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Finikaso v Ielemia [2011] TVHC 3; CC 05 of 2010 (22 March 2011)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Civil Jurisdiction

HC Civil case no 5/10

Between:

Taukalina Finikaso
Petitioner

V

Apisai Ielemia
Respondent

C Sweeney QC for petitioner
L Malifa for respondent

Hearing: 16, 17 and 18 March 2011
Judgment: 22 March 2011

Judgment

[1] The parties in this case were two of the three candidates who contested the general election for Vaitupu on 16 September 2010. Both were elected; the respondent polled the greatest number of votes and the petitioner was the second placed candidate. At the time of the election, the respondent was Prime Minister and included in his duties were those of Minister responsible for Elections.

[2] The petition seeks to have the election of the respondent declared null and void and a bye-election declared. The grounds in the petition were:

That the respondent engaged in corrupt or illegal practices such that it may be reasonably supposed to have affected the result, and his election is therefore void pursuant to section 41(2) of the Electoral Provisions (Parliament) Act.

[3] The defence case was clearly prepared on the basis of that petition. It was, originally, to be heard in late 2010 but that date had to be vacated and the present date substituted. In the meantime, other events have spawned a number of defamation actions between these parties and other Members of Parliament. Counsel in this case have also been instructed in some or all of those defamation cases.

[4] On the first day of the hearing of this petition, Mr Sweeney, for the petitioner, sought to amend the petition to include a claim under section 41(1). He proposed adding, as ground one:

That the respondent engaged in corrupt or illegal practices and his election is therefore void pursuant to section 41(1) of the Electoral Provisions (Parliament) Act;

and re-numbering the present ground as ground two.

[5] Section 41 of the Act is headed "Corrupt Practice" and provides:

(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent.

(2) Where on an election petition it is shown that corrupt or illegal payments, employments or hiring committed in reference to the election for the purpose of promoting or procuring the election of any person thereat have been so widespread that they may be reasonably supposed to have affected the result of his election, if he has been elected, shall be void and he shall be incapable of being elected to fill the vacancy for which the election was held.

[6] Mr Malifa, for the respondent, objected to the lack of notice pointing out that the petition was originally filed more than five months previously and that the inclusion of subsection (1) would substantially extend the original claim. He pointed out that all the affidavit evidence supplied by the other side including the petitioner's own affidavit dealt exclusively with events in respect of the manner in which the respondent obtained blank voter registration forms. This appeared to be widening the scope of the case and the inclusion of subsection (1) brought in the further possibility, not raised hitherto, of the election been declared void solely on the ground of corrupt or illegal practices.

[7] I allowed the amendment and Mr Malifa, after taking instructions from his client, (commendably, in view of the length of time since the filing of the petition) did not seek an adjournment. I have to say, at this point, that the failure to provide notice of that amendment and the introduction, also it appears, with little or no notice, of evidence to support it has made the trial of this action difficult, in particular, for the respondent.

[8] I appreciate that the original petition was drafted by a different lawyer and some at least of the affidavits in support appear to have been obtained by the previous lawyer. I do not know when Mr Sweeney accepted instructions in this case but, having seen the dominance attached by the petitioner the claim under section 41(1), I can only express my concern that an apparent lack of timely preparation has left Mr Malifa having to face a claim conducted to some extent by ambush. Both counsel come from overseas and this Court welcomes their assistance but, once he accepts instructions in a Tuvalu case, any overseas counsel is expected to give the same care and thought to its preparation as he would a case in his own jurisdiction.

[9] The petitioner's case is based on two separate issues. Most of the affidavits provided by each side were accepted without a need to cross-examine. Only the petitioner, the respondent and the Secretary to Government, who is also Supervisor of Elections, were cross-examined. The last was a witness for the respondent.

The Voter Registration Forms

[10] The matter of the voter registration forms was, as I have explained, the sole basis of the petition until the first day of the trial and was, consequently, the sole subject of all the affidavits tendered in the trial.

