The Dispute between the Electoral Commission and the Supervisor of Elections

 Upstairs, Downstairs. What Can and 

Cannot Happen in 72 Hours

 

  Opinion by Crosbie Walsh

For readers who have no idea what happened to cause the Electoral Commission and Supervisor of Elections to disagree last Friday and why the disagreement went to  Court, the EC was required to submit its findings on the 21 appeals and objections on who should and who should not be able to stand as candidates in the election by Friday, but what time on Friday was arguable.

Mohammed Saneem, Supervisor of Elections

 The Supervisor, backed by the Solicitor-General, and ultimately by the Court, said 4:15pm, 72 after the time the appeals and objections closed.

The Commission, however, took the definition of the Interpretation Act, in which a day is defined as running from midnight to midnight. They had made their decisions by 2pm but needed to write them up properly, and not just provide the Supervisor with one liners.

At this point one might have thought the Supervisor, anxious to obtain the Electoral Commission's report on time, might have trotted up one floor and urged them to hurry up. Or a Commissioner could have trotted down to the ground floor to explain the Commission's delay. After all, they had been in almost constant contact with each other for days, and there were no outward signs of personality clashes or stubbornness.They were both on one side, working for an efficiently run, fair and free election. There was even time for them both to consult the Solicitor-General.

Chen Bunn Young, Chair, Electoral Commission

But no. The Supervisor, with the earlier backing of the Solicitor-General, a Government officer, and the Commission, with earlier advice of legal counsel in Australia and New Zealand, both sat on their respective high horses and did nothing about talking to each other.

I can accept that the Commission wished to maintain its independence —and, equally important, the public's perception that they are a truly independent body— but I do not think they would have compromising their position had they spoken with the Solicitor-General sometime on Friday. What constituted a day needed confirmation. There need have been no delay in the allocation of candidate numbers on Saturday, no redraw was needed, a simple switching of two names was all that was required. This was a confrontation that need not have happened.  Both parties, the Supervisor and the Commission, seem at fault, if only for their short-sightedness, though to what degree is not known.


The A-G's Three Other Hats

But the Attorney-General must also accept some responsibility . He blames the Commission for the delays and final outcome, and said they need not have sought overseas advice. All they had to do was ask the Solicitor-General.

But it is the function of an independent commission to seek whatever advice it thinks necessary. It is not the  function of the Attorney-General, or anyone else, to tell  them who they should or should not consult.

I think the A-G's interventions, however well intended,  could well have exacerbates the situation and if this were the case it does not look well coming from a person who wears three other hats.

In one hat,  as  Election Minister, he was required to be objective and independent. In the second, as the FijiFirst Secretary, he could not be expected to be independent. And wearing the third hat, as a subject of an objection to the Commission, he could not be expected to be either objective or independent. It could be asked which hat he was wearing when he intervened, and whether, indeed, it is humanly possible to do justice to three hats at any one time.

We know the Commission and Supervisor have been working under pressure. The same is true, and more so, of the A-G, a  man I highly respect. But on this occasion, I think he would have been wiser to have said nothing, at least publicly.

What are the outcomes?
So, what damage has been done to the integrity of the elections? Fortunately, not too much.

The position of the Election Commission was  temporarily undermined but the "business as usual" statement today from chairperson Chen Bunn Young has restored the situation, with their collective reputations untarnished.

In only one particular were the Commission's rulings aborted. They refused all objections and appeals except two. They ruled that FijiFirst candidate Parveen Kumar Baal was ineligible, but he remains a candidate, and that FLP's candidate Steven Singh should stand,  but his name has been deleted. 

Unnecessary as the this case has been, there is one important positive: all parties have complied with the law, and the law stands.

As Commission Chair, Chen Bunn Young says "the disagreement has been resolved through court and it's time to carry on with the work of conducting polls on September 17th.

“There was never a time when we were at opposite poles. We disagreed as organisations and institutions do. The court settled one of our disagreements. Even at the time we had filed the proceedings, we were still working on this poll Notice together. I want the people to know that we were co-operating even in the midst of the court action.”