Kola v Mewa [2017] SBHC 5; HCSI-CC 441 of 2014 (9 February 2017)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: WALTER KOLA ANORS - Petitioners

AND: COMMINS MEWA - 1^st Respondents

ATTORNEY GENERAL - 2^nd Respondents
(Representing the Returning officer for

Temotu Nende Constituency)

Date of Hearing: 15, 16, 23 August 2016
Conference and Decision: 9 February 2017

Mr. R. Tongarutu for the Petitioner
Mrs. M. Bird for the Respondent
Attorney General’s appearance excused

Appointment of Conference leading to Orders pursuant to R 9.72 on failure to prosecute petition and on facts.

Brown J:

The petition has been brought by these eight persons who stood unsuccessfully for the particular Parliamentary seat of the Nende Constituency, Temotu Province in elections carried out on the 19 November 2014. It must be remembered that the Province is far flung from Honiara, Guadalcanal and the Province is comprised of islands separated by often tumultuous seas making physical communication difficult and progress, in a Western sense, problematical since the islands have relied on their own resources without outside help and without recourse to facilities available about Honiara for instance.

Before proceeding to particularize the claims in the petition, I shall make some comments about the various petitioners’ underlying basis to seek to have this court avoid the sitting member’s election. The petitioners rely on three matters deemed election offences by the Electoral Provisions [Legislative Assembly] Regulations 1976. They are “treating”, “bribery”, and “undue influence”.
Much of the evidence of the petitioners speaks of expected benefits to be given particular persons and bodies by the successfully elected members but it needs to be separated where possible between benefits previously agreed to be supplied and future benefits conditional upon the sitting member’s election. The conditional nature of the future benefit was expressed, not as an election promise, but was said by the sitting member [the 1^st respondent] in answer to the criticisms and claims of “treating” etc to be dependent upon “whoever wins, will be responsible”. For it must go to the issue of probability when considering “offences” that the future benefit is clearly directed to a particular person and is peculiarly within the power of the man or women offering the benefit, and not just a benefit which may be available and expected on election from a successful member by electors generally.

In a number of cases, the expected benefit encompassed roofing materials and solar panels both of which have been shown to have been currency about the island where they both contribute to perhaps an easier way of life, releasing people from continually re-roofing with grown materials and making electricity available for the first time.

I am satisfied, since it is evidence of the member, and unrefuted, that the solar panels intended, were part of an earlier proposal by the member, a proposal which was then a reasonable expectation.

So the benefits to be expected from a sitting member included such things as roofing iron and solar panels, where garden agricultural subsistence farming and fishing was carried out on these islands far from large centres of population and where only an economy based on money would facilitate the purchase of such materials. But in these societies, the member’s constituency fund was, it would be surmised, the principle means to finance such necessities.

I am consequently not satisfied that a promise of these materials can be solely attributed to a wish to engender votes for the promise is rooted in the expectation that the money to buy such materials will come from the constituency funds, funding available to whosoever wins the seat. For as the 1^st respondent said, “whoever wins, will be responsible”.

If there is culpability to be attached to the offers, that culpability must be assessed at the time of the alleged offences, while looking to the time between then and the voting period. I am again not satisfied the offer to provide these materials was sufficiently proximate to the voting period to prevent voters from a considered reflection on the offer since successful candidates may be expected to provide the very same benefits. Those materials were needed and candidates who ignored the need by remaining silent about their intentions for the constituency did so at their peril.

In terms of Geert Hofstede’s dimensions of national culture^[1] it is a commonly accepted fact within Solomon Islands Culture that the nation has short term orientation, in the sense that focus is predominately on social obligations and tradition. To suggest there is something wrong by pointing to reciprocation by the local member in seeking to carry through with his social obligations [and Western Parliamentary expectations] by using the electoral constituency vote in this fashion runs counter to reason. Again, using power distance to help understand the cultural divide between the authors of our Constitution dealing with electoral matters and offences vis a vis the local understanding in a tribal society or group where unequal distribution of power within such society is acceptable, makes clear the norms acceptable in such a society permeate the society and cannot be separated from the electoral process. For Chiefs exhibit trappings of power within their tribe or group and arbitrarily exercise power whereas in most Western societies, arbitrary power is somewhat abnormal. It is not unexpected then to find the local Member of Parliament, a person if re-elected, able to access constituency funds, to act arbitrarily within his constituency by customary vocal means to engender support just as other aspiring representatives may do.

