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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 52 OF 2002
BETWEEN:
JIM NOMANE
Petitioner
DAVID ANGGO
First Respondent
REUBEN KAIULO – THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA – (NO.1)
Second Respondent
GOROKA: GAVARA-NANU, J
PARLIAMENT – Election Petition – Objection to Competency – Organic Law on National and Local Level Government Elections, (Organic Law), s. 208(a) – Requirement to set out or plead facts – Meaning of ‘Facts’ – Courts need to be liberal in their application of s.208(a) – Courts have a broad discretion under s. 208(a) in determining what the relevant and material facts are – The appropriate test for the Courts to apply in deciding what the relevant and material facts are – The Courts must give meaning and effect to ss.222 and 217 of the Organic Law.
Cases Cited:
Sir Barry Holloway v Aita Ivarato and Electoral Commission [1988] PNGLR 99.
Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 343.
Electoral Commission v Henry Iyapo Smith v Biri Kimisopa (4th and 30th March, 1998).
Don Pomb Pullie Polye v Jim Sauk Papaki and Reuben Kaiulo, The Electoral Commissioner of Papua New Guinea. (22nd April and 6th May,
1998).
Jimson Sauk Papapi v Don Pomb Pullie Polye – SC644.
Masket Iangalio v Yangakun Miki Kaeok and Electoral Commission of Paua New Guinea. (16th June, 2003).
Neville Bourne v Manasseh Voeto [1977] PNGLR 298.
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.
John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645.
Counsel:
A. Manase for the Petitioner.
C. Copeland for the First Respondent.
R. Williams for the Second Respondent.
GAVARA-NANU J. The respondents have raised objections to the competency of this petition arguing that the petitioner has not pleaded or set out the ‘facts’ as required by s.208(a) of the Organic Law on National and Local Level Government Elections (hereinafter referred to as "the Organic Law").
Section 208 (a) of the Organic Law is in these terms:
A person shall –
(a) set out the facts relied on to invalidate the election or return.....
This is a mandatory requirement. Thus it must be strictly complied with. And it is to be noted from the heading of the section that, setting out of facts on which the petitioner relies to invalidate the election or return is a requisite of a petition. Thus without setting out such facts, the petition would be incompetent.
The respondents’ contention is that the petition does not plead or set out the relevant and material facts relied upon by the petitioner to invalidate the election or the return of the first respondent as the member for Chuave Open electorate.
The respondents’ objections relate only to paragraphs 5 to 7 of the petition. They do not raise any objections to paragraphs 1 to 4. I therefore allow these paragraphs to remain.
I shall deal with each paragraph objected to commencing with paragraph 5.
In paragraph 5, it is alleged that after the commencement of polling on 22nd June, 2002, for the Chuave Open electorate, the first respondent together with his agents and servants committed several acts of undue influence and illegal practices and that, such illegal practices were committed with the knowledge and authority of the first respondent. It is alleged that those illegal practices were committed so that the voters could vote for the first respondent as the Member for Chuave Open electorate. It is further alleged that, such illegal practices were done to unlawfully interfere in the free and open election by the voters which contravened the various provisions of the Organic Law and the Criminal Code, which are as stated in that paragraph.
In paragraph 5.1, it is alleged that the actual number of people living in Wards 7, 8, 9, 10, 11, 12, 13 and 14 in the Siane Local Level Government were approximately 4,000. This was inclusive of the eligible and ineligible voters, however, in the Electoral Roll, there were 5,130 eligible voters recorded, the petitioner says, that contravened s.116 of the Criminal Code.
In paragraph 5.2, it is alleged that after the polling on 22 June, 2002, it was revealed at the counting of ballot papers at the Counting Centre that, in Wards 7 to 14, total of 4,674 people voted, from which, the first respondent polled 2,956 votes.
