Fiji Election Commission Wins Appeal Against Supervisor Of Elections

Saneem should have followed direction of Commission during 2014 elections: Court

By Talebula Kate

SUVA, Fiji (Fiji Times, Nov. 30, 2016) – 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.

This was highlighted in a judgment delivered by a Full Bench of the Fiji Court of Appeal in Suva yesterday.

The Full Bench consisted of the president of the Court of Appeal, Justice William Calanchini, Justice Almeida Guneratne and Justice David Alfred.

In the judgment, the Court of Appeal allowed the appeal by the commission.

The commission had sought to set aside Justice Kamal Kumar's order of August 24, 2014 when he refused to grant the following declarations:

  • 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 follow 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.

The commission had sought clarification in the High Court in Suva in August 2014 on the interpretation of the law related to objections.

They had asked the court 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 Mr Saneem had gone ahead without the instructions of the commission.

According to the judgement, 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 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.

Also the construction to be placed on 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.

Fiji Times Online.
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