Talosui v Tone'ewane [1986] SBHC 19; [1985-1986] SILR 140 (13 January 1986)

1985-1986 SILR 140

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 90 of 1985

TALOSUI

v

TONE'EWANE

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 90 of 1985

7 January 1986 at Auki
Judgment 13 January 1986

Election Petition - custom - ritual contamination for entering voting compartment after menstruating woman - whether duty to provide other means to cast ballot - whether Regulations against Constitution Schedule 3 paragraph 3 (Customary Law part of law of Solomon Islands).

Facts:

The petitioner brought this election petition alleging that the voting in an election for the Malaita Provincial Assembly was so conducted as to be discriminatory against 22 registered voters and was not conducted in accordance with the procedure specified by law. Accordingly, he asked that the election be declared void.

The 22 voters in question were non-Christians who believed that they would be ritually contaminated if they entered a room that contained or had on the same day contained a menstruating woman. The 22 voters came to the polling station to vote, but refused to enter the screened voting compartment for fear of being contaminated. The Presiding Officer refused to make special arrangements for them and, as a result, they did not vote which may have affected the result of the election.

The petitioner argued that by Regulation 15(a) of the Local Government (Elections) Regulations 1964 the Returning Officer must provide a sufficient number of polling stations, which means sufficient facilities for all voters to cast their ballot and that Malaita Province was well aware that such problems would arise by reason of Malaitan customary beliefs.

Malaita Province, which appeared inasmuch as the complaint was directed against Provincial Authorities, argued that the Regulations authorized no special provisions to be made for voters who cannot vote by reason of customary belief.

Held:

1. The Regulations impose no duty on the Presiding Officer to make special arrangements in cases where customary beliefs prevent one from voting.

2. No Act of Parliament has recognised this customary belief as part of the law of Solomon Islands and, in any event, it appeared to be merely a religious belief and not a customary law.

3. Accordingly, there was no breach of the law and the Regulations were not in conflict with the Constitution.

Accordingly, the petition was dismissed with costs.

4. Obiter - It was hoped that the proposed new regulations which would allow the Presiding Officer to vote on behalf of a person prevented by custom from entering the voting compartment would be brought into effect as soon as possible so that this situation need not arise again.

No cases considered

Andrew Shipley for the Petitioner
Gordon Malaise for Malaita Province
The Respondent did not appear and was not represented.

Wood CJ: The petitioner was a candidate in the election for Ward 9 of the Malaita Provincial Assembly held on June 26, 1985. The respondent was declared to be duly elected by the Returning Officer by a majority of three votes.

The petitioner alleges that the voting was so conducted by the Returning and Presiding Officers as to be discriminatory against twenty two of the registered voters, and not in accordance with the procedure specified by law to the prejudice of the said twenty two voters. The petitioner accordingly asks this Court to declare the election of the respondent to be void.

The respondent did not appear but as the petitioner’s complaints were directed against the Provincial Authority Mr Malaise appeared for the Province. He and Mr Shipley agreed the following facts.

In the Malaita Provincial Assembly elections held on June 26, 1985 Silas Talosui (petitioner) John Angiraumo, Peter Irolanga and Andrew Tone’ewane (respondent) were candidates for Ward 9 Gwaiau, North Malaita. At the polling station for Ward 9 established at Gwaiau School the Assistant Returning Officer was Sam Osikana and the Presiding Officer was Bobby Jones.

Ward 9 contains a substantial number of non-Christian voters. Men who follow the old religion believe they will be ritually contaminated if they enter a room that contains a menstruating woman or which has contained a menstruating woman that same day. The presiding officer refused to make special arrangements for these men such as allowing them to vote first; bringing the ballot box outside the voting compartment; or voting on their behalf. As a result twenty-two registered voters who were present and ready to vote did not do so for fear of being ritually contaminated. When the votes were counted Andrew Tone’ewane (respondent) was elected by a majority of three votes. The fact that the twenty two men did not vote could therefore have materially affected the result of the election.

