Lusibaea v Filualea [2020] SBHC 28; HCSI-CC 275 of 2020 (17 April 2020)

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Case name:	Lusibaea v Filualea

Citation:

Date of decision:	17 April 2020

Parties:	Jimmy Lusibaea v Senley Levi Filualea

Date of hearing:	2 April 2020

Court file number(s):	275 of 20219

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Higgins PJ

On appeal from:

Order:	Petition dismissed. Court will hear the parties as to costs I will certify to His Excellency, the Governor General, that Senley Levi Filualea was validly elected as a Member of Parliament for North Malaita.

Representation:	J Taupongi for the Petitioner E. Rano for the First Respondent S. Banuve for the Attorney General

Catchwords:

Words and phrases:

Legislation cited:	Electoral Act 2018( Amended), s68 (4) and 102, s112 (2) (b), s124,Electoral Act,112(2) (b), s 58, 122,125(1),126,127,128,129,5,62,66,108 Commonwealth Electoral Act1918, s362, 340, Constitution of Solomon Island, Representation of the People Act 1949 (UK) , Halsbury Op. Cit. par. 767

Cases cited:	Holosivi v Vahoe [2008] SBHC 101, Fono v Filualea, Fono v Fiulaua, Airahui v Kenilorea, Lilo v Tanagada, Thoburn v Sunderland city Council [2002] 3WLR 247, BH v Lord Advocate (Shortland) [2012] UKSC 24,

J. Taupongi for the Petitioner
W. Rano for the First Respondent
S. Banuve for the Attorney General

The Petitioner is an unsuccessful candidate for the North Malaita Constituency. Polling day was 3 April 2019. Relevantly, the results for the Petitioner and First Respondent, it is agreed, were, First Respondent 2968 votes, Petitioner 2475 votes, a margin of 493 votes in favour of the First Respondent. The Petitioner was the runner-up.

The first ground remaining was that “the counting agents were wrongly denied their statutory right to directly observe counting of ballot papers contrary to sections 68(4) and 102 of the Electoral Act 2018 (as amended)...”

Neither this provision nor s102 mandates that the counting agent actually sees each vote cast and counted. It is implicit that the agent be afforded a reasonable opportunity to carry out his or her function.

The Returning Officer also has a duty to ensure that no agent is able to touch or interfere with the count or any voting paper. Two metres would be the minimum distance to keep agents away from a ballot paper. Four metres does not seem unreasonable. Indeed in Holosivi v Vahoe [2008] SBHC 101, 5 metres was held to be reasonable.

In any event, in the absence of some other matter, it is noteworthy that no complaints appear to be recorded concerning these alleged difficulties.

Further, s.112 of the Act has the effect that even it was proved that the Returning Officer had been over-zealous in keeping agents away from the ballot papers, it is not possible to infer that the distancing measures, if they occurred with the result alleged, affected the result of the election (see s.112 (2) (b) of the Electoral Act 2018 “the Act”)

In the absence of any evidence proposed to be tendered to enable such an inference, and none is relied upon, this ground has no prospects of success and must be dismissed.

These statements are tendered to support two of the remaining grounds of complaint in the Petition namely, “unlawful campaigning at Wawao Village on November 20, 2018” and “at Nao Village on November 22, 2018”, the latter two relate to the ground I have dismissed. One relates to alleged election bribery.

It was objected by Mr Rano, for the 1^st Respondent that the statements of Wilson Taloi and Owen Taloi should be rejected because they are, relevantly, in identical terms. That may be a point for cross examination but it merely indicated to me that the English language drafts were prepared by the Petitioner’s Solicitors.

The activities deposed to by the witnesses would clearly be “campaign activity”, within the meaning of s.5 of the Act, provided that such activities were relevant to affecting the result of “an election” or influencing ‘an elector’ concerning his or her vote at “an election”.

It is noteworthy that the “campaign period” is defined by s 62 of the Act in the following terms:

Campaigning outside the campaign period attracts a penalty that is at the lower end of penalties (see ss. 122, 125(1), 126, 127, 128). Further, it is not an offence that attracts s 129.

If the Legislative had intended that, save during the campaign period, all “campaign activity” was criminalised then it would be expected that it would have been more plainly so stated.

Indeed, the level of penalties supports the conclusion that the offence created by s. 124 is a relatively minor offence consistent with the limited period during which it may be committed.

Whilst, no doubt, prospective candidates will be aware in general terms that an election is imminent the prohibition could not, consistently with the right of persons to comment on public affairs including the suitability for office of members of Parliament, apply before the campaign period begins. The plain intention is, consistently with other similar legislation (e.g. Commonwealth Electoral Act 1918) (Australia) to provide a respite for electors from campaign advertising and importuning in the period that is the 24hrs period before and on the polling day.

