Rabuka, SODELPA its supporters in limbo
1 November, 2018, 11:45 am
SITIVENI Rabuka’s political situation is “difficult”, a Suva lawyer said yesterday as The Fiji Times sought comment on the Social Democratic Liberal Party (SODELPA) leader’s options while he awaits his High Court hearing.
Mr Rabuka was acquitted by the Suva Magistrates Court of electoral offence charges last week, clearing him to remain a candidate in this month’s general election.
The Fiji Independent Commission Against Corruption (FICAC) immediately lodged an appeal against the acquittal. Chief Justice Anthony Gates has ordered that the appeal be heard on November 8.
Justice Gates has said he would issue his judgment on November 12, two days before the general election. If convicted, Mr Rabuka faces disqualification as an election candidate.
Supervisor of Elections Mohammed Saneem declined to comment yesterday when asked what would happen to votes cast for an election candidate convicted before the 2018 General Election “blackout period”.
This is the period before the election when political parties are not allowed to campaign.
“The Fijian Elections Office (FEO) is currently in the process of obtaining proper legal advice on this matter and a statement will be made in relation to this matter following the decision of the court,” a statement from the FEO stated yesterday.
“The FEO will not make any further comments and any media that wishes to obtain comments in this regard may do so from their own legal counsel.
“As at this point the FEO regards all candidates for the general election as eligible to contest. We will not speculate on any ongoing court matters or its impact until the court has made a formal decision that is binding on all parties.”
Asked to clarify issues generally and not specifically for Mr Rabuka, Mr Saneem declined.
“Considering the situation, the FEO will not make any comments on this issue. Kindly obtain legal opinion from your legal team,” he said.
Richard Naidu, a partner of Fiji Times’ lawyers Munro Leys, said the situation for SODELPA, its leader and its supporters was difficult.
Mr Naidu said there were three possible outcomes of the appeal.
• If FICAC’s appeal is dismissed, there is no conviction and Mr Rabuka can contest the election.
• If the appeal is granted but the court decides that the matter must go back to the Magistrates Court for retrial, Mr Rabuka can contest the election as there is no conviction.
• If FICAC’s appeal is granted and the court convicts Mr Rabuka, it appears that he would be found guilty of an offence “relating to registration of political parties”.
Mr Rabuka would then be disqualified as a candidate under s.56(2)(h) of the Constitution.
“All parties seem to be using the same electoral strategy. They are encouraging their voters to vote their leader’s number.
Mr Rabuka’s number is 530 so SODELPA voters have been instructed to vote 530,” Mr Naidu said.
He said that if Mr Rabuka was suddenly disqualified, any votes for his number 530 would become invalid and not counted.
“Under section 63 of the Electoral Act there is a 48-hour ‘blackout period’ before the election. The court’s decision will be issued during the ‘blackout period’,” Mr Naidu said.
“This means that if Mr Rabuka is convicted, SODELPA will not be allowed to tell its voters ‘change your vote to a different number’.”
Mr Naidu said that under the Electoral Act, political parties were prevented from broadcasting, advertising or distributing “campaign material” during the blackout period.
“Nor can they communicate ‘political messages’. This includes “calls to vote for or against a particular candidate in the election.
“So, SODELPA will not have time after the judgment to tell its voters what to do.
“Presumably that means SODELPA must tell its supporters now, before the judgment, whether to vote Mr Rabuka’s number, or not,” Mr Naidu said.
“If SODELPA tells its supporters to vote Mr Rabuka’s number, all those votes may become invalid if he is convicted. This means those votes will not count.
“If SODELPA tells its supporters now to vote a different number, then if Mr Rabuka is not convicted, he may not get enough votes to be elected, even though he is the party leader.”
Mr Naidu said that if postal votes had already been cast for Mr Rabuka, they would be invalid if Mr Rabuka was convicted.
“This means they will not count.”
Asked about voters’ political rights under the Constitution, Mr Naidu said that section 23 of the Constitution gave Fiji citizens the freedom to make political choices.
“It is fair to say that this includes a right to make informed choices. So certainly this situation will make the exercise of those political choices very complicated for SODELPA supporters,” Mr Naidu said. Fiji is 13 days away from the polls.