[11] The basic events from which this issue arises are not disputed. It is agreed that a practice appears to have grown up for candidates for election and their helpers to take voter registration forms to the various electors, assist them in completing them and take them to the candidate. He then takes all those forms to the Registration Officer for registration of the voters. The incidents in this case relate to Funafuti and it was not evident whether this practice is also followed on the other islands. The affidavits suggest that the thinking behind this is that many Tuvaluans will feel some loyalty or obligation to vote for the candidate who has arranged to take his registration form. As a result, the candidates marshall a number of helpers to take the forms around as early as possible on the first day of registration. There is, of course, no obligation to vote in that way and the affidavits of some of the electors stated there was no attempt to canvass their vote when the form was filled in.

[12] The forms are distributed by the election office through the Funafuti Kaupule office from the time the office opens at 8am on the first day of the registration period and the candidate's helpers collect them as soon as the office opens in order to be first to reach and fill in the forms of as many voters as possible. It was treated, in effect, as a race for which the starting gun was the opening of the Kaupule office.

[13] Prior to the general election last September there was to be general revision of the register of electors under regulation 8 of the Electoral Provisions (Parliament) Regulations. The first day of the registration period was fixed as 31 May 2010 and it was announced that voters could collect their registration forms from the Kaupule office when it opened that day. However, the respondent had obtained blank registration forms before that, on Friday, 28 May. He distributed them to his helpers on Sunday evening so they were ready at 8am the following morning to go straight off and seek out the electors. It was suggested that there had been reports of some of the helpers starting before 8am but there was no direct evidence of this and the respondent and some of his helpers in their affidavits pointed out they had been specifically told not to start before 8am
.
[14] By warning his helpers not to start until 8am, I accept that the respondent acknowledged the existence of the practice of 'racing' to register voters. He pointed out to the Court that his obtaining of the forms early and briefing of his helpers the evening before was simply sensible forward planning.

[15] When asked how he was able to do this, the respondent explained that he had sent his secretary to find a blank form filed in his office from a previous registratiion. That was done and photocopies were made.

[16] The respondent insisted that he did nothing wrong in this. The registration form is in Schedule 2 of the Act. It is a public document, as the Supervisor of Elections agreed, and can, in fact, be downloaded from the Act on the Tuvalu Government website.

[17] The petitioner's case, as put to the witness by Mr Sweeney, is an allegation that the respondent obtained these forms from the election office by using the influence of his position as Prime Minister. The respondent denies this.

[18] It appears that, although the form in Schedule 2 is in English, the election office also issues a Tuvaluan translation and the Supervisor of Elections agreed that probably more than 50% of the electors use the Tuvaluan version of the form when they register. Mr Sweeney asked the Supervisor to check the Tuvaluan form which was used by the respondent's helpers to see if they were identical to that issued from the Kaupule office. As he pointed out and the Supervisor of Elections agreed, translations from English of the same document by different people will inevitably contain some differences in the choice of Tuvaluan words. The Supervisor confirmed that those forms were exactly the same as the forms his office were issuing and appeared to be photocopies of the latter.

[19] Counsel suggests that shows that the respondent's account of how he obtained the forms is untrue. If they were obtained before 31 May 2011 from the election office, it clearly gave the respondent an unfair advantage. It showed, in counsel's words, an endeavour to cheat in the race for the favour of the electors and, by that, the respondent and his helpers were effectively running before the race had started.

The Payment of Money by the Respondent

[20] Mr Malifa's cross examination of the petitioner was principally confined to the issue of the registration forms which, as I have said, was the basis of the petition at the time his affidavit was sworn. The fresh evidence upon which the amendment of the petition was based arose from the introduction, during cross examination of the respondent, of a single paragraph in an affidavit sworn by the respondent in one of the defamation actions. Exactly when he received notice of the petitioner's intention to put that passage to the respondent in cross-examination is not clear and Mr Malifa confined his re-examination on that topic to ascertaining from the petitioner that the contents of the paragraph did not form part of the petitioner's case at the time he drafted his affidavit.

[21] Once the paragraph from the respondent's affidavit in the defamation case was put to the respondent by Mr Sweeney, it formed the dominant part of Mr Sweeney's cross examination. It reads:

"9. I received three separate transactions into my personal account of US $5000 each. The first was received around the end of 2009; the second in the beginning of 2010, and the last in mid-2010. These were requested by me of a personal friend, John Chen, to help out with people's requests for various things. These range from washing machine, airfares, school fees, monies etc., etc. I could not help them, though I very much wanted to. I know their misfortune and their plight. It happens to one, it affects us all. So I sought my friend's help and assistance. And as far as I can ascertain, there is nothing unbecoming in this. If it was wrong, I made it with the best and honest intention there was nothing illegal and or unlawful to ask a friend to help the people."

