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Falekaupule Act - Kaupule (Elections) Regulations

LAWS OF TUVALU
2008 Revised Edition

KAUPULE (ELECTIONS) REGULATIONS

CAP. 4.08.1

Arrangement of Regulations

Regulation

PART I - PRELIMINARY

1 Citation
2 Interpretation

PART II - ELECTORAL WARDS

3 Wards
4 Number of members to represent each ward
5 Notification in locality concerned

PART III - ELECTIONS

6 Minister to appoint date for election
7 Appointment of assistant returning officers
8 Nomination of candidates
9 List of candidates to be published
10 Withdrawal of candidature
11 Unopposed candidates
12 Death of candidates
13 Notice of election
14 Arrangements for elections
15 Polling agents
16 Ballot boxes
17 Sealing ballot boxes
18 Method of voting
19 Admission of persons to polling station
20 Personation
21 Tendered ballot papers
22 Conduct in polling stations
23 Presiding officer's duties at close of voting
24 Counting agents
25 Counting of votes
26 Persons who may be present
27 Method of counting votes
28 Handling of ballot papers
29 Votes not to be counted
30 Endorsement by returning officer or assistant returning officer
31 Rejected ballot papers
32 Returning officer or assistant returning officer's decision final
33 Returning officer's or assistant returning officer's duties on conclusion of voting
34 Declaration of results
35 Equality of votes
36 Notification to successful candidates and publication of results
37 Custody of documents
38 Powers of polling assistants
39 Candidate has power of his agent
40 Non-attendance of agents not to invalidate proceedings
41 Remuneration of officers
42 Expenses of the election

PART IV - ELECTION OFFENCES

43 Corrupt practice
44 Penalty for false answer
45 Offences in respect of nomination papers, etc.
46 Infringement of secrecy
47 Penalty for bribery, treating, etc.
48 Persons to be deemed guilty of bribery
49 Persons to be deemed guilty of treating
50 Persons to be deemed guilty of undue influence
51 Penalty for personation
52 Persons to be deemed guilty of personation
53 Incapacity entailed by conviction for corrupt practice
54 Penalty for persons guilty of certain illegal practices
55 Interference with lawful public meeting to be an illegal practice
56 Display of emblems in vicinity of place of voting prohibited
57 Saving for offences under Penal Code

PART V - ELECTION PETITIONS AND CIVIL PROCEEDINGS

58 Questions as to elected councillors to be determined by Magistrate's Court
59 Presentation of election petition
60 Hearing of election petition
61 Procedure at hearing of election petition

PART VI – MISCELLANEOUS

62 Non-compliance with Regulations

SCHEDULE

NOMINATION PAPER

Supporting Documents

ENDNOTES

___________________

KAUPULE (ELECTIONS) REGULATIONS¹

PART I - PRELIMINARY

1 Citation

These Regulations may be cited as the Kaupule (Elections) Regulations.

2 Interpretation

In these Regulations unless the context otherwise requires —

"agent" means a polling agent or a counting agent appointed under the provisions of these Regulations;

"assistant returning officer" means an assistant returning officer appointed under regulation 7;

"election" means an election of a member under the provisions of these Regulations;

"member" means an elected member of a Kaupule;

"register of voters" means a register of voters prepared for the purposes of the Act in accordance with the Kaupule (Registration of Voters) Regulations²;

"returning officer" means a returning officer appointed under regulation 6(b);

"voter" means a person registered as a voter under the Kaupule (Registration of Voters) Regulations and entitled to vote under the Act;

"ward" means an electoral ward constituted under regulation 3.

PART II - ELECTORAL WARDS

3 Wards

For the purposes of these Regulations, the Minister may by notice divide the area of authority of a Kaupule into such number of electoral wards as he may think fit, or he may declare the whole of any such area to be one electoral ward, and assign such name as he may deem appropriate to any such ward:

Provided that the Minister shall take into account such views on the boundaries of wards as either the Kaupule or the people of any particular locality in the Falekaupule area may express.

4 Number of members to represent each ward

Each ward shall be represented by such number of members as the Minister may from time to time specify by notice.

5 Notification in locality concerned

Within 28 days of the signing by the Minister of any notice under regulation 3 or regulation 4, any Kaupule, within whose area any ward specified in such notice is situated, shall take all such steps as it considers reasonable and necessary to make the contents of such notice known to persons resident therein.

