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Eligibility to contest a National General Election in Solomon Islands

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Commentary by Ake Poa

 

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  1. Section 48 of the Constitution of Solomon Islands 1978 (‘the Constitution’) prescribes thee mandatory criteria that a person must meet to be eligible to contest a National General Election (‘NGE’). These are –
  2. citizen of Solomon Islands;
  3. attains 21 years; and
  4. a registered elector.

 

  1. The third criterion was added when the Constitution was amended in 2018 (Constitutional (Amendment) (Electoral Reform) Act 2018, No 5 of 2018). Therefore, if you plan to contest but have yet to register, it is important that you register as an elector.

 

  1. Section 49 (1) of the Constitution sets out the grounds for disqualification. A person will be disqualified from contesting an NGE if he or she:
  2. has pledge allegiance to a foreign state or power;
  3. holds, or is acting in, any public office;
  4. has been declared bankrupt (bankruptcy is undischarged) by law in any part of the Commonwealth;
  5. is certified to be insane or legally declared to be of unsound mind;
  6. is under a death sentence of sentenced for 6 months and above including serving a suspended sentence;
  7. is disqualified from membership of Parliament or from registration as an elector or from voting at elections under any law; and
  8. holds, or is acting in or within 12 months any office the functions of which involve any responsibility for, or in connection with, the conduct of any election to Parliament or the compilation or revision of any electoral register.

 

  1. The second ground (‘holds, or is acting in, any public office’) is an interesting one and subject to a lot of debate over the years. In 2019, in the case of Kukuti-v-Attorney General2, a local member of the Choiseul Provincial Assembly commences proceedings in the High Court seeking the court’s assistance to clarify whether or not he should resign as provincial member before contesting a NGE. The case was dismissed for technical reasons.

 

  1. I hold the view that Members of Provincial Assemblies, officers directly employed by provincial governments and persons employed or holding offices in statutory bodies or state-owned enterprises are not holders of public

offices for the purposes of section 49 (1) (b) of the Constitution. Therefore, they do not need to provide evidence of resignation or leave of absence to be eligible to contest in a NGE. I believe the Electoral Commission hold the same view as evident in the recent West Kwara’ae by-election where Ivan Tonafalea an MP in the Malaita Provincial Assembly was allowed to contest without having to resign from his seat.

 

  1. The law is very clear on who is eligible to contest in a NGE. I wish to summarise what the law says.
  2. The phrase ‘public office’ is defined in section 144 of the Constitution as follows: “public office” means, subject to the provisions of the next following section, an office of emolument in the public service;

 

  1. The key elements of ‘public office’ uttered in the above provision are –
  2. emolument (salaries and wages); and
  3. an office in the public service.

 

  1. The tests for ‘public service’ are –
  2. Service of the Crown (Crown in right of Solomon Islands)
  3. Civil capacity (excluding military service); and
  4. Government (Her Majesty’s Government of Solomon Islands).

 

  1. Section 145 of the Constitution says a “public office” –
  2. include judges and magistrates, but does not include –
  3. office of Ministers, the Speaker, Leaders of Oppositions and Independent members and Members of Parliaments,
  4. members of Commissions established by the Constitution;

iii. Honiara City and Provincial Government Officers;

  1. persons holding public offices but only receiving allowances, subsistence or expenses only rather than emoluments;
  2. public officers who are on leave pending relinquishment of office or leave of absence without salary;
  3. special constables.

 

  1. Generally, persons holding public offices are appointed by the following appointing authorities –
  2. the Governor-General;
  3. the Public Service Commission;
  4. the Police and Prison Service Commission;
  5. the Teaching Service Commission;
  6. the Judicial Legal Service Commission.

 

  1. There are other appointing authorities contained in various legislations. i.e. the Commissioner of Police – who can make appointments under section 19 (2) of the Police Act 2013. Also, some State-Owned Enterprises employ public officers. The test to determine whether the position they hold is classified as or considered ‘public office’ are –
  2. whether the salaries are paid from the Consolidated Fund;
  3. whether there is an express provision that an office in that statutory body is an office in the public service; and
  4. whether the person is appointed by the appointing authorities for public offices.

 

  1. In light of the above, Honiara City Council officers, Members of Provincial Assemblies, officers directly employed by provincial governments and persons employed or holding offices in statutory bodies or stateowned enterprises are not holders of public offices for the purposes of section 49 (1) (b) of the Constitution. As such, whether they should go on leave or resign to contest an NGE is an internal matter for their employers.

Their nomination forms cannot be invalidated if they do not produce evidence of resignation or take a leave of absence.

 

  1. On the other hand, teachers, police officers (except special constables) and correctional officers, government doctors and nurses, and others whose employment is made by one of the appointing authorities for public office

holders are considered holders of public offices. Consequently, if they want to be nominated to contest in a NGE, then they must resign or provide evidence that they’ve taken leave without salary during the election period.

 

Disclaimer: This is a personal opinion of the Author, not a legal advice. If you wish to seek legal advice, consult your lawyer.

Disclaimer: This is a personal opinion of the Author, not a legal advice. If you wish to seek legal advice, consult your lawyer.

 

Editor’s note: Poa holds a Bachelor of Laws (UPNG) and a Master of Laws (ANU)

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