By Anish Chand
In this election year, the Fijian Supreme Court is set to hand down a judgement that will clearly define the role of the Supervisor of the Elections when it comes to following directives of the Electoral Commission.
Tomorrow (27th February), Chief Justice of Fiji, Anthony Gates will sit as a single judge to preside over an appeal by the Supervisor of Elections on a high court judgement on 29th November 2016 that ruled the Fijian Supervisor of Elections must comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission.
The FEO had filed an appeal in the Supreme Court, Fiji’s highest court.
The court case began in August 2014, just before the September general elections when the Electroral Commission went to the High Court after the Commission had sought clarification from the High Court on the interpretation of the law related to objections.
The High Court was asked to clarify the view of the Supervisor of Elections, Mohammed Saneem on whether he was right or wrong in not following a directive of the commission and proceeded to draw the National Candidates List of the 2014 General Elections.
The commission had received objections against Parveen Kumar and had ruled that the FijiFirst candidate be disqualified from the National Candidates List.
They had also ruled that the Fiji Labour Party candidate Steven Singh be reinstated in the final list of candidates but the FEO had gone ahead without the instructions of the commission.
High Court judge Justice Kamal Kumar was asked to give:
* a declaration that the Supervisor of Elections erred in law and in fact in concluding that the Electoral Commission was bound to deliver its decision on the objections and applications for review in terms of Sections 30 and 31 of the Electoral Decree 2014 by 4pm Friday August 2, 2014 and not any later time on that day; and
* a declaration that the Supervisor of Elections was bound to flow the directive of the Electoral Commission given by the Electoral Commission’s letter dated August 22, 2014 in compliance with Section 76 (3) of the Constitution of the Republic of Fiji.
Justice Kumar delivered a judgement in the favour of the FEO and he refused to grant the declarations.
Not happy with the decision, the Electoral Commission appealed to the Fiji Court of Appeal where a full bench of the court made up of the President of the Court of Appeal, Justice William Calanchini, Justice Almeida Guneratne and Justice David Alfred heard the arguments and allowed the appeal by the commission.
The three justices’ said in the interest of administrative efficacy and the smooth functioning of the electoral process the commission discharged its functions when it sent its letter dated August 22, 2014 to the Supervisor.
“Once the commission did that, the Supervisor was mandatorily required to carry out the decision contained in that communication in terms of Section 76 (3) read with Section 8 (a) of the Electoral Decree and it was not open to him to question the legality and/or constitutionality of it, particularly in view of the provisions of Section 30 (7) of the said decree which decrees that the commission’s decision is final, not permitting any appeal or review against the same.”
In their conclusion, the Fiji Court of Appeal declared that the time limits of three days in section 30 (5) and Section 31 (4) of the Electoral Decree end at midnight on the third day.
The judgement said under Section 76 (3) of the Constitution read with section 8 (a) of the Electoral Decree requires the Supervisor of Elections to comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission.
Now the final decision on this argument rests with Justice Anthony Gates and the ruling of the Supreme Court of Fiji.