In any event, the usual response to infringement would be prosecution and a fine. It is not conduct that usually would attract avoidance of the election. (See e.g. S.362 Commonwealth Electoral Act 1918 (Australia).

An example of a prohibition on campaigning is s.340 of the Commonwealth Electoral Act 1918, (Australia). That prohibits campaign activity near active polling places.

The Constitution of Solomon Islands 1978, s12, protects freedom of expression. Chapter VI, section 49 thereof provides for disqualification of persons from election as members (inter alia & relevantly for present purposes) if disqualified: “... under any law in force in Solomon Islands relating to offences connected with elections”

One such law currently in force having such a consequence is s.129 of the Act. Section 66 of the superseded Act had a similar though wider effect.

It is certainly contrary to the public interest for persons who have engaged in corrupt practices such as bribery and undue influence to be permitted to remain in Parliament but their exclusion must be according to law.

Campaigning for election before the campaign period begins is not an offence. It is in fact an expression of the democratic right of citizens to criticise (or support) elected representatives and promote themselves, if they so desire, for office.

The usual constraints regulating freedom of speech otherwise apply but the activities attributed to the 1^st Respondent do not infringe those limits.

It must also be borne in mind that a person may be prosecuted for and, if convicted of, a relevant election related offence, visited with the disqualification consequences prescribed by s.129 of the Act. As noted, s.124 is not such a provision.

It follows that the allegations of “unlawful campaigning”, even if proved, would not sustain a challenge to the election of the 1^st Respondent.

Further, it is unlikely that the instances cited would have affected the result of the subsequent election.

The allegation of which evidence is proposed to be tendered is that contained in Paragraph 8 of the Petition.

It alleges that one Lloyd Wanefalea was offered a ticket to Auki on MV Fair Lady and next day, (2April 2019) $100.00 to buy cigarettes, in each case, accompanied by an instruction to vote for the First Respondent. This conduct was engaged in by one Ashley Kona allegedly as agent for the 1^st Respondent.

I accept for the purposes of dealing with Mr Rano’s application to dismiss this ground that it would be open to the court to accept Mr Wanefalea’s evidence and to infer from that evidence that Mr Kona had committed an offence against s.126 of the Act.

It must be borne in mind that no such finding has been made and that Mr Kona has not yet given evidence. He is entitled to the presumption of innocence.

The content of Mr Wanefalea’s allegations, however, gives rise to two preliminary issues,

First, whether the evidence enables an inference to be drawn, to the requisite degree of certainty, that the 1^St Respondent was complicit in the offence (or offences).

On that issue, I would accept that the evidence of relationship and proximity of the 1^st Respondent to the offers allegedly made to Mr Wanefalea would enable such an inference to be drawn. Whether such an inference should be drawn is another matter. That depends on an assessment of the credibility of the witnesses when called and of the surrounding circumstances.

The second issue is more fundamental. It is whether, given that s.66 of the superseded Act was not reproduced in the current Act, election bribery must be proved following a criminal charge under s.126 of the Act with the consequences of conviction of a Member of Parliament (or a candidate if that became relevant) as prescribed by s.129 of the Act.

The 1^st Respondent has not been charged, let alone convicted, of an offence against s.126 of the Act.

There is, in the High Court, a difference of opinion on this issue between Chief Justice Palmer and Justice Bird. It is clear that s.66 (1) and s.66 (2) had certain consequences (see Fono v Fiulaua (HC-CC 218 of 2010) per Goldsbrough J). That section has been repealed and not replaced.

In Airahui & Others v Kenilorea & Ors (cc 279 of 2019) the learned Chief Justice was asked to rule on a preliminary issue, namely, whether the omission of Section 66 or an equivalent from the Act had the consequence of removing bribery as a ground for disqualification of a candidate absent a conviction for an offence against s.126 of the Act.

The power of the High Court to void an election is clearly preserved by s.108 (5) of the Act.

“without limiting the circumstances in which the Court may find that an election is void, the Court must declare the election of a candidate void if it finds that the candidate was not qualified for election or was disqualified at the time of the election”.

It is clear that, even if a candidate has engaged in bribery prior to the election the only “disqualification” that is engaged is that imposed by s.129. One pre-condition for that status being imposed upon a candidate is a conviction for an offence against ss120, 126 or 127 of the Act. Other circumstances of disqualification are possible but if the allegation is of election bribery that is dealt with by the application of s.126 of the Act.

Nor does election bribery come within s.112 of the Act. It follows that the prohibition on declaring an election void where there has been substantial compliance with the Act has no relevance,

Nevertheless, to engage in election bribery would flout s.126 of the Act. There is, no prohibition expressly enacted mandating a consequence for engagement in election bribery aside from s.129 of the Act.

Examples of election bribery may range from a relatively trivial single instance to a corrupt practice bringing the result into question. Nevertheless, it is open to Parliament to declare certain practices so destructive of the concept of free and fair elections that they invalidate the result.

