Folotalu v Attorney-General [2001] SBHC 149; HC-CC 234 of 2001 (19 October 2001)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

PALMER ACJ: The Plaintiff applies by originating summons filed 29th August 2001, that section 2 of the National Parliament Electoral Provisions (Amendment) Act 2001 is inconsistent with the Constitution and by virtue of section 2 of the Constitution is void to the extent of the inconsistency on the grounds that the increase of the non-refundable deposit from $2,000-00 to $5,000-00 to be paid by intending candidates contesting in the up coming national elections was unreasonable and amounted to an unreasonable restriction of the right of the plaintiff to stand in the national elections and discriminatory against him as a non-wage earner living in the rural areas. The third ground relied on is that it is inconsistent also with the national objectives set out in the introductory part of the Constitution (hereinafter referred to for convenience as “the Preamble”).

The right of any person in Solomon Islands to qualify for election as a member of Parliament is provided for and governed by sections 47, 48 and 49 of the Constitution. The two latter provisions set out the qualifications for membership on one hand and on the other hand, the disqualifications from membership. As they are important to the issues raised in this application I will set them out in full.

“Subject to the provisions of the next following section, a person shall be qualified for election as a member of Parliament if, and shall not be so qualified unless-

“(1) No person shall be qualified for election as a member of Parliament who-

(2) For the purpose of paragraph (e) of the preceding subsection two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms.”

Apart from the above constitutional requirements there is one further crucial requirement, imposed by law under the National Parliament Electoral Provisions Act (Cap. 87) (hereinafter referred to as “the Act”). This is contained in section 27, which provides that a candidate in a general election has to pay a deposit before he can take part in the election. The validity of this provision is not in issue as it is made under section 47(1) of the Constitution “... and subject thereto, in such manner as may be prescribed”. The amount fixed in 1980 when this legislation was enacted was $100-00. It was increased in 1992 to $500-00 and $2,000-00 in 1997. The latest increase was made less than two months ago on 5th September 2001 to $5,000-00. It is this latest increase that has been the subject of this application. All other increases had never been challenged. Why?

The Plaintiff deposes in his affidavit filed on 29th August 2001 that he is a man of limited means. He has a family of four children, three of whom he and his wife support. He says that he is not in any paid employment and exists by subsistence farming and fishing. Occasionally he earns a small amount of income by selling marine products such as bêch-de-mer. He does not have any savings and at the date of execution of his affidavit his bank balance was $17.00. He deposes that he intends to stand as a candidate for his Lau/Mbaelelea Constituency in the up coming elections but that with the recent increase made by Parliament it is too much for him to afford. He contends that his right as an eligible person to stand for election has been unreasonably restricted and that the amendment discriminates against him. I accept the facts deposed to by the Plaintiff as correctly setting out his state of affairs. No challenge has been made as to the verity of the matters deposed to and no notice to have him cross-examined as to his means had been filed and served at the time of hearing of this application. Hence when it was sought to be suggested otherwise from the bar table by Counsel for the Defendant and objection raised by Counsel on the other side, the objection was sustained.

The Applicant’s legal arguments can be summarized as follows. His Counsel, Mr. Radclyffe takes his starting point from section 2 of the Constitution. That if any other law is inconsistent with the Constitution that other law shall, to the extent of the inconsistency, be void. Learned Counsel submits that anything, which unreasonably restricts the right of an eligible person to stand for election, must be condemned as inconsistent with the Constitution and struck out. He submits that the increase of the deposit to $5,000-00, takes away the opportunity of the majority of eligible persons from exercising their right to participate in the general elections. He submits the increase is excessive and thereby unconstitutional in that it offends against (a) the national objectives set out in the preamble to the Constitution (b) section 13 of the Constitution and (c) section 15. Three cases (1) Special Reference by PNG Ombudsman Commission 1982 Supreme Court, (hereinafter referred to as “the PNG Reference No. 2”), (2) Sakeasi Butadroka v. Attorney-General & Electoral Commission 1992 Fiji High Court, (hereinafter referred to as “Butadroka’s Case”) and (3) Lubin v. Panish [1974] USSC 61; 415 U.S. 709 (1974) US Supreme Court, (hereinafter referred to as “Lubin’s Case”) have been relied on by learned Counsel in support of his contentions.

Learned Counsel, Mr. Keniapisia for the Defendant submits that the power to impose fees is based on legislative and Constitutional scheme of enactments and is necessary for Parliamentary elections. He also submits it is a universal practice for all democracies and is imposed on candidates standing for election. He argues that the increase of fees is not discriminatory against the poor or rich as it applies to both groups alike. On the Constitutional grounds raised, he argues that for the Plaintiff to succeed under section 13 of the Constitution, he would need to establish (1) that a violation of his rights had occurred against his consent, (2) he must belong to a political party and (3) that it is shown that the thing done therewith is shown not reasonably justifiable in a democratic society. He submits the Plaintiff had failed to show that this is so under this section.

