Three Tongan Cabinet Ministers lose appeal, elections void

Tonga Deputy Prime Minister Poasi Tei. PHOTO: UNESCAP

Three Tongan Cabinet Ministers have lost their appeals against court decisions that declared their election results void.

Eight judgments from a Special Court of Appeal session, held last month, were released late Tuesday in Nuku’alofa, by Justice White, Justice Estcourt and Justice de Jersey.

The appeals by Deputy Prime Minister Poasi Tei, Minister of Finance Tatafu Moeaki and Minister of Internal Affairs Sangster Saulala against their bribery convictions in the lead up to the 2021 November General Elections have been dismissed by the Appeal Court. This means that their elections are void.

The Appeal Court said, “If there is a lesson to be learned, candidates for an election should be astute not to make any gifts within three-months of an election…Rather they should withhold their largesse until after the election.”

It is now likely, that the Tonga Legislative Assembly will soon move ahead to unseat them.

The three Cabinet Ministers separately appealed against orders of the Supreme Court on election petitions, brought by different petitioners under the Electoral Act, challenging the validity of their election on grounds of acts of bribery to induce voters in the lead-up to the the November 2021 General Election.

They were earlier successful in obtaining stays of unseating while their appeals were heard.

Although the Appeal Court set aside some of the bribery offences, other bribery offences were upheld.

In the case of the Deputy Prime Minister (Tongatapu No. 6 People’s Representative) the Appeal Court ruled that his election remains void when it upheld one act of bribery.

The Appeal Court said that the Supreme Court judge’s conclusion was amply justified when it found that “on the balance of probability that the 10 tanks which are said to have been delivered that day were delivered by the town officer and by Saia Penitani at the direction and with the approval of the respondent for the purpose of influencing or inducing the recipients, who were registered electors of Houma”.

“The finding…is affirmed, with the consequence that the election of the appellant remains void… albeit because of one not three offences against s.21 of the Electoral Act.”

This means that the Appeal Court upheld the Supreme Court judge’s ruling, that Tei did commit bribery, when he indirectly had Penitani and Naitoko Vuna give a 5000-litre tank each to some 10 electors of Houma on 12 November 2021 to get them to vote for him.

At the same time, the Appeal Court set aside two other bribery offences.

Tei was then ordered to pay the costs of the Appeal, to be taxed if not agreed.

“That costs order reflects the significance overall of the contravention of (b) which has been upheld.”

Similarly dismissed was the appeal by the Minister of Finance Tatafu Moeaki, the Tongatapu No.4 Representative to the Legislative Assembly.

A Supreme Court judge had found that Moeaki committed bribery, when he gave TOP$100 pa’anga (US$43) to a Nikisoni Tomasi, an elector of Tongatapu 4, to induce him to vote for him.

The Appeal Court upheld the judge’s finding in this act of bribery, after considering whether or not to uphold poor evidence.

“The fact that some of the reasons given by the judge for preferring Tomasi’s evidence do not pass muster is not a sufficient basis for overturning the judge’s credibility finding.

“Although the appeal is by way of rehearing, full weight must be given to the advantage of the trial judge in having seen and heard the witnesses,” stated the Appeal judges.

“His advantage in observing the witnesses is not shared by this court. There is no reason to reject his finding.”

“In addition, Moeaki complains that Tomasi is registered to vote at ‘Anana within Tongatapu 4 ” where he does not live. But that does not mean that he was not “an elector” for the purposes of s.21 of the Electoral Act.

“In this case, Tomasi, whose evidence the judge accepted, said that he told Moeaki he voted at Tongatapu 4.

“The fact that he should not have been so registered because he did not live in the constituency of Tongatapu 4, that does not affect the judge’s determination,” said the Appeal judges.

“It may seem harsh that Moeaki’s election should be invalidated on the uncorroborated evidence of Tomasi with the consequence that not only is his election as a candidate for Tongatapu 4 void, but he is debarred from standing as a candidate for any election held before 06 May 2028. But that is a consequence of the provisions of s. 21, 32 and 40 of the Electoral Act.”

The Appeal Court then said, if there is a lesson to be learned, it is that candidates for an election should be astute not to make any gifts within three-months of an election, where the onus will be cast upon them to prove on the balance of probabilities that the gift was not made for the purpose of influencing the vote.

“Rather they should withhold their largesse until after the election. By casting the onus on the candidate to disprove that the purpose of the gift was to influence the vote, the legislative purpose was to ensure that elections are free from the taint of suspicion that votes have been purchased by gifts.”

The Appeal Court then dismissed Moeaki’s appeal on this bribery conviction with costs. However, it set aside the judge’s finding, on the other bribery conviction.

The Minister for Internal Affairs and Tongatapu No. 7 People’s Representative to the Legislative Assembly, Sangster Saulala also had his appeal dismissed.

He was initially found by the Supreme Court to have committed bribery on two occasions, namely that on 28 September 2021, he gave Hengihengi Kolo of Tofoa, TOP$100 (US$43).

And that on 16 November 2021, he gave ‘Ahio Tauelangi of Pea $20 (US$8.58) and a box of chicken to Tauelangi and others.

The Appeal Court ruled that grounds B and C of the notice of appeal failed.

“The appeal is dismissed.”

Saulala was ordered to pay the respondent’s costs.

The results of five other election appeals will be reported in another article.

Meanwhile, parliament is working to pass Regulations and 10 Government Annual Reports. Parliament is also discussing, and scrutinising Government Public Bills before MPs are scheduled to carry out their annual constituency visits next week from 15-31 August…. PACNEWS