Toaki v Kopu [2016] SBHC 152; HCSI-CC 443 of 2014 (19 September 2016)

IN THE HIGH COURT

OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: ALFRED APELA TOAKI - Petitioner

AND: DUDDLEY KOPU - 1^st Respondent

ATTORNEY GENERAL - 2^nd Respondent

(Representing Returning Officer

for Temotu Pele Constituency)

Date of Hearing: 29^th August 2016
Date of Decision: 19^th September 2016

Irregularity of National Parliament [Electoral Provisions] Act Cap 87

Petition as to the right of the sitting Member to be or remain an elected member of the National Parliament as a consequence of an alleged irregularity in the failure of the Returning Officer for Temotu Pele Constituency for that he failed to disqualify one candidate, namely Brian Magga, not a Solomon Island citizen, when those particular votes may have materially altered the result of the election.
Tongarutu for the Petitioner
Tagini for the 1^st respondent
Kii for the Attorney-General

Brown PJ:

The petitioner, Alfred Apela Toaki was a candidate for Temotu Pele Constituency during the National Elections held on 19 November 2014. The successful candidate was Duddley Kopu who was duly named and elected as the member for Temotu Pele.

The Attorney appears for the Returning Officer and has furnished particular material going to the issue about the eligibility of one Brian Magga to stand at that election.

The petitioner pleads that the candidate, Brian Magga was ineligible to stand.

The Attorney’s material showed the successful candidate and duly elected member for Temotu Pele, Duddley Kopu polled 607 votes while the next candidate, Alfred Apela Toaki polled 601 votes. The difference was 6 votes. Brian Magga polled 76 votes. The reason given why Brian Magga’s nomination was accepted was because he had a Solomon Islands birth certificate.

The petitioner says had Brian Magga been found ineligible to stand, sufficient votes would have flowed to the unsuccessful candidate, Alfred Apela Toaki to have affected the result by having him declared the successful candidate.

While Mr. Tagini, previously representing the Member was absent with-out explanation on the day fixed for hearing, I determined to proceed with the hearing in any event. The submissions of the petitioner were filed some 17 days before hearing in accordance with my directions and the issue is one principally going to a question of law for it relates to the irregularity of process.

The last day for nominations was the 22 October 2014 and only citizens were eligible to nominate. Brian Magga’s application was accepted on the 18 November. At the time he held a passport as a citizen of Fiji for the Citizenship Commission confirmed it received Magga’s application to renounce his Fijian passport [and citizenship] some time in the month of October.

The National Parliament [ Electoral Provisions] Act, [the Act] Section 28 [2] requires candidates to be citizens of Solomon Islands. Magga at the time of his nomination on 22 October was in breach of S. 7 [2] of the Citizenship Act for he had not then renounced his Fijian citizenship by surrendering his passport or taken the oath of allegiance required by S. 7 [1][i].

He was consequently not eligible to stand for election, notwithstanding his acceptance by the Electoral Officer based on the fact of his birth in this country. Whilst a Solomon Islander may not have dual citizenship, that is an immaterial consideration in this case. The fact appertaining at the time of his nomination was his ineligibility to stand for election. Whilst his birth in country may go some way to satisfy the Citizenship Committee about his suitability for citizenship, the requirement to satisfy S. 7 [1][i] was a prerequisite.

Counsel for the petitioner has filed evidence to show [pages 20 to 52 of the Court Book, vol. 2] by sworn statements of voters that had they not voted for Brian Magga they would have voted for Alfred Apeli Toaki the petitioner. The statements make plain these particular 10 voters gave their votes to Brian Magga out of respect for the late Martin Magga, the former sitting member, for these deponents are blood relatives of Brian Magga and Alfred Apeli Toaki, the petitioner.

I accept the underlying reason why these 10 deponents voted for Brian Magga reflects their customary obligation towards the deceased. I quote from the sworn statement of Faith Veke [the material parts are reflected in the other statements. While they may be criticised for that reason, when the circumstances and facts so closely follow, I make no criticism]

5. I voted for Uncle Brian Magga, a candidate for Temotu Pele Constituency, at the general elections held on 19 November 2014. Uncle Brian Magga is a surviving son of late Hon. Martin Magga, brother of my grandfather, Henry Pagora who is the father of my mother, Priscilla Veke. The late Hon. Martin Magga died when he was Parliament Member for Temotu Pele Constituency. I am his grand niece. We are members of the Pe Lowe tribe.

6. I am a blood relative of Alfred Toaki, the petitioner. I call him grand uncle Alfred Toaki. I am his grand niece. My mother’s father, Henry Pangora, brother of late Hon. Martin Magga, is first cousin of Alfred Toaki who is also a member of Pe Lowe tribe.

7 I voted for uncle Brian Magga as a matter of respect for my grand uncle the late Hon. Martin Magga otherwise I would have voted for granduncle Alfred Toaki.

8. If uncle Brian Magga did not stand as a candidate for Temotu Pele Constituency I would have voted for granduncle Alfred Toaki.

The other nine statements are of similar vein. It must be recognised in these communities, customary obligations are matters of public concern. The underlying nexus in the ten statements in support show that obligation.