PART III - ELECTIONS

6 Minister to appoint date for election

Whenever an election for a member of a Kaupule becomes necessary the Minister shall by notice —

(a) appoint a convenient day or days for the holding of such election:

Provided that such day or the first of such days shall be not less than 35 days after the date of the publication of the notice as aforesaid;

(b) appoint a returning officer for the Falekaupule area in respect of which the election is to be held; and

(c) require the nominations in respect of persons submitting themselves for election to the Kaupule be delivered to the returning officer for such Falekaupule area not later than 4 o'clock in the afternoon of such day (being not later than 28 days before the date appointed for the election) as shall be specified.

7 Appointment of assistant returning officers

The returning officer may, in respect of any ward within the Falekaupule area to which he is appointed under regulation 6(b), appoint a fit and proper person to be an assistant returning officer.

8 Nomination of candidates

(1) Every person submitting himself for election, hereinafter referred to as a candidate, shall be nominated in writing by 3 voters in the ward for which he is a candidate, and no candidate may be nominated for more than 1 ward.

(2) The writing shall be subscribed by the candidate, and by the persons nominating him, in the form set forth in the Schedule and the nomination paper shall contain the following particulars —

(a) the name, address and description of the candidate;

(b) the names, addresses and descriptions of the nominators of the candidate; and

(c) a certification by the candidate that he is willing and qualified to stand for election.

(3) The returning officer shall provide nomination papers and shall at the request of any voter, the candidate and all his nominators being present, complete any such nomination paper on such voter's behalf.

(4) No voter shall nominate more than 1 candidate, and where any voter purports to nominate more than 1 candidate, only his subscription on the first nomination paper delivered in accordance with this regulation and so subscribed shall, subject to the provisions of these Regulations, be valid and his subscription on every other nomination paper shall be null and void.

(5) Each candidate, or one of the persons nominating him, shall deliver his nomination paper subscribed as hereinbefore provided to the returning officer not later than the time specified under regulation 6(c).

9 List of candidates to be published

The returning officer, not later than 21 days before the date fixed for the election, shall cause to be published within each ward, in such manner as he may deem appropriate, a list containing the full names, addresses and descriptions of the candidates for that ward and of the persons by whom they were nominated.

10 Withdrawal of candidature

Any candidate may withdraw his candidature by notice in writing signed and delivered by him to the returning officer not later than 4 o'clock in the afternoon of the 3rd day next before the day of the election.

11 Unopposed candidates

Where the number of candidates in any ward is the same as, or less than, the number of members required to represent such ward, the returning officer for that ward shall, on the day appointed for the election, declare such candidate or candidates to have been elected to the Kaupule.

12 Death of candidates

(1) Where after the expiration of the 3rd day before the date fixed for the election but before the commencement of the voting, a candidate dies, the returning officer shall, upon being satisfied of the fact of death, countermand the election in respect of the ward for which the deceased was a candidate, and report his action to the Minister.

(2) Upon receipt of a report under the preceding paragraph, the Minister acting in his discretion, shall appoint some other convenient day or days for the election and the electoral procedure shall be commenced de novo:

Provided that no new nomination shall be required in respect of a candidate who, at the time of the countermand of the election, had been properly nominated in accordance with regulation 8.

13 Notice of election

In the case of a contested election, the returning officer shall on or before the 7th day before the day of the election give notice thereof in such manner as he may think fit, specifying —

(a) the day and the hour fixed for the voting generally or in respect of particular polling stations or wards;

(b) the full name, address and description of each candidate;

(c) the names, addresses and descriptions of the persons who nominated each candidate; and

(d) the situation of each polling station and a statement of the persons entitled to vote thereat.

14 Arrangements for elections

The returning officer shall —

(a) provide a sufficient number of polling stations in each ward and, in accordance with the terms of any notice given under the provisions of regulation 13, allot the voters within the ward to the polling stations in such manner as seems to him most convenient;

(b) appoint in respect of each ward, such persons as he may think fit to assist at the voting in the election, and such persons shall be known as polling assistants;

(c) appoint from amongst such polling assistants a person to be in charge of each polling station to be known as the presiding officer;

(d) furnish each polling station with such number of compartments as in the opinion of the returning officer may be necessary, in which the voters can, screened from observation, record their votes;

(e) provide each presiding officer with such number of ballot papers having counterfoils with corresponding numbers as in the opinion of the returning officer may be necessary;

(f) provide each polling station with instruments for making an official mark on the ballot papers, and with copies of the register of voters for the ward, or such part thereof as contains the names of the voters allotted to vote at the polling station; and

(g) do such other acts and things as may be necessary for conducting the election in the manner provided in these Regulations.

