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SINGLETON CJ: [1] In October 2000 general elections were held in Cyberia, including an election of Deputies to constitute the Chamber of Deputies. The Acting Electoral Commissioner declared that ten people had been elected to the Chamber, having calculated that that was the correct number of Deputies given the size of the citizenry of Cyberia. The plaintiff, a political party, challenges the Acting Electoral Commissioner's understanding of the size of the population and seeks orders that the election result be recalculated.

[2] Two sections of the Constitution fall for interpretation in this case. The first, s.4.4 of the Constitution, prescribes the size of the Chamber of Deputies. The second, s.1.10 of the Constitution, removes the citizenship of non-voters.

The relevant date for making the calculations

[3] Section 4.4 reads:

CHAMBER OF DEPUTIES

The Chamber of Deputies consists of deputies elected by the people of the Commonwealth, voting as a single electorate. The number of deputies must be determined by dividing the population of Cyberia by 3, unless a different quota is provided by law; the effective date of such a law is always the next legislative election after the law is passed.

No law has prescribed a number other than 3. Thus, the size of the Chamber of Deputies is one third of the size of the citizenry of Cyberia (presumably rounded to the nearest whole number). The first question that arises in this case is what is the date for which the the Cyberian population is to be ascertained.

[4] The Acting Electoral Commissioner ruled that for the purposes of counting the population of Cyberia for the purpose of determining the size of the Chamber of Deputies, those who did not vote should not be counted. It is in effect this ruling that is challenged in these proceedings.

[5] The Constitution is somewhat imprecise. An ordinary reading of the provision indicates that the the legislature intended that the size of the Chamber be determined by reference to the size of the citizenry at (that is, simultaneously with) the time of polling. I have formed the view that that ordinary reading does reflect the legislative intent.

[6] However, that finding does not involve a sufficient amount of precision for a micro-polity such as Cyberia. In Cyberia a small change in population could be effected at a particular time during the two days of polling. Such a small change could be large enough (subejct to the interpretion of the law, discussion of which is to follow below) to affect the size of the chamber. If, say, five persons died (say, from a car accident) or decided to leave the polity at noon on the second day of voting, would that person or those people be counted for the purposes of determining the size of the Chamber? The answer would make a difference. For this reason it is necessary not just to pick a date on which must be made the calcuation of the size of the Chamber of Deputies - it is also necessary to determine the time.

[7] In my opinon, the time at which the calcuation should be made could either be the opening of polling or the closing of polling. Any other time - especially any time in between - would be arbitrary and therefore unacceptable. It seems to me that the policy of the law is to create a proportion between the size of the Chamber and the size of the population and that policy is better achieved if the post-election Chamber is correlated with the post-election popuation, rather than the pre-election population. That policy points towards the correct time for the calculation being the close of polling. To some extent this conclusion is supported by the fact that the determination of the membership of the Chamber (by the Electoral Commissioner) necessarily occurs after the election. Another reason for finding that the relevant time is the close of polling is based on the principle - supported by the plaintiff - that laws should not be given a retrospective operation unless that is the clear intention of the legislating body. If the opening of polling were the relevant time then, in effect, non-voters would be stripped of their citizenship (because of s. 1.10 [discussed hereafter]) retrospectively.

Should non-citizens be counted in the population?

[8] The next question that arises in this case is whether or not non-citizens - or in particular those people whose citizenship was stripped because they did not vote - should be counted in the population at the close of the polls. In my opinion, it is clear that they should not be so counted for the purposes of Section 4.4. This is because Section 4.4 quite clearly speaks of citizens, not people or former citizens. If a person is not a citizen - for whatever reason - then he or she is not to be counted when the size of the population is reckoned pursuant to Section 4.4.

Are non-voters non-citizens at the time the polls close?

[9] The next question that arises is to determine whether or not non-voters are non-citizens at the close of polling. This question calls for the interpreting of s.1.10 of the Constitution.

[10] Section 1.10 of the Constitution provides:

NONVOTERS.

