Constitutional lawyer and former Supervisor of Elections, Jon Apted who was one of the lawyers representing SODELPA MP, Niko Nawaikula says it is incorrect to criticize them for not addressing the question of double registration.
While responding to the Attorney General, Aiyaz Sayed-Khaiyum's comments that lawyers from both sides in the case “did not do a good job” Apted says the Supervisor of Elections and the Elections Office never justified the rule about birth certificate names and striking off Nawaikula’s name on the basis of double registration.
Apted says the justification the Elections Office gave for the rule about birth certificate names was that it was the law.
Apted adds as legal counsel for Nawaikula, their job was to put Nawaikula’s case forward.
He further says they on behalf of Nawaikula gave all of the cases from around the Commonwealth showing that it is not the law at all and the law allows you to use whatever name you want, so as long as it is genuine and you are not defrauding anybody.
On the issue of the government now looking at amending the law to ensure people register as a voter with their birth certificate name or with a name that is legally changed, Apted says it is quite easy to find double registration and other ways to avoid double registration.
Apted also says they can amend the registration form to ask for the birth certificate name or the birth registration number which has been used for vaccination.
He adds this could be discriminatory against women as well.
Fiji Labour Party Leader, Mahendra Chaudhry says the remarks by Attorney General, Aiyaz Sayed-Khaiyum on the Court of Disputed Returns ruling in the case of SODELPA MP, Niko Nawaikula, are unwarranted and in bad taste.
While reacting to the Attorney General’s comments, Chaudhry says Sayed-Khaiyum's absurd claim that lawyers from both the sides “did not do a good job”, reflects poorly on his own Solicitor General who appeared for the Supervisor of Elections, albeit quite improperly.
The FLP Leader says as holder of an independent constitutional office, the Supervisor of Elections should not have been represented by the State law office in the first place.
He says it is only proper that all independent office holders have legal representation separate from that of the State.
Chaudhry says the Niko Nawaikula case did not evolve around the issue of registering one’s name twice, as alluded to by the Attorney General.
He says it was about him using his common name to register and not the name on his birth certificate.
The FLP Leader says the Supervisor of Elections had created this controversy with his ruling some time back that voters must register using the name on their birth certificates.
He says this caused widespread concern at the time, particularly in relation to women who normally register under their married names.
Chaudhry says the court ruling is thus welcomed, because it has clarified this issue, putting the matter to rest.
He says as for the Attorney General’s comment on free and fair elections, it would be better for him to address the various anomalies in the Electoral and Political Parties Acts that really breach the principles of free and fair elections.
Chaudhry says the AG could start by addressing important recommendations in the 2018 report of the Multinational Observer Group in this regard.
The FLP Leader says more importantly, as general secretary of the Fiji First Party, it is unethical and improper for him to hold the Elections portfolio.
The Electoral Commission has welcomed the announcement by the Attorney General and the Minister responsible for Elections that the Government is now considering amending the Electoral (Registration of Voters) Act 2012 as well as other consequent legislation to ensure the registration in the National Register of Voters is done based on records that are maintained officially at other agencies of Government.
The Electoral Commission says it recognizes that the right to free and fair elections guaranteed under the Fijian Constitution cannot be properly executed until and unless the Voter List that is to be used in the national election is free from error, and the same can be verified against other relevant documents and official sources.
Commission Chairman, Suresh Chandra says to this end the Electoral Commission has always supported the Fijian Elections Office in its endeavor to match and verify details of voters against other registries in Fiji.
Chandra says they understand that the Court in a recent judgement has made findings which allows registration of individuals with details that may not be found directly from official sources.
He says whilst they respect the decision of the Court, the Electoral Commission as the institution that is responsible for the conduct of a free and fair election in accordance with the laws of Fiji, is also concerned that the same might set a precedent where people may enroll themselves in the National Register using pseudo names and names that they are not able to verify.
Chandra says this may result in issues on Election Day where the names may not be found and may also result in abuse of the voter card as a universal ID when people apply for financial services and government services.
The Electoral Commission is concerned about the paramount credibility of the voter register and as such the Commission welcomes and supports the current efforts by government to amend the electoral legislation to ensure that the voter list remains accurate, complete and verifiable.
Attorney General Aiyaz Sayed-Khaiyum says the ruling by the Court of Disputed Returns in the case of SODELPA MP Niko Nawaikula has set the cat amongst the pigeons and it needs to be corrected.
While saying that he is disturbed by the submissions made by the legal counsels of the Supervisor of Elections and Nawaikula, Sayed-Khaiyum said the government is now looking at amending the law to ensure people register as a voter with their birth certificate name or with a name that is legally changed.
Chief Justice Kamal Kumar had ruled last week that Niko Nawaikula is to be reinstated as a Member of Parliament from 23rd July, 2021.
While delivering the judgement, Chief Justice Kumar said the name on Nawaikula’s birth certificate is Nikolau Tuiqamea but he has been using the surname Nawaikula since he was a child.
Chief Justice Kumar stated that based on the current law, Nawaikula was not legally required to provide his name on his birth certificate to be registered as a voter.
He adds that Nawaikula had provided his driver’s license while registering which was accepted by the registering officer.
Nawaikula gave affidavit evidence that he has used and is known by the surname "Nawaikula" from his childhood through to primary school, secondary school, university and his election to Parliament in 2014 and 2018. He has been on the National Register of Voters by that name.
Chief Justice Kumar says it is the duty of the Supervisor of Elections to implement the law and not to enact it. He says the law does not require use of birth certificate names, and allows use of names other than the birth certificate name.
The Chief Justice says the policies of the Fijian Elections Office has to be in line with the law.
He ruled that the Supervisor’s actions in removing Nawaikula’s name from the Register of Voters is unlawful and wrongful.
One of Nawaikula’s lawyers, Jon Apted had argued that the Supervisor of Elections was wrong in law.
Nawaikula was represented by Apted, Graham Leung and Sevuloni Valenitabua.
They pointed out the Electoral Registration Act did not say that the birth certificate name was to be provided and the registration forms approved by the Electoral Commission did not say that you have to use the birth certificate name and Nawaikula had answered the questions on the form truthfully.
Apted had said the name that should be provided by voters depended on the law and the policy set by the Electoral Commission, and not the Supervisor of Elections.
Apted says they also pointed out that the Supervisor of Elections had allowed thousands of others to correct their details on the Register but had struck Nawaikula’s name off instead of simply correcting his name.
Solicitor General, Sharvada Sharma had said in his submission that the Supervisor of Elections was justified in his action to strike Nawaikula’s name from the National Register of Voters because he provided incorrect information to the Fijian Elections Office.
Sayed-Khaiyum has said in a press conference that the lawyers for Nawaikula and the Supervisor of Elections did not do a good job.
He says the court will be guided by the representations made to it.
Sayed-Khaiyum says he listened to the submissions that were made and none of the counsels specifically spoke about the implications of having the correct name or one name registered.
He says the constitution specifically says that there should be free and fair elections.
The Attorney General has then questioned how can there be free and fair elections if someone has the ability to register their name more than once.
Sayed-Khaiyum says unfortunately the counsels in this case from both sides did not look at the purpose behind the registration of one name, the impact it will have on the entire process as well as the credibility of the electoral process.
He adds the court has also made an observation that the law could be amended which is what they intend to do.
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