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Sopoanga v Attorney General [2007] TVHC 2; Civil Case 4 of 2006 (26 October 2007)

IN THE HIGH COURT IN TUVALU
AT FUNAFUTI
Civil Jurisdiction

Case no. 4/06

Between:

Saufatu Sopoanga
Applicant

And:

Attorney General
Respondent

BEFORE THE HIGH COURT

J Grover for applicant
S Earl for respondent

Hearing: 24 October 2007
Judgment: 26 October 2007

Judgment

The applicant was a Member of Parliament for Nukufetau from 2000 to 2006 but was an unsuccessful candidate in the election in August 2006. This action started as an election petition but, in October 2006, the petition was withdrawn and the Court ordered that the issues raised should be pursued by originating summons and set a timetable for submission of affidavits.

This is an application for leave to file affidavits out of time and to proceed with the substantive hearing. The failure to file time was the result of the unscheduled departure for personal reasons of the former People’s Lawyer and the delay in appointing the present holder of that position. There is clearly no blame to be attached and counsel for the respondent does not oppose the application. I have given leave to file out of time and also to amend the originating summons. The respondent has not sought to file any affidavits in response.

The amended originating summons seeks clarification of three principal issues; the obligations and powers of Revising Officers and Commissioner of Elections; the eligibility requirements for electors; and the legality of a gift given during (or in close proximity to) election campaigning.

The first topic relates specifically to the procedures under which the Revising Officer deals with objections to the names of electors.

The applicant seeks declarations:

1. That the Revising Officer is required by the Electoral Provisions Regulations (1980) to hold a public enquiry into objections to applicants for registration as electors;
2. That the Revising Officer, in cases where the applicant is relying on criterion 3 of the registration "test’, is first required to assess whether the applicant owns land in another electoral district, and whether the applicant participates in the activities of the indigenous community of that other electoral district;
3. That this assessment requires evidence to be presented to the court;
4. That the onus of proof at the public enquiry rests on eh applicant;
5. That the decision of the Revising Officer to uphold or dismiss an objection is reviewable by the Commissioner of Elections who is the Secretary to Government; and
6. In the alternative, that the decision of the Revising Officer is subject to judicial review before the election.
   

The Regulations referred to are those made under the Electoral Provisions (Parliament) Act, Cap 102.

Section 5 of the Act deals with registration of electors:

5. (1) For the purpose of this Ordinance and section 90(1) of the Constitution, there shall be register of electors for each electoral district.

(2) Every person who is a citizen of Tuvalu and has attained the age of 18 years and who is not disqualified under the provisions of section 92 of the Constitution shall be entitled on application to be registered on the electoral register of his home island.

(3) A person’s "home island" shall be the electoral district which he states to his home island in an application made by him to be registered as an elector but a person may state an electoral district to be his home island in such an application of and only if –

(i) he owns land in that electoral district and actively participates in activities of the indigenous community of that electoral district; or

(ii) he has in the three years immediately preceding the date of his application resided in that electoral district for not less that two years and actively participates in the activities of the indigenous community of that electoral district; or

(iii) in the event that there is no electoral district that the person can state is his home island under paragraphs (i) and (ii) of this subsection he chooses that electoral district to be his home island.

(4) Any application for registration under this section shall be in the form set out in Schedule 2 to this Ordinance.

The Form in the Second Schedule is headed ‘Application for Registration as an Elector’ and requires the applicant to select from three criteria following the provisions of subsection (3) (i) – (iii):

"The electoral district is my home island because –

1. I own land there and I actively participate in the activities of its indigenous community.
2. I have resided there for not less than 2 years in the 3 years preceding the date of this application and I actively participate in the activities of its indigenous community.
3. None of the above numbered 1-2 apply to any electoral district in Tuvalu and I state it to be my home island."
   

Regulation 5 provides for the appointment by the Minister of a Registration Officer for each electoral district who shall be responsible for the preparation, maintenance and revision of the Register in that district and who is responsible for publishing a notice of any registration period during which applications may be made; regulations 8 - 10.

Revising Officers are also appointed for each electoral district by the Minister; Regulation 6.

Within no more than 14days from the end of the registration period, the Registration Officer must publish the list of applicants and keep it displayed for at least 7 days; Regulation 13. Any person who is omitted from this list and any person on the list or whose name is already in the register who wishes to object to the inclusion of any other name may object on the prescribed form within 10 days of the publication of the list; regulation 14 (i) and (ii).

The prescribed form (Form F) sets out the entry:

"I object to the inclusion of the name ................ in the list for the following reason:-" and there follows a space for the reason to be stated.

The Registration Officer must compile a list of all objections and, within 7 days of the expiry of the 10 day period in regulation 14, deliver a copy of the list and all original notices of objection to the Revising Officer and publish a copy of the list of objections; regulation 15.

The duties of the Revising Officer then are set out in regulations 16 -18:

"16. On receipt of any list in accordance with Regulation 15 the Revising Officer shall:-

(a) fix a date within 10 days of receipt of the list for the holding of a public enquiry into the objections; and
(b) give in such a manner as he considers appropriate not less than 6 days notice of the time and place where the enquiry is to be held to the objector or objectors concerned and to any applicant or applicants concerned; and
(c) publish notice of the public enquiry.

