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Asalemo v Electoral Commissioner [2011] WSSC 18 (28 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U


IN THE MATTER:
of the Electoral Act 1963.


AND:


IN THE MATTER:
of the Declaratory Judgments Act 1988.


BETWEEN:


TAFILIPEPE FAAETETE ASALEMO,
matai of Saaga, Siumu.
Applicant


AND:


ELECTORAL COMMISSIONER
appointed pursuant to the Electoral Act 1963 as amended.
Respondent


Counsel: L A Volentras for applicant
P Bednall and M T Lui for respondent


Hearing: 17 February 2011
Conclusions: 18 February 2011
Judgment: 28 February 2011


JUDGMENT OF SAPOLU CJ


  1. This is another urgent motion for judicial review that this Court had to deal with expeditiously on Thursday February 2011 together with the motions for judicial review in Leota Leuluailii Ituau Ale v Electoral Commissioner (2011) (judgment of 23 February 2011) and Tuula Kiliri Lafi Tuitui v Electoral Commissioner and Another (2011) (judgment of 25 February 2011) in order to determine whether the applicant Tafilipepe Faaetete Asalemo is qualified to run as a candidate in the general election on 4 March before the close of nominations of candidates at 12 noon on Friday 18 February. After the hearing of the applicant's motion on 17 February, I stated my conclusions on 18 February. I indicated in my conclusions that my full judgment with reasons will be made available to counsel the following week. This is that judgment.

Applicant's motion for judicial review


  1. The applicant's motion for judicial review seeks the following orders:
  2. As it will appear from what follows in this judgment, it is s.5 (3) (c) (ii) of the Electoral Act 1963 which is at the heart of these proceedings.

Section 5 (3) of the Electoral Act 1963


  1. Section 5 (3) of the Electoral Act 1963 ("the Act"), which was introduced into the principal Act by s. 4 (c) of the Electoral Amendment Act 2009, insofar as relevant, provides:

"(3) A person shall be disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:


(a) ....

(b) Has not resided in Samoa for a period equalling or exceeding three (3) years ending with the day on which the nomination paper is lodged with the Commissioner; or

(c) Does not have a statutory declaration in Form 1A in the Schedule from:

"(i) The Pulenuu of his or her village; or


"(ii) Any other person determined by the Commissioner, if the Commissioner is of the opinion that the Pulenuu is unable to, or cannot properly, provide the statutory declaration,


"that the candidate satisfies the three (3) year residential requirement in paragraph (b) and, unless the Commissioner is satisfied that the candidate is banished from his or her village, satisfies village service requirements.


"(3A) For the purposes of this section, 'village service requirements' means the services a matai renders to his or her village in accordance with the customs of that village".


