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Chaudhry Summons Thrown Out

Chaudhry Summons Thrown Out
Mahendra Chaudhry’s lawyer Anand Singh (second from left) outside the High Court in Suva on May 25, 2018 following Justice Kamal Kumar’s ruling which struck out Mr Chaudhry’s originating summons. Photo: Fonua Talei Mahendra
May 26
13:09 2018

 

The High Court yesterday dismissed the originating summons filed on March 7, 2018, by Fiji Labour Party Leader Mahendra Chaudhry in which he sought certain declarations and orders against earlier court decisions to disqualify him from contesting general elections.

In his orders Justice Kamal Kumar ruled that the first two of the seven declarations sought by Mr Chaudhry had no reasonable cause of action and was an abuse of court process.

In declarations one and two Mr Chaudhry said the 2013 Constitution and the 2014 Electoral Decree was not in force when he was found to have committed offences under the Exchange Control Act, and that Section 56 (2) (g) and Section 23 of the Constitution and the Electoral Decree respectively did not have retrospective application or effect in its disqualifying provisions in relation to him.

In respect to the validity or constitutionality of Section 56 (2) (g) Justice Kumar said the Court did not have jurisdiction “to entertain, or to grant any order, relief or remedy, in any proceedings of any nature whatsoever”.

He said the court could not order for Mr Chaudhry to be nominated as an election candidate or order that he was ineligible to contest the election on the ground that the power was vested in the Supervisor of Election and the Electoral Commission and that the commission’s decision in that regard was not subject to review by the court or any tribunal or adjudicated body.

Further, Mr Chaudhry was ordered to pay the State and the Attorney-General costs assessed in the sum of $2500 within 14 days from the date of yesterday’s ruling.

The summons sought an order that the prohibition in Section 56 (2) (g) did not apply to Mr Chaudhry’s right to be nominated as a candidate for this year’s general election.

Justice Kumar accepted the defendant’s submission that for the court to grant such an order would be to usurp the powers of the Supervisor of Elections and the Electoral Commission.

Mr Chaudhry’s lawyer, Anand Singh, submitted during hearing that the decision made under a Decree or Promulgation fell under the exception in Section 173 (4) (d) of the Constitution.

When the court inquired with Mr Singh as to what decision he was referring to as being subject to the exception in Section 173 (4) (d), he said it was the decision to incorporate Section 56 (2) (g) into the Constitution.

Justice Kumar said he, “was totally surprised as to how such submission could be made.”

He said the exception in Section 173 (4) (d) simple meant that if a particular Promulgation or Decree made between December 5, 2006 and October 6, 2014, gave any person a right to challenge any decision made or authorised to be made or any action or authorised to be taken pursuant to that Promulgation or Decree then that person can move the court to challenge that particular decision or action.

Mr Chaudhry also submitted that his disqualification under Section 56 (2) (g) from contesting parliamentary elections on matters for which a subsequent blanket amnesty was given to all other Fiji residents was irrational, politically motivated and a breach of Sections 16 (1) (3) and 26 (3) (b) and 26 (4) of the Constitution.

Mr Chaudhry intends to appeal the High Court decision to the Fiji Court of Appeal. Edited by Epineri Vula

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