December 21st 2018
Joint Press release by NFP and SODELPA:
Nearly half of Fiji’s voters supported our parties in the 2018 election. This statement is issued to explain to them why we withdrew our election petition this week, after the ruling of the Court of Disputed Returns on our evidence.
The Court would not allow us to call 6 of our proposed 8 witnesses. Without that evidence, most of our case could not be proved. We would then be going into court to lose, risking a substantial order for costs.
What the Petition was about
Our petition claimed breaches of the Electoral Act by some Fiji First Party members. This included specific instances of campaigning in breach of the Electoral Act. We will now pursue these matters with the Fiji Independent Commission Against Corruption (FICAC).
We also wanted the Court to rule on the legality of the so-called “small business grants” scheme. The Fiji First government gave away more than $4.4 million to more than 4,000 people in the three weeks before the election.
Our petition also wanted to clarify the legal right of the Supervisor of Elections to re-count (or partially re-count) the contents of 27 ballot boxes, and the process he followed to verify postal ballots.
The Electoral Act permits the Chief Justice to make rules for how the Court of Disputed Returns will operate. Two general elections have now taken place without any rules.
Where there are no rules, the High Court Rules must be followed. But those rules are not clear for electoral petitions. This is what led to yesterday’s ruling.
The 2013 Constitution says that an electoral petition must be decided in 21 days. So it was important to settle the procedure quickly. On the day we filed the Petition, we sought directions from the Court. As we know, the process was famously delayed by the 48-hour Fiji First Party “strategic workshop” when all Fiji First Party MPs avoided service of our petition.
When they finally came to Court, the Fiji First Party argued that an electoral petition must be supported by affidavits (sworn statements). Our lawyers pointed out to the Court that this is not a requirement of the Electoral Act.
The Court ruled that only certain witnesses were allowed to give oral evidence. Based on our legal advice, we respectfully disagree with that ruling and the reasons for it. Unfortunately, the law gives us no right of appeal.
Effect of the ruling
The ruling means that there will be no clarity on the important legal issues that we raised. We urge the Chief Justice to now make proper rules for the Court of Disputed Returns. The legal process for challenging election results should be transparent and clear. Elections belong to the people. All electoral processes – including court challenges – should be clear.
Because we are commenting on legal issues and on legal advice, this will be our last official statement on the case.
The memory of “Level 9”
Fiji’s people will always remember this electoral petition, not for what was in it but for how the Fiji First Party responded to it. This may be the first time in history that a whole government would not come out of a room for two days to face a bailiff.
Sitiveni L. Rabuka Prof. Biman Prasad
Leader of SODELPA Leader of NFP