[2003] 5 LRC 665

HIGH COURT OF KIRIBATI

BETWEEN:

PATRICK TATIRETA AND OTHERS
Petitioners

AND:

ANOTE TONG
Respondent

Before: Williams Ag J

Date of Judgment: 15 October 2003

Counsel: 	David James and Jacqueline Huston for the petitioners.
Banuera Berina and John O' Sullivan for the respondent.
David Lambourne (Solicitor General) for the respondent.

High Court 

Williams Ag J 

18-23 August, 20, 22-26 September, 15 October 2003

(1) Constitutional law - Elections - Electoral law - Common law - Election of head of state and government - Election petition - Allegations of corrupt and illegal practices - Law to be applied -- Circumstances when election to be invalidated - Constitution of the Republic of Kiribati 1979, ss 32(1), (3), 56(1)(d) - Elections Ordinance, s 19.

(2) Constitutional law - Elections - Electoral law - Customary law - Election of head of state and government - Election petition - Allegations of corrupt and illegal practices - Gifts made by or on behalf of candidate at local campaign meetings - Whether such gifts made in accordance with local custom - Whether infringing electoral law - Whether rendering election invalid - Relevant considerations - Elections Ordinance, ss 3, 24 - Laws of Kiribati Act, s 5, Sch 1.

(3) Constitutional law - Elections - Electoral law - Election of head of state and government - Election petition - Alleged misleading promise to electors by candidate - Effect - Whether corrupt motive - Freedom of speech - Relevant considerations - Constitution of the Republic of Kiribati 1979, s 12(1).

After an election to the office of Beretitenti (head of state and government) held on 4 July 2003, the Chief Justice as superintendent of the election declared the respondent, Anote Tong, to have been elected. The petitioners, two members of Parliament and an elector, presented an election petition in the High Court challenging the validity of the election. They alleged, inter alia, that the respondent was guilty of corrupt practices contrary to the Elections Ordinance, Pt III and s 38 of which and certain Regulations made thereunder were made applicable to the election by the election of Beretitenti Act. The petitioners alleged various incidents, most of them involving the payment of money, mainly to village chairmen, by supporters of the respondent campaigning on his behalf at village meetings. They also alleged that in the constituency which the respondent represented in Parliament the association of old men directed the electors to vote for the respondent, with the result that of the total of 944 votes cast there, 923 were for the respondent. Millhouse CJ disqualified himself from hearing the petition 1 because of his prior knowledge of the parties and witnesses; an acting judge was appointed under s 81(2) of the Constitution for the purpose of hearing the petition. In his defence the respondent did not challenge the occurrence of the relevant incidents but submitted that some of the payments had been a made without his knowledge or authority, that some payments had been made in accordance with local custom and that, even if some of his party members had been guilty of any illegal practice, that was not so widespread as to have had any real effect on the election result.

HELD: Petition dismissed.

(1) Parliament had not provided exhaustively for the grounds upon which an election of the Beretitenti might be invalidated. It was implicit in s 32(1) and (3) of the Constitution of the Republic of Kiribati, which provided for such election, that, in accordance with the common law of elections, which had not been displaced, an election could be avoided if the voters had been denied a fair and free opportunity to elect the candidate preferred by the majority, for example, by general corruption or general intimidation, but an election would not be avoided merely because the election was tainted by bribery associated with the successful candidate. Although s 19 of the Elections Ordinance provided for the avoidance of an election in case of corruption by or on behalf of the successful candidate so extensive that it d might reasonably be supposed to have affected the result, that section was inapplicable to the election of the Beretitenti, which was governed by the Constitution. Moreover, s 56(1)(d) of the Constitution set out circumstances in which an elected member of Parliament might be disqualified from membership under any law relating to election offences, a member could not be disqualified from standing for election as Beretitenti while remaining a member of Parliament. 1f there was corruption, its effect was to be judged by the common law, although the test in s 19(2) was generally to tile same effect (see paras [51]-[54], [60], [63], [67]-[68], below). Woodward v Sarsons (1875) LR 10 CP 733 and Featherston v Tully (2002) 83 SASR 302 applied.

(2) There was no evidence that voting in the election had been corrupted: it had not been shown that the relevant payments had been requested or made with a corrupt motive, nor that they had any identifiable or likely effect upon the election result. Many of the incidents had occurred on specific islands or in villages removed or remote from other parts of the electorate and with many difficulties in communication, so that the likely effect of specific incidents could be isolated. The legitimacy of 'mweaka' a small customary payment in money or kind by visitors to the local 'maneaba' or traditional meeting house, defined by the Elections Ordinance in s 3 had been recognised by the proviso to s 24 of the Ordinance, which distinguished it from bribery where the sole intention was to show respect for local customs. There was evidence to support the custom of 'bubuti', or 'begging' for a favour, and the related custom of soliciting gifts by imposing 'fines' in the maneaba, which were relevant to explain certain of the cited incidents (although such 'fining' had been a source of several complaints in election petitions in recent years). In the outer islands the old men (unimwane) exercised traditional influence and attracted respect, their authority being backed by a system of penalties, including the imposition of fines payable in produce. In the respondent's constituency, there was nothing improper in the old men seeking to provide guidance and no evidence of oppression in their actions. (see paras [37], 1391-[431, [45]-[47], 1741 [75], [79] [83], [901, 195]-[961, below).

Per curiam. The Laws of Kiribati Act, s 5 and Sch 1, provides for the proof of customary law, allowing the court to have regard to reported cases and evidence. Customary law is to be recognised and enforced so far as it is not inconsistent with the public interest and would not result in injustice, However custom must not be allowed to be used as a cloak for electoral corruption (see para [48], below).

(3) A broadcast promise by the respondent's party of rental review and 'back pay' was unjustified but was an inadvertent misrepresentation, to be classed as a political promise and not the result of any corrupt motive; it did not affect the ability of an elector to vote as he chose. Misleading statements made to electors during an election campaign had to be carefully evaluated, but a balance had to be drawn so that freedom of speech, protected by s 12(1) of the Constitution, was not unduly restricted (see paras [56]-[57], [59], [92], below). Dicta of Isaacs J in Smith v Oldham (1912) 15 CLR 355 at 362 and of the court in Evans v Crichton-Browne (1981) 147 CLR 169 at 206 applied.

[Editors' note: Section 12(1) of the Constitution of the Republic of Kiribati 1979 is set out at para [55], below.

Sections 3, 19 and 24 of the Elections Ordinance, so far as material, are set out at paras [42], [64] and [41], below.]

