The Electoral Commission Secretariat says Mahendra Chaudhry's legal analysis is incorrect after Chaudhry’s statement today that his legal advice is that the Electoral Commission cannot be legally constituted without a chairperson being appointed.
The Commission’s Secretariat says Chaudhry’s incorrect analysis appears to have disregarded the essential section 138(2) of the Constitution.
It says an appeal under section 144A(3) to the Electoral Commission is not barred due to any of the reasons Chaudhry proposes.
The Secretariat says section 138(3) states : "A decision of a commission, tribunal or board to which this section applies requires the concurrence of a majority of its members and the commission, tribunal or board to which this section applies may act despite the absence of a member but, if, in a particular case, a vote is taken to decide a question and the votes cast as equally divided, the person presiding must exercise a casting vote.
It says the Electoral Commission is one of the commissions to which section 138 applies.
The Secretariat says based on the law, there is nothing stopping the Electoral Commission from dealing with an appeal if it is lodged.
It says in the past, since 2014, the Electoral Commission has held meetings in the absence of the Chair and made decisions. It further says section 5(4) of the Electoral Act also states that the Electoral Commission may adopt a decision despite the absence or abstention of any member at a meeting.
Chaudhry said today that his legal advice is that the Electoral Commission cannot be legally constituted without a chairperson being appointed in response to a statement signed by five members of the ‘purported’ commission today stating that the “Electoral Commission continues to operate and discharge its roles and functions” under the Fijian Constitution and Electoral laws.
The FLP Leader says the commission members should be looking at section 75(6) of the Constitution which prescribes the composition of the Electoral Commission.
Chaudhry says this section makes it very clear that the Electoral Commission consists of a chairperson who is or is qualified to be a Judge, and six other members.
He says the Commission cannot be regarded as legally constituted without a chairperson who is, or is qualified to be a judge.
Chaudhry also says they note that none of the existing members of the Commission have legal qualifications.
He says the former chairperson of the Electoral Commission, Suresh Chandra resigned last November under a cloud of controversy and a chairperson has not since been appointed.
Chaudhry says no reason has been given for delaying an appointment given the fact that general elections are due this year.
He also says they have raised a number of issues with FICAC and the Auditor General’s Office and have called for these to be investigated.
Earlier - 1PM [18/01/2022]
