Today the High Court, sitting as the Court of Disputed Returns, ruled on the legal provisions relating to the replacement of a Member of Parliament should his or her seat become vacant.


The High Court has ruled against the Attorney-General’s petition which had argued that any candidate who, after the elections, holds a public office is no longer eligible as a candidate for him or her to be considered as a Member of Parliament.


This case was all about clarifying the law. It was not about any particular person, candidate or party. Even if the High Court had ruled in favour of the Petition, the next candidate to fill the vacancy in Parliament following the death of the Honourable Ratu Viliame Tagivetaua would have been from SODELPA.


The ruling of the High Court opens the door for mixing politics and public offices – two realms which must always remain separate. By law, a candidate for Parliament must step down from any public office he or she holds in order to avoid conflict of interest.

The need to avoid this conflict of interest and the demarcation between politics and public office is especially important in our electoral system given that we no longer have by-elections in the event of a vacancy. Under our laws, the next available candidate of the respective political party is selected as a Member of Parliament. The Attorney-General’s argument was that the next available candidate must not have been appointed to a public office from the date of nominations to the date he or she is selected to be a Member of Parliament – thereby ensuring that there is no political conflict with respect to those who hold public offices.


The Honourable Attorney-General stated “While we are yet to receive a copy of the written ruling, however from the brief provided by counsel, it appears that the court ruling today allows losing candidates to return to or be appointed to positions of public office even though they might be called upon later to join Parliament if a seat becomes vacant.”


“This would effectively create a revolving door which allows politicians to contest elections as members of a political party, and then to return to or be appointed as public officers (whether as Permanent Secretaries, judicial officers and other top constitutional and public officeholders) if they are not successful, and then be appointed overnight as Members of Parliament in future.”


“This case sets an unfortunate precedent. For example, the political party with majority seats in Parliament and forming Government could simply now put all their unsuccessful candidates in public offices, and then also have the benefit of having the same candidates declared as Members of Parliament if there is a vacancy in Parliament.”


The Honourable Attorney-General stated that the ruling does indeed have the potential of compromising the political neutrality of public offices, and given that the ruling of the High Court is final, it may be appropriate for the relevant laws to be clarified through appropriate legislative amendment.

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