Cases referred to in judgment

Bwebwenibeia v Kataotika (12 May 1999, CC 34/99, unreported), Kiribati HC 
C v Johnson [1967] SASR 279
Cameron v Becker (1995) 64 SASR 238, Aus SASC
Chanter v Blackwood (No 1) (1904) 1 CLR 39, Aus HC
Evans v Crichton Browne (1981) 147 CLR 169, Aus HC
Featherstone v Tully (2002) 83 SASR 302, Aus SASC
Hudson v Lee (1993) 177 CLR 627, Aus HC
Hutson, Ex p (1911) 11 SR (NSW) 200
Ipswich Election Petition (1886) 54 LT (NS) 619
Smith v Oldham (1912) 15 CLR 355, Aus HC
Sue v Hill (1999) 199 CLR 462, Aus HC
Teiraoi v Tamwi (13 February 2003, unreported), Kiribati HC
Woodward v Sarsons (1875) LR 10 CP 733

Legislation referred to in judgment

Australia
Electoral Act 1985 (SA)

Kiribati
Constitution of the Republic of Kiribati, 1979, ss 12(1)
Election of Beretitenti Act, s 16
Elections Ordinance, ss 2, 3, 19, 22(2), 23-26, 34, 38, 39
Elections Regulations, reg 31
Laws of Kiribati Act, s 5, Sch 1
12(1), 32, 38, 56(1)(d), 81(2)

United Kingdom 
Ballot Act 1872

Other source referred to in judgment 

Stroud's Judicial Dictionary (4th edn)

Petition

Patrick Tatireta, Katarake Tebweao and Kourabi Kamoa presented Election Petition in the High Court challenging the election of Mote Tong, the respondent, on 4 July 2003 as Beretitenti (President), seeking an order that the election be avoided. By leave of the court the Attorney General intervened and was joined as a party. The facts are set out in the judgment.

David James and Jacqueline Huston for the petitioners. 
Banuera Berina and John O'Sullivan for the respondent.
David Lambourne (Solicitor General) for the respondent.

15 October 2003. The following judgment was delivered.

WILLIAMS Ag J.

1. THE BACKGROUND

[1] An election petition presented to this court disputes the due election of the respondent on 4 July 2003 to the office of Beretitenti and seeks an order that the election be avoided. The Constitution of the Republic of Kiribati 1979 provides that there be an elected president of Kiribati who shall be known as Beretitenti and who shall be head of state and the head of government. The manner of election is regulated by the Election of Beretitenti Act which in turn incorporates certain provisions of the Elections Ordinance. The petition alleges that the election process was corrupted by illegal or irregular practices to which it is claimed that the successful candidate was a party.

[2] By my leave the Attorney General has intervened and has been joined as a party to enable him to advance argument upon questions of principle.

[3] The Constitution of Kiribati (s 32) provides for the election of the President by those entitled to vote in a general election; to this end the Constitution requires the Maneaba ni Maungatabu (or Parliament) to nominate from its own membership three or four candidates for election as Beretitenti. In the present instance the candidates for election were Harry Tong representing the Maneaban to Mauri party, Anote Tong (the respondent) representing the Boutokaan to Koaua party and Banuera Berina representing the Maurin Kiribati party.

[4] Section 38 of the Constitution deals with the conduct of elections of Beretitenti as follows:

'38. (1) The Chief justice shall have superintendence over elections to the office of Beretitenti, which elections shall be conducted by the Electoral Commission.

(2) Any question which may arise as to whether-

(a) any provision of this Constitution or any law relating to the election of a Beretitenti under section 32 of this Constitution has been complied with; or

(b) any person has been validly elected under that section,

shall be referred to and determined by the Chief Justice whose decision shall not be questioned in any court.'

[5] On 5 July 2003 the Chief justice as superintendent of the election declared the respondent to have been elected based upon the report of the chief electoral officer. Votes cast for the individual candidates were as follows:

Anote Tong 		13, 558
Harry Tong 		12, 457
Banuera Berina	2, 591
28,606

[6] There were 44,285 registered voters.

[7] The voting system is based upon the determination of a simple arithmetical majority; the difference between the votes cast for the respondent and Dr Harry Tong is 1101 votes. In accordance with the Constitution of the Republic all citizens above the age of 18 are entitled but not obliged to vote. (Certain limited classes of persons are disqualified from voting.)

[8] Patrick Tatireta the first petitioner is a member of the Parliament of and from Marakei. Katarake Tebweao the second petitioner is a member of the Parliament of and from North Tarawa. Kourabi Kamoa the third petitioner is an elector from South Tarawa.

[9] The petitioners allege that the election did not provide a fair and free opportunity for the election of the person whom the majority of electors might prefer and that the respondent was guilty of one or more corrupt practices and made alleged payments contrary to the Elections Ordinance.

[10] The Election of Beretitenti Act provides generally that with respect to the arrangements for the election and poll and the arrangements for the count certain specified provisions in the Elections Ordinance shall apply mutatis mutandis as if for the election of a member of the Maneaba ni Maungatabu or a local government council. The Act also provides for the Chief justice to publish the electoral results. The Ordinance (s 39) authorises the making of regulations. Under the heading 'Miscellaneous', s 16 of the Election of Beretitenti Act reads as follows:

'16. (1) The provisions of Part III and section 38 of the Elections Ordinance shall apply, mutatis mutandis, to an election of the Beretitenti under this Act save that in the said section 38 for the words "Chief Electoral Officer" wherever they occur there shall be substituted "the Electoral Commission".

(2) Regulations 28 to 31 inclusive of the regulations shall apply, mutatis mutandis, to an election of the Beretitenti under this Act save that in regulation 28 for the words "an order of the Court" there shall be substituted "the Chief Justice".'

[11] I note that the Regulations include the following:

'31. No election shall be invalid by reason of non-compliance with these regulations (or any regulations amending or replacing these regulations), if it appears that the election was conducted in accordance with the principles laid down in any such regulations, or that such non-compliance did not affect the result of the election.'

[12] Part III of the Elections Ordinance (ss 19-37) is discussed in more detail below; it declares various practices and payments to be illegal, protects the secrecy of the ballot and regulates how (subject to the Constitution) questions arising from an election will be determined. Section 38 of the Elections Ordinance (in Pt IV) enables the Chief Electoral Officer to appoint a new date for an election 'when by reason of storm or any other cause whatsoever' it has not been or will not be possible duly to comply with the procedural requirements.

[13] There is an issue in this case as to the adoption and modification of the nominated provisions of the Elections Ordinance to suit the election of Beretitenti. The difficulties which are apparent upon the face of the legislation are compounded by the fact that both Acts to which I have referred are themselves subject to the overriding operation of the Constitution of the Republic and which, on one view, limits the effect which might now be given to the Elections Ordinance when it is applied to the present situation.

[14] 'Mutatis mutandis' as used in s 16 of the Election of Beretitenti Act means laterally 'with the necessary changes' but Parliament's mention in giving that simple direction is not always easy to discern. The intended operation of s 19 of the Elections Ordinance has given rise to argument.

[15] Part III of the Elections Ordinance provides for all questions which may arise from an election to be referred to and determined by this court (see s 34) but this must be read subject to s 38 of the Constitution which I have quoted.

A petition may be presented to the court within one month after the date of publication of the result of the election.

[16] Notwithstanding other difficulties in the construction of the legislation, I am satisfied that the present petitioners as electors have standing to seek relief. The respondent has conceded that the petition is properly before the court.

[17] The present petition was presented (and amended) within the time limited as abovementioned.

[18] On 5 August 2003 the petition came on for mention before Millhouse CJ who disqualified himself from dealing with the matter as his Honour knew most of the parties and some of the anticipated witnesses. On 11 August 2003 in accordance with s 81(2) of the Republic's Constitution I was appointed 'to be an Acting Judge of the High Court to hear and determine an election petition on and with effect from 15 August 2003'. On that last mentioned date I arrived in Tarawa and took the oath of office. After hearing argument of counsel at the commencement of the hearing I ruled the petition was properly before me as a judge specifically appointed in accordance with the Constitution for the limited purpose of hearing this petition in circumstances of necessity where an hiatus would otherwise exist under s 38 of the Constitution.