Under section 15 of the Constitution, he submits the Plaintiff must show that the increase in fee applies differently to different persons attributable wholly or mainly to their respective description by place of origin. The Plaintiff has not shown that this is so. Learned Counsel further submits that the preamble relied on cannot be a ground for relief as it merely sets out guiding principles upon which the Constitution is made.

A brief discussion of the law at this juncture is pertinent. The starting point must be section 47(1) of the Constitution, which sets out the constitutional requirements for persons intending to contest in any national elections. Section 47(1) of the Constitution provides:

“Parliament shall consist of persons elected in accordance with the provisions of this Constitution and, subject thereto, in such manner as may be prescribed.”

Sections 48 and 49 of the Constitution set out the minimum requirements for such intending candidates in an election. Section 47(1) of the Constitution however also provide for such other requirements as may be prescribed. One such requirement and which is not challenged per se, is the deposit required under section 27 of the Act. I have already pointed out that as unamended, the Applicant does not take issue with its validity and legality.

The effect of section 27 however is crucial. It imposes an absolute condition on the validity of the nomination of an intending candidate. If the deposit is not paid, the candidate is disqualified from running from office. How the deposit is calculated and what factors are to be taken into account therefore are relevant matters to be considered in determining the deposit.

It is not contended by the Applicant that the imposition of a deposit as stipulated in the original legislation (as unamended) is inconsistent with the provisions of the Constitution and therefore invalid. He does not take issue with the deposit where it is reasonable. He does and has objected where he considers the recent increase to be excessive. He submits it contravenes his rights provided for in the Constitution. It can be summarized as follows. First, that the recent amendment raising the amount of the deposit from $2,000-00 to $5,000-00 is excessive. Second, that as a result thereby it violates his constitutional rights contained in the Preamble to the Constitution and section 13 and 15, and accordingly should be struck out as inconsistent by this Court.

The first question that must be asked is whether this recent increase is excessive. This raises the question as to who fixes the amount and how is it to be fixed? Is there a set formula to be followed? What factors if any are to be taken into account? I do not think it is in dispute that the mandate for fixing the deposit lies with Parliament under section 27 of the Act. But how do they fix that amount? Can they simply fix any arbitrary figure from the sky and put it in? In my respectful view, like in any organization, there is a responsibility attached to such power or duty. That responsibility is based on the fundamental requirement under our Constitution enshrined in section 2 of the Constitution, that it is the Constitution that is supreme not Parliament. Hence our Honourable Parliament, with respect, cannot do as it pleases, enact any law as it pleases and fix any deposit it pleases. It has to bear in mind that what it does, like any other Government Department, including the Courts, does not contravene or is inconsistent with any provision of the Constitution. And if it does enact legislation that is inconsistent with the Consistency then the responsibility of dealing with that and making such appropriate orders as is deemed necessary lies with the High Court of Solomon Islands. That jurisdiction has been given under sections 18 and 83 of the Constitution itself.

Various reasons have been given for the increase, deposed to in the affidavits of the Chief Electoral Officer, John Babalu filed on 21st September 2001 and by the care-taker Minister for Home and Ecclesiastical Affairs Robins Mesepitu, filed on 13th September 2001, justifying the increase on the need to meet election and ongoing expenses of the Electoral Office and the need to set a fee that would ensure that only serious minded people do contest in the elections. Learned Counsel Mr. Radclyffe has also filed for purposes of consideration by the Court, extracts from Hansard, the proceedings of Parliament for 13th August 2001 which contain the reasons for the increase given by the Hon. Minister Robins Mesepitu in his speech to Parliament. The same reasons deposed to by Mr. Babalu and the care-taker Minister were mentioned in the speech of the Minister.

The Applicant has also filed an affidavit of his means, which is undisputed. It is clear that as far as his affordability to pay the said deposit is concerned, the fee is excessive. Mr. Radclyffe has also filed a table of election deposits in other jurisdictions together with the various levels of Gross National Product per capita in US dollars I presume for the year 2000, as the year is not stated in the table, for comparison purposes. The data shown is quite revealing.

	Deposit in Local Currency	Deposit in SBD at 31/8/01	GNP per capita in USD
Solomon Islands	SBD5,000	5,000	870
Australia	AUD350	1,000	20,650
New Zealand	NZD300	680	15,830
Papua New Guinea	PGK1,000	1,610	930
Tonga	TOP200	515	2,200
Fiji	FJD500	1202	2,460
UK	GBP500	3,906	21,800

Mr. Radclyffe seeks to show by this that whilst Solomon Islands has the lowest Gross National Product per capita, by comparison it also has the highest deposit to be paid by a candidate for election. The point sought to be made is well taken. If the basis on which the fee increase was made is to hold water, that it is intended to distinguish the serious from the spurious, one would expect the deposit to be higher in other countries in the table. Clearly that is not so, simply re-affirming the doubts expressed by Chief Justice Burger in Lubin’s Case at p 717, that:

“Filing fees, however large, do not in and of themselves, test the genuineness of a candidacy or the extent of the voter support of an aspirant for public office. A large filing fee may serve the legitimate function of keeping ballots manageable, but, standing alone, is not a certain test of whether the candidacy is serious or spurious. A wealthy candidate with not the remotest chance of election may secure a place on the ballot by writing a check. Merchants and other entrepreneurs have been known to run for public office simply to make their names known to the public. We have also noted that prohibitive filing fees, such as those in Bullock, can effectively exclude serious candidates.”