In paragraph 5.3, it is alleged that because the voter population in Wards 7 to 14 was less than 4,000, the increased number of 5,130 registered voters recorded in the Electoral Roll as pleaded in paragraph 5.1 and the 4,674 votes cast in Wards 7 to 14 as pleaded in paragraph 5.2 were as a result of duplication of individual names, clans, ghost names and persons who were not resident in Wards 7 to 14, but were allowed to vote. The particulars of such duplication of individual names, clans and illegal votes are as pleaded in the subsequent paragraphs 5.4A and 5.5B, 5.5C and 5.5D. The petitioner alleges that the first respondent, his agents and servants committed those illegal practices to ensure that all votes cast in Wards 7 to 14 were for the first respondent.
In paragraph 5.4, it is alleged that as a result of the above illegal practices, the first respondent polled 4,495 votes, which the petitioner says contravened the various provisions of the Constitution, the Organic law and the Criminal Code which are as stated in paragraph 5.
In paragraph 5.4A, the petitioner gives Case No. 1 of illegal practice committed in Movi Polling Place, in the Siane Local Level Government.
In paragraphs 5.4A (i) (a) to (e), the petitioner provides particulars of such illegal practice, and says that on 22nd June 2002, at Movi Polling Place, a person by the name of Mr John Seve who was the first respondent’s Campaign Co-ordinator induced voters to vote for the first respondent by issuing threats of violence and held up the Assistant Presiding Officer, Mr Ken Akia and ordered him to give him 100 unmarked ballot papers to mark for the first respondent. The petitioner says, that happened at 2.00 pm. In fear of his life, Mr Akia gave 100 unmarked ballot papers to Mr John Seve who subsequently marked the 100 ballot papers and cast them for the first respondent. The petitioner alleges that as a result of what Mr Seve did, there was no free election in Movi Polling Place and the potential 100 eligible voters were deprived of their right by Mr Seve to vote for the candidate of their own choice. Furthermore, the 100 ballot papers which were illegally marked and cast by Mr Seve for the first respondent was done in breach of s.215 of the Organic Law. The petitioner says, these were done with the knowledge and authority of the first respondent.
In paragraph 5.5, it is alleged that on 22nd June, 2002, at Movi, Ipaku, Runugu and Nambayufa Polling Places, the first respondent and his supporters with the knowledge, authority and approval of the first respondent, committed double voting and induced electors to vote for the first respondent, which was contrary to the various provisions of the Organic law and the Criminal Code which are as stated in the paragraph.
In paragraph 5.5B, the petitioner, by way of particulars, gives Case No.2 of double voting as pleaded in paragraph 5.5, where at Siane Local Level Government, ineligible voters were allowed to vote in Wards 7 to 14. In paragraphs 5.5B (a) and (b), the petitioner gives particulars of such illegal voting and says that the first respondent in the company of his supporters and co-ordinators ordered certain people including people from the Unggai Bena Open electorate to vote under the names of voters who were resident in other Wards. The petitioner gives particulars of how the persons who were resident in the Unggai Bena Open electorate voted in the Chuave Open electorate and how the first respondent as a result collected 657 illegal votes. These are shown in the tables provided by way of particulars in paragraph 5.5B(a) of the petition.
In paragraph 5.5C (a) to (e), the petitioner by way of particulars gives Case No.3, of how the first respondent in company of his supporters and co-ordinators at Ipaku Polling Place on 22nd June 2002, ordered 204 voters from the Unggai Bena Open electorate to vote for the first respondent. The petitioner has listed the names of those 204 voters from the Unggai Bena Open electorate in Schedule "A" to the petition. The petitioner says this was done with the knowledge and authority and direction of the first respondent, and thereby contravened s.215 of the Organic Law.