[19] The resolution of this matter has been treated by me as urgent and the hearing at Betio upon oral evidence has extended over 12 days with the court sitting extended hours. 41 witnesses gave oral evidence; 22 witnesses were called by the petitioners and 19 by the respondent. I place on record my appreciation of the service provided by the court's interpreters who accepted a heavy responsibility as most of the evidence was given in the Kiribati language.

2. THE ALLEGED ELECTORAL IRREGULARITIES

[20] The petitioners base their petition upon eleven incidents of which the following particulars are given in the petition:

'1. On Tuesday evening 10th June 2003 the Respondent joined the Alcoholic Anonymous (AA) Group anniversary function held in the AA's "St Andrews" Maneaba, at Bonriki, South Tarawa, uninvited and, following his campaign speech, to about one hundred people present at the maneaba, gave $100 to Rikiaua Takeke who received it on behalf of the AA group. The Respondent also provided two bags of pillow "wool" to the staff of the AA group during the same evening.

2. During his campaign visit to Nuotaea Village, Abaiang, on or about the 26th June 2003, the Respondent and his Party colleagues, Bauro Tongai, Teatao Teannaki and Tetabo Nakara, gave a total sum of $120 to Bombe, the village chairman; in the village maneaba in the presence of the people in the maneaba.

3. On Saturday the 21st June, Ioteba Redfern, Bakeua Bakeua Tekita, members of the Respondent's Party who visited Marakei to campaign for one of the respondent paid, for the Respondent and on his behalf, $30.00 to every unimane who attended the meeting. There were more than 30 persons who attended, unimane and council members including the Chief Councillor and the head of the Unimane.

4. In or about the third week of June 2003, Ioteba Redfern Teiwaki Areieta and Tetabo Nakara, members of the respondent's Party who visited Onotoa to campaign for the Respondent give, for the Respondent and on his behalf, $200.00 to the Chairman of the Onotoa Council and Government Staff Association in the presence of the people present in the "Teburanikai" Maneaba at Buraitan Village, Onotoa.

5. In or about the third week of June 2003, Ioteba Redfern, Teiwaki Areieta, while campaigning for the Respondent gave, for the Respondent and on his behalf, $20.00 each to the following persons namely Nooa Riua (chairman of the village), Kariti Kooteti (first catechist) and Mikaere Tebano (second catechist). This occurred in the village maneaba of Rungata village on Nikunau.

6. In or about the third week of June 2003, Ioteba Redfern, Tetabo Nakara and Teiwaki Areieta while campaigning for the Respondent gave, for the Respondent and on his behalf, $100 to the chairman of the village in "Moantein Tebenion" maneaba at Tabutoa village in Nikunau.

7. In or about the third week of June 2003, Ioteba Redfern, Tetabo Nakara and Teiwaki Areieta while campaigning for the Respondent in "Natareta" Maneaba at Muribenua village, Nikunau gave, for the Respondent and on his behalf, Tautebua Taumannang $40.00 as gift and $300.00 for the purchase of 3 rolls of pandanus cigarette leaves or "rauara" who received it on behalf of the village. Terauara usually cost about $2.50 for one roll.

8. On three successive days in June 2003 the Respondent's Party issued a radio statement, as per text annexed, promising a back pay to all landowners with lands leased by government on a false premise alleging that the former ruling Party has failed to review the land rentals for the five year period commencing 1st January 2000. The fact of the matter is that the former ruling Party did review the land rentals for the said five years period and therefore it was an illegal promise of payment to the said landowners. [The text of this statement is set out below]

9. During the period of the presidential election in June 2003 at Maiana the Unimwane Association of Maiana (Te Bau ni Maiana) on behalf of the Respondent directed all electors to vote for the Respondent on pain of penalty, with the consequence that the vote for the Beretitenti which was historically closely divided on Maiana resulted in over 900 voting for the Respondent and only 16 votes for the other two candidates.

10. On or about the 3rd of July 2003, Mr Harry Redfern a supporter of the Respondent approached Arebonto Iakobo at his place and offered, for the Respondent and on his behalf, 7 kilograms of kava (yaqona) worth about $350 to persuade Arebonto to try and collect as many votes as he can for the Respondent.

11. On or about 22 June 2003, the Respondent together with Teatao Teannaki and Bauro Tongai during their campaign visit to the only Catholic Maneaba at Buariki village, North Tarawa, gave $l00 to the chairman of the maneaba.'

[21] The 'text annexed' with reference to allegation 8 refers to an alleged promise made by radio in the Kiribati language. When translated this text reads as follows:

'LAND RENTAL TO BE INCREASED FOUR OUTER ISLANDS, SOUTH TARAWA AND BETIO

Under the Act relating to the review of land rentals the land rental should be reviewed every five years. The rentals for the land should have been reviewed in the year 2000 but this was not done by the previous government. It is only right and just that government should review these rentals in accordance with this law, and it is only right and just that when the new government is in place that a back pay on the rental should be made. This is to be done for all the leases in the outer islands, South Tarawa and Betio.'

[22] At trial the petitioners abandoned allegations 10 and 11. 

[23] The petition alleges that:

A. the subject election was not a legal election as it did not provide a fair and free opportunity for the election of the person that the majority might prefer;

B. by virtue of the extent of the corrupt and illegal practices and illegal payments made for the purpose of promoting and procuring the election of the Respondent, the election may be reasonably considered to have been affected in its result (Elections Ordinance cap 23B, section 19(2));

C. the Respondent committed one or more corrupt and illegal practice in connection with the election contrary to the Elections Ordinance sections 19(1), 24, 25 and 26 ...'

3. THE RESPONDENT'S DEFENCE

[24] There is no issue as to the occurrence of the incidents numbered 1-9 as abovementioned. However, the respondent takes issue with the circumstances in which each incident occurred (some of which in any event upon the respondent's case were beyond his personal knowledge). He provides in his formal defence an explanation which in many cases, if accepted, would enable the court to look at the respondent's conduct and that of his party in a different light from that which supports the petitioners' case. The respondent denies that he is guilty of any corrupt practice and formally answers the petitioners' allegations as follows:

[25] 1. As to allegation 1 the respondent admits providing two bags of pillow 'wool' to the staff of the AA group as alleged and giving $100.00 to Rikiaua Takeke in the St Andrews maneaba. Save as is expressly admitted herein the respondent denies each and every allegation and in particular denies he went to the maneaba uninvited or that he made any campaign speech before presenting the $100.00. The respondent avers the wool and the money was in response to a plea by the chairman of the AA group to the family of the respondent which donation was going to be given to the sister in charge of the place outside the maneaba. The money was presented in the maneaba as a result of the request by the chairman that such donation be given as gift inside the maneaba in return for the invitation to the respondent to join the function that evening as an honoured guest.

[26] 2. As to allegation 2 the respondent admits that the chairman of his party gave a total of $120.00 to the chairman of the Nuotaea village. He avers $20.00 was given as 'mweaka' when he and his party were campaigning in the maneaba. $100.00 was given the following morning as payment for the accommodation and meals provided by the village to the respondent and his party. The purpose for which $100.00 was given was explained as such to those present in the maneaba.