[22] Under cross examination, the respondent maintained that position. He insisted that he had asked for money from John Chen as a friend in order to pay people in need. He explained that any Minister or politician in Tuvalu is frequently asked for, and expected to give, gifts. The money was used for that purpose only and was not used to assist him with his election expenses. He pointed out that, whilst he accepted that some of the recipients were likely to have been in his electorate, that was no more than an inevitable consequence of the fact the money was distributed generally to people in need. He pointed out that he had made no secret of the money; it had been paid into his normal account and was then used for the payments he described. He did not use it for himself.

[23] Mr Sweeney challenged him about his motives and the propriety of his actions. The respondent agreed that John Chen's company was involved in a very substantial joint venture with the government of Tuvalu. He accepted that it was impossible to know whether the fact he was Prime Minister was, in fact, the real or any part of the motive for John Chen's generosity. He denied, however, that there was any need for Mr Chen to curry favour with the government because the joint venture agreement had been signed long before these payments.

[24] The respondent told the Court that he considered it was honest and had been done in a transparent manner. He said people come asking politicians all the time. These were unemployed people and they needed it very urgently. He explained that John Chen had been to Tuvalu and his generosity stemmed from his good understanding of the plight of these people.

[25] Counsel asked him whether he had thought of having the payments cleared by someone such as the Auditor General and the respondent acknowledged he had not done that or even thought of doing it. "It is" he said "tradition in Tuvalu and that is what I was doing. To take money illegally would be wrong."

The Burden and Standard of Proof

[26] Counsel for the petitioner suggested that, in respect of subsection (1), the burden lay on the petitioner to prove the payment of money to electors and the manner in which it occurred. Once that has been done, he suggests, the burden shifts to the respondent to show that the payments were not corrupt or illegal. I do not accept that is the correct position. The burden is on, and remains on, the petitioner to prove that the respondent committed a corrupt or illegal practice in connection with the election. The burden does not shift to the respondent.

[27] I am not aware of any authority which offers guidance as to the standard of proof required. However, any allegation of corrupt or illegal practices is clearly an allegation of an act in the nature of a criminal offence. I am satisfied that the party making such an assertion must prove it to the criminal standard by satisfying the Court beyond reasonable doubt.

Section 41(1) and (2)

[28] Although both subsections require proof of corruption or illegality, subsection (1) is directed only at the candidate or his agent. Such actions in connection with the election, if proved, are so serious that they invalidate the election whether or not they affected the result. Subsection (2) covers corrupt or illegal payments, employment or hirings committed in reference to the election and for the purpose of promoting or procuring the election of any person. If proved it will only render the election of that person void if such practices were so widespread that they may reasonably be supposed to have affected the result.

[29] Although the second ground of the petition refers to subsection (2), the whole thrust of the petitioner's case is clearly directed at subsection (1). If the petition is to succeed, the Court must be satisfied, on the evidence, that some form of corrupt or illegal practice was committed by the respondent in connection with the election. Mr Sweeney submits that either of the principal allegations -- that he used his official position to his personal advantage in order to obtain the forms before any other candidate was able to do so or that he improperly requested, received and paid the money to gain votes-- was a corrupt or illegal practice by the candidate himself. If that is proved, the possible effect on the result of the election becomes irrelevant.

[30] Equally, it is plain that, if he does not succeed on those, there is no question of pursuing any remedy under subsection (2) as no evidence has been led of any possible effect on the result.

Conclusion

[31] I shall take the two limbs of the petitioner's case in the same order as above..

(a) The Voter Registration Forms

[32] Counsel for the petitioner suggests that, by obtaining the registration forms early and thus stealing a march over the other candidates, the respondent gained an unfair advantage. If that was achieved by the misuse of his position as Minister responsible for elections, it will amount to a corrupt practice in connection with the election. I make it clear that I do not consider the fact that his helpers were able to start at 8 o'clock without waiting to collect the forms amounts, on its own, to an illegal or corrupt practice.