15 Polling agents

(1) Each candidate may, in respect of each polling station within the ward for which he is a candidate, appoint 2 persons, hereafter referred to as polling agents, to attend at that polling station for the purpose of detecting personation.

(2) Notice in writing of the appointments, stating the names and addresses of the polling agents, together with the polling stations to which they have been assigned, shall be given by the candidate to the returning officer not later than 4 days before the day fixed for the election.

(3) If any polling agent dies or becomes incapable of acting as such, the candidate may appoint another polling agent in his place, and shall forthwith give to the returning officer notice in writing of the name and address of the polling agent so appointed.

16 Ballot boxes

The presiding officer shall cause to be placed in the polling station of which he is in charge ballot boxes equivalent in number to the number of persons nominated for election for the ward in question. When in use for voting the ballot boxes shall be screened from observation by all persons other than the voter casting his vote and shall be so constructed that the ballot papers can be put therein by the voter but cannot be withdrawn by him. Each ballot box shall be clearly marked with the name of one of the aforementioned candidates.

17 Sealing ballot boxes

Immediately before the commencement of voting, the presiding officer at the polling station shall show to such polling agents or other persons who may be present thereat the ballot boxes empty and shall thereupon seal such boxes in such manner as to prevent them being opened without breaking the seals.

18 Method of voting

The voting at an election shall be conducted in the following manner —

(a) Every voter desiring to record his vote shall present himself to a polling assistant at the polling station at which he is entitled to vote, and the polling assistant, after satisfying himself that the name of such voter appears on the copy of the register of voters, or part thereof provided for that polling station and that he has not already voted, shall deliver to him a ballot paper.

(b) Immediately before the polling assistant delivers a ballot paper to a voter —

(i) the ballot paper shall be marked on both sides with an official mark;

(ii) the number, name, address and description of the voter as stated in the copy of the register of voters, or part thereof, shall be called out;

(iii) the number of the voter in the register of voters shall be marked on the counterfoil; and

(iv) a mark shall be placed against the number of the voter in the copy of the register of voters, or part thereof, to denote that a ballot paper has been received, but without showing the number of the ballot paper which has been received.

(c) A polling assistant may, and if required by a candidate or a polling agent shall, put to any person applying for a ballot paper at the time of his application, but not afterwards, the following questions or either of them —

(i) Are you the person whose name is on the register of voters as follows (reading the copy of the entry in the register)?

(ii) Have you already voted at the present election at this or any other polling station?

(d) A voter on receiving a ballot paper, shall go immediately into one of the screened compartments in the polling station, and shall there secretly record his vote by placing his ballot paper in the ballot box of his choice.

(e) A voter shall not vote for more candidates than 1 nor record more than 1 vote in favour of any candidate nor place on the ballot paper any writing or mark by which he may be identified.

(f) A voter who has accidentally dealt with his ballot paper in such a manner that it cannot be conveniently used as a valid ballot paper may, on delivering such ballot paper to the presiding officer and after satisfying the presiding officer that the ballot paper has been spoilt by accident, obtain another ballot paper in the place of the paper so delivered up, and the spoilt ballot paper shall be immediately cancelled.

(g) If a voter, by reason of blindness or other physical disability, is unable to cast his vote, he shall call the presiding officer aside and tell him, no other person being present or within hearing, the name of the candidate for whom he wishes to vote and the presiding officer shall record the voter's vote by placing the voter's ballot paper in the ballot box of the candidate for whom the voter wishes to vote.

19 Admission of persons to polling station

(1) No person shall be permitted to vote at any polling station other than the one allotted to him under regulation 14(a).

(2) The presiding officer shall regulate the admission of voters to the polling station, and shall exclude all other persons except candidates, polling agents, polling assistants, police officers on duty, and any other person who in his opinion has lawful reason to be admitted.