[27] 3. As to allegation 3 the respondent admits that his members of his party gave $30.00 to every 'unimwane' and council member who attended the meeting. He avers that the giving of the money was a requirement conveyed to the respondent's party members by the clerk and chief councillor that if such party members wished to meet with the old men and council members they must pay an allowance to those who attend their meeting at the rate of $30.00 per person. The clerk informed the party members that he would not call a meeting of the council and the old men unless he received an assurance that they would be paid the said allowance. The respondent further avers he had no knowledge at all material times of this being done by party members and that it was done without his authority. 

[28] 4. As to allegation 4 the respondent admits that $200.00 was given by his party members to the chairman of the Onotoa Council and Government Staff Association but denies such sum was given in the presence of the people present in 'Teburanikai' maneaba or that it was given for him or on his behalf. He avers the sum was given as a response to a request by the said chairman to the said party members for assistance with the provision of food for those who were going to work for the rethatching of the maneaba and was given privately to the chairman at his home with a request that such donation be not made public.

The respondent further avers he had no knowledge of this at the time it was done and he did not authorise the giving of the said sum.

[29] 5. As to allegation 5 the respondent admits the allegations but says that the purpose for which the sum was paid was explained to those present and that was: $20.00 was given to Nooa as mweaka. $20.00 was given to Kariti Kooted and $20.00 was given to Mikaere Tebano as a sign of gratitude to these catechists for the use of the church maneaba. The respondent avers it is customary in Nikunau to donate something to the Catholic catechists or Kiribati Protestant Church ministers whenever church maneabas are used. The giving of money to catechists was in compliance with Nikunau custom.

The respondent further avers this was done without his knowledge and without his authority.

[30] 6. As to allegation 6 the respondent admits the allegation but avers the purpose for which the sum was given was explained to those present in the maneaba which was a gift in return for the invitation extended to the respondent's party members to become guests at a function held in that maneaba for father's day. He denies the money was given for him or on his behalf. The respondent avers it is customary in Kiribati for invited guests to bring presents with them to a function they are invited to attend. The sum presented was in compliance with this Kiribati custom.

The respondent further avers that he had no knowledge of this and that he did not authorise it.

[31] 7. As to allegation 7 the respondent admits his party members gave the sums alleged but avers that the purpose for which the sums were given were explained to the people in the maneaba and that was: $40.00 was made up of $20.00 for mweaka and $20.00 was for the Kiribati Protestant minister as a sign of gratitude to the minister for the use of the church maneaba as is customary in Nikunau.

The respondent denies $300.00 was given for him or on his behalf and avers that such sum was given as payment for a fine imposed on such party members for coming late to the maneaba. The fine imposed by the Master of Ceremony was that the party members pay $100.00 each for the three rolls of pandanus cigarette leaves or 'rauara' that were presented to them by the Master of Ceremony. In Kiribati it is customary to fine people in a maneaba and those fined in a maneaba are expected and required to come up with such fine. The payment of $300.00 by such party members was in compliance with this Kiribati custom. The respondent further avers that this was done without his knowledge and he did not authorise it.

[32] 8. As to allegation 8 the respondent admits promising to have the lands rentals reviewed and if in order to have a back pay to all those whose lands are leased by government. The respondent avers this was his party's policy and was made with the genuine belief that no rent review had taken place. The Petitioners' party, which had access to radio broadcasts as well, could have corrected the false premise, if it was in fact false. The respondent denies this was an illegal promise.

[33] 9. As to allegation 9 the respondent admits the Unimwane Association of Maiana resolved that all voters in Maiana vote for him but he denies this was done on his behalf or with his knowledge. The respondent avers he was elected by over 600 voters as member of Parliament for Maiana and that his election as Beretitenti by over 900 voters was not the result of the resolution of the old men association but was the result of the voter's pride for their island.

[34] As they were not pursued, it is unnecessary now to deal with allegations 10 and 11.

[35] Further and in the alternative the respondent contends:

(a) even if the respondent's party members have been guilty of any illegal practice the respondent avers the illegal practice was not so widespread as to have any real effect on the result of the election and therefore the Petition e ought to be dismissed;

(b) that the provisions of the Election of the Beretitenti Act in so far as they apply the election offences provisions of the Elections Ordinance is unconstitutional in that the Constitution does prescribe the means by which the Beretitenti ceases to hold office and challenge by election petition is not one of them.

4. THE ISSUES ARISING FOR DETERMINATION

[36] In summary the issues are as follows:

(1) The grounds upon which the court may intervene in the election process and the basis of the court's jurisdiction.

(2) The significance of the secret ballot.

(3) The court's attitude to unfair or extravagant political promises made in the course of an election campaign.

(4) The reconciliation of local custom (requiring the making of gifts) with the electoral laws prohibiting bribery and treating.

5. THE GEOGRAPHY AND LOCAL GOVERNMENT

[37] Many of the incidents of which the petitioners complain occurred upon specific islands and in villages which are otherwise removed or remote from other parts of the electorate. It is therefore possible to isolate the likely effect of specific incidents in a way which would not be apt in an urban environment.

[38] The incidents all occurred within the Gilbert group of islands; although Banaba is a constituent part of the Republic and of the electorate it is geographically removed from the Gilberts. The sixteen Gilbert islands form a loose chain which runs from Making in the north west to Arorae some 420 a nautical miles to the south east. Only six islands are mentioned in the petition; South Tarawa is closely settled and is the administrative centre of the Republic; measured from the court house at Betio (South Tarawa) Abaiang lies some 30 nautical miles to the north and Marakei lies north east of Abaiang and about 45 nautical miles from Betio. Maiana lies about 20 nautical miles south of Betio. Onotoa is about 250 nautical miles to the south east of Betio and Nikunau is about 60 nautical miles north east of Onotoa and roughly 270 nautical miles from Betio. These significant distances will provide some appreciation of the difficulties in communication in conducting an election campaign in the island villages where (apart from Tarawa) services are generally unknown and where access by sea is dependent upon the state of the tide. Buses run the length of South Tarawa but (as now relevant) visitors to the various other islands must rely upon special local arrangements or goodwill. There was some evidence of communication by radio between islands over the shorter distances.

[39] Local government in the outer islands is formally administered by island councils but the old men (the Unimwane) exercise a traditional influence through their meetings. It is unnecessary now to explore the way in which local government and traditional government melds. A decision by the old men at village level or of a Unimwane Association at island level is likely to attract respect; this authority is backed up by a system of penalties (sometimes requiring payment of a fine in produce). It is clear upon the evidence that the old men are not to be trifled with.

6. CUSTOM

(a) Mweaka

[40] Custom demands that a visitor to a maneaba (the traditional meeting house) ought to mark the visit by a cash gift called 'mweaka'. This customary payment (often discreetly made by passing an envelope containing money) appears to bear some similarity to the practice in other countries for guests to bring a bottle of wine to a dinner party or barbecue. However, one must be careful in making such comparisons; in a social environment where people have very modest resources it is important for everyone to pay his way for participation in community activities and in funding personal services. Mweaka is sometimes satisfied in kind.

[41] The Elections Ordinance Pt III proscribes bribery and undue influence in connection with the election process. Section 24 describes conduct which is deemed to give rise to such an offence but the legitimacy of Mweaka has been preserved and recognised. On 29 December 1997 that section of the Ordinance was amended by adding a proviso:

'Provided further that any person making a customary offering to a Maneaba, referred to in Kiribati as "Mweaka", "Moanei" or "Ririwete", with the sole intention of showing respect for the customs and traditions of Kiribati, shall not be guilty of bribery'.

