Statement by the Chairperson of the Electoral Commission
Mr Suresh Chandra
EC Submission on the Electoral Amendment Bills 2021 to the Standing Committee on Justice, Law and Human Rights
24/02/21 – 9.30am
The Chairperson and Honorable members of the Standing Committee
Bula Vinaka and warm greetings from the Electoral Commission
On behalf of the Electoral Commissioners’ would like to present our submission on the following bills:
- Bill Number 50 of 2020 – Bill to amend the Electoral Act 2014
- Bill Number 51 of 2020 – Bill to amend the Electoral (Registration of Voters) Act 2012
- Bill Number 52 of 2020 – Bill to amend the Political Parties Act 2013
Firstly, the Electoral Commission welcomes this move by Parliament to review the laws governing elections. We are in the middle of the Electoral Cycle and the FEO will shortly commence the full scale preparations for the 2022 General Election under the guidance and supervision of the Electoral Commission.
We also wish to highlight that it is regarded as best practice to make changes to electoral laws well in advance of an election. The Electoral Commission also notes the efforts to reform some of the prescribed procedures in the laws to make them consistent practically with the international norms around such activities.
Following the 2018 General Election, the Electoral Commission and the Supervisor of Elections issued a Joint Report. In the Joint Report, we made various recommendations on the legal and operational frameworks. The rationale for recommending such changes was that we have had 2 general elections under the framework and it is a suitable time for us to determine which of the projects, policies and procedures are practical and contextually relevant in Fiji’s electoral system.
Having had the opportunity to peruse the 2018 Joint Report with the recommendations on the electoral framework, together with the MOG Report on the same election, Parliament is at the central position to make high level policy decisions to reflect on the legal framework so that the next General Election, having been held under the duly considered laws, not only raises the standards in the delivery of elections but further strengthens the core of our democracy.
The Electoral Commission has taken the strategy to analyse each of its recommendations against the current amendments in Parliament. The Committee is invited to refer to page 25 of the 2018 Joint Report from which the Electoral Commission has recommended various practical reforms for Parliament. We shall address each of the recommendations and how the legal framework is being reviewed in light of the recommendation:
- Voter Lists
The Electoral Commission had recommended that the law is amended to require the FEO to publish provisional voter lists at-least 18 months before the first date the writ can be issued.
Section 40 (8) of the Electoral Act is being amended to require that the provisional Voter List is published annually on or before 30 September every year.
It is the Electoral Commission’s view that this amendment will allow Political parties to work with the FEO to verify and update the voter lists.
- Polling Venues
The Electoral Commission recommended that the law is amended so that the FEO proposes the full list of polling venues for the next election at-least 2 years prior to the first date the writ can be issued.
Section 41 (7) now requires the SoE to identify the physical locations of all polling venues and submit the list of all such venues to the Electoral Commission for approval by 30 June every year. The section 41(8) requires the Electoral Commission to publish the approved list of venues within 30 days of receipt of the list by the SoE.
This amendment provides the SoE with an approved list of venues to register voters during the election cycle. Political parties will also have a conclusive idea on the number of venues on an annual basis.
- Overseas Voters
The Electoral Commission recommended that a polling arrangement is made for voters, who had registered overseas and are in Fiji but did not apply for postal voting, to be able to vote.
Section 41(9) now allows the Supervisor of elections to establish a polling venue in Suva for voters who are registered overseas but are not postal voters to attend to cast their vote and special procedures for the conduct of polling at such polling stations as approved by the Electoral Commission.
The introduction of this provision allows the FEO to facilitate franchise for voters who may have travelled to Fiji after the Writ to be able to vote. It would also allow any voter that may have missed the deadline for postal voting to travel to Fiji and cast their vote.
- Voter Instruction Booklet
The Electoral Commission and both the MOG from 2014 to 2018 had recommended that the National Candidate’s list that is given to every voter when they come to vote should contain political party information. In the Joint Report, the Electoral Commission suggested that the candidates of the parties are listed according to their party. The MOG had recommend that the restrictions on Party identification in the National Candidates List is removed.
Section 36(6) has removed the restriction on political party identification and it now allows the SoE to determine whether it contains the Political Party name or Symbol or any other information as the SoE approves.
This amendment by Parliament will allow a voter to identify their candidate by the Party. Since nominations in Fiji are by Party Lists, and also considering that the electoral system is based on parties, having the symbols or names of parties on the National Candidates list will make the process more consistent.
- Definition of Campaign Period
The Electoral Commission recommended that the campaign period is defined in the law for effective monitoring and implementation of the laws. MOG had recommended that the law should clarify the start and finish of the campaign period.
Section 109A has been insert in the law and it clearly defines the campaign period as starting not earlier than 30 days before the completion of 3 years 6 months from the first sitting of parliament after the last General Election and ends no later than 48 hours prior to the date of the General Election.
It is the view of the Electoral Commission that this is essential amendment will clarify Campaign laws and the enforcement of the rules relating to campaign. The setting of a proper timeframe also allows all stakeholders to prepare for the election.
