The decision by the Supervisor of Elections and chairman of the Electoral Commission to decline the nomination of a provisional candidate in the 2022 General Election cannot go to a judicial review.
The High Court in Suva determined this after Seremaia Tuiteci had sought to have a judicial review of the decision under the Electoral Act 2014.
Both the Supervisor of Elections and the chairman of the Electoral Commission argued that the courts have no jurisdiction to hear an application challenging the decision of the Electoral Commission.
“The Electoral Act 2014 was also a decree when it was first implemented. It was Decree No. 11 of 2014 commenced on March 28, 2014,” stated Justice Yohan Liyange in his ruling last month.
“According to the recent legal precedents mentioned above, section 173 (4) ouster clause provisions should be applicable to the decisions taken under the provisions of the Electoral Decree as Section 31 was included in the decree. Therefore, it is clear that Mr Tuiteci’s application has been caught by two ouster clauses. Section 31 (6) of the Act and section 173 (4) of the Constitution of the Republic of Fiji.
“One could argue that ouster clauses undermine the rule of law. An ouster clause would become an exception to the long-standing principles of everyone being subject to the law and every person is entitled to have his or her rights decided by a court of law.
“For the foregoing reasons, I am of the view that Mr Tuiteci has no reasonable cause of action.”
