Chief justice blasts fellow judges in high court ruling
By Alfred Sasako
CHIEF Justice Sir Albert Palmer has used an election petition judgement to unleash a torrent of criticisms on two fellow judges – a move legal practitioners have described as unprecedented and unbecoming of the court.
It follows another incident in the High Court on Monday, April 27, when Judge Immanuel Kohouta reportedly almost threw up a tantrum in full view of members of the public who were in the chamber to hear their case that afternoon. Eye witnesses said Justice Kohouta reportedly held up a copy of a newspaper and announced he was not hearing the case because of allegations reported against him “in this newspaper” as he waved a copy in the air.
In his decision on an election petition case last Friday Chief Justice Palmer threw out all eight bribery allegations against the MP for Savo/Russell Dickson Mua Panakitasi, who retains his seat.
The Chief Justice appeared to have used the occasion to get stuck into Justice Maelyn Bird and Queen’s Counsel Justice Terence Higgins for expressing opposing views in interpreting the provisions of the new Electoral Act 2018.
Some legal observers told Island Sun the Chief Justice’s outburst against fellow judges suggests there is “deep division within the Judiciary, particularly amongst judges of the High Court” when it comes to election petition rulings.
They noted how in his judgement the Chief Justice considered Election Agents in contrast to how Justice Kohouta considered Agent in the case of Sikua versus Vokia.
“This is why a Court of Review for Election Cases should be established. Judges are making judgments based on their own likings of the law. There is no consistent application of the law on bribery and agency,” legal observers said.
In last Friday’s judgment, Sir Justice Palmer devoted the first four pages of the 14-page judgement to blast fellow judges Maelyn Bird and Queen’s Counsel, Terence Higgins.
The Savo/Russell Constituency petition took five months for a decision to be announced, making it the longest case in terms of decision time compared with other cases. Hearing of the case concluded on December 23 last year.
“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.
“I have had the opportunity to read Justice Bird’s decision in James Airahui and others –v – Peter Kenilorea Junior and Others, Civil case No. 297 of 2019 (23 March 2020), in which she expresses a different opinion, that the failure to include provisions, like section 66(1) and (2) in the new Electoral Act 2018, is a substantial omission, and so a finding of an election bribery can only be successfully pursued by way of a criminal prosecution.
“Her Ladyship went on to make a hypothetical statement that if she had found bribery established on the matter before her that she would have declined to order disqualification and invalidation of the election.
“I have also had the opportunity to read Justice Higgins judgement in Jimmy Lusibaea v. Senley Levi Filualea, in which he also referred to the difference of opinion expressed by her Ladyship and explained what the effect of repealed legislation would have: “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.
“He then went on to explain what the position of the common law has always been and its effect to elections: “that bribery to procure election in office was an offence at common law and would vitiate an election.
“What this meant is that, in the absence of legislative provision like the repealed provision, the common law would apply as the fall-back position. In Airahui, the common law position did not feature for the court found there was adequate legislative provision, which enabled it to determine the validity of an election on the grounds of bribery and or corrupt practice.
“The starting point must be the provisions of this Act, the Constitution, and any other written law that may apply, to see what must be complied with to constitute a valid election. This obviously starts with the first-past-the-post voting system (see section 6 of the Act), and so a candidate must have more votes than any other to be validly elected.
“Numerous requirements are spelled out in detail in the Act and also the Constitution, which if not complied with can result in either the election being negated or the candidate disqualified.
“For instance, in section 108(5) of the Act the Court may 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 election.
“This court is obliged pursuant to the Electoral Act 2018 and the applicable Constitutional provisions, which provides for the constitution of parliamentary constituencies, the registration of electors, conduct of elections, hearing of petitions in relation to elections, electoral offences and provisions related thereto and consequential thereupon, to determine the validity of an election where a ground of bribery or corrupt practice is alleged in an election petition.
“At paragraph 486 in Airahui’s Case, this Court said: “48. At the end of the day it comes down to the fundamental question of what constitutes a valid election and simply put, that must be an election that is done in accordance with the provisions of the Constitution, the Act and any other applicable written law,” the Chief Justice said.
Contrary to the understanding by members of the public, the Chief Justice said, “… 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,” he said.
The Chief Justice said the petition against the MP for Savo/Russell was “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.”
“These are not the same,” he said.
“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”.
“I do not need to go into the details of this for it has been amply stated in numerous case authorities,” he said, quoting the cases as reference for his argument.