In paragraph 5.5D (a) to (c), the petitioner by way of particulars gives Case No.4 of duplication of votes in the Siane Local Level Government. The petitioner gives particulars that on 22nd June 2002, at Movi, Ipaku, Runungu and Nambayufa Polling Places, the first respondent in the company of his supporters and co-ordinators ordered duplicate voting by persons including people from the Unggai Bena Open electorate. The names appearing twice on the Electoral Roll from Wards 7 to 14 are listed in Schedule "B" to the petition. The petitioner says the first respondent as a result gained illegal votes, which contravened s.215 of the Organic Law.
In paragraph 6, the petitioner gives particulars of how the Polling Teams in Nambayufa Polling Place allowed 224 people from the Unggai-Bena electorate to vote. The petitioner alleges that there were also double voting in other Polling Places and as a result, the first respondent collected 1,500 votes, which also contravened s.215 of the Organic Law.
In paragraph 7, the petitioner alleges illegal practices by the second respondent, its employees or agents. The petitioner by way of particulars gives Case No. 1 of such illegal practice in the duplication of clan names in the Siane Local Level Government. In paragraph 7A(2)(a) to (f), the petitioner gives particulars of how clans were duplicated in Wards 7 to 14 and how number of votes in those Wards were inflated. This is shown by how the clan names appear more that once under a number of Polling Places and the number of illegal votes taken against each of those clans. The petitioner alleges that the polling officials or teams allowed those illegal practices.
In paragraph 7B, the petitioner by way of particulars gives Case No.2 of illegal voting at Ipaku Polling Place on 22nd June, 2002. The petitioner says Nami clan from the Unggai Bena Open electorate were allowed by the Polling Team to vote. It is alleged that the voters were supporters of the first respondent and as a result, the first respondent collected 204 illegal votes. It is alleged that the respondent had knowledge of such illegal practices, and were done with the authority and direction of the first respondent, which contravened to s.215 of the Organic Law.
The respondents have argued that the petitioner has failed to provide names of the first respondent’s supporters and agents, whom the petitioner says committed the illegal practices with the knowledge, authority and direction of the first respondent. The respondents also argued that the petitioner has failed to state the duplicated clan names, ghost names and the names of the individuals who voted illegally. It was also argued that the various alleged illegal practices, and irregularities have not been pleaded and how the first respondent perpetrated such illegal practices and irregularities have not been pleaded either. The respondents also contented that the petitioner pleaded law and not facts, as in paragraphs 5.4, 5.5D(c) and 6(f) and the petitioner has failed to plead that the result of the election would be affected and how it would be affected. It was also argued by the respondents that the petitioner has attempted to inquire into the correctness of the Common Roll, as in paragraphs 5.1, 5.3, 5.5B(b), 5.5C(b), (d) and (e), 5.5D(a) and (b), 6 (f), 7A(1) and (2) and 7B, which they say contravened s. 214 of the Organic Law.
The respondents argued that for these reasons, the petition is incompetent and should be struck out in its entirety.
I am of the view that the matters pleaded in paragraphs 5 to 7 of the petition to which I adverted in the judgement are sufficient and do satisfy the requirement under s.208(a) of the Organic Law. They constitute the relevant and material facts, which are sufficient to inform the opposing parties of the matters alleged and thus give them the opportunity to prepare their cases. They also sufficiently inform the Court of the issues involved. They in my view sufficiently indicate the grounds of illegal practices, including the errors and omissions committed by the second respondent through the electoral officials. I also see no error in the laws or the various provisions of the Organic Law, the Constitution and Criminal Code being pleaded. They simply better assist the Court in determining the issues raised.
As to the objection raised under s.214 of the Organic Law, I find that the matters pleaded do not contravene the section. They simply enable the Court to verify whether there were in fact illegal votings. Thus I am of the view that the matters raised in respect of the 2002, Chuave Open electorate Common Roll are matters which the Court is obliged to inquire into. That is in my view permitted by the first leg of s.214.
Section 214 is in these terms:
214. INQUIRIES BY COURT.
The National Court shall inquire whether or not the petition is duly signed, and so far as Roll and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.