[33] As I have stated, the fact these forms were obtained prior to 31 May 2010 is not disputed. The issue is the manner in which it was possible for the respondent to obtain them early. The evidence shows that the result of the early possession of the forms enabled the respondent to brief his helpers in advance so they were ready to start approaching the electors at 8am and thus jumping the gun on their competitors who were unable to start until they had their forms from the Kaupule office. I have already referred to the fact that, despite references, in some other petitioner's affidavits, to information that voters had been approached before eight o'clock, there is no direct evidence that occurred. The direct evidence from the helpers was that they were told not to start until eight o'clock and complied with that direction.

[34] The respondent's case is that the law makes no provision for the first date on which the forms can be obtained. Whether or not a practice has grown up of waiting for the doors of the Kaupule office to open in order to reach the electors first, the law makes no such provision. I accept the respondent's contention that these are public documents and there is nothing in the law to prevent a candidate making copies, if he has one to copy, in advance of their first release from the Kaupule office. Indeed there is nothing to prevent any voter who has a copy of the form from filling it in when he wishes. The critical requirement for each elector is to ensure he registers in time. The registration period is just that - the period during which the registration must take place. The Act makes no mention of the time for collecting the forms.

[35] The law simply requires the returning officer to publish a notice stating the final date for receipt of applications for registration and for all eligible electors to register before that within the registration period. The Returning Officer's notice is Form C in the Regulations. The evidence in general shows that it would have indicated, in the present case, that the period was to run for 21 days from the stated date, namely 31 May 2010.

[36] The Supervisor of Elections confirmed the practice of all waiting for the opening of the office in order to collect their forms as soon as they could. He agreed with Mr Sweeney's suggestion that, if one candidate receives his forms early, it would give him an unfair advantage. Whether or not such an advantage would be unfair is a matter for the Court and, I am satisfied that, if the forms are obtained lawfully, any advantage gained thereby would not be unlawful and there is no merit, in terms of the law, in the Supervisor's or any other candidate's claims of unfairness.

[37] Thus, as counsel has emphasised, this aspect of the case turns solely on whether or not those forms were obtained by the respondent by an improper use of his position. The lynchpin of the petitioner's case on that is the fact that the Tuvaluan translations of the form used by the respondent's helpers is clearly identical to that issued by the elections office and must, therefore, have been copied from the same original.

[38] In cross-examination, the Supervisor of Elections agreed that the forms, both English and Tuvaluan, must be approved by him before registration starts, presumably as part of his duty as Secretary to Government, under regulation 4(a), to exercise general direction and supervision over the administration of elections. He told the Court it was done in the present case.

[39] A requirement of approval before each fresh registration does not, however, necessarily mean it has changed since the last approval. There was no evidence of when the form in Schedule 2 was translated from English and there was certainly no suggestion that the election in September was the first time a Tuvaluan version of the form had been used. The opinion of the Supervisor of Elections that usually more than 50% of the electors used the Tuvaluan form could suggest this was not the first time a translated form had been provided.

[40] The Act, including Schedule 2, has been in force since 1980. A general revision of the registers must take place not less frequently than once every four years. The Court was not told how many have taken place since 1980 but it must be in excess of seven. No doubt there has been an approval of the forms each time. It is quite clear that the English version must comply with Schedule 2 so the approval of that form is a largely a formality. If a Tuvaluan version has been successfully translated, used and approved in previous elections, I fail to see why its approval would be any less of a formality. However, the burden is on the petitioner and there is no evidence either way.

[41] I note that both the English and Tuvaluan forms have the year 2010 printed where the voter writes in the date of signing the form. However it is expressed in numbers and so the point made by counsel for the petitioner about the Tuvaluan wording cannot apply to that. To correct such a figure from a previous form would be a matter of a moment on a computer. The point was not put to the respondent. There would be nothing remarkable for copies of the forms used in an election to be retained in the files of the office of the Minister after the election. If so, the Respondent's account of successfully sending his secretary to look for one is credible.