1.10.1 Every citizen who (without reasonable excuse) does not vote in a general election must be deemed to have resigned their citizenship at and from the day of the election.

1.10.2 A nonvoting citizen may within 21 days of the election show reasonable excuse to the Electoral Commissioner or, if rejected by the Electoral Commissioner, to the Supreme Court and the Commissioner or the Court may reinstate the nonvoter as a citizen with effect from the day of the election.

[11] Clause 1.10.1 is the primary and substantive rule of law. Clause 1.10.2 is, essentially (although not entirely), a procedural, or administrative, rule. Clause 1.10.1 does not strip all non-votes of their citizenship. Importantly, the clause only applies to those people who did not have a reasonable excuse for their failure to vote. The clause does not remove citizenship from those citizens who had a reasonable excuse for not voted.

[12] Laws rarely execute themselves and s.1.10 is no exception. Clause 1.10.1 provdes that non-voters without a reasonable excuse shall lose their citizenship, but it does not say who shall decide whether or not a person voted and it does not provide who shall determine whether or not a reasonable excuse existed. Clause 1.10.2 provides for the adminsitration of s. 1.10. Clause 1.10.2 imposes on the Electoral Commissisoner and this Court the responsibility of executing s. 1.10. Furthermore, cl. 1.10.2 provides rules govering the discharge of that responsibility. Clause 1.10.2 imposes a 21 day time-limit on those non-voters who wish to establish that they had a reasonable excuse for not voting.

[13] A rule such as the one requiring non-voters to act within 21 days is necessary for two reasons. First: it would be unreasonable to impose on the Commissioner the responsibility of pursuing all non-voters: the onus must be on the non-voter to puruse his or her own interests. Second: there is a need to secure some certainty about the size of the citizenry: it could cause harm to the public interest to leave open forever the question of who was a citizen at the time the polls closed.

[14] Taken as a whole, s. 1.10 has the following effect (so far as is relevant for present purposes). Some citizens - but not all citizens - lose their citizenship if they do not vote. The ones who do lose their citizenship are those who had no reasonable excuse for not voting. The ones who do not lose their citzenship are those who did have a reasonable excuse for not voting. There is an onus on each non-voter to take steps to demonstrate that he or she had a reasonable excuse for not voting. The power and responsibility for determining the reasonableness of any excuse falls upon the Commissioner (or this Court). A 21 day time limit is imposed on non-voters to save their citizenship.

[15] One difficulty with this analysis must be acknowledged. The use of the word "reinstate" in cl. 1.10.2 implies that the non-voter is stripped of citizenship until he or she satisfies the Commissioner (or Court) that he or she had a reasonable excuse for not voting. This, however, is inconsistent with the provisions of cl. 1.10.1, which only strips citizenship from non-voters who did not have a reasonable excuse. A resolution of this problem is this. A person is deemed stripped of citizenship until he proves otherwise: the burden of proof is thus cast on the non-voter, who is presumed guilty (to import an overly-stong term from the criminal law). If "reinstated" the person secures a continuity of citizenship: in such a case it would be as though the citizen never lost citizenship (as, indeed, I hold is the case). On the other hand, if a person does not secure "reinstatement" then he or she is deemed by the law to have been a non-citizen from the time of the election (i.e., the last moment of polling). Thus, the meaning of "reinstate" is, in this clause, declare (after hearing the case): if the non-voter satisfies the Commissioner (or Court) that he or she had a reasonable excuse then the Commissioner (or Court) shall declare that the person's citizenship did not lapse.

Conclusion

[16] From the foregoing discussion, the following propositions emerge:
1.    the size of the Chamber of Deputies is to be determined by dividing by three the number of citizens at the time that the polls close;
2.    in determining the number of citizens, only actual citizens (not former citizens - regardless of the reason for loss of citizenship) are to be counted;
3.    a person who did not vote in the elections and who did not have a reasonable excuse for that failure is a non-citizen and is not to be counted when the size of the Chamber is calculated, but a person who did not vote and did have a reasonable excuse for that failure is to be counted;
4.    whether or not a person who did not vote in the election had a reasonable excuse is a question for the Commissioner (or this Court) to decide;
5.    the onus of proving reasonable excuse falls on the non-voter - and the non-voter must advance his or her excuse within 21 days of the close of polling: failure to advance an excuse in that time will mean that the person is deemed not to have a reasonable excuse and thus to have resigned his or her citizenship at the close of polling.

