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]
Members of the Electoral Commission, Simione Naiduki, Jay Lal, Kavita Raniga, Margot Jenkins and Selina Lee Wah say they wish to advise members of the public that the Electoral Commission continues to operate and discharge its roles and functions under the Fijian Constitution and Electoral laws.
The Electoral Commission members say they would like to correct claims by Fiji Labour Party Leader, Mahendra Chaudhry when he said in today’s Fiji Times that due to the absence of a Chair, the Commission is not operating at the moment.
The members say under section 5 of the Electoral Act, a quorum is formed by at least 4 members of the Commission and as such the roles and functions of the Electoral Commission continue to be discharged.
They say while the Commission members work on a part time basis, the FEO operates a full time secretariat headed by the Supervisor of Elections which could have facilitated clarifications.
The Commission urges news organizations and political parties to exercise diligence when making such reports and statements.
The Chair of the Electoral Commission is yet to be appointed by the President.
According to the Constitution, the Chair and members of the Electoral Commission shall be appointed by the President on the advice of the Constitutional Offices Commission. The Electoral Commission consists of a Chairperson who is or is qualified to be a judge and six other members.
Former Chair, Suresh Chandra stepped down from his position on 20th November last year.
Chandra has not confirmed why he had resigned.
On November 22nd last year, the Legal Practitioners Unit confirmed that Chandra did not have a legal practising certificate at the time.
The Unit says any further questions on why Chandra does not have a practising certificate had to be referred to the Chief Registrar, Yohan Liyanage.
We sent questions to Liyanage. He did not respond.
Suresh Chandra is facing six counts of professional misconduct and has been allowed by the Independent Legal Services Commission to travel to Australia for medical purposes and return to Fiji before his next appearance on 1st February this year.
As security, Chandra has been order to hand over the original titles of his two properties to the Independent Legal Services Commission.
He has also been ordered not to dispose any of his assets in Fiji pending determination of the disciplinary allegations against him.
In his ruling, Independent Legal Services Commissioner Justice Daniel Goundar stated that he is satisfied that Chandra has a genuine medical condition that requires overseas treatment.
He says Chandra also has very strong financial ties in Fiji and substantial real estate investments in Fiji.
Justice Goundar adds in the event the disciplinary allegations are proven against Chandra in absentia, orders can be made to recover the shortfalls in the trust account from his assets.
Chandra was a Principal of MC Lawyers and Trustee of MC Lawyers Trust Account kept with Bank of Baroda.
Justice Goundar says that the trust account is currently frozen.
He said that Chandra has not been a holder of a valid practising certificate since 2020.
Section 12 of the Trust Accounts Act requires a trustee to submit audit reports for each financial period.
Justice Goundar further says Chandra did not submit his audit reports for three financial periods from 2016 to 2018.
Chandra provided the Chief Registrar with four extensions from the Office of the Attorney General to submit his pending audit reports.
The extension was given pursuant to section 12(2) of the Trust Accounts Act.
Justice Goundar adds the last extension was granted until 31st July 2020 for Chandra to submit his three pending audit reports.
After that no further extension was granted and Chandra’s practising certificate was not renewed.
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