The Electoral Commission has this afternoon corrected Fiji Labour Party Leader, Mahendra Chaudhry for an incorrect analysis.[File Image]

The Electoral Commission has this afternoon corrected Fiji Labour Party Leader, Mahendra Chaudhry for an incorrect analysis.

Chaudhry made claims today that the Electoral Commission cannot be legally constituted without a chairperson being appointed.

He claims the Commission cannot be regarded as legally constituted without a chairperson who is a judge, or is qualified to be a judge.

Chaudhry was responding to a statement signed by five members of the Commission stating that the “Electoral Commission continues to operate and discharge its roles and functions” under the Fijian constitution and Electoral Laws.

Chaudhry claims the Commission cited s5 of the Electoral Act to support their stand however, it should be looking at s75(6) of the Constitution which prescribes the composition of the Electoral Commission.

This afternoon the Commission says the incorrect legal analysis by FLP appears to have disregarded the essential section 138(3) of the Constitution.

It says an appeal under section 144A (3) of the Electoral Commission is not barred due to any of the reasons Chaudhry proposes.

It also says a decision of a Commission, tribunal or board to which this section applies requires the concurrence of a majority of its members and this section also states they may act despite the absence of a member.

It says if in a particular case, a vote is taken to decide a question and the votes cast is equally divided, the person presiding must exercise a casting vote.

The Electoral Commission says the Commission is one of the commissions to which s138 applies (refer s138(1)(b).

Therefore, based on the law, there is nothing stopping the Electoral Commission from dealing with an appeal if it is lodged.

It adds, since 2014, the Electoral Commission has held meetings in the absence of the Chair and made decisions.

It further states Section 138(4) will also allow the Commission to regulate its own procedure.

Section 5(4) of the Electoral Act also states that the Electoral Commission may adopt a decision despite the absence or abstention of any member at a meeting.