I find support in this view in the case of John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645. There, Woods J. at page 649 said:
"...Whilst s.214 of the Organic Law states that the National Court shall not inquire into the correctness of the Roll, this allegation does not ask that. This allegation gives facts of double listing and double voting by people whose names are repeated in the Common Roll. This is not an inquiry into the correctness of the roll. It is simply saying that people took advantage of that double listing and voted twice. This allegation asserts sufficient facts that it can be very easily answered by the production of the relevant documents and figures from the Electoral Commission. Again, it may be that, when all the evidence is before the parties, it may appear that the result of the election would not have been affected, but that is the risk that a petitioner takes. There may still be a legitimate complaint, and the court or the parties may not be sure of this until the evidence is produced".
I am also of the opinion that, most of what the respondents have raised in their objections are matters of evidence. And as to the facts pleaded, as I said, they sufficiently inform the opposing parties of the nature of allegations made against them and thus enabled them to prepare their cases. Moreover, the Court is sufficiently informed of the issues involved based on the facts pleaded in the petition. If I was to accept the respondents submissions and strike out the petition, the Court would in my view be too technical in its approach and give less meaning and effect to ss.222 and 217 of the Organic Law. This point is further elaborated later in the judgement.
I therefore reject the arguments advanced by the respondents and allow these paragraphs to proceed to trial.
In the case of Sir Barry Holloway -v- Aita Ivarato and Electoral Commission, [1988] PNGLR 99, the law in respect of the requirement under s.208(a) of the Organic Law was stated by Kapi DCJ, (as he then was) at page 101:
"...The facts set out under s.208(a) of the Organic law would necessarily indicate the ground upon which the petitioner relies.
The facts which must be set out under s.208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
...What are sufficient facts depends on the facts alleged and grounds those facts seek to establish".
This statement of the law in my respectful view provides the test and the general guidance in determining whether the facts pleaded in a particular case satisfy the requirement under s. 208 (a) of the Organic Law, as to their relevance and sufficiency to establish the ground or grounds they seek to establish.
In this regard, I am of the opinion that in some cases, the Courts have given unnecessary technical meaning to the word ‘facts’ in s.208(a) and have as the result held that to set out or plead ‘facts’, as required in that section, the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents.
In my opinion, such particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded. And it is appropriate and necessary that the person who committed it and upon whom it is committed, how it was committed and specific, if not, general description of when it was committed are pleaded, so that not only the opposing party is sufficiently informed of what is alleged in the petition but the Court is also sufficiently informed of the issues raised in the allegations. (See Neville Bourne -v- Manasseh Voeto [1977] PNGLR 298. See also Raymond Agonia –v- Albert Karo and Electoral Commission [1992] PNGLR 463.
But in allegations such as double voting or tampering of ballot boxes, it may not be necessary and it would indeed be impossible to plead the actual dates when the alleged incidents happened, how they happened and the names of the persons who committed them. For instance, alleged double voting may only be evidenced by the double entries in electoral rolls or a ballot box may be discovered to have been opened or tampered with upon it being returned to the Returning Officer, in which case, no-one would know when the ballot box was tampered with and by whom.
Similar considerations may apply in cases of errors and omissions committed by the electoral officials. For instance, in cases where a large number of people are allowed to vote by the electoral officials without being identified as eligible voters in the particular electorate. This may happen as the result of threats of violence by the members of the public to the electoral officials or the electoral officials simply allowing people to vote without taking proper measures to identify them as eligible voters for the electorate, and so on.
This point was made by Kapi DCJ (as he then was), in Sir Barry Holloway -v- Aita Ivarato and Electoral Commission [supra] at page 101:
"It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts. It (sic) actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.
It is also possible for a party to apply to the Court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s.208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the Court for an order for an inspection under s.212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s.208(a) of the Organic Law. I conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. Bredmeyer J came to the same conclusion in Siaguru -v- Unagi and the Electoral Commissioner.