20 Personation

(1) If at the time a person applies for a ballot paper, or after he has so applied and before he has left the polling station, a polling agent declares to the presiding officer that he has reasonable cause to believe that the applicant has committed the offence of personation and undertakes to substantiate the charge in a court of law, the presiding officer may order a police officer to arrest such person, and the order of the presiding officer shall be sufficient authority for the officer so to do.

(2) A person in respect of whom a polling agent makes a declaration in accordance with paragraph (1) shall not, by reason thereof, be prevented from voting, but the presiding officer shall cause the words "protested against for personation" to be placed against his name in the marked copy of the register of voters or portion thereof:

Provided that where a person in respect of whom such declaration is made, admits to the presiding officer that he is not the person he held himself out to be, he shall not be permitted to vote if he has not already done so, and if he has already voted the presiding officer shall make a note of the number of the ballot paper delivered to him, and, upon the count being taken, such ballot paper shall be invalid.

(3) A person arrested under this regulation shall be dealt with in accordance with the provisions of the Criminal Procedure Code³ relating to the arrest and taking into custody of persons without a warrant.

21 Tendered ballot papers

If a person representing himself to be a voter named in the register of voters applies for a ballot paper after another person has voted as such voter, the applicant shall, upon giving satisfactory answers to the questions set out in regulation 18(c), be entitled to receive a ballot paper in the same manner as any other voter but such ballot paper, hereinafter called a tendered ballot paper, shall be of a colour different from the ordinary ballot papers, and instead of being put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer or assistant returning officer as hereinafter provided; and the name of the voter and his number on the register of voters shall be entered on a list to be called the tendered votes list, and this list shall be admissible in any legal proceedings arising out of the election.

22 Conduct in polling stations

(1) The presiding officer shall keep order at the polling station.

(2) If any person misconducts himself in a polling station, or fails to obey any lawful order of the presiding officer, he may, by order of the presiding officer, be removed from the polling station by any police officer, or by any other person authorised by the presiding officer in that behalf; and the person so removed shall not, without the permission of the presiding officer, again enter the polling station during the day of the election:

Provided that the provisions of this regulation shall not be exercised so as to prevent any voter who is otherwise entitled to vote at any polling station from having an opportunity of so voting.

(3) Any offence against these Regulations which is committed within a polling station shall be deemed to be a cognisable offence within the meaning and for all the purposes of the Criminal Procedure Code.

23 Presiding officer's duties at close of voting

(1) As soon as practicable, after the termination of the voting the presiding officer shall, in the presence of the polling agents, make up into separate packets, each sealed with his own seal —

(a) each ballot box in use at his polling station, unopened and sealed so as to prevent the introduction of additional ballot papers;

(b) unused and spoilt ballot papers, placed together;

(c) tendered ballot papers;

(d) the marked copies of the register of voters;

(e) the counterfoils of the used ballot papers; and

(f) the tendered votes list,

and shall deliver the packets to the returning officer, or if one has been appointed, to the assistant returning officer for the appropriate ward.

(2) The packets shall be accompanied by a statement to be called the ballot papers account, prepared by the presiding officer, showing the number of ballot papers entrusted to him and accounting for them under the following heads —

(a) number of spoilt ballot papers;

(b) number of unused ballot papers; and

(c) number of tendered ballot papers.

24 Counting agents

(1) Each candidate may appoint one person, hereinafter referred to as a counting agent, to attend at the counting of votes.

(2) Notice in writing of the appointment, stating the name and address of the counting agent, shall be given by the candidate to the returning officer not later than 2 days before the day of the election and the returning officer or assistant returning officer may refuse to admit to the place where the votes are counted any person purporting to be a counting agent in respect of whom such notice has not been given.

(3) If a counting agent dies or becomes incapable of acting as such, the candidate may appoint another counting agent in his place, and shall immediately give to the returning officer notice in writing of the name and address of the counting agent so appointed.

25 Counting of votes

The returning officer, or, if one has been appointed, the assistant returning officer shall make arrangements for counting the votes in the presence of the counting agents as soon as practicable after termination of the voting and shall, so far as is practicable, proceed continuously with the counting, allowing only reasonable time for refreshment, until it is complete.

