Question 2 - Problem Question (15 marks) This question is compulsory and does not allow internal choice. You must attempt this question in its entirety. If you believe that any facts or information are missing, you are allowed to assume those facts or information, but must say so in writing before making such assumptions and before referring to them. Make sure that in your argument you make use of and engage with the Constitutional Law materials provided below, as well as refer to actual case law and doctrines that you have studied in this course. Assume that the Constitution of Emalusia contains the following provisions: Preamble - We the people of Emalusia, proud of our struggle for freedom, determined to safeguard the achievement of this struggle, cherishing our ethnic, linguistic and cultural diversity and at the same time, mindful of our common destiny, hereby proclaim the establishment of the united and free nation of Emalusia, founded on our custom and tradition. The will of the people of Emalusia shall be paramount. Both individual freedom, as well as our collective traditions and ways are important and deserve protection, as none 2 can exist without the other. Advancing a peaceful and harmonic nation, there shall be no discrimination between indigenous and non-indigenous citizens of Emalusia. For this purpose we give ourselves this Constitution. Section 1 - Relationship between Custom Law and this Constitution This Constitution acknowledges the great importance of Custom Law. This Constitution will prevail over Custom Law to the extent of any inconsistency. This rule does not extend to Custom Law that forms part of this Constitution. Section 5 - Right to equality and freedom from discrimination (1) Every person is equal before the law and has the right to equal protection, treatment and benefit of the law. (2) A person must not be unfairly discriminated against directly or indirectly on the grounds of race, culture, social origin, nationality and place of origin, sex, gender, or any other ground prohibited by this Constitution. (3) Formal matters and rules such as regarding elections shall not overcome material outcomes and the good standing and acceptance of a candidate by the people of Emalusia. Section 9 - Requirement of indigenous birth for election It is a Customary Law tradition that all those who wish to be elected shall be of indigenous birth. The Constitution has adopted this Customary Law tradition. It is important to continue indigenous tradition. The will of the people is of utmost importance. Section 29 - Interpretation as to indigenous status A person shall not be considered as an Indigenous Emalusian unless born or adopted by Emalusian parents by virtue of their registration, or eligibility to register, as an Emalusian Island indigenous person, with the Council of Chiefs. Section 29A - Adoption by the Council of Chiefs Adoption by the Council of Chiefs means the attaining of indigenous status by unanimous vote of the Council. The Electoral Act 1999 (Emalusia) contains the following provisions - Section 35A - Eligibility for Parliamentary Election Candidates (1) Those born in Emalusia are considered of Emalusian heritage and are fit for being elected. (2) Those who have spent the past 20 years continuously living in Emalusia and passing a true indigenous citizenship test held annually may stand for election. 3 (3) People with dual or multiple citizenships may partake (vote and being voted for) in elections but do not enjoy any preference in being elected. This is because this Constitution assumes that dual or multiple citizens do hold foreign allegiance above and beyond acting in the sole interest of Emalusia. (4) A person may be a suitable candidate for election to Parliament if that person is an indigenous Emalusian and does not hold citizenship of another country. Section 22 - Members elected to Parliament A member is elected to Parliament by the majority of registered voters in his or her electorate for the term of four years. This threshold applies strictly. Explanatory Memorandum to the Electoral Act 1999 (Emalusia) Emalusia is a small island state. It is of utmost importance to have local culture and traditions survive against adverse change from the outside. For this reason, strictest construction of this Act as to its wording is required. This is to preserve local culture and traditions, which specifically include custom. Mr. Lumi was born in Australia but lived his whole life in Emalusia since his earliest childhood and holds Emalusian citizenship (as well as Australian citizenship). Lumi also holds local Emalusian University degrees in law and politics. Because of his achievements for Emalusia (Lumi wrote a well-received book about Emalusian culture and tradition, and has generated numerous fundraisers for the Emalusian youth), Lumi is an honorary member of the Emalusian indigenous Council of Chiefs. This is one of the greatest honours Emalusia has to confer. Mr. Lumi was born to an Emalusian mother, his father was an Australian with Emalusian heritage (Lumi's father's parents were Emalusian by birth). Lumi has been adopted by the Council of Chiefs as their lawyer and spokesperson. Because of his great popularity with many, if not most Emalusians, he has been nominated as an independent candidate for election to Parliament for this year's national election and subsequently won in his electorate. This came as no surprise to anyone, as Lumi is not only well liked, but also considered as very knowledgeable about matters pertaining to Emalusia, its history and traditions, and, particularly, enjoys special endorsement by indigenous Emalusians. A week after the election results were released, his only opponent in the electorate, an Emalusian indigenous citizen holding no other citizenship, contested his nomination. Mr. Lumi has come to you, a constitutional law expert, as a paying client, asking for advice on how a court interpreting the law may likely determine the following:

Questions:

a. Advise Lumi as to his chances of defending the challenge to his nomination, using constitutional interpretation principles and case laws to support your advice. Your answer should include addressing the matters as to whether Lumi may or may not qualify as an indigenous Emalusian, as well as an Emalusian citizen for electoral purposes, and also address whether it may be a problem that he only received the majority of votes cast, not the majority of the votes cast by all registered voters. (8 marks).

b. Advise Lumi on how a court may interpret the constitutional validity of the Electoral Act 1999 (Emalusia) in light of the Constitution (7 marks).