Learned Counsel has also submitted for my consideration and which I take judicial notice of, a copy of the Solomon Islands Government Report on the 1999 Population and Housing Census. He submits that the following pertinent statistics showed that only a small minority of eligible people could afford to pay a deposit of $5,000:

The vast majority, particularly people like the Plaintiff who live in rural areas and do not receive a regular income, would not be able to pay this unreasonably high deposit. Respondent has not filed any other affidavit apart from the affidavits of Mr. Babalu and Mr. Mesepitu, to contradict the claims of the Applicant.

The case of excessive deposits is not new. It has gone through the courts in other jurisdictions. In Fiji, in Butadroka’s Case the Fiji High Court also dealt with the imposition of a deposit of $1,000-00 by the Electoral Commission for intending candidates. The fee previously charged was $100-00. This was challenged on the same grounds that this Applicant now appears before this Court. Fatiaki J. found as follows:

“If I may say so, after hearing and considering the evidence of Mr. Bale this Court was left with the distinctly unfavourable impression that the figure of $1,000-00 was an entirely arbitrary one quite unrelated to the common realities of the situation prevailing in Fiji.”

In another similar jurisdiction, in the case of the PNG Reference No. 2, the Supreme Court of Papua New Guinea also considered whether the increase of the deposit from K100 to K1000 contravened the Constitutional provisions protecting the rights of a person to be elected for office under section 50(1) and (2) of the Constitution of Papua New Guinea. In that case, substantial material was placed before the Court for its consideration (see judgment of Deputy Chief Justice Kearney at pages 12 – 17). This included statistical figures from the 1980 Census and the consideration of well-recognized economic indicators including, the proportion of people engaged in agriculture and entitled to stand for election, the proportion of the population earning a regular cash income, minimum wage levels, the average earnings of public servants and per capita incomes. After considering all these data, his Lordship Kearney Dep. CJ concluded as follows:

“The conclusion appears irresistible that a K1,000 deposit would either effectively prohibit all but a relative few of all eligible citizens from standing, or act as a substantial deterrent to their doing so, in so far as they rely on their own resources.

I do not consider that the Court is required to determine, in terms of the structure of society and the levels and distribution of income as they are at present, what is a reasonable deposit on nomination. It is sufficient I think to say that on the material put before us, whatever sum may be a reasonable cash deposit today, a requirement of K1000 is unreasonably high in that it would deny to a majority of eligible citizens the reasonable opportunity to stand for election given them by Constitution s. 50(1). Accordingly, I would uphold the Commission’s submissions on this point.

I should add that considerable weight must be given to the views on matters of what is reasonable, to the people’s representatives in Parliament. I have therefore examined the Parliamentary debate on the November Act. It does not appear that there was any examination of the relevant issues in any depth by the Parliament which does not appear to have been favoured by the statistical information put before this Court. In these circumstances, the deliberations of Parliament are not of any assistance.”

I too have been provided with copies of the debates in Parliament on the relevant issue by Mr. Radclyffe but I also find them to be of little assistance in deciding whether the increase was justifiable.

Respectfully, I find myself reaching the same and inevitable conclusion reached by the Courts in the two cases referred to above, that the increase in the deposit from $2,000-00 to $5,000-00 was arbitrarily fixed without due consideration for the economic realities of the situation prevailing in the country. Since the armed rebellion, break-down of law and order and lawlessness experienced by this country some two or so years ago, the economy of this country has been on a downward spiral. Many services provided by the Government and other essential bodies like the Solomon Islands Electricity Authority (SIEA) and Solomon Islands Water Authority (SIWA) have been affected. Many businesses have had to downsize and streamline operations including laying off workers either on unpaid leave for an indefinite period or making them redundant. Some of our major industries, Solomon Islands Plantation Limited (SIPL) and Gold Ridge Mining Limited have had to close down, laying off thousands of workers. Some businesses have simply closed due to sheer inability to make ends meet. Some appear to be on the verge of closing down. No one in his right mind would describe the economy of the country as buoyant and or experiencing growth or prosperity. Rather the opposite is true. The country is going through hard and difficult times. Investor confidence is at a low. There has been a squeeze and a reduction in the size of the working population and those who are able to earn income on a regular basis. Many families, even workers are struggling to make ends meet. One would have expected in the light of the prevailing circumstances facing the country that the deposit should either have been reduced or unamended. Solomon Islands has not, in its short history from independence in 1978 to the present, experienced such trying and difficult times as it has encountered in the last two or so years. I do not think any one would readily say, in the light of what the country had just come through, that the increase was not excessive or justifiable.