26 Persons who may be present

Except with the consent of the returning officer or assistant returning officer counting votes, no person other than the returning officer, the assistant returning officer, his assistants, the candidates and their counting agents may be present at the counting of votes.

27 Method of counting votes

The returning officer or assistant returning officer, as the case may be, shall, in the presence of the counting agents, open each ballot box and, taking out the ballot papers, shall count and record the number thereof cast in favour of each candidate.

28 Handling of ballot papers

The returning officer or assistant returning officer counting votes shall, while counting and recording the number of ballot papers, keep the ballot papers with their faces upwards and take all precautions for preventing any person from seeing the numbers printed on the papers.

29 Votes not to be counted

Any ballot paper —

(a) which does not bear an official mark; or

(b) on which anything is written or marked by which a voter can be identified other than the printed number,

shall not be counted.

30 Endorsement by returning officer or assistant returning officer

(1) The returning officer or assistant returning officer counting the votes shall endorse the word "rejected" on any ballot paper which, under regulation 29, is not to be counted.

(2) The officer shall in either case add to the endorsement the words "rejection objected to" if an objection to his decision is made by any counting agent.

31 Rejected ballot papers

The returning officer or assistant returning officer, as the case may be, shall prepare a statement showing the number of ballot papers rejected under the following heads —

(a) want of official mark;

(b) writing or mark by which the voter could be identified,

and shall on request allow any counting agent to copy the statement.

32 Returning officer or assistant returning officer's decision final

The decision of the returning officer or assistant returning officer, as the case may be, as to any question arising in respect of any ballot paper shall be final, and shall be subject to review only on an election petition questioning the election.

33 Returning officer's or assistant returning officer's duties on conclusion of voting

Upon the conclusion of the counting of the votes the returning officer or assistant returning officer, as the case may be, shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or the sealed packet containing the marked copy of the register of voters or the sealed packet containing the counterfoils of used ballot papers but shall proceed, in the presence of the counting agents, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded in accordance with regulation 27, the unused and spoilt papers in his possession and the tendered votes list, and shall seal each packet after examination. The officer shall prepare a statement as to the result of the verification and shall on request allow any counting agent to copy such statement.

34 Declaration of results

When the result of the election has been ascertained, the returning officer or the assistant returning officer, as the case may be, shall forthwith declare to be elected the candidate or candidates for whom the majority of votes has been cast and shall also declare the number of votes cast for each and every candidate, whether elected or not. Where an assistant returning officer makes any such declaration he shall also report the result of the election to the returning officer concerned and deliver to him all the documents specified in regulation 33.

35 Equality of votes

If an equality of votes is found to exist between 2 or more candidates so that the addition of a vote to one or more of them would entitle one or more of them to be elected, the result shall be decided by the returning officer by the drawing of lots.

36 Notification to successful candidates and publication of results

Upon the receipt of the results of the elections in respect of all the wards within the Falekaupule area in which elections are being held, and after taking such steps as seem to him proper to verify such results, the returning officer shall —

(a) send notification of election in writing to the successful candidates;

(b) inform the Minister of —

(i) the name of every person elected to be a member of such Kaupule;

(ii) the term of office of such person;

(iii) the ward for which such person was elected; and

(c) cause such information to be published at the Kaupule's headquarters and in some prominent place in each ward.

37 Custody of documents

(1) The returning officer shall ensure the safe custody of all documents relating to the conduct of the election.

(2) The returning officer shall cause all such documents to be destroyed after the expiration of 6 months from the date of the election unless otherwise directed by an order of the Court arising from proceedings relating to the election.

38 Powers of polling assistants

A polling assistant may be authorised by the presiding officer to do any act which the presiding officer is required or authorised to do at a polling station by these Regulations, except that he may not order the arrest of any person, or the exclusion or removal of any person from the polling station.

39 Candidate has power of his agent

A candidate may do any act or thing which his agent would have been authorised or required to do, and may assist his agent in the doing of any such act or thing.

40 Non-attendance of agents not to invalidate proceedings

Where in these Regulations any act or thing is required or authorised to be done in the presence of the agents of the candidates, the non-attendance of any agent or agents at the time and place appointed for the purpose shall not, if any act or thing is otherwise properly done, invalidate the act or thing done.

41 Remuneration of officers

The returning officer, assistant returning officer and the polling assistants shall receive such reasonable remuneration for their services as the Minister shall see fit to authorise.