Affidavit evidence in support of the applicant's motion


  1. The only affidavit filed in support of the applicant's motion is the affidavit of the applicant himself. Essentially, what the applicant says in his affidavit is that on Thursday 10 February 2011, which was the second time he saw the pulenuu of his village Saaga, Siumu, for a statutory declaration on residential and village service requirements, the pulenuu said he was unable to sign the statutory declaration form as in his view the applicant did not meet the residential or village service requirements. The applicant says this is consistent with what the pulenuu had told him the first time he saw the pulenuu, that is, the pulenuu was of the opinion that the applicant does not meet the 3 year residential requirement. However, it is contrary to what the pulenuu had said to him earlier that in his opinion the applicant meets the village service requirements.
  2. The applicant says he then came that same day, Thursday 10 February, and advised the Electoral Commissioner ("the Commissioner") that the pulenuu refuses to sign the statutory declaration form on residential and village service requirements. The Commissioner's response was for him to seek legal assistance to get his registration through before the nominations of candidates for the general election close on Friday 18 February 2011. The applicant then sought legal advice whether someone other than the pulenuu of Saaga, Siumu, could sign the statutory declaration form. He had in mind Reverend Lance Ugapo Ulale of the EFKS Church in Saaga. The applicant then returned and saw the Commissioner again and was told by the Commissioner to seek a Court order he could act on in accepting someone other than the pulenuu to sign the statutory declaration form.
  3. The applicant further says in his affidavit that from 1982 when he was bestowed with the matai title of his village, he rendered service to his village. In 1987 he moved to New Zealand where he has been residing with his wife and children up to now. The applicant, however, also says that since he moved to New Zealand in 1987, he remitted funds to his parents in Saaga for the purpose of rendering services to the village. When his father and mother died in 2000 and 2004 respectively, he continued to remit funds to his sister in Siumu for the purpose of rendering services to the village. He is continuing this practice to this day.
  4. The applicant says he had also rendered the following services to his village: (a) monetary gifts to the village usu (village welcome) on his many trips to Samoa over the years; (b) contributions to the church as is recognised in the letter of Reverend Lance Ugapo Ulale; (c) permission given to people of Saaga to work on his family's customary land for their livelihoods; (d) financial assistance of approximately (NZ$5,000) for legal fees for the Siumu land cases; (e) a container of building materials, furniture and food that cost more than (NZ$10,000) sent after the tsunami of 29 September 2009; and (f) contribution of approximately (NZ$5,000) to the village fundraisings in New Zealand for the village school.
  5. In the statutory declaration on residential and village service requirements completed and signed by Reverend Lance Ugapo Ulale and which is annexed to the applicant's affidavit, Reverend Ulale writes leai (No) next to the 3 year residential requirement and ioe (Yes) next to the village service requirements. The plain meaning of this statutory declaration is that the applicant does not satisfy the 3 year residential requirement but satisfies the village service requirements. This is the statutory declaration the applicant wants the Commissioner to accept as confirmation that he satisfies both the 3 year residential requirement and the village service requirements. But how can the Commissioner lawfully accept such a declaration when it shows that the applicant does not satisfy the 3 year residential requirement. The Commissioner cannot ignore what appears so clearly from the face of the declaration. Likewise, this Court cannot disregard what appears on that declaration for the purpose of these proceedings.
  6. The applicant, however, says in his affidavit that the Commissioner had said to him that he was satisfied that he (the applicant) meets the 3 year residential requirement in terms of the s. 5 (6) (d) (i) of the Act. If that is true, then the Commissioner must have been unaware that the applicant had moved to New Zealand in 1987 where he resides with his wife and children. Up to now, the applicant still resides with his family in New Zealand. This is clear from the applicant's own affidavit which could not have been before the Commissioner as the affidavit was prepared after the applicant's meetings with the Commissioner. The statutory declaration completed and signed by Reverend Lance Ugapo Ulale also shows, as already mentioned, that the applicant does not satisfy the 3 year residential requirement.
  7. The two medical reports annexed to the applicant's affidavit may have contributed to the Commissioner's belief that the applicant resides in Samoa but was in New Zealand for medical treatment. However, on their own, the medical reports make no reference to the fact that the applicant moved to New Zealand in 1987 and resides with his wife and children in New Zealand where he has employment. It is most likely that the Commissioner was not aware of these facts when he told the applicant he was satisfied that the applicant meets the 3 year residential requirement under the Act.

Affidavit evidence in opposition to the applicant's motion


  1. Apart from the Commissioner's affidavit, there are two affidavits filed in opposition to the applicant's motion. These are the affidavits of Utaileuo Minute the pulenuu of Saaga, Siumu, and of his daughter Masina Utaileuo Schuster.
  2. According to what the pulenuu says in his affidavit, the applicant left the village for New Zealand in the 1980's and has never returned to permanently reside in the village. The pulenuu also says that ever since the applicant was bestowed with his matai title he has not provided any service to the village by way of a monotaga, that is to say, contributions to everything that the village does but not limited to monetary fundraising, fine mats contribution, and food contribution.
  3. The pulenuu also says that the first time the applicant approached him in relation to the signing of the statutory declaration form he was too sick to come to the Office of the Commissioner. On Tuesday 8 February 2011, the applicant in the company of his wife again approached him to come to the Office of the Commissioner to sign the statutory declaration. At that time, the pulenuu's daughter Masina Utai Schuster was present. The pulenuu says he told the applicant that he could not sign the statutory declaration as the applicant did not satisfy the residential requirement of 3 years or the village service requirements. The pulenuu denies ever saying to the applicant that he had satisfied the village service requirements as the applicant claims in his affidavit.
  4. The pulenuu further repeats in his affidavit that the applicant has not provided village service and says that (a) the village service the applicant claims to have given by sending money from New Zealand to his parents and sister may have been service to his own family but not service to the village; (b) the village usu (village welcome) mentioned by the applicant in his affidavit is a customary courtesy extended to every village matai who resides overseas when he visits the village but it is not regarded as service rendered to the village by way of monataga or tautua and in any event it is only rarely that the village performs a usu when the applicant visits the village; (c) he (the pulenuu) is not aware of any service by the applicant to the church as he is of a different denomination; (d) the pulenuu denies that the applicant provides assistance to the village by allowing people of the village to work on his family customary lands as everyone in the village has land available to them to work on; (e) the pulenuu denies that the applicant has made any contribution to the payment of legal fees of the lawyer for the Siumu land matters as he was on the committee managing the progress of those matters and the payment of legal fees and he is not aware of any contribution from the applicant; (f) the pulenuu denies that the applicant ever sent any container of goods to the village for the tsunami relief effort as the village did not receive anything from him; and (g) the pulenuu denies any contribution by the applicant to any fundraising trip by the village to New Zealand including the trip mentioned by the applicant in his affidavit.
  5. The pulenuu further says in his affidavit that Reverend Lance Ugapo Ulale mentioned by the applicant in his affidavit had resided overseas and has only resided in the village for 3 years.
  6. The deponent Masina Utaileuo Schuster in her affidavit confirms what her father says in his affidavit about what was said between him and the applicant when the latter approached her father on Tuesday 8 February to sign the statutory declaration as she was at home that day to take care of her father who was ill and unwell.

