The Electoral Act – the Losing MPs
Transparency Solomon Islands commends the Judiciary for the implementation of the Electoral Act 2018. Section 111 deals with Procedures and rules for petitions. Section 111(1A) states that the Court must decide a petition under this Part within 12 months after it is filed. Given the fact that the courts are grossly, poorly and inadequately resourced in every aspect, the timeframe fixed for disposing of the election petitions must be the most challenging for the Courts. But they rose to the challenge and are clearing the cases as we speak, bringing back some public trust in our Judiciary Arm of the Government of Solomon Islands.
Whilst the decision of last week finding two sitting MPs guilty of bribery may have brought back some semblance of trust in the Judiciary, the question raised by the Public Solicitors Office [PSO], per media related to Jamie Vokia’s case threatens that trust. In brief the PSO argues [according to media] that whilst the petition was brought under section 126 of the Electoral Act 2018, the judge found Vokia guilty of bribery under section 66 of the repealed National Parliamentary Electoral Provisions Act [Cap 87]. This Act was repealed under section 138 of the Electoral Act 2018 and no longer exists, making the decision handed down by the judge on Vokia’s case null and void. Many important issues are raised by this but the most important and pertinent ones are, the revision and consolidation of Solomon Islands Laws from 1996 to date, the criteria for the appointment of judges and the quality of judges appointed to the bench be it the High Court or the Magistrates Courts.
Whilst Transparency Solomon Islands commends, respects and appreciates the good work done by the judges, magistrates etc. – the Judiciary arm of the government, this judgement raises several important issues that need addressing. The first one of these is the urgent need to review and consolidate the laws of Solomon Islands from 1996 to date. There has been a number of new legislations passed, many amendments done including repealing of parts or the whole of a particular piece of legislation as is the case for the National Parliamentary Electoral Provisions Act [CAP 87]. These need to be captured in one place for ease of access and reference to lawyers and public at large. It is possible that a number of decisions of the Courts may have used Acts/Regulations and provisions that might have been amended, repealed, superseded as in this case in their decisions. Lawyers and judges need to have an updated consolidated revised law of Solomon Islands as do judges at their figure tips to better represent their clients and base their presentations, arguments and judgements on. Currently the changes to the laws of Solomon Islands are all over the place and not in one place allowing for mistakes like this either knowingly or otherwise to perpetuate. After all the Electoral Act 2018 repealing the National Parliamentary Electoral Provisions Act [CAP 87] was passed in 2018 and one would have thought that unlikely for anyone in the Judiciary not to know, but this has happened. Transparency Solomon Islands calls on the Attorney General’s Chamber and the Law Reform Commission to urgently get this work done. Furthermore, the government is urged to adequately Judiciary financially and in human resources for this important job.
Again, with due respects to judges, and magistrates of the Judiciary Arm of the government other important issue raised by this incidence is the quality of judges appointed to the bench. The High Court of Solomon Islands was one of the most respected in the region, its judges known to having well researched the laws relating to the cases put before them when helping them make their judgement. Given this incidence and others observed in the courts, and given the fact that private law firms and lawyers working in these firms are very experienced, it is time that the Judiciary and the government as a whole must pay more attention to the training and appointment of judges, magistrates etc. More importantly is the building of their capacity and need for them to be mentored by experienced judges or to be attached to other courts as a way of capacity building. Transparency Solomon Islands believes that as more and more people become informed and have means to access the justice system and the courts, the Judiciary will be busier, their services in great demand, and their role in upholding the law of great importance to the people of Solomon Islands. Whilst we still have elements of quality judges in our courts, help must be given to them urgently. Such mistakes are unacceptable and be it the appointment criteria of judges, their experience the resources given to Judiciary or otherwise our courts need immediate attention and better resourcing, and the Attorney General’s Chamber to urgently attend to the revision and consolidation of the laws of Solomon Islands from 1996 when it was last consolidated to present day.
On the cases that are going on and being dealt with, the Electoral Act 2018 Part 8- Petitions Relating to Elections and Members of Parliament, section 111 covers the procedures and rules for petitions. Section 111(4a) stipulates that the procedures at the hearing of an election petition must (as near as possible) be the same as if it were a civil action. In the same Electoral Act 2018 section 126 covers Election Bribery. Under this section if a person is guilty of bribery the maximum penalties are 150,000 penalty units or imprisonment for 15 years or both. Given the fact that same Act makes provisions for this offence carrying a penalty, Transparency Solomon Islands believes that once the civil case has completed its course, the criminal offence charge must be followed through.
Whilst the Act does not say who is to bring this before the criminal court, Transparency Solomon Islands believes that the right Authority to do so is the Electoral Commission assisted by the Chief Electoral Officer. The Chief Electoral Officer is responsible for the administration of the Electoral Act 2018 and must now file the criminal case of bribery/corruption against those found guilty of breaching the Electoral Act. He should make sure under this act that those found guilty are held criminally liable for these criminal offenses. Transparency Solomon Islands the reminder by the Chief Electoral Officer on the effects or consequences of committing these offences covered under section 129 of the Electoral Act. He is further reminded to follow through with the implementation of section 129 sub section 3 – THE DISQULIFICATION IS IN ADDITION TO ANY PENALTY IMPOSED FOR THE OFFENCE. Enough is enough and the Chief Electoral Officer cannot be allowed to continue to project his responsibilities to other bodies. There are other Acts that criminalise bribery and may be referred to, but this offence was committed under the Electoral Act 2018.
Going forward and given the workload and time of the court taken by elections petitions Transparency Solomon Islands urges the Electoral Commission look into other innovative reforms and systems that would not result in the courts suspending on-going cases that require the courts attention to meet the timeline set by Part 8 section 111(1A) of the Electoral Act 2018. Demanding the Court to decide a petition within 12 months after it is filed while good, in Transparency Solomon Islands view, this should be done by a tribunal or some other arrangements and not occupy the High Court’s time. The criminal case that needs to be filed against those committing this offense is the case related to petitions that should be filed in High Court. Such a set up should also be given the task of hearing challenges on processes and procedures, challenge filed against Solomon Islands Electoral Commission, the Chief Electoral Officer and its officials etc. Transparency Solomon Islands believes that the change of the electoral system will go a long way to minimising candidates paying bribery. More importantly, people of this country especially those in the rural area, need more civic awareness not on how to vote but the relationship between their vote and the three arms of their government, a change of the Electoral System to minimise election bribery.
In the reform of the electoral act and the harmonisation of other acts relating to bribery an examination of how the courts hand down their sentencing with regard to other provisions in the Act needs clarity. Should those found guilty like anybody else accused of the same act when found guilty be fined, sent to prison or both.
In relation to adequately resourcing the Judiciary, Transparency Solomon Islands urges the Executive Government and the Legislature to resource the courts adequately not only for the election petitions and election related offences but to clear the backlog of both criminal and civil cases and ensure Solomon Islands Citizens and those residing within Solomon Islands have access to justice. Judiciary being the third arm of the government that is exercising people’s power as per our Constitution, it is only proper that they are adequately resourced. It is sacrilegious and scandalous and unacceptable that the lower courts [local courts] work is fully funded by loggers and investors. These are the courts accessed by most citizens especially with regard to natural resources ownership, boundaries, minerals right, timber rights etc. When funded by loggers/investors one does not need to be a rocket scientist to know that decisions nearly always favour the pro-logger parties. Such practice contributes to public losing trust in our Judiciary. Government must act quickly in terms of resourcing the courts to carry out their work without any undue influence. Share your views with us on way forward or better still with the Legislature on this.