Fiji Electoral Commission on the defence
The Fiji Electoral Commission is defending a decision to award a vacant parliament seat to a SODELPA MP earlier this year.
The Fiji Electoral Commission is defending a decision to award a vacant parliamentary seat to a SODELPA MP earlier this year.
Mikaele Leawere took up a seat in March after the sudden death of the opposition SODELPA party's Ratu Viliame Tagivetaua.
The Commission awarded Mr Leawere the seat because he was the SODELPA candidate with the next highest number of votes in last year's general election, but the attorney general Aiyaz Sayed-Khaiyum is challenging that in the High Court.
Bridget Tunnicliffe asked the Electoral Commission's lawyer Bhupendra Patel, what the attorney general is objecting to.
BHUPENDRA PATEL: What the attorney general is arguing is that they have made an electoral decree, since the passing of the new 2013 constitution and under that there is a provision which is section 24, subsection 2, which basically says that any public officer who wishes to be a candidate in the election, is deemed to have lost his public office so as to become a candidate. But his argument is that section runs for four years which means that if you stand for election, if you lose it and if you go back into public service you cannot be reappointed as a member under the new system of awarding the seat instead of a by-election.
BRIDGET TUNNICLIFFE: So he thinks that that runs for four years?
BP: Yes, so in fact what that means is that if a person who is a public officer has either given up his job or has filed his nomination, thereby has become a proper candidate but has lost his election - he cannot then go back to public service and then claim to be able to be awarded a seat under section 64 of the constitution.
BT: Is this spelt out clearly in the decree or is this a grey area?
BP: It's a grey area because what we argue for the commission is that there's no such thing in the constitution and therefore section 24 is a mis-reading of it by the attorney general where things are. His expectation of what he wanted is certainly not reflected in the wording of the section.
BT: So there's no mention of the four-year rule.
BP: No, there's no mention but the effect would be that, if he is right.
BT: And the reason that this MP was promoted to the seat was because Ratu Tagivetaua he suddenly passed away earlier this year and Mr Leawere received the next highest number of votes in the September election, so naturally he was next in line.
BP: That is right and he was the next in line in his party so obviously yes he did qualify as far as the commission was concerned in that regard, whether there's another part to Section 64 of the constitution
which says that the commission has to make sure that the person with the highest number of votes is also available and the attorney's argument is that validity also requires eligibility at that point again and he's saying go back to the nomination whenever it was in the last election. The commission is saying 'no' it requires us to look at another section in the constitution which doesn't talk about public service at all.
BT: But I assume Mr Leawere returned to his old job after he missed out on a seat in the election last year because he has to earn a living.
BP: Absolutely and that is one of our arguments, that their submission that the intention of the electoral decree that once you become a candidate then you cannot go back to your old job contravenes the Bill of Rights, which has an entrenched provision now in Fiji for the first time. It gives a person the right to choose his own vocation, trade, occupation, what have you.
A decision from the High Court is due next Monday afternoon.
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