Affidavit evidence by the Commissioner


  1. The Commissioner in his affidavit says that he met with the applicant on Thursday 10 February 2011. At that meeting, the applicant provided two medical reports, one from a doctor in New Zealand dated 16 April 2010 and another report dated 16 December 2010 from a local doctor. After looking at those reports, the Commissioner says that he informed the applicant that he satisfies the residential requirements of s. 5 (6) (d) (i) of the Electoral Act 1963. Apparently, the Commissioner did not inform the applicant about the requirements of s.5 (6) (d) (ii) and s. 5 (b) (d) (iii).
  2. Section 5 (6) (d) (i) creates an exception to the 3 year residential requirement in s. 5 (3) (b) if a person who is a prospective candidate for a parliamentary election satisfies the Commissioner that he had been required to obtain and did obtain medical treatment outside of Samoa for more than 125 days in any one year during the period of 3 consecutive years ending on nomination day. Section 5 (6) (d) (ii) then provides that the Commissioner is to be satisfied of the matters provided in s.5 (6) (d) if the person (the prospective candidate) provides the declarations in Forms 1A and 1B of the Schedule. Forms 1A is the statutory declaration from the pulenuu of the village of the prospective candidate and Form 1B is the statutory declaration from the prospective candidate himself. Section 5 (b) (iii) then provides the sanction for a false or misleading declaration.
  3. At the same meeting on Thursday 10 February 2011, the applicant informed the Commissioner that the pulenuu of his village was sick. The Commissioner says he then advised the applicant to take the requisite statutory declaration form to the pulenuu and if the pulenuu is still unable to attend to the Commissioner's office then to request him to sign the statutory declaration at Saaga. Later on the same day, the applicant returned and informed the Commissioner that the pulenuu refuses to sign the statutory declaration form. The Commissioner says he again urged the applicant to persist with getting a statutory declaration from the pulenuu. He also advised the applicant to seek independent legal advice.
  4. On Monday 14 February, the Commissioner again met with the applicant. At that meeting, the applicant requested the Commissioner to nominate some one other than the pulenuu to sign the statutory declaration form. The Commissioner says he advised the applicant to seek a Court order he could act on. He also says that it is his belief that the pulenuu is in the best position to provide the statutory declaration confirming that the applicant or any prospective candidate satisfies village service requirements.
  5. The Commissioner then says in his affidavit that he has read all the Court documents served on him on behalf of the applicant which include the applicant's motion which annexes the declaration by Reverend Lance Ugapo Ulale as well as the supporting affidavits. He has also read the affidavits by the pulenuu and his daughter filed in opposition to the applicant's motion. Based on all the information known to him, the Commissioner says that he is not of the opinion that the pulenuu is unable or cannot properly provide a statutory declaration. He therefore declines to nominate any other person to provide that declaration.