One of the reasons given for the increase was to recoup election expenses. Whilst that might be a factor in determining an increase, it should not in my respectful view, play a significant part. Elections are not cheap and so it cannot be expected that all the expenses are to be funded by the deposits to be paid by intending candidates. If that were so, the fee would be ridiculously high and only the rich or those who have the means would run for elections. It is important to bear in mind that election expenses are to be funded from the Consolidated Fund:

“All expenses, including costs in legal proceedings, properly incurred in the registration of electors and in the holding of elections shall be a charge on the Consolidated Fund.” (Section 8 of the Act)

The costs of holding an election are the responsibility of the Government and rightly so as it touches on a fundamental right of the people of this nation to go to the polls to choose the candidate that would best represent and agitate their views in Parliament, a body charged inter alia, with the responsibility of forming the Government of the day that would lead the country for the next four years. That is an awesome responsibility and every encouragement and opportunity must be given to responsible leaders in all walks of life to be able to contest without hinderance for an office in Parliament. Elections are held only once in every four years and so the argument of recouping costs should never be an excuse for raising the deposit to an unacceptable level. Any Government of the day need not be taken by surprise. This should be an ongoing thing such that well before the elections fall due, except of–course in unusual circumstances, funds should be either set aside for the elections or sought for well before the due date. The intending candidates should not be unnecessarily burdened by a national obligation to fund the elections. That is the responsibility of the Government, for the People of Solomon Islands.

I accept there are good reasons for requiring the payment of a deposit. This is obvious from the way this application has been lodged. The Applicant does not take issue with the requirement of a deposit to be paid. It is a common universal practice in all democracies and is imposed on aspiring candidates standing for elections as stated in Butadroka’s Case by his Lordship Fatiaki J. But in the PNG Reference No. 2, Kearney Dep. CJ made the following pertinent observations on the imposition of a substantial cash deposit:

“Undoubtedly, the effect of a substantial deposit is in one sense to make elections more manageable, by limiting the ballot only to “serious” candidates, and by strengthening the position of the well organized political parties. It is arguable that a more orderly election would result, voters would be less confused than perhaps they are by the sheer multiplicity of candidates, and so the election result would more truly reflect the will of the majority.”

I accept the requirement of a deposit does play a useful role in limiting the size of the ballot and in minimizing voter confusion. But as pointed out by Chief Justice Burger in Lubin’s Case it is a superficial test of the genuineness of a candidate to contest in the national elections. The same cannot be said of the Applicant before this Court, a genuine intending candidate but because of the exorbitant deposit, is hindered in his desire and right to stand as a candidate. Respectfully, I find the increase to be unreasonably high and therefore excessive.

Does it contravene the rights of the Applicant as stipulated in section 13 of the Constitution

“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

Subsection 13(1) spells out the right, which the Applicant complains of, that he has been hindered from freely associating with other persons to form or belong to a political party. Subsection 13(2) makes provision for laws, which may regulate that right provided it is done under the authority that it is reasonably justifiable in a democratic society. What this means is that if a law is made falling within subsection 13(2)(a)-(c), it will not be held to be inconsistent with or in contravention of the rights in subsection 13(1), provided it is also reasonably justifiable in a democratic society. If a law is made regulating such rights under paragraphs 13(2)(a)-(c), the burden lies with the Applicant to show that such law is not reasonably justifiable in a democratic society.

Learned Counsel Mr. Keniapisia for the Respondent submits that under the first requirement above, the Applicant must show that the violation had occurred without his consent and that he is a member of a political party. Mr. Radclyffe counters by arguing that the Applicant was not a member of parliament anyway and so would not have been in position to oppose the amendment sought in Parliament. I agree. The most one can do perhaps is to write and let the Hon. Minister know of his opposition to the proposed amendment. The fact he has not done that or has remained silent does not necessarily imply he has consented to the increase. There is no evidence before me to suggest that the Applicant consented at any time to the increase. Rather the opposite is true.

The second argument raised in opposition by Mr. Keniapisia was that the Applicant must show that he belonged to a political party. Unfortunately, that is not correct. Section 13(1) talks about the right to assemble freely and associate with other persons and to form or belong to political parties, trade unions or other associations for the protection of his interests. The Applicant does not have to be a member of a political party to contest in the elections. He can do so as an individual or independent candidate and choose to associate freely with other independent members of parliament or other political parties if elected. He need not prove that he is a member of a political party. All he needs to prove or show is that his right to freely associate with other persons to form or belong to political parties had been hindered. And that is what he seeks to show in this application.