42 Expenses of the election

(1) All expenses properly incurred by the returning officer in the conduct of the election, the remuneration of the officers specified in regulation 41 and, except where the proceedings result from the act or omission of the returning officer done otherwise than in the bona fide performance of his duty under these Regulations, any expenses incurred by the returning officer in any legal proceedings arising in connection with an election held under the provisions of these Regulations, shall be a charge upon the general revenue of the Kaupule in respect of which the election is held.

(2) Upon the determination of any legal proceedings arising in connection with an election under the provisions of these Regulations, the court shall, if a returning officer is a party thereto, certify whether or not such proceedings result from an act or omission of the returning officer done otherwise than in the bona fide performance of his duty under these Regulations.

PART IV - ELECTION OFFENCES

43 Corrupt practice

(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 practices or illegal payments, employment or hirings committed 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 supposed to have affected the result, 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.

44 Penalty for false answer

Every person who makes a false answer to either of the questions prescribed in regulation 18(c), knowing it to be false or not believing it to be true, shall be liable to a fine of $50 and to imprisonment for 3 months.

45 Offences in respect of nomination papers, etc.

(1) Every person who —

(a) forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to any person or authority to whom nomination papers are required by these Regulations to be delivered, any nomination paper knowing the same to be forged; or

(b) forges or counterfeits or fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper; or

(c) without due authority, supplies any ballot paper to any person; or

(d) fraudulently takes out of any polling station, place of voting or place of election any ballot paper; or

(e) without due authority, destroys, takes, opens or otherwise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election,

shall be liable to a fine of $200 and to imprisonment for 3 months.⁴

(2) In any prosecution for an offence in relation to the nomination papers, ballot boxes, ballot papers, counterfoils, marking instruments and other things in use at an election, the property in such papers, boxes, instruments and things may be stated to be in the returning officer at such election.

46 Infringement of secrecy

(1) Every returning officer, assistant returning officer, polling assistant, and agent shall maintain and aid in maintaining the secrecy of the voting in an election and shall not communicate, except for some purpose authorised by law, before the election is closed, to any person any information as to the name or number on a register of voters or any voter who has or has not applied for a ballot or voted, or as to the official mark.

(2) No such officer, polling assistant or agent, and no person whosoever shall interfere with or attempt to interfere with a voter when casting his vote, or otherwise attempt to obtain information as to the candidate, for whom any voter is about to vote or has voted, or communicate at any time to any person information obtained during any election as to the candidate for whom any voter is about to vote, or has voted, or as to the number on the ballot paper given to any voter:

Provided always that the provisions of this paragraph of this regulation shall not prohibit, limit or qualify any procedure prescribed under these Regulations for recording the vote of any voter who is unable to read or incapacitated by blindness or other physical causes from casting his vote himself.

(3) Every such officer, polling assistant, candidate, or agent in attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not communicate any information obtained at such counting as to the candidate for whom any vote is given by any particular ballot paper.

(4) Every person who acts in contravention of the provisions of this regulation shall be liable to a fine of $50 and to imprisonment for 3 months.

47 Penalty for bribery, treating, etc.

Every person who is guilty of bribery, treating or undue influence shall be guilty of a corrupt practice and liable to a fine of $50 and to imprisonment for 3 months.

48 Persons to be deemed guilty of bribery

The following persons shall be deemed to be guilty of bribery within the meaning of these Regulations —

(1) every person who directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure, any money or valuable consideration to or for any voter or to or for any person on behalf of any voter, or to or for any other person, in order to induce any voter to vote or refrain from voting, or corruptly does any such act as aforesaid on account of such voter having voted or refrained from voting at any election;

(2) every person who directly or indirectly, by himself or by any other person on his behalf, gives or procures, or agrees to give or procure or to endeavour to procure, any office, place or employment to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce such voter to vote or refrain from voting, or corruptly does any such act as aforesaid on account of any voter having voted or refrained from voting at any election;

(3) every person who directly or indirectly, by himself or by any other person on his behalf, makes any such gift, loan, offer, promise, procurement or agreement as aforesaid to or for any person, in order to induce such person to procure, or to endeavour to procure, the return of any person as a member of a Kaupule or the vote of any voter at any election;

