jurisdiction giving the Petitioner the right to appeal on his decision. On the contrary Counsel submitted that Justice Gates was merely interpreting the relevant provisions of the Electoral Act which he was entitled to do in the exercise of his judicial function as the Court of Disputed Returns and in that connection Justice Gates merely interpreted within his jurisdiction in the proper exercise of his judicial function. As the Court of Appeal pointed out "....if he did make an error of law, he nevertheless did so whilst exercising his undoubted jurisdiction as the Court of Disputed Returns." It was submitted in this connection that the Court of Disputed Returns is a special court and it made good sense that its decisions could not be appealed. The effect of a right or wrong decision of the Court of Disputed Returns must operate until the expiry of the term in the House of any validity of elected member and no more.


It was also submitted that Section 154 of the Electoral Act condemns any stay application to failure. Section 154 of the Electoral Act provides that-


a) "'if any person returned is declared not to have been duly elected, the person ceases to be a member of the House of Representatives;"


b) "if any person not returned is declared to have been duly elected, the person may take his or her place in the House accordingly. "


The Electoral Act therefore does not allow for any discretion in respect of a stay application such as that now put forward by the Petitioner. The Petitioner is no longer a member of the House of Representatives and the first Respondent must take his place in Parliament. Section 154 must be allowed to take its course, as a matter of law and the Court Order must be obeyed with immediate effect. The first Respondent who must now be allowed to sit in Parliament as he was on the order of Justice Gates validly elected as a member of the House of Representatives in terms of section 73(1)(a) of the Constitution.


CONCLUSIONS ON THE PETITIONER'S STAY APPLICATION


I have set out at some length the opposing arguments put forward on behalf of both the Petitioner and the first Respondent on the stay application filed by the Petitioner relating to the Order made by the Court of Disputed Returns at Lautoka on 8 February 2002. The application was extremely hard fought on both sides as the comprehensiveness of the arguments shows. This is understandable because the stake concerning the political future of either protagonist in this case is high. The whole chain of events which gave rise to the present litigation came about when the Court of Disputed Returns at Lautoka declared that the first Respondent was validly elected as a member of the House of Representatives for the Nadi Open Constituency who thereupon purportedly displaced the Petitioner. The Petitioner was himself declared by the Returning Officer to be validly elected following the counting of votes at the close of the General Election in September 2001. Two matters of great public importance to the administration of civil justice are at the centre of these proceedings.


The first relates to the true interpretation of section 116 of the Electoral Act 1998 and other connected provisions thereof. This has been fully noted in the written arguments that were submitted and do not need repeating. The Court of Disputed Returns at Lautoka gave an interpretation which in effect accepted as valid the ticks below the line in Part II ballot papers. This interpretation has generated much comment and controversy among the public and academic scholars. The reason is that the Court's interpretation does not appear to accord with the preferential system of voting as prescribed under section 54(l) of the Constitution. Indeed both the General Elections in 1999 and again in 2001 were conducted on the basis of the preferential system of voting known as the alternative vote. It is not surprising if the Court's interpretation is viewed by some as judicial activism of an extreme form. In any event as a result much confusion and uncertainty now surrounds the electoral system in Fiji.


The other matter of great public importance to the administration of civil justice relates to the decision of the Court of Appeal (Barker JA and Davies JA) which dismissed the Petitioner's appeal on the ground of want of jurisdiction. The Court of Appeal considered itself bound by what it perceived as the clear and unambiguous terms of section 73(7) of the Constitution. The section states:


"A determination by the High Court in proceedings under paragraph (1)(a) is final"


Counsel for the Petitioner has submitted however that a finality clause such as that exemplified by section 73(7) can no longer be accepted on its face value if it is shown that an error of law going to jurisdiction upon which the case depends has occurred. Authorities for this proposition have been amply cited in the written and oral arguments. It is claimed that jurisdictional error on the part of the Court of Disputed Returns at Lautoka arising from its alleged misconstruction of section 116 of the Electoral Act renders its Order appealable as of right. It is claimed that the Court of Appeal was wrong in not admitting the Petitioner's appeal. In this connection it was pointed out that uncertainty could arise if a simplistic approach is given to the finality clause in section 73 (7). Such uncertainty could well occur if two judges of the High Court sitting separately as a Court of Disputed Returns return differing interpretations as is quite conceivable regarding ticks below the line in Part II ballot papers. The situation is clearly unsatisfactory. In New Zealand we are told that their equivalent of a Court of Disputed Returns is comprised of 3 judges to hear election petitions. This is an important safeguard for the adjudication of election petitions. In any discussion of finality clauses one must pay heed to the pithy statement of Lord Atkin in a case referred to in the arguments where he said:


"Finality is good thing but justice is better."


Having considered all the arguments put forward on both sides to this stay application it seems clear to me that the Petitioner has shown sufficient grounds why his application should be upheld. Firstly there is significant prospect that the Petitioner may succeed in his application for special leave to appeal to the Supreme Court. On the papers the Petitioner has filed there can be no doubt that far-reaching questions of law and matters of great general and public importance are concerned in his special leave application. The Petitioner has also raised matters that are of substantial general interest to the administration of civil justice. Secondly allowing the stay application in this case would not cause irreparable loss or damage to the first Respondent. The first Respondent is not prejudiced in any way. In my view it seems logical and desirable that the issues concerning the first Respondent's purported membership in the House of Representatives together with that of the Petitioner should be resolved at the highest judicial level. On the other hand the Petitioner's appeal would be rendered nugatory with attendant undesirable fallouts on parliamentary business if Petitioner's stay application is refused and the appeal should succeed. Thirdly it seems fairly clear that the balance of convenience requires that the status quo prior to the Order of the Lautoka High Court on 8 February 2002 be maintained until the Supreme Court is able to decide whether the Petitioner's special leave application may be granted or not. This holding is in my view reinforced by the fact that important arguable issues of public law are concerned in the Petitioner's special leave application.


For the reasons I have given I am satisfied that it will be in the best interest of the administration of civil justice in this country if the Petitioner's stay application is allowed. In the result I grant the Order sought by the Petitioner in the Summons which he filed in this Court on 13 March 2002. The effect of this Decision is that the Petitioner will continue as a validly elected member of the House of Representatives until the Supreme Court can deal with his petition for special leave to appeal or until further order.


The costs of this application will be in the cause.


President,
Supreme Court of Fiji


Suva
25 April 2002

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