Has the Applicant been hindered in the enjoyment of his freedom to associate with other persons in political parties?

This was one of the issues, which his Lordship Fatiaki J. in Butadroka’s Case had to consider. After considering the definition of “to hinder” as including “to delay or frustrate action, to bear obstacle or impediment”, his Lordship went on to express his view as follows:

“In that regard this Court too is firmly of the opinion that in fixing a nomination deposit of $1,000 without any alternative means of seeking nomination for election, the Electoral Commission has substantially and effectively hindered the enjoyment of the right of voters and candidates to associate freely for the advancement of their common political interests.

In my view the right to vote and the right to stand for election are so inextricably bound up that any form of restriction imposed on candidates seeking nomination for election directly impacts on the right of voters to form political associations with and vote for like-minded persons of their choice in the pursuit of their legitimate political and ideological interests.

Needless to say a nomination deposit which is so high as to effectively debar the nomination of serious (albeit impecunious candidates hinders in a not insignificant manner the availability of sympathetic persons with whom the poorer voter may wish to associate in the furtherance of his interests.”

Does the exorbitant increase hinder the Applicant in the enjoyment of his right to associate freely with other persons in a political party? What is the effect of the increase? As far as the Applicant is concerned, in not being able to pay the deposit, he is unable to participate in the elections as a candidate and thereby deprived of the constitutional right to associate freely with other like-minded persons to form a political party or to belong to a political party, if he is so minded, or even to remain as an independent member with other like-minded persons. As I understand his application, there is no impediment of associating with other persons for the purposes of forming or belonging to a political party now, the hindrance or blockage lies in the fact that in order to qualify as a candidate for the elections he has to overcome the requirement of an unreasonably high deposit. In not being able to pay the deposit, he is deprived of his right to associate with other persons in political parties irrespective of his seriousness to contest in the elections. He claims thereby that his fundamental rights under the Constitution had been contravened. I agree.

There is no evidence to suggest otherwise to me that the Applicant does not meet the requirements spelled out in sections 48 and 49 of the Constitution. That is, that he is a citizen of Solomon Islands and has attained the age of twenty-one years, and that he is not disqualified from membership under the provisions set out in section 49. Having met those constitutional requirements he is thereby entitled to contest in the national elections provided of-course he pays the deposit stipulated under section 27 of the Act. He has a right thereby under section 13(1) to associate freely with other persons to form or belong to political parties. Unfortunately in this case, the excessive deposit means that although he is qualified to stand for election as a member of Parliament under sections 48 and 49 and thereby has a right to associate freely with other persons to form or belong to political parties, that right is being hindered by that exorbitant deposit. Therein lies the contravention and the inconsistency.

Whilst the requirement of a deposit is acknowledged as a common universal practice in all democracies and imposed as a means of regulating voter rationality, limiting the ballot size, deterring frivolous candidates and recovering to a certain extent administrative costs of elections, it should not be used as a means to restrict or prohibit serious aspiring individuals intending to contest the elections by imposing an excessive deposit. When that is done, it takes on the role of a dagger, cutting off persons like the Applicant by how much they can pay. With respect I do not think that was what was intended in the original enactment of section 27 of the Act and the purposes of a deposit.

“This legitimate state interest, however, musts be achieved by a means that does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s equally important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through the candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with rights of voters.

“The right to vote is heavily burden if that vote may be cast only for one of two parties at a time when other parties are clamouring for a place on the ballot.” Williams v. Rhodes, [1968] USSC 196; 393 US 23, 31 (1968).

This must also mean that the right to vote is “heavily burdened” if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamouring for a place on the ballot. It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues. This does not mean every voter can be assured that a candidate to his liking will be on the ballot, but the process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.”

Fitting words for the case before this Court, that the process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars. In fact, the Constitution has already spoken in sections 47, 48 and 49. Nowhere is a monetary value required before a person can qualify for election as a member of Parliament. The requirement of a deposit is simply appended as an administrative prescription under the Act and though it operates in a similar way as a qualifying factor, its imposition must be based on grounds of reasonableness matched with the prevailing economic realities of the country. In Australia for instance, a country many times well off than Solomon Islands, the deposit required is roughly SI$1,000; in New Zealand, about SI$680; even in neighbouring countries like Papua New Guinea and Fiji it is approximately SI$1,700 and SI$1,300 respectively. It is pertinent to note that in the PNG Reference No. 2, Kearney Deputy CJ noted the CPC’s Report (1974) on the size of the nomination deposit as follows:

“We have given careful consideration to the question of what deposit should be paid by candidates in respect of their nominations for election to the Parliament. We agree that a reasonable deposit should be paid to help ensure that the act of nominating is regarded with appropriate seriousness. However, we believe that the deposit should not be set at a figure so high that it is likely to exclude a great many people merely because they cannot afford the sum involved.” (Emphasis added)

Not only is the right of the Applicant to associate freely with other persons to form or belong to a political affected, but the rights of the voters to choose or to express their preferences through those candidates who will be contesting will also be hindered or affected by such increase. I agree with Justice Fatiaki’s comments in Butadroka’s Case, that the rights of voters is inextricably linked with the choices they have and can make, as to the candidates contesting in the elections. Their preferences can only be expressed through the political groupings or individuals contesting and if the Applicant and others in the same boat as him are hindered from so participating in the national elections because of this exorbitant increase, then the voters are being deprived too of a right provided for and secured by the Constitution.