[42] On 10 October 2002 s 3 of the Elections Ordinance (which contains a dictionary) was further amended by adding for the purposes of the Act the following definition:

'"mweaka, moanei or ririwete" means, in accordance with Kiribati traditions and customs, the giving away or offering of a gift of a block of tobacco containing about 30 sticks of tobacco and not weighing more than 500g or its equivalent in cash of not more than $20.00 or such other higher figure as inflation may allow.'

(b) Bubuti

[43] The custom of 'Bubuti' is a form of begging whereby it is acceptable for someone lacking in resources to make a specific request to another who is better endowed to provide land or kind. The custom is described in the evidence of the witness Bwere Eritaia who has studied Kiribati custom and tradition and has worked as a cultural officer. This witness considers the practice of raising money in the maneaba under the pretext of imposing a 'fine' to be closely related to bubuti. Bwere in his affidavit (upon which he was cross-examined) says:

'20. Nowadays it is a customary for an invited guest to bring a gift, usually an envelope containing money as a form of reciprocation in return for the food, drink and entertainment one expects to get at a function.

21. It is also this custom that obliged one to pay back for the hospitality one is offered when visiting a place.

22. As is the case when invited to be a guest to a function where the person inviting does not ask you to bring a gift, when one is being accommodated and fed the person offering the hospitality does not ask for payment. But as an I-Kiribati person, one should pay back so that there is equality between the parties, and when the hospitality is being offered by a stranger there is more reason to pay back.

23. It is this custom of people wanting to be equal that led to a custom of "bubuti" or "begging".

24. When one Kiribati person "bubuti" another I-Kiribati person for a favour the person to whom the "bubuti" is made must now allow the "bubuti" to go unanswered. The person making the "bubuti" is in fact saying I am not equal to you. The person's bubuti should be granted or the person making the "bubuti" would be ashamed and the person to whom the "bubuti" was made would be ashamed because he is not fit to be regarded as having more.

25. There has also developed a custom of fining people in a maneaba. 

26. This custom sprang from the custom of "bubuti" except that now the "bubuti" is being made inside a maneaba under the pretext of a fine.'

[44] The imposition of 'fines' upon guests by a master of ceremonies as part of after dinner entertainment in community and service clubs and the like, is of course well known. It is a practice which can too easily become an imposition unless the master of ceremonies displays some common sense; excessive fines may be intended to be accepted in good part but the practice places the recipients in an invidious position. Some might regard this as silly; consistent with this there is evidence in this case of the conduct being branded as an embarrassment to onlookers at least in the circumstances of the incident which is now relevant.

[45] Although I accept the evidence of Bwere and otherwise base my judgment only upon the evidence in this case, it is at least of interest to note that the good humoured soliciting of gifts by way of fines in the maneaba has been the source of a number of complaints in recent years in electoral petitions before the High Court of Kiribati.

[46] In Bwebwenibeia v Kataotika (12 May 1999, CC 34/99, unreported) Lussick CJ dealt extensively with the practice and referred to instances involving fines of a chainsaw ($800) and a video ($2,000). More recently in Teiraoi v Tamwi (13 February 2003, unreported) Millhouse CJ said:

'At election time, anywhere, in any country, candidates who are serious about their candidature must get out and about, meet as many people as they can. The best way of doing this is at gatherings. Candidates go to as many as they can. When they do attend they must conform to custom. I doubt if MCs care much about the rules for candidates at election time: for them it is an opportunity to get money or gifts out of visitors.'

and

A candidate is between a rock and a hard place. If he or she does not attend gatherings or at a gathering refuses to bring a gift requested or to accept a fine then he or she will lose votes rather than win them. On the other hand if he or she complies then there is the risk of the complaints made in this petition. The intention with which gifts are made is crucial. As Lussick CJ said in Bwebwenibeia Kararaua v Kataotika Tekee (HCCC 34/99 at 12): 

"I now come to consider the all important question of the intention of the respondent in providing the chainsaw. If all he intended to do was to comply with custom and/or benefit his constituency then he cannot be guilty of a corrupt or illegal practice. If, on the other hand, his intention was to induce the electors to vote for him then he is guilty of the corrupt practice of bribery and the election must be avoided." I agree with my predecessor. I cannot find that these gifts were made with the intention of influencing the voters: they were made because of custom. The candidates had no choice. Stroud's Judicial Dictionary (4th edition) citing a South Australian case (C v Johnson [1967] SASR 279): "corruptly" means "with wrongful intention". These gifts were not made with wrongful intention: they were not made corruptly'.

[47] It is against this background that I have approached the customs which are alleged to have now given rise to complaint.

[48] "The Laws of Kiribati Act (s 5 and Sch 1) provides for the manner of proof of customary law. I am entitled to have regard to reported cases and also to take evidence. Customary law is to be recognised and enforced except insofar as that is not inconsistent with the public interest and insofar as it would not result in injustice (see para 2 of Sch 1). However, I should make it clear that custom must not be allowed to be used as a cloak for electoral corruption and a point may be reached where unthinking or foolish acts involving candidates for election have unfortunate consequences as regards the electoral process.

7. THE COMMON LAW OF ELECTIONS

[49] Section 32(1) of the Constitution of the Republic of Kiribati provides that 'an election to the office of Beretitenti shall be held in such manner as is prescribed by this section and subject thereto by or under law'.

[50] Section 32(3) of the Constitution provides that 'every person who is entitled to vote in a general election shall be entitled to vote in an election of Beretitendi'.

[51] In my opinion it is implicit in these provisions in accordance with the common law of elections that the constituency must have a fair and free opportunity of electing the candidate which the majority might prefer. If that requirement is not satisfied (or if there is reasonable ground to believe that the majority might have been prevented from freely electing their preferred candidate) then in accordance with common law principles there is no real election at all and the election may be avoided. If there be general corruption or general intimidation then these will be among the circumstances in which the majority of the voters may be found to have been denied their constitutional right to elect the candidate preferred by the majority.

[52] Upon my reading of the Constitution the common law requirement cannot be displaced although Parliament may prescribe measures relating to the 'manner of the election'. In fact that prescription is contained in the Election of Beretitenti Act (incorporating with modification portions of the Elections Ordinance). No doubt if there had not been substantial compliance with the prescribed method of election then the common law would also provide a remedy but that is not the present case.

[53] At least as regards the election of the Beretitenti there has been no attempt to codify the law in a way which arguably might displace the common law but in a manner consistent therewith. It could not be suggested in this case that Parliament has provided exhaustively for the grounds upon which an election may be invalidated (cf Chanter v Blackwood (No 1) (1904) 1 CLR 39 at 55, Sue v Hill (1999) 199 CLR 462 and Hudson v Lee (1993) 177 CLR 627 at 631). The petition in its amended form has been based upon a complaint at common law although there has also been an attempt to rely upon an interpretation of the Elections Ordinance which goes beyond what I consider to be the proper approach to the common law (see part 8 of these reasons).

[54] In Featherston v Tully (2002) 83 SASR 302 Bleby J as a member of the Full Court of the Supreme Court of South Australia comprehensively examined the common law principles relating to elections; Mullighan J and I expressed our agreement with that analysis. However, I also drew attention to the importance of a secret ballot (where the law so provides) and the significance which the courts have attached thereto (see Ex p Huston (1911) 11 SR (NSW) 200 and the comments of Griffith CJ in Chanter v Blackwood (No 2) (1904) 1 CLR 121 at 128 which support the view that the court will zealously guard against disclosure of individual votes). I note that s 22(2) of the Republic's Elections Ordinance prohibits any enquiry as to how electors voted. I have therefore refused to allow any witness to answer any question or to volunteer information as to how he voted. The secrecy of the ballot provides some safeguard against intimidation of voters and I have had particular regard thereto in relation to allegation 9.