Submissions by counsel for the applicant


  1. Counsel for the applicant in his written submissions advances three grounds for review, namely, irrationality, illegality, and the constitutionality of the Commissioner's decision in this matter. Quite properly, counsel for the applicant in his oral submissions did not pursue the constitutional ground. That leaves only irrationality and illegality.
(a) Irrationality
  1. It was submitted by counsel for the applicant that it is irrational or unreasonable in the Wednesbury sense for the Commissioner to ask the applicant, when the pulenuu of his village was unable to provide the requisite statutory declaration, to seek a Court order that he, the Commissioner, could act on in determining which person can provide the statutory declaration. By insisting that the applicant obtain a Court order when it was only two days before the close of nominations for candidates on 18 February 2011 at 12 noon, was an irrational determination by the Commissioner.
  2. It was further submitted by counsel for the applicant that the Commissioner is aware that the pulenuu of a village is a government appointee and may be politically motivated because the applicant intends to run as an independent candidate. The Commissioner should therefore have exercised his discretion and nominate someone other than pulenuu when the pulenuu was not willing to provide a statutory declaration. What seems to be implied here is that the pulenuu was politically biased against the applicant when he refused to provide the requisite statutory declaration.
(b) Illegality
  1. It was submitted by counsel for the applicant that under s. 5 (3) (c) (ii) of the Electoral Act 1963, if the Commissioner is of the opinion that the pulenuu is unable to provide the requisite statutory declaration on residential and village service requirements then he must determine which other person can do so. By asking the applicant to seek a Court order upon which he could act instead of making a determination that he, himself, is empowered to make under s. 5 (3) (c) (ii), the applicant had in effect abdicated his statutory power and therefore acted illegally.
  2. It was further submitted by counsel for the applicant that the Commissioner misconstrued s. 5 (3) (c) (ii) by asking the applicant to seek a Court order that he, the Commissioner, could act on when the power to nominate a person other than the pulenuu to provide the requisite statutory declaration is given by s. 5 (3) (c) (ii) to the Commissioner himself.

Submissions by counsel for the Commissioner


  1. Counsel for the Commissioner provided written submissions applicable to all the three motions for judicial review the Court had to deal with on Thursday 17 February. These submissions address all three of the usual grounds for judicial review, namely, illegality, irrationality, and procedural impropriety. Procedural impropriety is not raised as a ground for review in these proceedings. I therefore say no more about it.
  2. On the basis of the affidavit evidence filed in support of and in opposition to the applicant's motion, counsel for the Commissioner submitted that it was not necessary for the Commissioner to form an opinion that the pulenuu is unable or cannot properly provide a statutory declaration in terms of s. 5 (3) (c) (ii). The Commissioner is only required under s. 5 (3) (c) (ii) to nominate another person to provide a statutory declaration if the Commissioner is of the opinion that the pulenuu is unable or cannot properly provide a statutory declaration. In the circumstances as set out in the affidavits filed in support of and in opposition to the applicant's motion, the Commissioner was justified in not forming such an opinion. It was, therefore, not necessary for the Commissioner to nominate another person to provide a statutory declaration.
  3. Counsel for the Commissioner further submitted that the pulenuu would be "unable" to provide a declaration in terms of s. 5 (3) (c) (ii) if he is physically or mentally incapable, for example, by being overseas or sick. The pulenuu "cannot properly" provide a declaration in terms of the same provision if he cannot appropriately turn his mind to whether the prospective candidate meets the residential requirement or the village service requirements, for example, because of bias.
  4. Counsel for the applicant and for the Commissioner were in agreement that a decision by the pulenuu under s. 5 (3) (c) (i) or by the Commissioner under s. 5 (3) (ii) is amenable to judicial review. I accept that is correct.