In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."(my underlining).
Applying this principle to cases such as double voting and tampering of ballot boxes or allowing a large number of people to vote by the electoral officials without properly identifying them as eligible voters, and so on, the particulars as to when and how they were committed and by whom, are matters, which may not be possible to plead, and would become matters of evidence. Thus in such cases, even without pleading these particulars, the petition would not suffer incompetency. As long as the other relevant and material facts pleaded in the petition sufficiently and clearly indicate to the opposing party as to what is alleged and the Court is sufficiently informed of the issues involved, the requirement under s.208 (a) would be met.
It would of course be quite wrong to expect the petitioner in every case to plead the actual dates of the alleged incidents, where and how those alleged incidents happened and the names of people involved in such alleged incidents. Such universal approach is clearly contrary to the principles stated in Sir Barry Holloway -v- Aita Ivarato and Electoral Commission (supra).
The word ‘facts’ in s.208(a) is a general term, which is not defined in the Organic Law. But the basic and fundamental rule is that, it being part of the law, deriving from s.126(7) of the Constitution, is a Constitutional law which pursuant to Schedule 1.5 of the Constitution must be given a fair and liberal meaning.
And what is the fair and liberal meaning of the word ‘facts’, is to be determined by reference to the relevant provisions in the Organic Law itself. For this, one starts with the premise that pursuant to s.222 of the Organic Law, a petitioner who is a non lawyer may draft the petition and even represent himself before the Court. This is implicit in the section, which is in these terms:
This section is in mandatory terms by virtue of the word ‘shall’. Of course, the practice has been in most, if not, in all cases, the parties are represented by counsel, not by leave of Court but by an assumed consent of both parties because all parties invariably have legal representation.
But the significance of this mandatory provision, which reflects the legislative scheme and intent cannot be ignored. It is a matter which must be born in mind by the Courts when applying s.208(a) and indeed the election petitions in general.
This point is further re-enforced by s.217, which provides that, in all proceedings under the Organic Law, "real justice" is to be observed.
Section 217 is in these terms:
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. (my underlining).
Thus it is also implicit in s.217 that in all election petition proceedings, the Court must be guided ultimately by the "substantial merits and good conscience" of the case. Again, this section is in mandatory terms by virtue of the word ‘shall’.
Applying these considerations, it is clear that the Courts are given a very broad discretion by s.208(a) in determining what the relevant and material facts are, which would establish the ground or grounds alleged in a particular case. This accords with the principle that each case must be determined on its own merits. Therefore, it is for the Courts to determine in the exercise of such broad discretion as to whether the facts pleaded are sufficient for the opposing party to prepare his case and to sufficiently inform the Court of the issues involved. That is the test and the guiding principle for the Courts to apply when exercising their broad discretionary powers in deciding whether the facts pleaded in the petition meet the requirement under s. 208(a). Although such broad discretionary power of the Courts is not expressly stated in s.208(a), as I said, it accords with the scheme, the intent and the spirit of the Organic Law. It is implicit in the provision. Moreover, the exercise of such discretionary powers is in my view allied with the same broad discretionary powers expressly given to the Courts under s.212(3) of the Organic Law. See, Sir Barry Holloway v Aita Ivarato and Electoral Commission (supra) at page 101.
My observations on the Court’s discretion here, of course relate only to the determination of what are meant by ‘facts’ under s.208(a) of the Organic Law. But as to the general and the overall requirements under whole of s.208, the Court’s discretion is fettered, as all requirements there have to be strictly complied with, including, the setting out of relevant and material facts under s.208(a). The reason being, they are requisites which if not pleaded would render a petition incompetent. Their purpose is to ensure that the petition is genuine and not frivolous. See Re Delba Biri -v- Bill Ginbogl Ninkama [1982] PNGLR 343 at p.349.