(4) every person who, upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procures or engages, promises or endeavours to procure the return of any person as a member of a Kaupule or the vote of any voter at any election;

(5) every person who advances or pays, or causes to be paid, any money to or for the use of any person, with the intent that such money, or any part thereof, shall be expended in bribery at any election, or who knowingly pays or causes to be paid, any money to any person, in discharge or repayment of any money wholly or in part expended in bribery at any election;

(6) every voter, who, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receives, agrees to receive, or contracts for any money, gift, loan, or valuable consideration, office, place or employment, for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election; and

(7) every person who, after any election, directly or indirectly, by himself or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting at any election:

Provided always that the provisions of this regulation shall not extend or be construed to extend to any money paid or agreed to be paid for or on account of any legal expenses bona fide incurred at or concerning any election.

49 Persons to be deemed guilty of treating

The following persons shall be deemed to be guilty of treating within the meaning of these Regulations —

(1) every person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives, or provides, or pays, or promises to give, provide or pay, wholly or in part, the expenses of giving or providing any food, drink, entertainment or provision to or for any person, for the purpose 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

(2) every voter who corruptly accepts or takes any such food, drink, entertainment, or provision.

50 Persons to be deemed guilty of undue influence

Every person who directly or indirectly, by himself or by any other person on his behalf, makes use of, or threatens to make use of, any force, violence, or restraint, or inflicts or threatens to inflict by himself or by any other person, any injury, damage, harm or loss, upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who, by abduction, duress, or any fraudulent contrivance, impedes or prevents the free use of the vote by any voter or thereby compels, induces or prevails upon any voter either to give or refrain from giving his vote at any election, shall be guilty of undue influence within the meaning of these Regulations.

51 Penalty for personation

Every person who is guilty of personation or of aiding, abetting, counselling or procuring the commission of the offence of personation, shall be guilty of a corrupt practice and liable to a fine of $200 and to imprisonment for 3 months.⁵

52 Persons to be deemed guilty of personation

Every person who at any election applies for a ballot paper in the name of another person or tenders a vote in the name of another person whether that name is the name of a person living or dead or of a fictitious person or, who, having voted once at any election, applies for a ballot paper or tenders a vote at the same election, in his own name, which he is not entitled to tender under these Regulations, shall be guilty of personation within the meaning of these Regulations.

53 Incapacity entailed by conviction for corrupt practice

Every person who is convicted of a corrupt practice shall (in addition to any other punishment) be incapable, during a period of 5 years from the date of his conviction —

(a) of being registered as a voter or of voting at any election; and

(b) of being elected as a member of a Kaupule, or, if elected before his conviction, of retaining his seat as such member.

54 Penalty for persons guilty of certain illegal practices

Every person who —

(a) votes, or induces, or procures any other person to vote, at any election, knowing that he or such other person is prohibited by these Regulations or the Act or any other Act from voting at such election; or

(b) before or during an election knowingly publishes any false statement of the withdrawal of a candidate at such election for the purposes of promoting or procuring the election of another candidate,

shall be guilty of an illegal practice and shall be liable to a fine of $200 and to imprisonment for 2 months, and shall be incapable, during a period of 3 years from the date of his conviction, of voting at any election.⁶

55 Interference with lawful public meeting to be an illegal practice

Any person who at a lawful public meeting, held in connection with the election of any person to a Kaupule, between the date of publication of a notice issued under the provisions of regulation 6 appointing a day for the holding of an election under these Regulations and the date at which the result of the election is published, acts or incites others to act in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together shall be guilty of an illegal practice and shall be liable to a fine of $200 and imprisonment for 2 months and shall be incapable, during a period of 3 years from the date of his conviction, of voting at any election.⁷

56 Display of emblems in vicinity of place of voting prohibited

(1) No person other than a candidate shall within any building where voting for the election of a member of a Kaupule is in progress, or on any public way within a distance of 50 yards of any entrance to such building, wear or display any card, symbol, favour or other emblem indicating support for a particular candidate or political party and no person shall within 200 yards of any such building make any public address indicating support for a particular candidate or political party.

(2) Any person acting in contravention of this regulation shall be liable to a fine of $20.

(3) For the purpose of this regulation "public way" includes any highway, market place, square, street, bridge or other way which is lawfully used by the public.