I am satisfied the increase of the deposit to $5,000-00 hinders and will hinder (unless the Applicant experiences a windfall in the meantime) his right to associate freely with other persons to form or belong to political parties under section 13(1) of the Constitution.

Mr. Keniapisia raised this argument under subsection 13(2) of the Constitution. I can only presume he takes the view that the increase was lawfully made pursuant to paragraph 13(2)(a) of the Constitution, as the other two paragraphs, (b) and (c) would not apply. I presume it is that the increase was made in the interest of public order. I say this because that is the only way he could raise the argument, that the Applicant needs to show that the increase was such as not to be reasonably justifiable in a democratic society. The hurdle Mr. Keniapisia faces is that in raising that argument, the onus lies on him to show that the increase was in the interest of public order. The Applicant has filed affidavit evidence and raised a prima facie case that even if the increase was made in the interests of public order it was not reasonably justifiable in a democratic society.

The phrase “reasonably justifiable in a democratic society” has been dealt with in other jurisdictions in similar applications and I draw useful assistance from those cases. In the PNG Reference No. 2, where the deposit had been increased from K100 to K1,000-00, Kearney Dep. CJ observed as follows:

“What the weight to be given to these matters, it appears to me that it is heavily outweighed by the emphasis in the Constitution on the right and duty of citizens to take part in the political process which I have set out. I do not express that as a personal evaluation, but as an evaluation which is very manifest from the Constitution. If the values consciously favoured in the Constitution which this Court is directed to implement, create difficulties in practice, that can be remedied only by a reconsideration of these values and by constitutional amendment. It is the duty of this court meanwhile to enforce the values in the Constitution as expressing, in terms of Constitution s. 50(2), the “proper regard for the rights and dignity of individuals” of this country.

It follows that I would uphold the Commission’s submission on this point. I do not think that the reasonable citizen would consider a law fixing the deposit at K1000 as reasonably justifiable in this society today, in the light of the values expressed in the Constitution.”

In the same case Reference, Kapi J. in determining the meaning of the phrase “reasonably justifiable in a democratic society” considered and adopted the standard of reasonableness applied by Patanjali Sastri CJ in the Indian case Madras v. V.B. Row (19) SC196 at page 200, as to what is the standard of reasonableness to be applied.

“It is important in this context to bear in mind the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern, or reasonableness, can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all circumstances of a giving case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decisions should play an important part, and the limit to their interference to the legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorizing the imposition of the restrictions considered them to be reasonable.”

His Lordship also considered the approaches in two other jurisdictions. In the case of Uganda v. Commissioner of Prisons (Ex-parte Matobu) (1966) E.A.L.R. 514 at p.543, the High Court of Uganda considered the same question in section 30(5) of its Constitution and said:

“Such measures must reasonably justifiable for the purposes of dealing with the situation which exists at any particular time and therefore whatever measures adopted must depend upon how grave the situation is at any given time.”

The second case was Cheranci v. Cheranci (1960) N.R.N.L.R. 24 where the Nigerian Court considered whether the provisions of the Northern Region Children and Young Persons Law of 1958 was a law which was reasonably justifiable in a democratic society in the interest of public order, public defence etc. Bate J. said:

“a restriction upon a fundamental human right must before it may be considered justifiable –

His Lordship Kapi J. then considered the burden of proof, holding that where it is shown on a prima facie basis that a law is unconstitutional that the onus then falls on the person asserting its validity. His Lordship said:

“The onus is on the State to prove that the Amendment Act is a law that is “reasonably justifiable for the purpose in a democratic society that has regard for the rights and dignity of mankind”. In this regard, absolutely no materials have been put up by the State or Parliament for the imposition of K1,000.00. I am left with the impression that the imposition of K1,000-00 has no regard for the level of income by the citizens of this Country.

It could not be said that there was any intelligent and careful consideration given to the levels of income of all citizens. The K1,000 nomination fee is excessive having regard to the facts in the statistical data. The nomination fee in question is contradictory to the principles stated in the National Goals and Directive Principles. ...

Principal Legal Advisor arguing the validity of this Act has not discharged the onus of showing that this Amendment is a law that is reasonably justifiable for the purpose in a democratic society which has proper regard for the rights and dignity of mankind. I would declare the law invalid for this reason.”