In Organisational Behaviour; An Asia- Pacific Perspective^[1] the authors, while primarily concerned with business perspectives, were able to show, using research by Hofstede, that invisible dimensions of culture show “different value patterns that exist across cultures and the different assumptions underlying human behaviour across cultures” and understanding of these invisible dimensions was a necessary incident in doing business in different cultures. The different value patterns were not restricted to businesses but sprang from the societies themselves.

For while the adopted Election process is primarily Western thought based, such concept as secret voting should not be seen as a universal norm, for the process is fundamentally at odds with the social mores of the Islands. A good illustration is often the statements by deponents in these proceedings where they say, for instance “he did not vote for me in any event”, an acknowledgment of voting trends known by the community. For, to adopt an accepted definition, “ culture is the learned, shared way of doing things in a particular society- the ways in which its members eat, dress, greet one another, teach their offspring and so on”.

The particular chapter in the reference work is headed, “Culture: The Universality Myth” and attempts to show Western thought and ideas are not universal and I venture to say as a result the amalgam between the underlying practice, to be expected when electioneering and voting in the Islands takes place, from a Western perspective [ for the Act is premised on that Western Democratic ideal] and the reality, is weakened by these different value patterns.

One of Hofstede’s five dimensions of national culture can be described as long term- short term orientation. This is understood to mean the degree to which people in a country emphasise values associated with the future, such as thrift and persistence, verses values that focus on the past or present, such as social obligations and tradition. The example given is China, high on long term orientation while it is accepted in the Islands, social obligations and tradition are paramount.

I am satisfied these cultural norms, social obligation and tradition permeate society with which this petition is concerned and cannot, by reason, be separated from the electoral process.

Of course, the actual voting process is by secret ballot as prescribed by the Act. The lawful election of the successful candidate, then, is prescribed by the legislation according to the numbers. The legislation is silent when circumstances give rise to just reason to have regard to custom. I accept this dimension of culture as relevant in these circumstances, for had Brian Magga’s name not been on the list of candidates, these ten votes would have been given to the petitioner. I cannot conject, with secret voting, that the votes would definitely have benefitted the losing candidate, but on the evidence, that result is plain. To ignore the evidence is tantamount to ignoring the cultural mores and unacceptable in a developing society. These votes would have affected the result. Where standard of proof is required, I am satisfied on balance of probabilities, the petitioner may have expected to have received these ten votes more, votes which would have altered the result.

The mistake in allowing Brian Magga to stand for election is an irregularity which may avoid the result of the election where it can be shown the number of votes in contention would affect the outcome. I am not satisfied the irregularity is material for the votes in dispute, votes having gone to Brian Magga, may only be declared invalid and would not have altered the result of the election.

In Maetia v Dausabea^[2] Chief Justice Muria said;- “Thus if the court is satisfied that the election was notwithstanding those breaches of the law, an election really and in substance conducted under the principles of the election law and that the result of the election ... was not and could not have been affected by those breaches, then the election ought not to have been declared invalid. On the other hand if non-compliance of the election law was such that the election was not really conducted under the principles of law on election and the non-compliance of the law affected the result of the election, the court must declare the election invalid.”

The Chief Justice was following the line of authority since Evo v Supa^[3] where Sir John White, ACJ said;- “Adopting the reasoning of Lord Denning in Morgan’s case and applying it to the circumstances of the present case, and in accordance with s. 9 of the Act:

1] ...

2]...

3] Even though the election was conducted in accordance with the principles of the Act and the Constitution, nevertheless if there was a breach of the rules or a mistake at the polls- and it did affect the result- then the election is vitiated.”

Such would seem to be the case here. There is no provision in the Act affording me the power to alter the result by adopting the clear intentions of the voters when it was suggested to them that Brian Magga was ineligible to be a candidate, and consequently whether their votes would favour another candidate and why. To vitiate the election result so long after the event is unjust to the Member and the Constituency. The cost of a by-election is quite large especially when elections are planned for 2018. These circumstances unfortunately are not relevant matters on the petition.

But my acceptance of the statements of these electors, well intentioned as they may be, has no real bearing on the effect of this irregularity, for by statutory provision , the method of voting precludes any presumption on my part, after the event. For, by S 38 (d), an elector shall secretly record his vote, by placing his ballot paper in the ballot box of his choice. The National Parliament (Electoral Provision) Act Cap 87 makes no provision for this court, for instance, to presume to accept the assertions of electors, after the event of the election. Where these votes given Brian Magga are invalid, for nomination is invalid, the votes cannot be presumed to affect the result, for at the time they favoured neither the successful candidate nor the Petitioner. The Returning Officer decision, by S. 53 may only be questioned on this Petitioners behalf by this Court in relation to these particular ballot papers, now found to be invalid on the fact of the invalidity of the person standing, but the invalidity does not allow this Court to now substitute voting preferences of electors.

The Petition in this part, must fail. The remaining prayer for relief may proceed to a hearing.

Mr. Tongarutu’s well reasoned submissions have made my task easier.

By The Court

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^[1] Wood, Wallace, Zeffane, Schermerhorn, Hunt and Osborn; John Wiley & Sons 1994
^[2] [1993] SBHC 29; HC-CC 266 of 1993 [23 November 1993]
^[3] [1985] SBHC 3; [1985-6] SILR [24 January 1985] Civil Case 100 of 1984.