By Alfred Sasako
THE absence of section 66(1) in the new Electoral Act 2018 is reportedly having a demoralising effect on lawyers who have lost their clients’ election petition cases, it was revealed on Sunday 12th April.
“The omission of this particular section places lawyers in a very difficult position because under the current legislation the court is powerless to invalidate election victory.
In her judgement on the Peter Kenilorea Junior v others last month, Justice Maelyn Bird said the omission by Parliament to include an equivalent to section 66 in the repealed Act is unexplained, describing the omission as “substantial …”.
The Solomon Islands Electoral Commission has admitted the omission was “an error, which has slipped through unnoticed until now.”
The Chief Justice in his earlier ruling in the Peter Kenilorea Junior’s case said “… the omission by the legislature to include like provisions of sections 5, 9 and 66 of the repealed Act should be considered for review.”
“This means that there is no clear answer to this issue,” the Chief Justice said.
Justice Maelyn Bird said, “… I am of the view that this court cannot go further than what is provided for in s.129 of the current Act.”
“It is further my respectful view that the court cannot and should not make laws. We use and construe the law as it is. If there are substantial omissions and mistakes in our laws, it is for Parliament to correct them.
“In view of the above discussions, I hold the view that the allegations of bribery against the First Respondent (Peter Kenilorea Junior) even if proven, (do) not entitle this court to invalidate the election of the First Respondent,” Justice Bird said.”
According to one lawyer, the new electoral law “is demoralizing not only for lawyers but their clients as well. Good lawyers take on a case because they know they could win it. And clients are willing to pay because of the assurance by their lawyers that their cases are winnable.”
“Election petition cases are not cheap and lawyers take on cases based on evidence they had obtained from their clients as well as the confidence that the materials they have collected make for a winnable outcome.
“This unfortunately has not happened in the election petition cases against winning candidates this year except for winning candidates John Moffat Fugui and Jamie Vokia,” the lawyer said.
Contrary to arguments by other judges to stick to the current law, it was s.66(1) of the National Parliament Electoral Act which has been repealed that was used to remove them from Office.
Both men are questioning the constitutionality, hence the lawfulness of the action by the judges. The Court’s application of s.66(1) has prompted calls for the judges involved in the questionable decision to either resign or be suspended for allegedly bringing the integrity of the High Court into disrepute.
Registrar of the High Court, Myonnie Tutuo, said last week the matter had been dealt with.
“The fact of the matter is that the two men were removed by a provision of an Act which no longer exists. How could this be possible,” one lawyers said.