Tuvalu’s high court orders by-election to be held

Nauru in a state of emergency

By Robert Matau

June 2013

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The High Court in Tuvalu has ordered the government to hold a by-election for the vacant Nukufetau seat towards the end June or 28 days after the judgment was delivered.
The decision was delivered by Senior Magistrate Afele Kitiona on behalf of Chief Justice Sir Gordon Ward on May 24 following two separate court actions by government and the Opposition seeking to determine the powers of the minister responsible for elections, who is also the Prime Minister.
The high court has also ordered the minister responsible for elections to issue a notice of elections five days after the judgment, which is May 29.

“It is further ordered that the date specified in the said Notice of Elections for the lodging of nominations under section 7 (1) (b) of the Electoral proceedings (Parliament Act) shall not be less that seven nor more than nine days from the said date of the delivery of this judgment in open court and the date specified in the Notice of Election of the poll be taken in the event that the election is contested under section 7 (1) (f) of the said Act shall not be less than 21 days nor more than 28 days from the said date of delivery of this judgment in open court.
The Nukufetau seat became vacant in December after the death of finance minister Lotoala Metia.
The judgment was delivered after Tuvalu’s Attorney General made an application for an advisory opinion on February 6, 2013 for the meanings of sections 88 (2) of the constitution and section 7 of the electoral provisions.
On February 25, seven opposition members also filed an application to take leave for a Judicial Review seeking the same clarification.
Instead of hearing them separately, Justice Ward decided to have them heard at the same time.
Justice Ward, who was unable to travel to Tuvalu after the Fiji Government denied him a visa, said the court was asked to consider two issues—whether the act gives the Minister any right to delay issuing the notice once it has become necessary and second the nature of the duty which is established by section 88 (2) particularly the meaning and effect of the phrase “as soon as practicable”.
He said the first is not difficult as the minister must issue a notice of election when an election becomes necessary.
“I cannot accept that the intention of the definition of the phrase “as soon as practicable” in section 88 is properly read as giving the power to delay the whole process indefinitely.
“It is clear that the intention of the legislators when adding the phrase “as soon as practicable” was to ensure that there will be little delay as practicable in the circumstances at the time.
“On the Opposition’s review, they sought eight declarations including one that the minister acted unlawfully according to section 88 of the constitution by not issuing the notice and actually holding a by election as soon as practicable.”
Justice Ward said only two of the eight actions sought in the Judicial Review were proper remedies which involved the minister erring in law by deferring the by-election and an abuse of the minister’s powers and authority delegated to him, breaching the legitimate expectations of the voters, members of parliament and citizens of Tuvalu.
Opposition member and lawyer Taukelina Finikaso said the judgment means they can proceed with the necessary notices required to set in motion the by-election process.
He said this would also mean an opportunity for the opposition to take over the majority in parliament. Since Metia’s death, the government and the Opposition have seven seats each .
“We have certainly been working with our candidate and we are quietly confident we will be able to get through this by-election,” he said.

Nauru in state of emergency

As this edition went to press, Nauru’s President Sprent Dabwido had declared a state of emergency bringing the tiny island nation’s constitutional crisis to a head.
When Nauru’s parliament was dissolved on May 27, it decided on a June 22 election date. But Dabwido said this could be brought forward to June 8.
President Dabwido said the state of emergency (SOE) was necessary because of the economic security of the nation.
He said an SOE under presidential powers was required to release treasury funds for departmental use and overseas medical referrals as well as to purchase food supplies for the hospital.
The second reason for the declaration is to bring forward two weeks the date of the general elections to 8 June in order to avoid an overlap with budgetary processes.

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