In Airahui & Ors v Kenilorea & Ors (supra) the Chief Justice found that election bribery was such a circumstance.

On the other hand, in the hearing following the ruling in that matter that the allegation of bribery could proceed to trial, Her Ladyship Bird PJ found, as a final ruling, that to attribute to a finding of election bribery, without a prosecution of the relevant respondent, the consequences prescribed by s.129 of the Act would be to usurp the role of Parliament. If Parliament by error or oversight omitted an equivalent of s.66 of the superseded Act that was for Parliament to correct (see HC-SI CC 279 of 2019).

In the case of Lilo Darcy v Tanagada [2020] HC-SI CC 281 of 2019 I declined to make a preliminary dismissal ruling on an allegation of election bribery, in light of the decision of His Lordship, the Chief Justice in Airahui v Kenilorea (supra). Since then I have had the advantage of the subsequent ruling in the same matter of Her Ladyship Justice Bird.

It should be noted that, as a matter of statutory interpretation, the repeal of an Act or a provision thereof leaves the common law as it was before that Act was passed | see e.g. Thoburn v Sunderland City Council [2002] 3WLR 247; EWHC 195; (2003) QB 151 BH v Lord Advocate (Scotland) (2012) UKSC 24.

This requires a consideration of the common law relating to bribery at elections. It is a legitimate election expense to convey voters to a polling place (see s.90 (4), Representation of the People Act 1949 (UK)). That is not bribery.

Bribery to procure election to office was an offence at common law, as noted in Halsbury 4^thed. @ par 767. If so proven a guilty candidate might be expelled from Parliament for procuring an office by bribery. It rendered the election voidable.

That power was vested in the House of Commons. By virtue of s.108 (5) of the Act that power devolves onto the High Court. To exercise that power is not to usurp Parliament but to support it. This is not a case of general bribery which may vitiate the election though no particular candidate or agent was responsible for it. (See Halsbury.op.cit par 767),

“Bribery is described as a criminal offence and it is not a massive step to conclude that where offences have been committed within an election process that must go to the validity of an election without having to be specified as a reason for declaring the election void’.

His Lordship was there stating the consequence of particular bribery, as opposed to general bribery, at common law. It was not usurping the role of Parliament but applying the law as if then existed.

It should be noted that, that consequence will usually follow where the offence is both deliberate and egregious. A trivial or excusable infraction may not qualify. This would be so if there was bribery of a limited number of electors by a person acting on behalf of a candidate but without the knowledge or authority of that candidate. Nevertheless, procurement of election to office by bribery, or other corrupt practice invalidates an election even if no statute mandates that consequence (see Halsbury supra).

Sections 49 and 50 of the Constitution support this conclusion. Proof of election bribery by a person as a candidate would cause him or her to be liable to be disqualified from election to Parliament (s.50 constitution) (if he or she was not already a Member).

That contrasts with s.66 (1) of the superseded Act which mandated invalidity of an election if any corrupt or illegal practice was committed by the successful candidate or his (duly authorised) agent.

The standard of proof necessary for an adverse finding against a candidate, it is settled, is the Briginshaw standard, i.e. close to but not beyond reasonable doubt (see [1938] HCA 34; (1938) 60 CLR 336 and cases cited by Palmer CJ in Temahua v Vagara et al. @ [16] – [21] (HCSI-CC 282 of 2019).

The allegations of bribery in this case are supported by the evidence of Lloyd Wanefalea. He asserts that one Ashley Kona gave him a ticket to return to Auki to vote. He urged him to vote for the donor of the ticket but did not say who that was.

No doubt because of a later incident next day he took that to refer to the 1^st Respondent.

In my view, even accepting this evidence it does not enable an adverse inference to be drawn against the 1^st Respondent.

That is for two reasons, first, it is not impermissible to pay a voter’s expenses to attend to vote. Thus the payment for the ticket is not a bribe.

Second, there is no evidence that the 1^st Respondent in any way knew of or authorised this transaction.

The next allegation is that during the voyage to Auki, Mr Kona gave the deponent $100 for “Smoke” and urged him to vote for the 1^st Respondent. If proved, that would be a classic situation of bribery but, even if so, there is no available inference that can be drawn with the requisite degree of certainty the 1^st Respondent knew of or authorised this payment, particularly as it arose, apparently spontaneously, during the voyage.

It follows that, despite Mr Taupongi’s eloquent and persuasive submissions, I must dismiss this Petition.

I will certify to His Excellency, the Governor General, that Senley Levi Filualea was validly elected as a Member of Parliament for North Malaita.

High Court of Solomon Islands

Lusibaea v Filualea [2020] SBHC 28; HCSI-CC 275 of 2020 (17 April 2020)