In my opinion, ss.217 and 222, make the Organic Law, and hence the election petitions in this jurisdiction very unique. The reason is obvious. It is to allow the petitioners most of whom may be common people with basic or little education with little means to petition election results, to draft and prosecute their own petitions without being hindered by legal formalities or technicalities and the rules of evidence. The legislative intent behind these provisions is to ensure that such petitioners are given the opportunity to petition the election results or returns, on genuine grounds. Thus, the Courts must be liberal in their approach when applying s.208(a). I find support in these observations in the case of, Electoral Commission –v- Henry Iyapo Smith and Biri Kimisopa (4th and 30th March, 1998). There the Supreme Court said:
"...But the Organic Law also stipulates strict compliance with certain requirements in the petition. For purposes of expediency, the Court has allowed for a procedure of preliminary objections to ensure that such matters as to compliance with the requirements of the Organic Law are dealt with as expeditiously as possible. These preliminary objections are not designed to deliberately hinder or obstruct the petitioner going to trial, they are to ensure that the Court does not waste its time with matters that are not clearly pleaded. Petitioner must be allowed to proceed to trial and he has the onus to convince the Court that there have been serious errors in the election and that the relief he seeks must be granted. Similarly, we are also mindful of the need by the Court to protect the second respondent as the duly elected member for Goroka Open electorate.
...If more and more unpresented petitioners come to the Court of Disputed Returns, Courts must be prepared to receive and entertain them without being seen to be too legalistic and rigid in their approach. Otherwise section 222 of the Organic Law becomes superfluous and illusory. Even now, observing from the perspective that the election laws have evolved through judicial pronouncements, the desirability of section 222 remaining as an enforceable law in the Organic Law becomes patently apparent. A judge has to be careful that he does not act too arbitrarily in depriving a petitioner of his right to a hearing before the Court of Disputed Returns.
...The issue really boiled down to evaluation and understanding of the facts. The way the courts have addressed this task had therefore let to a body of judicial determinations that appear to isolate and distance the election petition process further and further away from the ordinary citizen who is entitled to be heard on his petition in person. In other words, citizens are being forced to engage lawyers to represent them in their election petitions because the rules have become so rigid and so technical that the only way to get a hearing is to strictly comply with the requirements of the Organic Law in the way the lawyers understand the rules of the game.
We find that the relief sought by the petitioner is clearly stated. To strike out the petition of a self-represented petitioner for failure to use the terminology or phraseology in the Organic Law, although it is quite obvious as to what the petitioner, on plain and common usage and understanding of English language is seeking or wants in his petition, is really doing an injustice to the citizen." (my underlining).
Similar approach was in my respectful view adopted by Kirriwom J. in Don Pomb Polye -v- Jim Sauk Papaki and Reuben Kaiulo, the Electoral Commissioner of Papua New Guinea (22nd April and 6th May 1998). His Honour’s remarks relate to the issue of competency under s.208, thus I respectfully adopt them. Then in Masket Iangalio -v- Yangakun Kaeok and The Electoral Commission of Papua New Guinea (16th June 2003), Hinchliffe J. applied the similar approach. His Honour at pages 4 and 5 of his judgement said:
"...It would seem to me that developments in recent years have created a situation that I must say I do not totally agree with. Strict compliance with Section 208(a) appears to have developed into "very, very strict compliance" and I doubt that I would be incorrect in saying that because of the extremely strict compliance it is becoming more and more difficult to get an election petition off the ground. Many of them do not get past the competency stage and are thrown out, at times, on mere technicalities. Is that what the Legislature intended? I don’t think so. We hear and read time and time again that an election petition, if one reads Section 222(1) and (2) of the organic Law, was really intended for a non-lawyer to draft and in fact a lawyer cannot appear for a party to a petition unless by consent of all parties or with leave from the National Court. If that is the case then it seems quite bizarre to me that if a non-lawyer was to draft his own petition then I have no doubt at all that it would be torn to pieces, so to speak, by lawyers for the sitting member and the Electoral Commission. In fact, I would be brave enough to say that under those circumstances, a non-lawyer’s