[42] On the evidence before me, I am far from satisfied that the respondent misused his authority to obtain the form early or, indeed, that they came from anywhere but his own office. In the absence of such evidence, the petitioner has failed to prove any corrupt or illegal practice in relation to these forms.

(b) The Payments by the Respondent

[43] The petitioner's case on this aspect of the case depends entirely on the evidence of the respondent as set out in paragraph 9 of his affidavit and his answers to Mr Sweeney in cross-examination. It would appear that this issue only came to the attention of counsel so shortly before the start of the trial that it was raised for the first time in an oral application to amend the petition. It is not mentioned in any of the affidavits in this case and there has been no attempt to introduce evidence of these events from any other source.

[44] Documents produced in this trial also reveal that a complaint against the respondent was made to the police and the Supervisor of Elections by the present petitioner and by another Member of Parliament but those complaints dealt only with the matter of the registration forms and made no reference to these payments.

[45] Thus the evidence, although challenged, has all come from the respondent. That does not prevent the petitioner pursuing the issue in order to prove his complaint under subsection (1). He must prove that the way the respondent dealt with this money amounted to a corrupt or illegal practice and that such practice was in connection with the election.

[46] As counsel for the petitioner correctly points out, it is frequently not possible to produce direct evidence of motive and it may be, perfectly properly, proved by inferences drawn from the evidence as a whole. It is sufficient if the court is satisfied that the respondent, when he asked for and received the money and/or when he made any payment or gave any gift to an elector, did so with the intention that it would induce a vote in his favour. He suggests that the evidence from the respondent of the juxtaposition of timing between the use of the money and the election shows that the respondent intended and expected a vote in return as a tacit quid pro quo.

[47] His case is that each of the acts in respect of the money, namely the solicitation, the receipt and the payments to electors, was done in connection with the election and was a corrupt act both in itself and as part of the overall transactions. Mr Sweeney submits that the solicitation was in connection with the election because it was the means used by the respondent to obtain money to pay the electors; the receipt was in connection with the election because it provided the money needed to pay the electors and the payment to the electors during the period after the election had been called and before the election was all too clearly payment in connection with the election.

[48] The respondent's evidence in paragraph 9 of the affidavit was that he received three payments from John Chen only the last of which was within the period between the calling of the election and polling day. He also agreed in cross-examination that he received a similar payment from a Japanese NGO although the date of this was never established in evidence. Although he accepted the proximity to the election of the third payment from Mr Chen, his case in respect to all four payments is that they were used by him to satisfy the expectations of him in his capacity as Prime Minister to help people in need. He acknowledges that, inevitably, some of the recipients must have been members of his electorate.

[49] It is widely known, and I accept the respondent's evidence of the fact, that politicians and other prominent citizens are frequently expected to make such payments. It is also a matter of general knowledge that such payments are frequently the result of direct requests and much of the respect he receives from the community as a whole stems from his ability to respond positively. It may well be that, in modern times, the undoubted customary basis for such requests is being largely superseded by more mercenary considerations.

[50] Politicians, in particular, are frequent targets of such requests and every politician must know that, if he is to have any chance in any subsequent election, he cannot ignore such requests. They form part of his general reputation and are, therefore, not limited to the members of his electorate. Generosity at any function he attends is noticed and will add to his stature in the eyes of the general public. I do not accept that any politician is unaware of the need to maintain his public image and of the part public displays of generosity play in this. That means that any candidate in an election must tread a fine line during the election period between maintaining his previously acquired reputation for generosity and giving ground for allegations that any gift or payment was being made to obtain votes.

[51] Many jurisdictions prescribe strict limits on the conduct of candidates once an election has been declared. It is unfortunate that such clear guidance is not given in the law of Tuvalu. It seems likely that a clear and total ban on such activity would relieve candidates of the difficulty and make it much easier to demonstrate that actions in breach of that ban are, in consequence, corrupt.

[52] However, the court must measure the evidence of these payments against the present background. It must determine whether it has been proved that the payments were not just made to electors during the election period but that, when they were made, those payments were in connection with the election. The phrase "in connection with" is wide but the petitioner needs to prove, in the present case, that they were made in order to induce the recipients to cast their vote for the respondent.

