Apted asks High Court to decide on whether it can hear AG’s petition

Suva lawyer Jon Apted says the Court of Disputed Returns cannot hear the petition filed by the Attorney General Aiyaz Sayed‑Khaiyum objecting to the decision of the Electoral Commission to award Mikaele Leawere the parliamentary seat until everything is in compliance.

Apted who is representing Mikaele Leawere told presiding judge, Justice David Alfred in his submission that some things are not in compliance.

Apted says the court must address this first before proceeding further.

The petition seeks a determination that the Electoral Commission erred in law in awarding a vacant parliamentary seat to Leawere who was the SODELPA candidate with the highest number of votes in the September 2014 General Election after SODELPA MP Ratu Viliame Tagivetaua’s death on March 5th this year.

The commission awarded the seat to Leawere on May 5th.

Under section 64 of the constitution, when a seat of a member from a political party becomes vacant the Commission must award the seat to the candidate of the same party who in the past general election is the highest ranked of the candidates who did not get elected to Parliament and who is available to serve.

Apted says Leawere was the highest ranked SODELPA candidate who was not a member of Parliament.

He says based on this, the Electoral Commission awarded the seat to Leawere.

The Attorney‑General also alleged that the Commission should not have awarded the seat to Leawere because he was a public officer by virtue of being employed by a trade union when the vacancy arose, and when he advised the Electoral Commission that he was available to take the seat.

Apted says Leawere was transparent with his status within the Fiji Teachers Association.

Jon Apted also referred to provisions of the Electoral Decree that required a petition filed by the Attorney General to be signed by the Solicitor General.

He says the petition had been signed by the Attorney General instead of the Solicitor General.

He also referred to a requirement that a petition could only be filed within 21 days of the declaration of the results of the poll.

Apted referred the Court to Section 125 of the Electoral Decree, which said that proceedings could not take place unless the requirements as to the time of filing the petition and the signing of the petition had been complied with.

He submitted that the High Court needs to determine whether the petition complied with the requirements before it can hear the issues raised in the petition.

The case will continue at 10am today.

Suva lawyer Devinesh Sharma who is representing the Attorney General’s Office is expected to make his submission today.