The Court and not the Electoral Commission should have the final say in election-related disputes and/or arbitrations, five political parties’ said in their submission on proposed changes to three of Fiji’s electoral laws.
Bill 52 of 5050 recommends the insertion of a new section titled: “Dispute Resolution” to section 30 of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013. Clause 13 of Bill 52 empowers the EC to preside and decide over disputes between parties and whose decisions are final and cannot be contested by any outside entity including the judiciary.
Freedom Alliance Party leader Jagath Karunaratne described the amendment “as a slap on the judiciary and highly disrespectful.” National Federation Party and SODELPA dubbed it “a gross miscarriage of natural justice” because the Registrar as Supervisor is the Secretary to the Commission.
“There must not be any provision in law that restricts the court from hearing any matter. The procedural and progressive system of seeking a remedy through the legal/court system must at all times be honored,” Karunaratne said. “The legislators/judiciary must frown upon at such provisions.”
Pointing to the make-up of the EC with only one of the members’ a lawyer by profession, Karunaratne said the commission lacked the legal experience to make such calls. He said it is crucial that the EC seeks independent legal opinion.
“I understand that there is a strict timeframe, but it should not stop there. Time can be a hindrance, but it should not stop a person from seeking legal redress from the Court,” Karunaratne said after committee member Mosese Bulitavu drew attention to the explanation provided regarding the amendment – to ensure disputes are resolved quickly and timely as was affirmed by the EC.
SODELPA youth rep Pita Waqavonovono questioned the rationale of designating a “body of unqualified Fijians” to make final decisions on electoral-related disputes. Pointing to his own party, said that they have had to go to court to sort internal differences and interpretations of the law.
NFP leader Professor Biman Prasad maintains that the High Court “must remain as the judicial mechanism for redress, just as it is for every other constitutional independent institution.
“The new section 30A on dispute resolution between parties “on any campaign issue” as the Bill states, “is farcical and again completely contrary to the norms of natural justice. There is no need for this clause – if there are issues, the High Court should be the only lawful mechanism for redress.”
Weighing in on the issue, Unity Fiji leader Savenaca Narube said to rely solely on the EC is dangerous.
“The golden rule of arbitration is that the arbiter must be independent. The lack of independence of the Election Commission is a serious fundamental flaw in our election’s administration in Fiji. It is contributing to the low confidence of the people on the elections. The Opposition Parties have been calling for greater independence of the Commission since after the 2014 elections but without success. The Commission is accountable to the people not the Government for the conduct of a free and fair elections.
“As an example of the lack of independence, the Commission must receive independent legal advice. But when the Commission asked for an independent legal adviser, the Minister for the Elections who is also the General Secretary of the Fiji Fist Party, directed the Commission to use the Solicitor General. We all know that the SG is the legal adviser to Government. It therefore cannot be an independent legal adviser to the Commission.”
Narube also said that as is, clause 13 of Bill 52 “is against the rights of political parties under the Constitution to seek redress in a court of law”, proposing that the insertion is deleted, and instead set up an independent elections tribunal to hear the appeals of the decisions by the SOE and the EC.
Submissions on bills 50, 51 and 52 before the parliamentary committee on justice, law and human rights continue this week