[17] Perhaps the most significant of these five points - and theone that will lead to a result that many will find inconvenient - is the third point. The practical result of the interplay of the different provisions of the Consitituion is that the results of some Chamber elections may not be known for more than 21 days. Before the Commissioner knows the size of the citizenry, he will have to know how many of the non-voters had reasonable excuses. Where some eligible people did not vote, the Commissioner may have to wait up to 21 days (or more) before he or she knows the size of the citizenry and thus before he or she can divide that number by three to learn the size of the Chamber. Sometimes all of the non-voters will lodge their excuses (and secure a ruling thereon) within 21 days - and in such circumstances the size of the Chamber can be calculated early. In other cases, some non-voters may not lodge their excuses for 21 days and thereafter time may be needed for the Commissioner and the Court to make rulings. Sometimes, the number of non-voters will be so small that whatever the validity of the excuse the size of the Chamber will not be affected: in such circumstnaces the election results might be declared very quickly.

[18] In the election of present concern, the Acting Commissioner considered that 59 people were eligible to vote. He received 30 votes. Of the 29 eligible people who did not vote, one has communicated a response to the Acting Commissioner and that excuse has been accepted. It follows that in the case of this election a significant number of potential voters did not vote. Therefore, the number of those voters who submit an excuse and have it accepted by the Commissioner will be significant. If none of the non-voters take any further steps, then the population of Cyberia will, for present pruposes, be either 29 or 30 (depending on the result of Cyberian Democrats v. Phyle & Acting Electoral Commissioner [which is being litigated presently]). Whether the number be 29 or 30, the size of the Chamber will be 10, as the defendant has determined.

[19] However, 21 days have not yet passed since the close of polling. If before 21 days pass another non-votrer, or other non-voters, submit excuses to the Acting Commissioner and if that excuse is, or any of those excuses are, accepted then the figure of 29 or 30 will grow. It may come to pass that a decision in Phyle will be needed before the size of the Chamber can be finally determined.

[20] It follows that the Acting Commissioner's declaration of the poll was premature. There remains time in which non-voters could persuade him (or the Court) that they had a reasonable excuse for not voting and accordingly it is not yet possible to know the precise size of the citizenry as at the time of the close of polling. The size of the citizenry - and the results of the Chamber election - will have to be recalculated. That reclaculation cannot be done until 21 days have passed since the close of polling and the Acting Commissioner (and if necessary the Court) has ruled on any excuses lodged for not voting (however, if perchance all the non-voters lodge excuses within the 21 day period then they make be determined and the poll declared earlier).

[21] The following results from the above judgment:

1.    THE COURT ORDERS THAT THE ACTING ELECTORAL COMMISSIONER'S DECLARAITON OF THE RESULTS OF THE ELECTION FOR CHAMBER OF DEPUTIES HELD IN OCTOBER 2000 BE SET ASIDE.

2.    THE COURT DECLARES THAT THE ACTING ELECTORAL COMMISSIONER MUST RECALCULATE THE SIZE OF THE CHAMBER OF DEPUTIES - AND THE RESULTS OF THE ELECTION - AFTER EITHER
    (1)    THE EXPIRY OF 21 DAYS AFTER THE CLOSE OF POLLING AND SUCH FURTHER TIME AS MAY BE NEEDED FOR PROPER DETERMINATION OF ALL EXCUSES SUBMITTED TO THE COMMISSIONER FOR NOT VOTING IN THAT ELECTION; OR
    (2)    IF ALL NON-VOTERS SUBMIT EXCUSES TO THE ELECTORAL COMMISSIONER WITHIN 21 DAYS - SUCH FURTHER TIME AS MAY BE NEEDED FOR PROPER DETERMINATION OF ALL THOSE EXCUSES.