petition would never get past the first base because it would be certain to be found incompetent. To that extent, we seem to have gone the wrong way because again, it seems to me that most petitions which are found to be incompetent (and there are many of them) are in fact drafted by lawyers. One could only imagine what would happen to a petition that was drafted by a non-lawyer. Is he meant to understand what "material facts" and "relevant facts" are? Is he meant to understand what is the difference between "pleading the facts" and "evidence"? I wouldn’t have thought so. This petition would not last long. Petition hearings attract a large crowd of observers and it must be very difficult for the non-lawyers amongst them to understand why a petition was thrown out of Court before it barely commenced. Would that person believe that the petitioner had had a fair hearing and that justice had been done? I don’t think so. However, our case law has developed over the years in such a way that one wonders whether justice is really being done. I agree with those people who say that we should be careful when dealing with those cases where the majority of people have put the member in Parliament. On the other hand, we should also be concerned that the person was validly elected to Parliament and thereby being the true representative of his/her people. No matter what a Court case is all about everyone involved should get a fair hearing and never be denied natural justice. Most importantly also, justice must be seen to be done. May be it is time for the Election Petition Rules Committee to take a look at this and develop a system similar to the National Court Rules where, for example, a party can ask for further and better particulars and so on."(my underlining)
The Courts in adopting such a liberal approach would not in any way lessen the seriousness of an election petition nor would it lower the burden of proof on the petitioner to prove the allegations in the petition to the entire satisfaction of the Court. See, Neville Bourne -v- Manesseh Voeto (supra) at page 302. Nor would it lessen or take away the duty on the petitioner to comply with the strict requirements of the Organic Law such as those in s.208.
I have the firm view that the legislative scheme and intent deriving from ss.222 and 217, is that the Courts should display liberality when determining the petitions. It is for this reason that I respectfully adopt the views expressed in, Electoral Commission –v- Henry Iyapo Smith and Bire Kimisopa, Don Pomb Polye -v- Jim Sauk Papaki and Reuben Kaiulo, the Electoral Commission of Papua New Guinea and Masket Iangalio -v- Yangakun Kaeok and the Electoral Commission of Papua New Guinea. This liberal approach is basic and fundamental to the unique circumstances in which the elections are conducted in Papua New Guinea which also give rise to the election petitions. For instance, the tribal or the clan affiliates of the candidates take great interests in the elections and make them their serious business to support and ensure that one of their tribesmen or clansmen is elected to the National Parliament at all costs so that he can become a big man, and they in turn can become beneficiaries of that public office. This of course is wrong, but it is a unique and the prevailing factor which has become common place and has taken root. Thus when determining an election petition, the Courts not only have to safeguard the right of the elected member to hold the public office as having been mandated by the majority of voters, but must also give opportunity to the person petitioning the election, who has equal rights to stand for such public office, to be heard, especially where there are serious allegations in the petitions which may suggest that the elected member may have won the election through illegal means.
I am of the respectful view that the need for the Courts to display liberality in determining the issues before them in election petition proceedings was demonstrated in Neville Bourne -v- Manesseh Voeto (supra), when Frost C .J, gave a liberal definition to undue influence under s.102(b) of the Criminal Code Act, Chapter No. 262. His Honour at page 303 said:
"...Turning now to s.102(b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of the franchise by an elector, and it is quite clear in my opinion that fraud does include false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.
I agree with Mr Gregory’s submission that any such instance of fraud which prevents or makes more difficult the elector’s exercise of his right to vote as he wishes clearly falls within the section." (my underling).
This was a liberal approach to defining what is undue influence in the context of an election petition.
In Re Delba Biri –v- Bill Ginbgol Ninkama (supra), the Supreme Court in stating the reason why s.208 of the Organic Law has to be strictly complied with, at page 345, said:
"...Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary course. (In Re The Norwich Election Petition, Birbeck –v- Billard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority." (my underlining).
