Sione Tupouniua disqualified as Tongatapu candidate [1]
Friday, November 21, 2014 - 19:06. Updated on Friday, November 21, 2014 - 19:28.
Sione Keuate Tupouniua has been disqualified as a candidate for Tongatapu No.1 constituency, by a special session of the Tonga Appeal Court this afternoon.
The Appeal Court quashed orders made by a Supreme Court judge last week allowing his registration as a candidate for the General Election on 27 November.
Mr Justice Hon Salmon, Mr Justice Hansen and Chief Justice Hon Scott delivered their judgement just before 5:00pm after a half a day session yesterday, when they heard the appeal by the Supervisor of Elections Pita Vuki, the Electoral Commission Chairman Barrie Sweetman and the Electoral Commission.
The appeal arises out of a judgment by Mr Justice Cato on 10 November at the Supreme Court ordering the Election Supervisor, the Chairman and the Electoral Commission to register Tupouniua, whose application as a candidate they rejected, when he turned up late after nominations closed at 3:00pm on Friday, 24 October ,without written clearances of his debt from the court
“We conclude that the Supervisor was right to decline to accept Tupouniua’s nomination after the 3:00pm deadline and that the judge erred in finding that he and the Electoral Commission acted unlawfully.”
The Appeal judges said the failure by Tupouniua to obtain a clearance in time from the Supreme Court was the instrumental clause of his inability to submit his nomination in time; it was not the reason why his nomination was not accepted.
"However, had he submitted his nomination in time, the Supervisor would have been obliged to reject it because it was not accompanied by the clearances of any outstanding debt from the court as required by Section 9(4) of the Electoral Act. We are satisfied that this this is a requirement which cannot be waived or otherwise relaxed.”
Truthful
The judges said Section 9(4) particular section was introduced to provide a means of verifying a candidate’s declaration that there was no judgement debt outstanding against him or her.
In a number of cases it has happened that a candidate had falsely declared that they were not disqualified under Clause 65 of the Constitution. The need to bring late proceedings to nullify the nomination was the cause of disruption, cost and inconvenience to the electoral process.
The Appeal Court said the essence of Tupouniua’s claim in the Supreme Court was that he had settled his debt prior to the nomination date.
The court was told that the purpose of the Electoral Act is to give effect to the constitutional right to vote enshrined in clause 64 of the Constitution. Its provisions plainly have the objective of ensuring that the fundamental right to vote is able to be exercised freely and fairly, and the right of an elector to stand as a candidate for election is similarly protected.
The Supervisor was advised prior to 3:00pm on 24 October that this was the case but refused to waive the requirement for the clearances.
The judges said that the counsel for Mr Tupouniua argued that the insistence on strict compliance with section 9(4) would be inconsistent with clause 65.
He maintained that at the very least a candidate should be able to provide the clearance within normal business hours on the day nominations close. He pointed to the fact that clause 64 required only that no debt is owing on the day of the nomination.
“We do not accept that submission. Section 9 (4) does not seek to replicate the requirements of clause 64. It does not require clearance to attest to the absence of debt on the date of nomination, and the clearance could be obtained and dated earlier. Section 9(4) is simply an attempt to give practical effect to clause 65 to minimize the risk of mischief arising from a false or mistake declaration for compliance.”
'Aminiasi Kefu S.C. appeared for the appellants. Counsel for the respondent was K. Barron-Afeaki S.C and G. Bradford.