[55] Chapter 11 of the Republic's Constitution provides 'protection of the fundamental rights and freedoms of the individual'. One of these freedoms is contained in s 12(1):

'12. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.'

[56] It is necessary to consider how far this principle protects misstatements of fact during an election campaign. Misleading statements made to electors during an election campaign must be carefully evaluated. In Smith v Oldham (1912) 15 CLR 355 at 362 Isaacs J said:

'The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances. So far from the latter consideration being foreign to the subject of election, it is of the first importance. For an opinion into which a man has been tricked or misled, even innocently, is a double wrong. It means not merely a loss to the side on which he would otherwise have cast the vote, but it also strengthens their opponents.'

and later:

'But the public injury, so far as political results are concerned, is as great when the opinion of the electorate is warped by reckless, or even careless, misstatements, as when they are knowingly untrue; in each case the result is falsified, and therefore the mischief may be equally provided against if Parliament thinks fit.'

[57] This statement was accepted as correct in principle in Evans v Crichton-Browne (1981) 147 CLR 169 at 206 where the court considered also the importance of ensuring that freedom of speech is not unduly restricted-

'especially during an election campaign, and the practical difficulties that might result if an election were liable to invalidation on the ground that statements made in the interest of candidates were found in subsequent litigation to be untrue or incorrect.'

[58] There is a difference between:

(1) the policy promises of candidates which may affect the potential judgment which precedes the casting of a vote and the process of voting; and 

(2) the process of voting.

[59] As Lander J pointed out in Cameron v Becker (1995) 64 SASR 238 at 255 a question of balance is involved. I have discussed this further in relation to allegation 8 the misleading radio broadcast.

[60] In Woodward v Sarsons (1875) LR 10 CP 733 the Court of Common Pleas enunciated the relevant principles of the common law in relation to elections. Bleby J in Featherston v Tully (No 1) (2002) 83 SASR 302 at 338 restated the principles in terms of nine propositions of which the first three are as follows:

'1. The only ground on which an election may be declared invalid at common law is by virtue of one of the two limbs referred to in Woodward v Sarsons, namely, that there is no real election at all, or that the election was not really conducted under the requirements of the Electoral Act 1985.

2. Under the first limb of Woodward v Sarsons, the election will be declared void only if it can be shown that the electors did not in fact have a fair and free opportunity of electing the candidate which the majority might prefer, such as where a majority of electors are prevented from recording their votes effectively by general corruption, general intimidation, want of available machinery for voting, by fraudulent counting of votes or false declaration of numbers, or "other such acts or mishaps": Woodward v Sarsons (at 743-744).

3. By way of alternative to the first limb of Woodward v Sarsons, the election may be declared void if a majority of electors may have been prevented from voting for one of the reasons mentioned in par 2: Woodward v Sarsons (at 744); ...

[61] It is unnecessary for the purposes of the present case to consider the further propositions. However, his Honour concluded that it is conceivable that some electoral advertisements might 'depending on their nature and the extent of publication have the effect of rendering the election void at common law'. Bleby J then continued (at 343):

'I do not underestimate the difficulty in determining how, if at all, the advertisements alleged might have affected the will of the relevant voters among all the other competing election material that was undoubtedly being published at the time. Nor do I underestimate the difficulty of showing that the will of sufficient electors was so overborne by the statements that there was no real electing at all in the sense encompassed by the first limb of Woodward v Sarsons.'

[62] I note that at common law an election will not be avoided merely because the election was tainted by bribery associated with the successful candidate unless the winning margin were of an order which satisfied the test that the electorate had not had a fair and free opportunity of electing the candidate which the majority might prefer (see Ipswich Election Petition (1886) a 54 LT (NS) 619.

[63] In Woodward v Sarsons (1875) LR 10 CP 733 the principles are expressed as follows (at 743-745):

'We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there is no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, that is, that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. As we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented; should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament.'

and

As to the second, that is, that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law. It is not enough to say that great mistakes were trade in carrying out the election under those laws: it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under some other method. For instance, if, during the time of the old laws, with the consent of a whole constituency, a candidate had been selected by tossing up a coin, or by the result of a horse-race, it might well have been said that the electors had exercised their free will, but it should have been held that they had exercised it under a law of their own invention, and not under the existing election laws, which prescribed an election by voting. So now, when the election is to be an election by ballot, if, either wilfully or erroneously, a whole constituency were to vote, but not by ballot at all, the election would be a free exercise of their will, but it would not be an election by ballot, and therefore not an election under the existing election law. But, if in the opinion of the tribunal the election was substantially an election by ballot, then no mistakes or misconduct, however great, in the use of the machinery of the Ballot Act 1872 [UK], could justify the tribunal in declaring the election void by the common law of Parliament.'

These are the principles which I have applied to the evidence.

8. THE ELECTIONS ORDINANCE

[64] Section 19 of the Elections Ordinance reads as follows:

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

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

[65] As an alternative to a claim based on the common law of elections, the petitioners ground an argument on s 19. They support this argument by reference also to:

s 23-declaring bribery, treating and undue influence to be a corrupt practice and an offence;

s 24-particularising certain conduct by a person as bribery;

s 25-particularising persons to be deemed guilty of treating and including:

'(a) every person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives, provides or pays, or promises to give, provide or pay, wholly or in part, the expense of giving or providing any food, drink, entertainment or provision to or for any person, for the purposes of corruptly influencing that person or any other person to vote or refrain from voting at such election, or on account of that person or any other person having voted or refrained from voting at such election; and

(b) every elector who corruptly accepts or takes any such food, drink, entertainment, or provision.'

s 26-persons deemed guilty of undue influence including those who-

'threaten to inflict any harm or loss upon a person to induce such a person to vote or refrain from voting or who ... by any fraudulent means impedes or prevents the free use of the vote by any elector ...'

[66] All these sections are in Pt III of the Ordinance under a heading 'Election Offences'. Although this Ordinance is expressed to be read 'subject to the provisions of Pt I of Chapter V of the Constitution' (see s 2 of the b Ordinance) s 19 goes beyond the Constitution in its application to the election of Beretitenti.

[67] I consider that ss 19(1) and (2) were intended to be read together. However, s 56(1)(d) of the Constitution sets out the circumstances in which (as now relevant) an elected member may be disqualified from membership of Parliament (ie 'under any law in force relating to offences connected with the election'). I do not consider that a member of Parliament can be disqualified from standing for election as Beretitenti whilst remaining a member of Parliament.

[68] Section 19 of the Elections Ordinance provides for the avoidance of an election in case of corruption on the part of the successful candidate or by his representatives in circumstances which 'have so extensively prevailed that they may be reasonably supposed to have affected the result'. In my opinion that section is inapplicable to the election of the Beretitenti; as I have already stated, the election is governed by the Constitution. If there be corruption then its effect is to be judged in accordance with the common law although the test contained in s 19(2) is generally to the same effect. Parliament might have some reservations in again nominating for election a candidate who had just been found to be party to corruption but in my opinion that remains a question for Parliament in the particular circumstances. I do not consider that any member of Parliament can be disqualified as a candidate in the manner proposed by s 19(2). This has led me to the conclusion that the operation of s 19 of the Elections Ordinance is not apt to the election of Beretitenti.

