Election petition is not about proving guilt of a candidate: CJ

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CHIEF Justice Sir Albert Palmer has highlighted in his ruling on Friday 1st May on the petition case against Member of Parliament for Savo Russell Dickson Mua that an election petition is not about proving guilt of a candidate.

Sir Albert said section 126 of the Electoral Act 2018 does nothing more than define the offence of bribery as it relates to elections, an election petition therefore can only assert that the election of a candidate was not valid and will do that in the exercise of its civil jurisdiction, as opposed to inquiring into the offence of bribery in its criminal jurisdiction.

Sir Albert explained that the election petition filed by Oliver Noll Salopuka against Dickson Mua Panakitasi on May 17, 2020, alleges that the Respondent is “guilty” of eight grounds of bribery by himself and or by his agents, and relies on the provisions of section 126(1)(2)(iii)(sic) of the Electoral Act 2018 to have the election invalidated. This petition was amended on 6 September 2019 and further amended on December 16,2019.

Counsel should not confuse the process in determining an election petition as opposed to proof of guilt in a criminal prosecution. Proof of guilt in a criminal prosecution is of a higher standard, while proof of bribery in an election petition is lower than the criminal standard but higher than the civil standard of ‘balance of probabilities,” Sir Albert said.

He said as amended the petition relies on the provisions of section 126(1)(a)(b)(ii) and section 126(1)(a)(b)(iii) for the allegations of bribery. It is important to point out from the outset that relying on proof of “guilt” of a candidate under section 126 of the Electoral Act 2018 to invalidate an election is not the right way of going about an election petition.

“This is not a criminal proceeding, and an election petition is not about proving guilt of a candidate. Section 126 of the Electoral Act 2018 does nothing more than define the offence of bribery as it relates to elections. An election petition therefore can only assert that the election of a candidate was not valid and will do that in the exercise of its civil jurisdiction, as opposed to inquiring into the offence of bribery in its criminal jurisdiction”, Sir Albert said.

Sir Albert explained that the legislative intention is not hidden for it can be ascertained by viewing the committee reports and debates of Parliament as contained in the “Hansard Reports or Transcripts”, when the particular clause(s) were debated in detail (if any) in Parliament. Judicial notice can be taken of the legislative history of the Act and all facts constituting the subject-matter of the Act.

“I have had the opportunity since, to inspect the debates on Hansard, on the clauses covering Parts 8 and 9 of the Act, on “Election Petitions” and “Electoral Offences”, but found nothing to suggest, that the omission was deliberate and intended by Parliament to confine the consequences of bribery and corrupt allegations to a criminal prosecution in section 129”, Sir Albert said.

If it was the will of Parliament to confine allegations of bribery to criminal prosecutions as the only route to invalidating an election, I do not think it would have remained so silent about such change, for the effect of such change, under Parts 8 and 9 of the Act would create a vastly different regime that requires a criminal conviction before a member can be disqualified (s. 129) and his election to be invalidated. This would amount to a major policy shift, which makes it much more difficult for alleged corrupt behavior to be investigated, proven and punished, Sir Albert said in his ruling on Friday 1st May.

Therefore, he said the current petition is defective for it merely seeks the determination of the guilt of the Respondent, when the issue before the Court should be determining the validity of the election in its civil jurisdiction on the grounds of bribery and or corrupt practice.

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