17. The Revising Officer on the hearing of the public enquiry may:-

(a) received evidence on oath and for this purpose is authorised to administer oaths; and
(b) consider any representations in writing or by telegram supplied to him by any objector or applicant involved provided that such representations are read out aloud at the enquiry; and
(c) conduct the hearing in such manner as he deems fit.

18. (i) The Revising Officer shall at the conclusion of the enquiry either dismiss or sustain the objection and shall:-
    • (a) state his decision orally; and
    • (b) deliver a signed notice in the form set out in the Schedule to these regulations (Form G) of his decision to the Registration Officer within 3 days of the conclusion of the enquiry; and
    • (c) publish by notice a copy of the signed notice sent to the Registration Officer; and
    • (d) deliver or cause to be delivered a copy of the notice sent to the Registration Officer to any objector or applicant concerned.

(ii) The signed notice ... shall include a direction to the Registration Officer to add or delete to or from the list of applicants the name of the person to whom the objection relates or a direction that in respect of that application the list of applicants is to remain unchanged."

It really only needs to set out the law to see that the answer to the first, third and fourth declarations sought must be "yes’. It is worthy of note that the hearing cannot be conducted until, and only when proper notice is given as required by regulation 16. Failing proper compliance with that provision, the meeting will not be public or lawful.

Although regulation 17 gives the Revising Officer considerable discretion in the manner in which he conducts the hearing, he is, as is any judicial or quasi judicial tribunal, subject to the requirements of natural justice. Whilst he is given a discretion as to the form in which the evidence is given he must allow both sides a proper opportunity to present evidence and to be heard. Equally he must base his decision on the evidence and act within the grounds of reasonableness. Anything less than this will render the proceedings void.

In respect of the second declaration, the answer must also be ‘yes’ if the objection is to the use by the applicant of the third criterion on the application for registration as an elector. In such a case the applicant who selects the third criterion is, by that selection declaring that he does not own land in any other electoral district.

The first two criteria clearly related to the electoral district in which registration is sought but that I not the case in the third criterion. The wording clearly requires a declaration that the terms of the first two criteria do not apply "to any electoral district in Tuvalu".

Thus, in considering any objection to an application which uses criterion three, the Revising Officer must ascertain whether the applicant owns land in any other electoral district in Tuvalu or whether he has resided in any other electoral district in Tuvalu for two of the three years immediately preceding the application. If the evidence shows that must be answered in the affirmative, he must sustain the objection and direct the registration officer that the name is to be deleted from the list.

Counsel have not been able to demonstrate any basis for the fifth declaration and I decline to make it.

The sixth may apply in part. Any person aggrieved by a decision of a tribunal acting in a judicial or quasi judicial role may challenge the proceeding by judicial review. However, as the purpose of such review is to control the manner of the decision making and not the merits of the decision (unless it is unreasonable within the Wednesbury sense), such a review would only be appropriate in a case where the Revising Officer has failed to follow the procedures in the Regulations or has failed to act in accordance with the ‘rules’ of natural justice. It cannot otherwise challenge his decision as such. Whether any such review must be held before the election will be a matter for the High Court and there is certainly no such right.

I note that there is no provision on Form G, the form on which the Revising Officer gives notice of his decision to the Returning Officer, for the reasons to be stated. That is understandable because Form G is only an advice of the result to enable the Returning Officer to take the necessary action.

The Revising Officer is, of course required to make his decision on reasonable grounds and the requirements of natural justice mean he must be prepared, if requested at the time he states his decision orally under regulation 18(1)(a), to state his reasons if asked by either party. If the proceeding is the subject of judicial review, the High Court may order that he give a written statement of the reasons for his decision.

The second initial issue questions the eligibility requirements themselves and the following declarations are sought:

7. That a person who "owns land" in one electoral district, and who "participates in the activities of the indigenous community" in which the land is situated is not eligible to register as an elector for a different electoral district.

8. That the requirement to be "participating in the activities of an indigenous

community" requires a person to be contributing, either financially or otherwise, to that community.

.9.That, for the purposes of the registration test, a person "owns land" if that "land" is owned by their spouse, and their spouse if living."

The answer to the seventh declaration is clearly ‘yes’ for the reasons I have already set out.

The answer to 8 is also obviously affirmative but requires me to clarify that a person may participate in the activities of a community without any contribution of tangible goods. The contribution otherwise than financially may take the form of gifts to the community or involvement in activities which are part of the life of that community. Evidence that a person actively and conscientiously sweeps the paths in the village may make that person as active or more active a participant in the activities of the community as a person who does no more than pay what he sees as his due in cash.

I have not heard sufficient argument to make the declaration in number 9. However, I would suggest that, if the proposition is correct, it may lead to rights to vote in more than one community for married couples.

The last group of issues questions the limits of appropriate giving of gifts as an election approaches by, or publicly for, a candidate. Such cases rely their own circumstances and it is not possible on the information included in the declarations to give a definitive answer. Should any such question arise in an election, the remedy will lie in an election petition.

In an extreme case consideration might be given to the possibility of prosecution for bribery of treating under the Act.

Therefore I made the declarations sought in paragraphs 1, 3, 4 and 7.

I make the declarations sought in paragraphs 2, 6 and 7 subject to the qualifications I have set out above.

I decline to make the declarations sought in paragraphs 5, 9, 10, 11 and 12.

Dated: 26th day of October 2007

Chief Justice