Discussion


  1. There is no dispute that the pulenuu is not the only person who may provide the statutory declaration required under s. 5 (3) (c). Counsel on both sides recognise that whilst the pulenuu is the primary person to provide the statutory declaration, the Commissioner may nominate another person under s. 5 (3) (c) (ii) to provide the statutory declaration if in his opinion the pulenuu is "unable" or "cannot properly" do so. However, counsel differ in their interpretations of the word "unable" as used in s. 5 (3) (ii). Counsel for the applicant seems to say that in the circumstances in which the pulenuu did not provide a statutory declaration when requested by the applicant, the pulenuu was "unable" to provide a statutory declaration. On the other hand, counsel for the Commissioner submitted that in the context of s. 5 (3) (c), the word "unable" should be interpreted to mean that the pulenuu is physically or mentally incapable of providing a statutory declaration. I have already stated my acceptance of the interpretation by counsel for the Commissioner in Leota Leuluaialii Ituau Ale v Electoral Commissioner (2011) (judgment of 23 February 2011). That being so, the affidavit evidence does not show that the pulenuu was physically or mentally incapable of providing a statutory declaration. To the contrary, the affidavit evidence shows that the pulenuu was physically and mentally capable of providing a statutory declaration but he refused to do so because, according to him, the applicant does not meet the 3 year residential requirement or the village service requirements. It was not due to any physical or mental incapacity on the part of the pulenuu that he did not provide a statutory declaration which he was quite capable of providing if the applicant had met the necessary requirements. It cannot, therefore, he said that in terms of s. 5 (3) (c) (ii), the pulenuu was "unable" to provide a statutory declaration.
  2. As to whether in terms of s. 5 (3) (c) (ii) the pulenuu "cannot properly" provide a statutory declaration, I have also decided in Leota Leuluaialii Ituau Ale v Electoral Commissioner (supra) that if the pulenuu is physically and mentally capable of providing a statutory declaration but fails to provide such a declaration for no valid reason, or is willing to provide a statutory declaration but gives a false or misleading declaration, or is willing to provide a statutory declaration but gives an incorrect declaration which he refuses to rectify after the mistake has been drawn to his attention, then he "cannot properly" provide a declaration in terms of s. 5 (3) (c) (ii) of the Act.
  3. Section 5 (3) (c) is a verification or confirmation provision. Its apparent purpose is to provide for the pulenuu to confirm in writing by way of the prescribed form that a prospective candidate for a parliamentary election from his village meets the 3 year residential requirement provided in s. 5 (3) (b) and the village service requirements as defined in s. 5 (3A). If a pulenuu who is physically and mentally capable fails to provide a statutory declaration for no valid reason, or provides a false or misleading declaration, or provides an incorrect declaration which he refuses to rectify after the mistake has been drawn to his attention, then the purpose of s. 5 (3) (c) will be defeated. To prevent that from happening, the Commissioner is empowered under s. 5 (3) (c) (ii) to nominate another person to provide the declaration which the pulenuu "cannot properly" provide.
  4. In that way, the focus is not on the pulenuu as such but on obtaining a valid statutory declaration to confirm whether a prospective candidate meets the 3 year residential requirement and the village service requirements. I prefer not to focus on the pulenuu as that will undermine the requirement in s. 5 (3) (c) (i) that it is primarily for the pulenuu to provide the requisite statutory declaration. Every pulenuu is appointed by the government presumably on the recommendation of the village. Furthermore, in village life, everyone, including the pulenuu, knows everyone else. There are also many kinds of connections within a village and not just family connections. If the words "cannot properly" provide a statutory declaration are to be interpreted to mean that a pulenuu "cannot properly" provide a declaration, for example, because of bias, then it will be quite easy to find an excuse to disqualify a pulenuu on the ground of perceived bias no matter how honest he is about providing a valid declaration. This is because of the various legal tests by which someone can be disqualified for perceived bias. If that happens, it will undermine the requirement in s. 5 (3) (c) (i) that it is primarily for the pulenuu to provide the statutory declaration. The provision will not be workable. One might as well leave it to the Commissioner in most if not every case to nominate someone other than the pulenuu to provide the statutory declaration. But that other person may also be subject to challenge on the ground of perceived bias because he would have to be from the same village as the prospective candidate for election. As I have said, in village life everyone knows everyone else and there are many kinds of connections within a village and not just family connections.
  5. Given the interpretation of s. 5 (3) (c) (ii) I have decided to adopt, it cannot be said on the basis of the affidavit evidence before the Court that the pulenuu was "unable" to provide a statutory declaration. Likewise, it cannot be said that the pulenuu "cannot properly" provide a statutory declaration. Whilst it may be debatable whether, on the affidavit evidence, the applicant meets the village service requirements, it is quite clear that the applicant does not meet the 3 year residential requirement. The pulenuu says so in his affidavit. Reverend Lance Ugapo Ulale of the EFKS Church in Saaga also says so in the statutory declaration he completed and signed. Even the applicant says in his affidavit evidence that he moved to New Zealand in 1987 and it is clear from his affidavit that he is still living in New Zealand. The Court was also informed from the bar that the applicant still resides with his wife and children in New Zealand where he has employment. The two medical reports annexed to the applicant's affidavit refer to the medical condition of the applicant but not to whether the applicant meets the 3 year residential requirement which he clearly does not.
  6. In view of those circumstances, the Commissioner would not be required to nominate another person to provide a statutory declaration. It will only be necessary for the Commissioner to do so if he is of the opinion that the pulenuu is "unable" or "cannot properly" provide a statutory declaration. In the circumstances, the pulenuu could not have legitimately formed such an opinion.
  7. I turn now to the grounds for judicial review advanced on behalf of the applicant. These are irrationality and illegality.
(a) Irrationality
  1. As a ground for judicial review, Wednesbury unreasonableness or irrationality as Lord Diplock preferred to call it in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 focuses not on the decision-making process but on the outcome of that process. It involves the Court in closely scrutinising a decision reached at the end of the decision-making process to see whether it is reasonable or unreasonable. This ground of review was explained in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 where Lord Diplock said at p. 410:

