In the High Court yesterday, Chief Justice Sir Hugh Williams QC ruled the “resignation by a candidate when faced with proceedings alleging corrupt practices should not cease the process”.
Chief Justice Williams added Brown’s resignation had not yet been processed in accordance to the Electoral Act and it do not follow from her filing of the resignation that the petition is moot.
Independent candidate Brown, who retained the seat after winning the March 18 by-election against Democratic Party’s Nandi Glassie, resigned on Wednesday triggering a possible by-election.
Her resignation follows a petition of inquiry from Glassie, who alleged Brown and her agents and supporters have infringed sections of the Cook Islands Electoral Act 2004, in the particular the section relating to bribery.
When a conference to discuss housekeeping matters regarding the petition was called at the High Court on Wednesday, Chief Justice Williams was presented with Brown’s resignation letter to the Queen’s Representative Tom Marsters.
The chief justice then adjourned the matter to yesterday asking both counsels to deliberate on the effectiveness of Brown’s letter and assist the court in the steps to be taken next in regards to the petition.
Tingika Elikana, who represented Brown, suggested that the matter should be returned to the people of Atiu to decide, rather than the court.
He pointed to the sheer cost of another petition hearing to which the Chief Justice Williams responded that there was the cost of yet another by-election.
Glassie’s legal representative Hinano Ellingham based her submission on the Tina Browne versus Toka Hagai petition appeal in which the latter resigned in lead up to the appeal ruling. The Court of Appeal then ruled Hagai’s resignation should not get rid of any electoral petition, and that a by-election cannot be called until the election petition is determined.
Therefore Ellingham suggested the Speaker of Parliament could not declare the seat vacant in the midst of an ongoing petition and trigger a by-election.
In reply, Elikana argued the current petition was in its earliest stage with the matter still some distance from the hearing unlike the Browne versus Hagai case which had advanced prior to the latter’s resignation.
Chief Justice Williams ruled Tingika’s argument as “ineffectual” before delivering his decision on the matter.
A submission was also filed by Elikana to have Brown’s formal resignation presented to the QR overturned if the petition is disallowed, and for her to be returned as a Member of Parliament. This was struck out by the Chief Justice Williams.
Both counsels representing Glassie and Crown Law stated that there are no provisions within the Electoral Act that would allow for such a reversal to happen.
In a statement, the Democratic Party said they believe Brown’s resignation has actually been prompted by the serious allegations of corruption that have been made in Glassie’s petition that could also seriously affect the prime minister and four Cabinet ministers.
“The Democratic Party has taken a low-profile approach to the court decision, preferring for the process to take its course,” the statement said.
“However, there is wide speculation that if the outcome of the petition is favourable to the Opposition party, this would have serious implications for the prime minister and four Cabinet ministers who are alleged to have been given and accepted free seats to fly to Atiu to campaign for the independent candidate.”
A tentative hearing date of the petition has been set to start on May 27, with a possible split hearing on Atiu and Rarotonga.