Sunday, 23 December 2018

The Fiji Pantomime Continues: Opposition Withdraws Petition:

What happened, Legally Why and Politically Possibly Why  
Justice Anjala Wati pn212

Justice Kamal Kumar

The Pantomime continues.  FijiFirst MPs have had a good nights sleep at home after the discomfort of bedding down in Suvavou House where, depending on your viewpoint, they were either hiding to  avoid being served with SODELPA election petition writs, or having a 48-hour strategic policy meeting. Either way, the petition was later served, on the instruction of the Court of Disputed Returns, via the printed media.   

I wrote previously on the issue and concluded, Let the Court Decide (pn 208) on the merits or otherwise of the petition. Prof Vijay Naidu said it was an opportunity to clear up grey areas of the election process.    

 Unfortunately, this was not to be. 


What Happened in Court and Legally why?

SODELPA and NFP withdrew their petition after only a short time in court, saying that their case could only be argued if they could call on eight witnesses. Justices Anjala Wati  and Kamal Kumar allowed only two,  Asivorosi Rabuka and Emele Duituturaga.  to give oral evidence. The other six  witnesses (Sitiveni Rabuka, Seni Nabou, Subrail Narayan, Kamal Iyer, Adi Litia Qionibaravi, Merewalesi Vitukawalu)  were refused  because what they claimed was clear in the elections petition.  Oral submissions from them would not make anything clearer.

Justice Kamal Kumar said that the Court of Disputed Returns works differently than the High Court in that if it feels oral evidence is required, it will only be in particulars to a petition.

Costs of $7,500 were granted to the 27 FijiFirst parliamentarians and Faiyaz Koya  and $7,000 to the Supervisor of Elections.

This should  mean the case is over. We're left wondering what it was all about.

Rabuka said the decision to withdraw the petition was not taken lightly. A number of options were considered and in their view, all eight witnesses were necessary and crucial to establishing all the grounds of their petition. He says therefore, they had no choice but to withdraw the petition since six of their key witnesses were not approved by the Court to be given the opportunity to provide oral evidence.

Earlier, lawyers for the FijiFirst MPs, the Supervisor of Elections and the  Solicitor General (representing the Supervisor of Elections)  said they opposed oral evidence, stating that they must rely on the affidavits already filed. They noted also that the petition was from two people - Rabuka and Prasad. If others felt aggrieved, they should have filed their own petitions.  

Solicitor General Sharvada Sharma said the Supervisor of Elections had decided not to defend orally  but to provide the court with all official records, letting the court decide. It was, however, noted that the petition did not provide any actual evidence of malpractice, nor had Rabuka or Biman Prasad been eyewitnesses to any of the allegations. 

Later, Rabuka thanked party supporters and party members for "continuing to keep faith in SODELPA and its principles", adding they have "another four years before them to prepare themselves to become the next government."

And PM Bainimarama, predictably, said the SODELPA-NFP-UF party petitions were a "a wild pot shot in the dark and a waste of time and money." 

... and Politically Possibly Why

Assuming that the Court was acting properly —and there is no reason to doubt that— two question need to be asked:  

First, why was SODELPA and NFP not alerted by their lawyers to the likelihood that the judges would not allow more oral submissions?  And if they were, why did they decide to proceed regardless — and then withdraw?  

Secondly, why did they not allow the case to run its full course? They would have had their say, and the case would have been kept alive in the public mind, leaving many more opportunities for "experts" in the social media to sustain doubts, not just on the elections results but also on the integrity of the judicial system.

I have no answers to these questions. Can anyone offer an explanation other than that the whole exercise was a publicity stunt, a rather dramatic extension of the Opposition's role to oppose?

--ACW
____

References
What happened in Court  today: Fiji Sun. http://fijisun.com.fj/2018/12/21/what-happened-in-court-yesterday/

SODELPA withdraws petition: Fiji Village. 
http://fijivillage.com/news-feature/Vosarogo-withdraws-Rabuka-and-Prasads-election-petition-59srk2

Rabuka: Decision to withdraw not taken lightly: Fiji Village. http://fijivillage.com/news-feature/Rabuka-says-decision-to-withdraw-election-petition-was-not-taken-lightly-kr5s29/

Unity Party withdraws: Fiji Village.  http://fijivillage.com/news/Satish-Kumar-and-Jone-Dakuvula-withdraw-election-petition-case--29sr5k

PM: Waste of time: Fiji Sun. http://fijisun.com.fj/2018/12/21/cases-a-waste-of-time-pm/



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