Chief Justice Sir Albert Palmer ordered that the election petition filed on 20 May 2019 seeking orders to have Ms. Comua disqualified as MP for Temotu Vatud Constituency be dismissed.
“I am satisfied accordingly that the legal issues raised for determination, in this case, can now be answered as follows;
“The Respondent is not disqualified for five years from:
(I) Being registered as an elector;
(II) Being able to vote at an election;
(III) Being elected as a member of the National Parliament of Solomon Islands
(IV) Being able to retain her seat in the current parliament and
(V) Being nominated as a candidate for election.
The petition was filed by Andrew Mua who challenged the validity of the election of Ms Comua solely on legal grounds.
Mua was the runner-up candidate with 770 votes at last year’s National General Election.
Ms. Comua polled 1,344 votes.
Sir Albert said the sole ground relied on the alleging ineligibility to contest in the 2019 national elections is premised on the submission that Comua having been disqualified in the case of Clay Forau v. Freda Tuki Comua and Attorney General in 2018.
“...... and by virtue of the provisions of section 76 of the now repealed National Parliament (Electoral Provisions) Act [Cap.87] (“the Repealed Act”), her disqualification ran for five years, from the date of judgment as read with sections 50(f) and 49(1) (f) of the Constitution of Solomon Islands and section 64(2)(a)(ii) of the Electoral Act 2018.
“She is therefore prohibited from contesting in the recent elections.”
Ms Tuki in response argued to the contrary that she is not prohibited from contesting which position is supported by the Attorney-General as amicus curiae.
In 2018, Tuki was found guilty of bribing and treating voters during the campaigning and voting period in 2014.
Clay Forau who was the runner candidate in 2014’s election filed the petition against Comua.
Sir Albert said the issue for determination, in this case, is one of law and turns on the interpretation of the relevant provisions, principally section 76(a) and (b) of the repealed Act and determination of the effect of a finding of corrupt or illegal practice in an election petition case.
He questioned if there is a difference between a criminal conviction as opposed to a finding of corrupt or illegal practice by Comua in a civil proceeding such as an election petition and the effect in both.
“In other words, is a finding of corrupt or illegal practice by the Court in the Civil Case 455 of 2014 the same as or equivalent to a criminal conviction under section 76(a) and (b) of the repealed Act and attracting the same penalty stipulated in that section?
“If the answer is yes, then the submission of the Petitioner will prevail, if not it should be dismissed,” he said.
Sir Albert said it is important to distinguish between a civil proceeding as opposed to a criminal proceeding for their effect is not the same.
He added that what is perhaps not so easily understood is the difference between an Election Petition as a civil proceeding and not a criminal proceeding as they are not the same thing.
“The part which seems to cause confusion in election petitions and which appears to have occurred in this case as well is where the petition seeks invalidation of an election on the grounds of corrupt or illegal practice.
“The erroneous assumption appears to be that bribery being an electoral offence with an element of criminality in the proceedings would attract a criminal penalty where a finding of bribery is established, is similar to a criminal court finding an accused guilty of bribery and imposing a criminal penalty,” Sir Albert said.
He added that this is where the two proceedings diverge.
Sir Albert further explained that an election petition is not a criminal proceeding for the court is not being convened as a criminal court exercising criminal jurisdiction.
“This distinction cannot be stated more clearly than in sections 83 and 85 of the Repealed Act.
“The new Electoral Act 2018, this is expressly set out in section 111 (4) (a) of the said Act and as read with Rule 51 of the Electoral Act Petition Rules 2019,” he added.
Sir Albert said the declaration in sections 83 and 85 cannot be any clearer, that an election petition is a civil proceeding and not a criminal proceeding.
“This can only mean that (“Civil Case 455 of 2014)”, presided over by Justice Faukona, was not a criminal proceeding, that much is clear.
“It follows that any consequential orders imposed by the Court in the event of a finding of corrupt and illegal practice, do not attract the imposition of the penalty provisions in section 76 of the Repealed Act which penalty is reserved for a criminal conviction.”
He said to do otherwise would be to imbue the court, sitting in its civil division or capacity with powers it did not have.
“It matters not that the grounds raised in the election petition were to do with the electoral offence of bribery.
“The fact remains that while the court was inquiring into the validity of the election on the grounds of corrupt and or illegal practice being committed, it was not doing so in its capacity as a criminal court which would have been the case if a complaint had been lodged with the police and the matter investigated and prosecuted as a crime.
“The result being that once a finding of corrupt or illegal practice had been established against the respondent, the court is obliged pursuant to section 66(I) of the Repealed Act to declare her election invalid,” he said.
Sir Albert said apart from the orders made by Justice Faukona in 2018 which resulted in the disqualification of Ms. Comua, the court did not have power to impose any additional punishment set out in section 76 of the Repealed Act, being order the disqualification of Comua for a period of five years.
He said the power to impose additional punishment set out in section 76 is reserved for a conviction by a criminal court.
“It is wrong therefore to suggest that a finding of a corrupt or illegal practice under section 66(1) of the Repealed Act is equivalent to or akin to a criminal conviction.
“It is the finding of a civil court on the higher civil standard of proof but does not equate to a criminal conviction.
“There is simply no basis or authority for it.
“The legislation could not be clearer as to what class of division an election petition falls under.”