In these circumstances, for the court to imply a unlawful motive to the offer of constituency funds for the betterment of constituents who may have little recourse to money, in this far-flung Province, (in the sense of “bribery” or “corruption”, words used in the old English legislation and not shown to be translatable into the local language) would, I am satisfied be wholly unjust and inappropriate in the cultural mores of this society.

These proceedings originally come before me on the 3 June 2016 on a directions hearing. On the 15 August, all the various claimants’ statements and the statements in reply were read. Consequently these statements were in evidence. The proceedings were adjourned to the 23 August when the petitioners counsel withdrew much of the petition, relying on the remaining claims in clause 6.8, 6.9. The two clauses related to threats at three villages, Nea, Banua and Menau, that “since he had already won the election, they must vote for him, otherwise those who do not vote for him will miss out on any constituency funds and assistance during the next 4 years.” The court is not willing to accept the implied assertion,the people are so gullible they would be so deceived before the election, even if the statements were found to have been made. I consequently do not propose to entertain the petition further without good reason.

There were then discussions over the manner in which and those to whom notices be given for cross examination. The cost of bringing these witness to and housing them in Honiara during the hearing will be exorbitant.

The counsel for the respondent, Ms. Bird has given notice that witnesses required for cross examination had been reduced to five. Counsel for the Petitioners was, by letter of the Deputy Registrar dated 11 October 2016 told that the court was awaiting advice when witness could be available and ready for trial, so a new trial date could be set.

On the 8 November 2016, by copy letter Ms. Bird wrote to Mr. Maru Tongarutu, the lawyer for the petitioners, expressing the courts desire that he appear before the judge in chambers at the judges request with her, at Mr. Tongarutu’s convenience on Wednesday 9 or Thursday 10 November 2016 at 4:30pm for a conference. Nothing further has happened, no approach by the petitioners counsel to arrange the hearing of this matter nor explanation for apparently ignoring the proposed conference, has been received by the court.

Since these petitions have been on foot since the last Election in 2014 and fresh Elections may be expected in 2018, this court must have regard to the overriding objectives set out in the Rules of Court when it determines to take a manifestly serious step so as to strike out the proceedings under R.9.72. Since I have read the material filed by both sides in this petition and notwithstanding the absence of an opportunity to cross examine the particular witnesses sought for cross-examination by Ms. Bird, for the reasons that I have given on the facts of the Petition, where I am not satisfied on the balance of probabilities, that the petitions are made out, and further because I am satisfied to continue to maintain these proceedings would be unjust and cause unnecessary delay and expense, I appoint Thursday 9 February 2017 at 3 pm for a conference with counsel, when in the absence of good reason to the contrary, these proceedings will be struck out. In the absence of argument to the contrary, I then propose to make no order as to costs.

Date of Judgment: 9 February 2017

Having hear Mr. Tongarutu and Ms. Bird I propose to review Mr. Tongarutu’s argument for he suggests, since the allegation of “treating” still standing in the petition, an assertion denied by Ms Bird, the proper course would be to allow written submission in relating to those treating arguments. In any event Ms. Bird says that the grounds of the petition still extant are 5.1, 5.5, 5.6 and 5.8, bribery pre-election 7.3, and 6.8, 6.9 undue influence.

From my reasons previously given, above, I am not satisfied in relation to those matters and find against the petitioners.
Insofar as the treating allegations are concerned, this again falls to be decided on customary mores, and I am satisfied it has been custom for reciprocation by way of food for instance, to be provided if people are expected to gather for whatever purpose.

As been said, without such reciprocation by way of food, “there is no good meeting”.

I consequently am satisfied “treating” in the sense understood in the adopted legislation may not stand when customary mores conflict as they do in this case.

For the reasons that I have given, for on balance the petitions are not made out, and since continuation of these proceedings would cause unnecessary anxiety worry and cost, I strike out the petition. The question of time limitations under the Civil Rules of Court do not constrain me in these circumstances for I rely on the discretionary power to dispense with the 6 month restriction before action, if such a rule were to be found to apply, in reliance on the overriding responsibilities in the Rules to deal efficiently fairly and cost effectively with the proceedings.

Elections are due in 2018 when the petitioners may seek change in accordance with the with the election process.

I make no order as to costs.

__________________
BROWN J

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^[1] Culture’s Consequences: International Differences in Work-related Values, abridged edn [Beverley Hills: Sage, 1984 as referred to and used in Organisational Behaviour-An Asian-Pacific Perspective, Wood, Wallace anors John Wiley & Sons 1998, at 79