- Use of State Resources
It is necessary to prohibit the use of state resources in the use of Campaign.
Section 113(4A) makes it unlawful to use Government Vehicles to conduct campaign.
The Electoral Commission notes that in 2018, the media highlighted one candidate who went in his official vehicle to campaign in Cunningham. The change in the law is welcome particularly in terms of levelling the playing field.
- Enforcement of Blackout Period
The Electoral Commission recommended that the law allows powers for the SoE to enforce the Campaign blackout and to allow the SoE to issue directives to remove campaign material that is in breach of the law.
Section 116(4A) authorizes the SoE to remove or to direct any political party, candidate or police officer to remove any material that is in breach of the campaign rules. Section 116(4B) introduces offenses for failure to comply with the directives.
The Electoral Commission is of the view that it was necessary for practicality sake that the election management body was able to take immediate action to enforce the blackout period. The current amendment will provide the necessary mechanism to protect the voters.
- Provisional Results
The Electoral Commission recommended that the Provisional Results for the election are published by the SoE until 7 am on the day following the election. The Commission notes that there are no specific provisions in this regard although the SoE has been releasing provisional results until 7am the day after polling in 2014 and 2018.
Section 102A of the Electoral Act will allow the SoE to publish the provisional results until 7am the day after polling.
Provisional results are a necessity in developing democracies as it signifies the progress in count and helps to build peace and calm in the stakeholders. These results are normally received through phone or electronically and are intended to be indicatory only.
- Final Report on the General Election
The Electoral Commission, considering the experiences in 2014 and 2018, recommended that the final report by the SoE on the General Election is to be due at least 3 months after the General Election.
Section 109 is amended to allow the SoE to provide the final report on the General Election within 3 months after the General Election.
This amendment facilitates the compilation of the final report after the conclusion of the Petition Period with is 42 days (21 days to file and 21 days for their decision). It was difficult in 2018 for the SoE to compile the final Report while the Election Petitions were in session in court.
- Political Party Disputes
The Electoral Commission recommended for Parliament to allow it to mediate or if necessary, arbitrate disputes between political parties.
Section 30A of the Political Parties (Registration, Conduct, Funding and Disclosures) Act has introduced dispute resolution processes in the law. The decision of the Electoral Commission on whether to mediate or arbitrate is final and is not subject to any further appeal or review by any Court, tribunal or any other adjudicating body.
This critical amendment introduces expeditious dispute resolution mechanisms between political parties. In an election, timelines are essential and taking legal action may not fit within the expected timelines of the election. Proceedings in court may give a desired outcome but the event may have passed its necessity.
- The Electoral Commission welcomes the re-introduction of the appeals and objections provisions in the Electoral (registration of voters) Act. These provisions compliment the amendment to the Electoral Act where the SoE is now required to publish the Provisional Voter List annually.
- The changes in the annual disclosure requirements of Political parties now requires registered political parties to compile and publish their own disclosures and finances, including audited accounts on an annual basis. The law further enhances the self-compliance of political parties.
- The Electoral Commission also notes the introduction of laws regarding publication of false information on elections. In 2018, 1 political party official was found guilty of publishing false information regarding voter lists. The new amendment in section 144A will allow electoral authorities to take action to prevent further publication of false information. These provisions promote fairness in election and also protect voters.
- It is also noted that the amendments in the Electoral (Registration of Voters) Act, have made provision for the Voter Card, one of the most prominent ID cards in Fiji. The SoE is required to issue every voter who is registered with a Voter card. All voter cards remain the property of the FEO. The law has also required voters to select their polling venue at the time they apply for registration. Voters are also required to select an alternative polling venue. However, the voter will only be able to vote at the polling station they are registered to.
- The new provisions in the Electoral (Registration of Voters) Act greatly improves the transparency in the management of the National Register of Voters. The amendments now require the SoE to publish the National Register of Voters. This will be done as Provisional Voter List under the Electoral Act. The SoE is also required to publish the list of voters who will be deleted from the NRV.
- Prior to these amendments, Candidates to the election were required to file their disclosures with the SoE 30 days before the General Election but there were no requirements to provide any disclosures after the Election. The new amendments now require candidates to an election to file a second phase of disclosures after the General Election as well. This will allow all stakeholders to verify the pre and post-election disclosures of the candidate.
The Electoral Commission has, since 2018, continued its task to review and analyse the electoral environment. The Commission has considered various events and we have collectively formulated the view that section 7 of the Electoral Act be amended and penalty provisions are introduced for any person or entity, except the Courts, for interfering or attempting to interfere with or, directing or attempting to direct the SoE and the Electoral Commission in the performance of the functions of the SoE or the Electoral Commission.
Overall, the Electoral Commission’s view is that the amendments to the laws are well designed and these amendments will further strengthen the electoral system. We duly welcome the introduction of provisions that enhance the transparency in election management.
There are some new provisions that will rationalize the electoral processes over the full 4-year cycle rather than only in the election year.
In conclusion, we support the proposed amendments to the laws and we welcome the timeliness of Parliament in introducing the amendments.