[69] As observed by Bleby J in Featherston v Tully (No 1) (2002) 83 SASR 302 the fact of corruption by a successful candidate does not necessarily lead to the candidate's election being overturned. The common law test is as set out in part 7 of these reasons. Section 19(1) of the Elections Ordinance standing alone does not reflect the common law. I do not consider that as a matter of law the petitioners can in this case rely upon s 19 of the Elections Ordinance. I have applied the common law.

9. THE COMPLAINTS

[70] In this part I have considered the evidence with respect to each of the nine alleged irregularities (see part 2, above) upon which the petitioners have proceeded.

(1) The AA meeting

[71] The nominations for presidential election occurred on 9 June 2003. Prior to this date the respondent gave a commitment to the AA Centre at Bonriki (South Tarawa) to support a fund-raising venture by contributing to the prizes proposed for a raffle. There was a celebration proposed for 15 June to mark the anniversary of the date upon which the founder of Alcoholics Anonymous himself made his decision to give up alcohol. The chairman of AA spoke by telephone to the respondent's wife seeking support. At the time of making this request the chairman was not aware of the respondent's position within the BTK party.

[72] The respondent went to the centre on 10 June for the purpose of delivering his contribution and offered it in an envelope to the sister in charge. The sister (who was the director of the organisation) requested the respondent to give it to the chairman who in turn then invited the respondent to attend a rehearsal which was about to take place for the forthcoming anniversary celebration. The chairman asked that the envelope be presented in the Maneaba and this was done in the presence of 'a few people' (according to Teingoa, the treasurer of the association). The occasion was not a public function.

[73] The evidence shows that the gift of money and wool was intended in a spirit of charity to an organisation apparently deserving of support. The circumstances in which the presentation was made and envelope opened by the chairman in the presence of a few people was explained by the chairman. Anote was not the only donor on that occasion. The chairman (Kaitama) referred to a donation also by a seaman.

[74] I do not consider that any corrupt motive has been demonstrated on the part of the respondent. The respondent honoured a pre-existing commitment to support the association. I see nothing untoward in the circumstances in which the gift was made and nothing which had any likely bearing on the outcome of the election.

(2) Abaiang-Nuotaea Village

[75] A team of five representatives of the BTK party (including the respondent and a boatman) visited the village. The payment made is properly justified as set out in the defence as mweaka and payment for meals and accommodation. The amount involved is not out of the ordinary in the circumstances and was not given for any improper reason. The payment had no identifiable effect upon the election result.

(3) Marakei-payment of sitting fee

[76] The respondent was not personally involved in this incident. Mataio (a council clerk of 24 years' experience) informed representatives of the BTK party (and also the MK party) that he would not call a meeting of island councillors and the Unimwane unless the convenor of the meeting agreed to pay a sitting allowance of $30 per person. When loteba (the BTK representative) demurred, the clerk explained 'that means you won't be able to get these people if you don't give them that sitting allowance'. $30 is the standard daily fee payable to councillors for attending to Local Government business. The proposed political meetings were not meetings for which the councillors could claim. In a sense an approach to the council clerk to arrange a political meeting was inappropriate although understandable. Likewise Mataio's response was inappropriate but understandable.

Mataio was trying to be helpful and was seeking to treat all his islanders on the same common basis. In the absence of payment my assessment is that the meeting would not have gone ahead. It was not practicable for the politicians without local co-operation to expect to be able to arrange a political meeting. Mataio had bargaining power to arrange a meeting and the BTK thought that it was worth the price. The total cost was $990 (ie 33 persons @ $30 per person). The clerk obtained no benefit. The chief councillor was paid separately for his services in escorting the BTK party from village to village. I have scrutinised this unusual arrangement closely. The clerk (who had only recently arrived on Marakei) considered this arrangement to be consistent with his experience on other islands where a sitting fee was provided when a conference with visitors was arranged.

[77] Nabuti received the same proposition on behalf of the MK party but he did not have the funds to satisfy the request. He did not see anything untoward in the proposal and gave evidence that he would have concluded such an arrangement himself if he were in funds. Instead, Nabuti gave evidence how, without resources, he was only able to campaign in the village of Rawannawi together with another meeting arising out of a chance meeting with a church catechist.

[78] The petitioners' case is that apart from this incident the Unimwane were never paid for their services. The response to this is that the old then were being included in a meeting to which the councillors would only come if they were paid and that as a matter of equity all should be treated the same.

[79] No-one suggested that the fee was in return for a vote. In the particular environment of Marakei and in view of prevailing local attitudes. I am not prepared to find any corrupt motive in the arrangements. There is no suggestion that the outcome of the election would have been different if the payments had not been made. This was not a vote-buying exercise.

(4) Onotoa-re-roofing of the maneaba

[80] The BTK parry during its visit to Onotoa responded to a request to assist in the provision of food for those who were re-thatching of the maneaba. The money was for a public purpose but whether it was strictly for a charitable purpose may be debatable. Having regard to the custom of bubuti and the particular purpose of this gift I find there to be nothing untoward in the payment. The payment bears a similar hallmark to that attaching to the AA payment. Moreover, Tetabo made the payment privately in response to a request for assistance.

(5) Rungata village-Nikunau

[81] Payments as alleged were made but are justified in terms of the defence. The BTK party was told that it was customary to make the payments to church officers. It is unnecessary to establish the custom of Nikunau. The BTK party responded to the local advice which was apparently given to them in good faith. I find there to be nothing untoward in any of the three small customary payments.

(6) Tabutoa village-Nikunau

[82] The BTK campaign party was invited to become guests at a father's day function in the maneaba. A member of the parry, Tetabo, explained the payment of $100 as being $20 by way of mweaka, $40 as guests, $20 to a catechist and $20 as a gift by the wife of loteba who is from Tabutoa village. I have referred in part 6 of these reasons to the practical need for visitors to make a fair contribution when participating in community activities. However it may be characterised, the payment made in this case was no more than sufficient to meet the moral obligation. Arguably the $40 contribution as guests should have been a little more but this was offset by the gift from loteba's wife. I have the impression that these payments represent a careful assessment of propriety. I find there to be nothing untoward in these payments.

(7) Natareta Maneaba-Muribenua village-Nikunau

[83] In addition to customary payments the BTK party paid a 'fine' of $300 imposed by the master of ceremonies ostensibly as a joke in the maneaba. I have already referred to this practice in part 6(b) of these reasons. I am uncomfortable with the practice although upon the evidence I am not prepared to find any corrupt motive in the payment.

[84] The witness Tetabo (a member of the BTK party) did not regard the fine as a joke. In cross-examination he replied (somewhat testily I thought):

'In Kiribati we don't normally make jokes like that in a maneaba. He must be from New Zealand.'

(He might just as fairly, I feel, level his complaint against Australia but he was responding to New Zealand counsel.)

[85] Tetoa, the Chief Councillor on Nikunau (who advised the BTK party upon island customs) was present at the luncheon when the $300 fine was imposed. He was asked about the imposition of the fine. He replied:

'We feel downhearted and ashamed ... This is not normally practised on this island where we have a big penalty ... We were ashamed of it because we don't impose such penalty with very big amount.'