57 Saving for offences under Penal Code

Nothing in these Regulations shall be construed or deemed in any way to prejudice, derogate from or affect any of the provisions of the Penal Code⁸ as to the offences relating to public offices or officers.

PART V - ELECTION PETITIONS AND CIVIL PROCEEDINGS

58 Questions as to elected councillors to be determined by Magistrate's Court

(1) All questions which may arise from any election as to the right of any person to be or remain an elected member shall be referred to and determined by the Senior Magistrate's Court on a petition presented by the Attorney-General or by a voter, in accordance with the procedure prescribed by regulations 59 and 60 for the trial of an election petition, and the decision of the Senior Magistrate's Court on any such petition shall be final.

(2) Where the question to be decided concerns the right of any person to remain a member, the court shall certify its decision in writing to the Minister; and where the court has decided that any person is not entitled to remain a member, such person shall thereupon cease to be a member.

59 Presentation of election petition

A petition complaining of an undue return or undue election of a member, hereinafter called an election petition, may within one month from the date of the publication under regulation 36(c) of the result of the election, be presented to the Senior Magistrate's Court in its civil jurisdiction by any one or more of the following persons, that is to say —

(a) some person who voted or had a right to vote at the election to which the petition relates; or

(b) some person who claims to have had a right to be returned or elected at such election; or

(c) some person who alleges himself to have been a candidate at such election.

60 Hearing of election petition

(1) Every election petition shall be heard by the Senior Magistrate's Court, in open court.

(2) During such hearing the court may order —

(a) the inspection and production of any rejected ballot papers; or

(b) the opening of any sealed packet of counterfoils of used ballot papers; or

(c) the inspection of any counted ballot papers:

Provided that in making and carrying into effect the order, care shall be taken that the way in which the vote of any particular voter was given shall not be disclosed until it has been proved that his vote was given and the vote has been declared by the court to be invalid.

(3) At the conclusion of the hearing, the court shall determine whether the member whose return or election is complained of, or any other and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Minister; and, upon such certificate being given, such determination shall be final and shall not be questioned in, nor shall any appeal lie therefrom to, any court; and the election shall be confirmed, or a new election shall be held, as the case may require, in accordance with such certificate.

61 Procedure at hearing of election petition

Subject to the provisions of these Regulations, and without prejudice to any power to make rules under section 80 of the Constitution the Chief Justice may from time to time make rules for regulating the practice and procedure to be observed in relation to election petitions, and subject to such rules, the procedure at the hearing of an election petition shall, as near as circumstances will admit, be the same, and the court shall have the same powers, jurisdiction, and authority, as if it were hearing a civil action; and witnesses may be subpoenaed and sworn in the same manner, as near as circumstances will admit, as in the hearing of a civil action in the Senior Magistrate's Court, and shall be subject to the same penalties for perjury.

PART VI - MISCELLANEOUS

62 Non-compliance with Regulations

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.

____________

SCHEDULE

NOMINATION PAPER
(Regulation 8)

Ward for which candidate seeks election ........................................................................
Date of election ................................................................................................................

1. I, the undersigned, am the candidate to whom this nomination paper refers, and I hereby state that I am willing to stand for election to the Kaupule as a member for the .....................................................................ward.

2. I also hereby state that I am qualified, and not disqualified, for election to the ......................................................Kaupule in accordance with the Falekaupule Act, and all Regulations made thereunder.

Name ................................................................................................................................
Address ............................................................................................................................
Description .......................................................................................................................
Date ..................................................................................................................................
Signature ..........................................................................................................................
We, the undersigned, are the nominators* of the above candidate, and are voters of the ward for which this candidate seeks election.

Name ................................................................................................................................
Address ............................................................................................................................
Description .......................................................................................................................
Date ..................................................................................................................................

Signature ..........................................................................................................................

ENDNOTES
________________
1 Made under the Local Government Act but adapted and continued in force under section 131 of the Falekaupule Act
LNs 9/1966, 8/1971, and 9/1986
Amended by Act 4 of 2009, commencement 6 July 2009
2 Cap. 4.08.2
3 Cap. 10.05
4 Amended by Act 4 of 2009
5 Amended by Act 4 of 2009
6 Amended by Act 4 of 2009
7 Amended by Act 4 of 2009
8 Cap. 10.20

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