In Butadroka’s Case, Fatiaki J. also found that the imposition of the $1,000 deposit was not reasonably justifiable in a democratic society. After referring to the PNG Reference No. 2 and quoting with approval the test of reasonableness of Patanjali Sastri CJ in The State of Madras v. V.B. Row (19) SC 196 at page 200, he went on to find as follows:

“In the present case whilst the Court accepts that the Electoral Commission was properly empowered to enact a law requiring a nomination fee the amount fixed however prima facie contravenes a voter’s right to vote and hinders the applicant’s freedom to associate freely.

The Solicitor-General as the proponent of the law in question accordingly has the burden of proving that the law in question satisfies the criteria laid down in Article 14(2) of the Constitution. This he has failed to do and the court is driven to conclude that the amount of $1,000 is not “...reasonably justifiable in a democratic society in which all peoples may to the full extent of their capacity play some part in the institutions of national life”.

No issue has been raised as to where the onus of proof lies but it is my respectful view that it is different in our Constitution. It lies with the Applicant to show that the increase is not reasonably justifiable provided the defence is raised by the State under one of the paragraphs in subsection 13(2). I have pointed out Mr. Keniapisia had not shown under what paragraph in subsection 13(2) he seeks to base the validity of the increase under, but since he has raised the submission that the Applicant need to show that the increase was such as not to be reasonably justifiable in a democratic society, I would have expected him to produce evidence in rebuttal justifying the increase.

I have already canvassed in detail and accepted the evidence material submitted by the Applicant in support of his submission that the increase was excessive. That raises a prima facie case against the State that the increase was not reasonably justifiable in a democratic society. I have also considered the affidavit material submitted by Mr. Keniapisia in support of the increase. The material submitted with due respect did not show how the increase could be justified in the light of prevailing circumstances facing the country. It fell far short of demonstrating any logical and reasonable basis for the increase. All that was deposed to, were the reasons for the increase, being to recoup or meet election and ongoing expenses. Nothing has been submitted to show how such an increase could be justified in the dire economic straits the country has faced in the last two years or so and is still going through. Respectfully I must find, that the Applicant had amply demonstrated that the increase was such as not to be reasonably justifiable in a democratic society, definitely not in Solomon Islands.

The second ground under which this application is made, is that the increase discriminates against people living in the rural areas in that they are unable to pay such fees even if they desired to run for elections. Subsection 15(1) provides as follows:

“Subject to the provisions of subsections (5), (6) and (9) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.”

Subsections (5), (6) and (9) do not apply to the facts of this case and so it is not necessary to quote them in full. Subsection 15(4) sets out the definition of “discriminatory”:

“In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description.”

I think this ground can shortly be disposed of. The Applicant would need to show according to the said definition that he had been afforded different treatment to that of others living in urban centers. With respect he has failed to do that. There are many people living in urban centres as opposed to rural areas, who are faced with the same increase. I take note though of the point which the Applicant seeks to establish, that the increase makes it more difficult and in some instances, well in his case, impossible, to pay the deposit and thereby disqualifying him from running for office in the coming elections. I think the more accurate word to use in his case is that he is being penalized (disadvantaged) by this increase, but not discriminated (treated unfairly) against. In Butadroka’s Case, Fatiaki J. also found in a similar argument raised before him, that there was no discrimination:

“In this latter regard learned Counsel for the applicant argued that a nomination fee of $1,000 unlawfully discriminated against the poor as opposed to the rich. I cannot agree. The requirement of a $1,000 refundable deposit on nomination is a general requirement which applies to all persons who are nominated for election to parliament. It applies to both rich and poor alike and although it may cast an unequal burden on the latter that does not in my view render the requirement discriminatory in terms of Article 16 of the Constitution.”

Kearney Dep.CJ rejected the same argument in PNG Reference No. 2. Kapi J. also rejected the issue of discrimination but approached it from a different angle. He took the view that the issue of discrimination was covered anyway in subsection 50(2) as going beyond the regulatory powers provided therein and held that the amendment was invalid in that it “goes outside the limitation given by s. 50(2) and in effect prohibit or deny a class of citizens who are incapable of raising K1,000.00”.

I am not satisfied it has been shown that the Applicant has been discriminated against by virtue of this increase. I reject that submission.

Increase inconsistent with the national objectives set out in the Constitution

Finally the last argument raised against the validity of the increase is that it is inconsistent with the national objectives and purposes set out in the agreement and pledge (the Preamble) in the Constitution and therefore ought to be set aside as well. Mr. Keniapisia submits that they are merely guiding principles upon which the Constitution is made, that they do not guarantee absolute Constitutional rights to anyone and that they do not strictly form part of the Constitution. Hence no relief can really be based on them.