[86] Borerei was the master of ceremonies at the maneaba. He gave evidence in chief

'BOREREI: I call it a joke because I knew that when those team came to Nikunau they were there for campaigning and actually I also knew that there's a rule or a law against campaigning.

JAMES: Law for what?

BOREREI: There's a rule being made on the presentation of any item offered in a maneaba.

JAMES: What do you understand about this rule?

BOREREL: The game that I was joking about is that I didn't mean for that party to buy my pandanas straight away because I've been acknowledged of this campaigning rule. The rule that was being made was you are only allowed to offer $20 or a block of tobacco.'

[87] In his cross-examination the following exchange occurred:

'BERINA: As a catechist your responsibility is to spread the word of God. Is that what you said?

BOREREI: That's it, the truth on the truth.

BERINA: And it is not your job to overcharge people for the local pandanus cigarettes.

BOREREI: Because I am assisting in that village where I was at that time and it was my responsibility at that time to be Master of Ceremony in that function.

BERINA: You knew that when you impose the price of $100 for each roll of cigarette you knew you were overcharging these people, didn't you?

BOREREI: I cannot say much on that because it was only a game or joke under the maneaba.

BERINA: And you knew also that although you were overcharging them you expected them to come up with the price because you imposed it on them when they were inside your maneaba, didn't you? 

BOREREI: I was not sure I will receive the money or not.

BERINA: You would agree with me that since you had imposed this fine on them in the maneaba it would be disrespectful of them, it would be against custom for them to tell you inside the maneaba that you were in fact overcharging them.

BOREREI: I don't agree with that but according to our Kiribati custom in the maneaba you only accept what is said out of the MC's mouth. 

BERINA: Whatever the MC says in a maneaba you comply with it. Is that what you're saying?

BOREREI: Yes only if it comes out of MC's mouth at that moment.'

[88] Teburoro, the former President of the Republic and currently representing South Tarawa in the Parliament, gave evidence as to his own experiences:

'I've seen things like that happening in some gatherings when fund f raising gatherings are on, the church gatherings are on or village fund raising gatherings are on, they're always looking for a way to get money from somebody there. So it happens sometimes in villages or in organisations that we know of, trying to raise money. So it's something that does happen in Kiribati. Whether or not you give in to that, I mean it depends again on the person being penalised or being fined. I've gone through various, I've encountered during my election campaign I've encountered experiences like that where there was this attempt by the group being visited to try and squeeze money out of me and knowing that I was supposed to appear like a Good Samaritan on the road. But I say No please I can't do that now. It's election time, remember the law. The law is important. Election time, we can only do this and this but not that and so it depends on whoever is being faced with that sort of situation. I've handled those situations quite well. I said Thank you, you don't do that. May be if I come again some other time you can do that to me and I'll be very charitable but not now and people are happy OK we understand, it would be contrary to the law, to the proper way of doing election.'

and:

'JAMES: You say you haven't experienced the demand of that scale. We're talking of $100 with $2.50 rolls of pandanus. In other words $300 fine virtually, three people being asked for $100 each. If you had been open to the ceremony at that point outside of election, being a person who wanted to appear to be charitable and open to the press how would you have responded to that kind of thing? Would you expect-

TEBURORO: If I have the money, if I have $100 with me and I feel that it's worth paying, giving them for a good cause and it's away from elections and I was there for a different purpose I don't mind that. I don't giving $100 if I can afford it and if I can't I'll say I don't have $100, I only have $20 here. You fine me $100 but I can only pay $20 and here's my $20 to help with your fund raising efforts.'

[89] Teburoro's responses disclose a commendable attitude but I am not prepared to find that the fining incident had any effect upon this election. I find that the motive of the master of ceremonies was to take advantage of a situation in circumstances where it would be difficult for the BTK party to refuse the fine and keep face. I consider that Tetoa's attitude probably reflected the general sentiment- one of embarrassment.

[90] This opportunistic practice of 'fining' public figures in maneabas is unfair although it has long been tolerated in Kiribati. Although I treat the practice in this case as not affecting this election I consider that the common practice is providing an invitation for abuse. However, allowing for the spirit in which this incident occurred, I do not consider that those present in the maneaba at Natareta would have been influenced in their casting of their votes by what they observed. I do not consider that the payment was requested or made with a corrupt motive.

(8) A misleading radio advertisement

[91] It is not in dispute that the BTK party issued a radio advertisement which was based upon a mistaken assumption of fact. Many public buildings (for example the court house itself) stand on land which is leased from the traditional owners. The radio broadcast promised a review of rentals in favour of the landowners upon the footing that the previous government was in default. In fact the review process as required by law had been undertaken. A promised 'back pay' of rentals in terms of the advertisement was unjustified.

[92] In my opinion this misrepresentation is to be classed as a political promise which does not affect the ability of the elector to cast his vote as he thinks fit upon matters of policy. (If the misrepresentation had unfairly disparaged a candidate my attitude may well have been different.) Upon bringing into balance conflicting principles as mentioned in Evans v Crichton-Browne (1981) 147 CLR 169 I consider that the principle of freedom of speech in relation to the election prevails. The misrepresentation was inadvertent and was not the result of any corrupt motive. There was no deliberate attempt to obtain an improper advantage. This misrepresentation or promise was not of a character which (as now relevant) would lead to the voting being corrupted.

(9) The attitude of the old men of Maiana 

[93] The Unimwane Association of Maiana (Te Bau) met and informally expressed support for the respondent who represents Maiana in the Parliament. That support was informally disseminated throughout the island. However, there was no electoral irregularity associated with this support. There was some suggestion that special constables on the island had abused their position at polling booths; I find that this did not occur.

[94] The secret ballot which operated at this election was sufficient protection to ensure that all electors were afforded a proper opportunity of fairly and independently recording a vote freed from improper influence. There were 944 votes cast on Maiana, 923 favoured the respondent, 16 were cast for Dr Harry Tong, 2 votes were for Banuera and 3 were invalid. I do not discern anything untoward in this overwhelming support for the local candidate who apparently engaged the confidence of the old men.

[95] The views of the Unimwane Association undoubtedly carry great weight upon Maiana. There is nothing improper in the old men seeking to provide guidance as they see fit. There is no evidence of oppression in the actions of the old men. It is not unusual within a democratic society that various groups- such as those affiliated with or leading a particular church or community- may give support to a particular political party although some may question the wisdom of such a step. In my opinion the conduct of the old men in Maiana provides no basis for complaint.

10. CONCLUSION

[96] I have found no evidence that the voting in this election was corrupted. In all respects the respondent has made out the facts formally alleged in his defence. I accept the respondent's own evidence as truthful. His election should now be confirmed.

[97] For the above reasons the petition should be dismissed and (except as regards any application for security) costs should follow the event. The respondent made an unsuccessful application for security for costs during the hearing and I published written reasons for refusing the application which was not without some merit; justice will be served if there be no costs order with respect to that application. In my opinion it was reasonable for the respondent to engage two legal practitioners to present his case at trial and that should be brought to account in assessing the respondent's entitlement in terms of my order.

[98] The formal orders will be:

1. The petition will be dismissed.

2. The petitioners will pay the costs of the respondent (to be taxed as between party and party if not agreed) provided however that there will be no order as to costs with respect to the respondent's application during trial for security for costs.