The regulations which regulate the control of Provincial Assembly Elections are to be found in Vol. II Cap. 14 of the Laws entitled the Local Government (Elections) Regulations, 1964. In terms of reg. 15(a) the Returning Officer shall provide a sufficient number of polling stations in each ward and, .... allot the voters within the ward to the polling station in such manner as seems to him most convenient.

Mr Shipley’s argument, as I understood him, was that the words “sufficient number of polling station” means sufficient facilities for all voters to poll their votes. It at least seems to be clear from the agreement on the facts that the Provincial Authorities were well aware of the sort of problem which can arise on Malaita over the practice of custom. Mr Malaise has reasonably argued in answer to the three suggestions formulated by Mr Shipley that firstly to allow the pagans to have voted first was to discriminate against the women by making them wait until all the pagans had come forward and cast their votes. Secondly that there is no provision under the law for the presiding officer to move the ballot box outside this voting compartments.

Regulation 20 of the Local Government (Elections) Regulations sets out how the voting at an election shall be conducted Regulation 20(d) provides for the voter to place his ballot paper in the ballot box of his choice in the screened compartment in the polling station. No other method is provided for by the regulations and it was no part of the duty of the presiding officer to make any alternative arrangement as suggested. Thirdly regulation 20(g) states – “if a voter, by reason of blindness or other physical disability, is unable to cast his vote he shall call the presiding officer aside and tell him, no other person being present or within hearing, the name of the candidate for whom he wishes to vote and the presiding officer shall record the voter’s vote by placing the voter’s ballot paper in the ballot box of the candidate for whom the voter wishes to vote”. In the instant case the twenty two pagan voters had no physical disability whatever and there was nothing to prevent them from voting other than their fear and respect for their custom. Such an eventuality is not provided for under the Local Government (Elections) Regulations. Indeed regulations 15(d), 18(i) and 20(d) all provide for the secrecy entailed in the voter casting his vote privately into a ballot box within the screened compartment in the polling station.

Paragraph 3 of the third Schedule to the Constitution provides as follows-

“3(1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.

(2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.

(3) An Act of Parliament may-

(a) provide for the proof and pleading of customary law for any purpose;

(b) regulate the manner in which or the purposes for which customary law may be recognised; and

(c) provide for the resolution of conflicts of customary law.”

As far as I am aware no such Act of Parliament as is envisaged by subparagraph (3) has been made. The question may therefore be posed when is custom law and when is it merely custom?

In the instant case one wonders if the objection of the 22 pagans to entering a room which has already been occupied by women is a point of customary law or merely a religious tenet or belief.

Mr Malaise drew my attention to the fact that it was a proposal currently under consideration to replace the Local Government (Election) Regulations with new regulations made under the Provincial Government Act 1981. If approved the new regulation which replaces regulation 20(g) quoted above would expressly provide for anyone prohibited by any customary rule from entering the polling station or voting compartment to be able to require the presiding officer to cast his vote for him in addition to the circumstances at present authorised by regulation 20(g). If this regulation had been in force I would have had no difficulty in upholding this petition and declaring the election to be void. However it is not in force and I can only look at the law as it stands at the present time although I would comment that no doubt the draftsman of the new regulations had in mind the provisions of the Constitution and that those who gave him his instructions were well aware of the customary rule that prohibits some people from entering a polling station as is the case here.

No doubt the presiding officer and his assistants at Gwaiau School were well aware of the problem they faced and may have known of possible solutions to the problem which were apparently carried out at other polling stations. However at the time of the election in June 1985 the officials at the polling station had clear instructions laid down by the regulations as to how the elections were to be conducted. No breach of those regulations has been shown to have occurred and I cannot see that the existing regulations are in any way in conflict with the Constitution of Solomon Islands. The twenty two pagan voters went to the polls to register their votes and only failed to do so through their own action in refusing to enter the screened compartment set aside for the express purpose of the procedure as laid down by the regulation. It cannot be said that any of the election officials were in breach of the law however desirable it may have been for special provisions to have been made to enable them to vote.

I can only voice the hope that the new regulations will be brought into effect as soon as possible so that this situation need not arise again. In the event this petition is dismissed with costs.