I think the starting point must be, to avoid all doubts, that the agreement and pledge, whilst it is partly correct to say that they set out the guiding principles on which the Constitution is founded upon, nevertheless they are part and parcel of the Constitution and to be read as a whole with the rest of the provisions of the Constitution [see The Minister of Provincial Government v. Guadalcanal Provincial Assembly CAC No. 3 of 1997, 11th July 1997 (hereinafter referred to as the “MPG Case”), at pages 9 (Kapi P (Ag)), 22 (Williams JA), 32 (Goldsbrough JA)].

Secondly it is important to understand how the Preamble is to be construed and applied. The MPG Case again sets out in clarity how this is to be done. Recourse can be made to the preamble for assistance in construing the enacting provisions of a statute or constitution. See page 8 of judgment of Kapi P (Ag):

“There is authority which supports the proposition that it is permissible to have recourse to the terms of a preamble as an aid to construing the enacting provisions of a statute. However, this is only permissible where there is obscure or indefinite enacting provisions (see AG v. Prince Ernest Augusties of Hanover [1975 AC 438).

It is permissible to have recourse to a preamble as an aid to construction of the provisions of a constitution as in common law, where there is an ambiguity in the enacting provisions. These authorities, however, go beyond the common law in that a preamble may be used as an aid to construction even where the enacting provisions are not so ambiguous (see Kauesa v. Minister of Home Affairs [1994] LRC 263 at 297-298).”

His Lordship then refers to the text The Irish Constitution by J.M. Kelly (Third Edition) and states:

“I do not have easy access to the Irish reports but a reading of the material provided illustrate that the preamble is part of the constitution and often stipulates the spirit of the Constitution which may help to determine the meaning or effect to be given to particular provisions of the Constitution.”

His Lordship also referred to the case of UDM and Another v. Governor General and Another [1991] LRC 328 which confirms the same view in other jurisdictions, that recourse may be had to the terms of the preamble to interpret other provisions of the Constitution.

“Resort has often been made to the words of a preamble in a statute when deciding on provisions which themselves have been found to be ambiguous, and there is ample authority for this.”

All three learned Justices of Appeal agreed that where there is no ambiguity it is not necessary to have recourse to the terms of the preamble for assistance. Kapi P put it this way:

“I consider that the Preamble to the Constitution of Solomon Islands is no different to the nature of preambles in other constitutions. The preamble is a general statement of jurisprudential philosophy or underlying principles or beliefs by the people as the basis of the new nation. To this extent it is permissible as has been illustrated by decisions from other jurisdictions for courts to have regard to preambles in construing provisions of constitution. However, in my opinion, these general statements must not be read as constituting legal principles on their own.”

“The whole document must be read together, subject of course to the general principle that a specific provision would prevail over a general intent derived from the use of the words of wide import.”

“I am not aware of any authority which permits resort to be made to a preamble, however, where no ambiguity is found. As Innes CJ said in Law Union and Rock Insurance Co. Ltd v. Carmichael’s Executor 1917 AD 593 at 597:

“A preamble has been described by an old English Judge as ‘a key to open the minds of the makers of the Act and the mischief which they intended to redress’. But the key cannot be used if the meaning of the enacting clause is clear and plain. In cases however where the wording is ambiguous, and in cases where the Court is satisfied that the Legislature must have intended to limit in some way the wide language used, then it is proper to have recourse to the preamble.”

The ‘agreement and pledge’ found at the beginning of the Constitution, which as I said earlier is only referred to here for the sake of convenience as a preamble, as much a part of the Constitution as other provisions. But from its words one can see that it does not set out to make specific provisions. Where such specific provisions do appear later in the Constitution these later provisions will stand alone except where their meaning cannot be ascertained without reference to other material.”

The words of the Acting President Kapi are apposite. That “the preamble is a general statement of jurisprudential philosophy or underlying principles or beliefs by the people as the basis of the new nation”. They contain statements of general principles which in turn are enacted in the other provisions of the Constitution. In our particular case, the general statements that “our government shall be based on democratic principles of universal suffrage” and that “we shall uphold the principles of equality, social justice and the equitable distribution of incomes” and that “we shall ensure the participation of our people in the governance of their affairs...” have been refined in the specific provisions set out in sections 47, 48, 49, 55 and 56 of the Constitution. There has been no suggestion of any ambiguity in those provisions that I should have recourse to the terms of the preamble for their construction. Indeed sections 47, 48 and 49 had been relied on by the Applicant as constituting the springboard from which he alleges that his rights had been contravened under section 13 and 15 of the Constitution.

With respect, the action founded on the terms of the preamble is misconceived and must be dismissed.

The effect of this Court’s ruling is that having found that the application of the Applicant is established under section 13 of the Constitution, I must rule that the amendment of section 27 of the Act is unconstitutional as being inconsistent with section 13 of the Constitution. This means that the deletion of the words “two thousand dollars” and substituting therefore the words “five thousand dollars” is unconstitutional and thereby void. The legal effect of this is that the original provision as unamended, for purposes of the deposit, that is $2,000-00 remain valid and applicable. I grant orders as sought in the Originating Summons filed 29th August 2001.