"By 'irrationality' I mean what can now be succinctly referred to as Wednesbury unreasonableness ... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."


  1. In Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 537, Richardson P when dealing with unreasonableness or irrationality as a ground for review said at p. 545:

"[If] the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused.


"To prove a case of that kind requires 'something overwhelming' (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 Lord Diplock said in respect of unreasonableness, or 'irrationality' as he preferred to call it:


" 'It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.


"Similarly in Nottinghamshire County Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240, 247 and 248, Lord Scarman used expressions such as 'so absurd he must have taken leave of his senses' and 'a pattern of perversity' as setting the standard, and in Webster v Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129, 131 Cooke P spoke of an unreasonable decision as 'one outside the limits of reason'. Clearly, the test is a stringent one."


  1. A decision will also be irrational if it is arrived at in an arbitrary fashion, for example, "by spinning a coin or consulting an astrologer". R v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 per Diplock LJ at p. 488.
(b) Illegality
  1. In relation to illegality as a ground for review, the learned authors of de Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) 5th ed state at para 6 – 001, p. 295:

"An administrative decision is flowed if it is illegal. A decision is illegal if:


"(1) it contravenes or exceeds the terms of the power which authorises the making of the decision; or


(2) it peruses an objective other than that for which the power to make the decision was conferred."


  1. Counsel for the applicant referred to Constitutional and Administrative Law in New Zealand (2007) 3rd ed by PA Joseph where the learned author says at para 22.1 that illegality as a ground for review includes abdication by a person vested with a discretionary power of his power, for example, by adopting a rigid rule or policy. Counsel further referred to para 22.3.1 of the same text where the learned says that for an authority to refuse or fail to exercise a discretion is an instance of abdication of a statutory function. Counsel then referred to para 22.3.5 of the same text where the learned author states:

"An authority may unlawfully abdicate its statutory function by refusing or failing to act. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 977 was one of purposeful inaction. The Minister declined to refer a complaint for investigation because he feared adverse political consequences.... It is an unlawful abdication of power whether or not the authority's inaction was deliberate or based on an erroneous belief that it lacked jurisdiction to proceed.