This utterance relates to the serious consideration or regard the Courts must give to the election petitions from the perspective of the winning candidate whose election is being challenged. The utterance has of course been given greater emphasis and prominence by the Courts, and so it must be, because a winning candidate’s right to be elected to the National Parliament is given by s.50 of the Constitution.
However, in so far as the utterance is emphasised and given prominence only from the perspective of the winning candidate, whose election is being challenged, there is the danger that the Court’s focus is only on safe guarding the rights of the winning candidate and the petitioner’s rights to challenge that election is given little or no emphasis and prominence. And I think this is the point the Supreme Court was reflecting on in the case of Electoral Commission of Papua New Guinea and Henry Iyapo Smith -v- Bire Kimisopa (supra), in the passage cited above. The danger in this possible imbalance on the focus by the Courts more on the rights and interests of the winning candidate than those of the petitioner was reflected by his Honour Kirriwom J., in Don Pomb Pullie Polye –v- Jim Sauk Papaki and Reuben Kaiulo, the Electoral Commissioner of Papua New Guinea (supra), when his Honour at page 9 of his judgement said:
"...But we should also be mindful of the spirit of the Constitution and the equitable principles that must guide the Courts in interpreting and applying the Constitutional laws on these very important and sensitive cases as in election petitions where some kind of equilibrium must be struck between respecting the wishes of the majority on one hand and ensuring that Constitution is respected and upheld by those who aspire to be leaders through the electoral process on the other." (my underlining).
In that case, the trial judge went on to find in favour of the petitioner, but on review by the Supreme Court upon the application by the first respondent based on the petitioner’s standing or qualification to petition the first respondent’s election, the Supreme Court quashed the trial judge’s decision, holding that the petitioner had no standing to bring the petition and declared that the first respondent was validly elected member for the Kandep Open electorate. The Supreme Court held that the petitioner had no standing or was not qualified to bring the petition because he was not enrolled as a voter for the Kandep Open electorate. See, Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea – SC 644. The observations made by the trial judge which I have referred to were in respect of the requirements under s.208(a) of the Organic Law. The grounds on which the Supreme Court quashed the trial judge’s decision did not relate to s.208(a) of the Organic Law. Indeed, the observations made by the trial judge in respect of s.208(a) as I referred to were not challenged on review. Those observations therefore remain as valid and relevant judicial pronouncements on the requirement under s.208(a) of the Organic Law.
It appears that, the greater emphasis and prominence given by the Courts to the seriousness of the election petitions from the perspective of the winning candidate has I think, resulted in many petitions being unnecessarily struck out on very technical grounds at the preliminary hearings, as in competency applications made under s.208(a) of the Organic Law.
In this regard, it is significant to bear in mind that the right to hold public office by an elected member is the extension of the right to vote and to stand for such public office given by s.50 of the Constitution. These rights are qualified by both the Constitution and the Organic Law. Thus these rights must be equally safe guarded by the Courts. The Constitutional rights and benefits under s. 50 of the Constitution must therefore be equally and fairly disbursed to both the winning candidate whose election is being challenged and the petitioner by the Courts. It therefore follows that the petitioner who also has that Constitutional right to stand for the public office and to hold such public office must be given every opportunity to be heard on his petition.
For the foregoing reasons, I find that the facts pleaded in paragraphs 5 to 7 as discussed earlier meet the requirement under s. 208 (a) of the Organic Law. I therefore allow these paragraphs to proceed to trial. The application by the first respondent is therefore dismissed.
The first and the second respondents to pay the petitioner’s costs of this application in equal portions.
____________________________________________________________________
Lawyer for the Appellant : Pato Lawyers
Lawyer for the First Respondent : Maladinas Lawyers
Lawyer for the Second Respondent : Nonggorr Lawyers
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