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Hiram v Returning Officer [2002] NRSC 1; Misc Cause 01 of 2002 (28 February 2002)

IN THE SUPREME COURT OF NAURU
(Court of Disputed Elections)

MISC CAUSE NO. 1/2002

IN THE MATTER of the Electoral Act 1965-1992

And

IN THE MATTER of an Election in the Constituency of UBENIDE

BETWEEN:

JOSEPH LABEN HIRAM
PETITIONER

AND:

RETURNING OFFICER
RESPONDENT

Date of Hearing: 28 February 2002
Date of Decision: 28 February 2002

Aingimea for Petitioner
Secretary for Justice for Respondent.

DECISION OF CONNELL, C.J.

A petition has been lodged in accordance with S. 31 of the Electoral Act 1965-1973 by one of the unsuccessful candidates, Joseph Laben Hiram, that the election in the constituency of Ubenide conducted on 9 December 2001 should be declared null and void. The ground for seeking this relief is that the Returning Officer used the wrong method for the counting of votes and that this affected the declared results had another method been used.

The issue is a short one. The counting of votes in general elections takes place using the Dowdall system which is provided for by the Electoral (Electoral System) Regulations 1971 which were found to be valid regulations by the Court [See In the Matter of the Electoral Act 1965-1973 (Miscellaneous Cause No. 15 of 1977) Nauru Law Reports 1969-1982 Part A p.107]. When there is an election for a vacancy occurring other than in accordance with Article 32(1)(a) of the Constitution, the counting of votes is conducted pursuant to the Electoral (By-election) Regulations 1973 which stipulate that Section 27 sub-sections (1), (2), (3) and (5) of the Electoral Act shall be followed. These regulations specify that this applies to the situation where one member only is to be elected.

Article 32(1) (a) reads – "A member of Parliament vacates his seat upon the dissolution of Parliament next after his election".

What was the situation with respect to the election in Ubenide on 9 December 2001.

A general election was held in Nauru on 8 April 2000. Petitions were lodged challenging on various grounds the result of that election in the constituency of Ubenide. It was not until 6 November 2001 when a decision was made on those petitions. The election in the constituency was declared by this Court null and void, with the result that a fresh election was to be called in Ubenide.

The election, subsequently held, on 9 December 2001 was indeed nothing but a re-run in Ubenide of the general election of 8 April 2000 which by court order had been declared null and void for the constituency of Ubenide. It was not a by-election caused by a vacancy other than that in Article 32(1) (a) of the Constitution. That conclusion is fortified by Section 42(3) of the Electoral Act where it states that where the Court has declared an election void, the election in respect of that constituency shall be deemed to have failed. As a result, a new writ is issued by the Speaker under S. 17(2) of the Electoral Act and not section 15. In other words, it requires a completely fresh election which, in this instance, is the fresh election for Ubenide relating back to the general election of 8 April 2000. On the other hand, a by-election is an incidental or casual election caused, for example, by the death or disqualification of a member.

It is clear that the system of counting votes for the election in Ubenide held on 9 December 2001 was that provided by the Electoral (Electoral System) Regulations 1971 known as the Dowdall system. That was correct.

Some confusion has been caused by some of the notices published by the Returning Officer in the Gazette which carried in their headings 'by-election'. It was, in reality, a supplementary election in terms of the Electoral Act S. 17(2) arising from an election that shall be deemed to have failed (S. 42(3)). It would be prudent to use the term in the Act 'supplementary' rather than 'by' when referring to such elections. In passing, I notice that Mehra Practice and Procedure of the Parliament of Nauru has similarly used incorrectly the term 'by-election' and not perceived the case of a failed constituency election (See pp. 20-22).

It is also unfortunate that in terms of the Electoral Act, there are only two forms specified for the Speaker, Forms 4 and 5, neither of which adequately describes the situation that occurred in this case. An adaptation of Form 4 rather than Form 5 should be suitable. It appears that when S. 27A was introduced by an amending act, and the Electoral (Electoral System) Regulations 1971 and Electoral (By-Election) Regulations 1973 were made, no attempt was made to design a new Form for the use of the Speaker to take care of a supplementary election caused by the failure of a general election in one or more constituencies. That, however, does not affect the position in law, and, as I have said above, the correct system of counting the votes was used on 9 December 2001.

Whilst not strictly necessary for the decision, it may be noted that Section 27 of the Electoral Act 1965-1973 is only used for the counting of votes when a vacancy occurs other than that occasioned by S. 32(1)(a) of the Constitution, and the election is held in a constituency for the purpose of electing one member only. In all other cases the Dowdall System would be used pursuant to S. 27A of the Act and under the Electoral (Electoral System) Regulations 1971.

The Petition is dismissed.

I do not propose to award costs in this petition, and so, I make no order as to costs. The amount of twenty dollars lodged as security for costs by the Petitioner with the Registrar is to be returned to the Petitioner.

BARRY CONNELL
CHIEF JUSTICE