(c) Orders sought by the applicant


  1. I turn now to the orders sought on behalf of the applicant. The first of these orders is a declaration that the Commissioner misconstrued s. 5 (3) (c) (ii) of the Electoral Act 1963 when he asked the applicant to seek a Court order on which he could act instead of accepting someone other than the pulenuu of Saaga, Siumu, to provide the requisite declaration on residential and village service requirements. Section 5 (3) (c) (ii) is a new statutory provision which was introduced into the Electoral Act 1963 by s. 4 (c) of the Electoral Amendment Act 2009. As it appears from what has already been said, it is not a straightforward provision. It is somewhat complex. The Commissioner, given the novelty and complexity of the provision, was most probably in doubt as to the true meaning of s. 5 (3) (c) (ii). He therefore asked the applicant to seek a Court order he could act on when he was advised by the applicant that the pulenuu continued to refuse to sign the statutory declaration.
  2. In my respectful opinion, that is not a misconstruction by the Commissioner of s.5 (3) (c) (ii). The Commissioner was most probably in doubt about the extent of his power under this new and somewhat complex provision that he wanted a Court order to ensure that what the applicant was asking him to do was legally correct. There is, in my opinion, a difference between misconstruing a statutory provision and being in doubt about the extent of one's power under a statutory provision and therefore seek a Court order to clarify the true meaning of the provision. The Commissioner also did not refuse to act or to exercise his power. He told the applicant to seek a Court order he could act upon. That is not an indication of deliberate inaction or refusal to act. If anything, it shows that the Commissioner was ready to act and to exercise his power but he needed a Court order to make sure that if he acts it is in accordance with the terms s.5 (3) (c) (ii) and not simply because the applicant wanted him to act or to exercise his power. It is now clear that if the Commissioner had acted as the applicant wanted him to act and nominate someone other than the pulenuu to provide a statutory declaration, he would have been in error. So the Commissioner did not misconstrue s.5 (3) (c) (ii) or abdicate his power under s.5 (3) (c) (ii). He was ready to act and exercise his power if necessary. But he was also cautious. He therefore chose to ask the applicant to obtain a Court order.
  3. In the case of Padfield v Minister of Agriculture, Fisheries and Forest [1968] UKHL 1; [1968] AC 997, the Minister concerned refused to act by not referring a complaint for investigation because he feared the political consequences which was irrelevant to the purpose of the statutory provision under which he was supposed to act. In that sense the Minister was abdicating his discretionary power under the statute. That is different from this case where the Commissioner told the applicant to seek a Court order on which he could act. In other words, the Commissioner was willing to act but he wanted the applicant to get a Court order first to make sure he will be acting correctly. That would not be an abdication by the Commissioner of his power to act under s.5 (3) (c) (ii). The Commissioner was prepared to act but he wanted to make sure that if he acts it was in accordance with the terms of s.5 (3) (c) (ii) which is a novel provision not free from complexity.
  4. As for the second order sought on behalf of the applicant, namely, that the decision of the Commissioner of 14 February 2011 requesting the applicant to seek a Court order instead of accepting a statutory declaration form prepared by someone other than the pulenuu be quashed. It is clear that the order that is sought here is one of certiorari to quash. Given the interpretation of s.5 (3) (c) (ii) I have decided to adopt, it was not necessary for the Commissioner to nominate someone other than the pulenuu to provide a statutory declaration. In view of the affidavit evidence, the pulenuu was not "unable" to provide a statutory declaration, nor can it be said that the pulenuu "cannot properly" provide a statutory declaration. So it was not necessary for the Commissioner in terms of s.5 (3)(c) (ii) to nominate another person to provide a statutory declaration.
  5. Furthermore, the person that the applicant had wanted to be nominated was Reverend Lance Ugapo Ulale of the EFKS Church in Saaga, Siumu. But the statutory declaration that was completed and signed by Reverend Lance Ugapo Ulale clearly shows that the applicant does not meet the 3 year residential requirement for a person to be qualified as a candidate in a parliamentary election. So the Commissioner could not have determined that the applicant is qualified to run as a candidate in the general election on 4 March 2011 as he does not meet the 3 year residential requirement.
  6. Finally, in respect of the order for mandamus sought on behalf of the applicant to compel the Commissioner to accept the statutory declaration completed and signed by Reverend Lance Ugapo Ulale, it must be clear from what I have already said that if mandamus is granted, that will be tantamount to compelling the Commissioner to act in breach of s.5 (3) (c) of the Act. That, of course, cannot be done.

Conclusions


50. (1) For the foregoing reasons, I have reached the following conclusions on the motion for judicial review by the applicant Tafilipepe Faaetete Asalemo:


(a) The declaratory order sought by the applicant that the respondent, the Electoral Commissioner, erred in his construction of s. 5 (3) (c) (ii) where he determined that the applicant seeks a Court order which the respondent could then act on instead of accepting someone other than the pulenuu to provide the statutory declaration on residential and village service requirements is refused.

(b) The order sought to quash the decision of the respondent, the Electoral Commissioner, of 14 February 2011 requesting the applicant to seek a Court order instead of accepting the statutory declaration on residential and village service requirements prepared by any person other than the pulenuu is refused.

(c) The order of mandamus sought to compel the respondent, the Electoral Commissioner, to accept the statutory declaration completed and signed by Reverend Lance Ugapo Ulale of the EFKS at Saaga, Siumu, is also refused.

(2) The result of the above conclusions is that the applicant is not qualified in terms of s.5 (3) (c) of the Electoral Act 1963 to run as a candidate for the territorial constituency of Siumu in the general election on 4 March 2011.

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CHIEF JUSTICE

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