[53] The petitioner's case is that the whole manner in which the respondent asked for, obtained and distributed this money must inevitably drive any reasonable observer to the conclusion that he needed the money to bribe voters. It was for that reason he solicited it from Mr Chen, did not declare the receipt of it and paid it to people in his electoral district.

[54] Much of Mr Sweeney's cross examination of the respondent was directed to the question of whether the receipt by the respondent, as Prime Minister, of such gifts was in itself corrupt. He questioned the witness closely on whether it breached the general obligations of leadership in section 17 of the Leadership Code Act. That Act, although passed in 2006, has not been effectively implemented but the Court accepts that its contents undoubtedly suggest the type of conduct the public is entitled to expect from its leaders.

[55] Faced with those questions, the respondent admitted his conduct fell short of that standard in many aspects of conflict of interest and disclosure. His answer had repeatedly to be that he had acted in a way that was expected of politicians in Tuvalu both by custom and generally accepted practice. He insisted that, although he did not tell everyone, he had made no secret of the source of this money, he had made no attempt to hide his receipt of it and had throughout acted honestly and transparently.

[56] Had the third payment by Mr Chen been the only such payment, I accept there would be strong foundation for an adverse inference. However, that was not the evidence. The respondent spoke of two earlier payments from Mr Chen which were well before the election period and one from Japan about which there is no evidence to suggest it was paid during the election period. His case is that the third payment was one of a series all of which were obtained, received and distributed in the same manner. The third payment from Mr Chen, although it fell within the election period, was treated no differently from the others. All those funds, he told the Court, were treated in the same way as part of his normal conduct as Prime Minister.

[57] I accept Mr Sweeney's submission on the undesirability of a Minister, and particularly the Prime Minister, accepting gifts from someone intricately involved in business with the Government. There is always in such circumstances, a strong possibility that the motive of the donor is to obtain an advantage through his dealings with a senior member of government. The respondent could only say, when faced with that proposition, that he approached Mr Chen each time honestly to help others in need.

[58] Even if this Court reached the conclusion that these payments were corrupt in that sense, the petitioner must establish that they were used in connection with the election. It is not sufficient, as I have stated, to demonstrate that the payments were within the election period. It must also be proved that the intention of the payments was to influence the recipients in the way they cast their vote. Suspicion is not enough and proof must be beyond reasonable doubt that the only proper inference is that these payments were corrupt and carried out in connection directly with the election.

[59] I do not accept that standard of proof has been reached. I accept the evidence of the respondent that payments of this nature, in particular to people in need, is part of the accepted conduct of a Member of Parliament. That claim is supported, in the respondent's favour, by the fact that there were earlier similar payments before the election period.

[60] I note that the manner in which this money was dealt with by the respondent through his personal bank account, intermingled with his private funds and without any accounting procedure was improper but, as the respondent stated, it was done without any attempt to hide its source. I accept that gives some support to his claim to have acted transparently as does his evidence that, in some cases, the recipient was told of the source of the funds and the fact that the details of these funds, their source and their destination, came entirely from the respondent's own affidavit.

[61] As I have already mentioned, Tuvalu has reached the stage where some matters of custom and many aspects of long accepted local practice are now conflicting with modern expectations of transparency and integrity in community leaders and, in particular, politicians. Every year, and each election, makes it more difficult to draw the line.

[62] I have found this a borderline case. With the continued increase in contact with other countries both politically and commercially, expectations of what constitutes proper conduct in public office will make defence claims, such were made in this case, of a "Tuvaluan way" increasingly difficult to maintain. It will be particularly unfortunate if the failure of this petition is taken as an indication that the manner in which these funds were received and used is acceptable practice in general. The result means only that they did not, in this case, breach the requirements of section 41(1).

[63] There is an urgent need for clear guidelines in the legislation for the conduct of politicians, not just at elections, but in the way they generally conduct themselves as Members of Parliament. The answers by the respondent when confronted with the terms of the Leadership Code Act show the necessity for such legislation to be brought into effect without delay.

[64] The petition is dismissed with costs to the respondent. I direct that the decision shall be certified in writing forthwith to the Minister responsible for Elections in accordance with section 56(2) of the Electoral Provisions (Parliament) Act.

Dated 22nd day of March 2011

Hon. Gordon Ward
CHIEF JUSTICE