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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 1 OF 2006
BETWEEN
POWES PARKOP
Petitioner
AND
WARI VELE
First Respondent
AND
ANDREW TRAWEN
CHIEF COMMISSIONER
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent
AND
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Third Respondent
Waigani: Kirriwom, J
2007: 6 & 7 February
(No.1)
PARLIAMENT – Elections – NCD Regional Seat - By-Election – Disputed Returns – Petition alleging grounds of bribery and undue influence by successful candidate during election – Election voidable – Organic Law on National and Local Level Government Elections, ss.206 & 215
ELECTIONS – PRACTICE AND PROCEDURE – Objection to competency of petition – Petition must plead facts relied upon to invalidate election – Sufficient facts pleaded – Objection dismissed - Organic Law on National and Local Level Government Elections, s.208(a).
On the election petition filed by the petitioner challenging the result of the election of National Capital District Regional Seat on the grounds of bribery by the successful candidate, the First Respondent herein, an objection was raised on the competency of the petition on the basis that the petition failed to plead material facts according to s. 208(a) of the Organic Law on National and Local Level Government Elections,
Held: (1) Objection to competency be dismissed
(2) Facts as pleaded in the petition complied with s. 208(a) and were sufficient to go to trial and must therefore go to trial.
Cases referred to and cited
Jimson Sauk v. Don Pomb Polye [2004] SC769
Michael Mel v. William Ekip Wii [1993] N1178
Agonia v. Karo [1992] PNGLR 463
Peter Yama v. Melchoir Kasap[1988-89]PNGLR 197
Menyamya Open Parliamentary Elections (1977) PNGLR 298
Counsel
P Parkop, in person
A Jerewai, for First Respondent
R Williams for Second and Third Respondent
JUDGEMENT ON COMPETENCY
7 February, 2007
1. KIRRIWOM, J: An application was made by the First Respondent at the commencement of this trial for the petition to be struck out on the basis that it was incompetent. There are seven grounds contained in this petition which the First Respondent submits they all do not comply with section 208 (a) of the Organic Law on National and Local Level Government Elections (OLNE) in that they fail to specify, set out or plead facts necessary to present a petition.
2. The application is properly before me pursuant to section 15 of the Election Petition Rules 2002 and so is the Petitioner’s petition which is rightly before this Court by virtue of section 206 of OLNE. As a matter of course, when there is an objection to competency as a preliminary issue to be resolved, that must be heard and decided first.
3. At this juncture there is really no need for me to examine the evidence filed in the form of affidavits by either side. That is a matter for the substantive trial lest it might influence my mind in the way I rule on this application. I think the pleadings alone assisted by counsel’s submissions on the law would be good enough to determine the issue of competency of the Petition.
5. The petition set out the facts alleging the First Respondent either giving, donating, handing over cash or promising donations of cash during his campaign trail on the specified dates, times and places. The petitioner went on to plead the distribution or the manner of distribution of the proceeds of cheques cashed from the payments allegedly made by the First Respondent to named persons in the presence and for and on behalf of other named persons and the community where they belonged.
6. The First Respondent’s objection to competency of this petition is pursued on the basis that the petition failed to specifically state whether the alleged acts of bribery were sufficient to affect the result of the election. The First Respondents objection to competency is founded on application of the second leg of section 215 of the Organic Law on National Election which refers to bribery or attempted bribery of an elector by a person other than the winning candidate. Section 215 provides:
"215. Voiding election for illegal practices
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void." (emphasis mine)
7. This application is made because of the mandatory requirement of section 210 which states that ‘proceedings shall not be heard on a petition unless the requirements of section 208 and 209 are complied with. The First Respondent says that the petition falls short of meeting the requirements of section 208(a) which states that ‘a petition shall... set out the facts relied on to invalidate the election or return’. And the basis for this argument the First Respondent says, is that, the Petitioner failed to say in his petition grounds 9.1 (a) – (g) that the alleged acts of bribery were likely to affect the results of the election. This is a mandatory requisite under section 215(3) where the petition refers to other persons paying out monies to electors purportedly on behalf of the First Respondent. It was argued that if these alleged acts of bribery were committed by persons other than the First Respondent, the Petitioner was obliged to plead that they were likely to affect the result of the election. He submitted all grounds 9.1 (a) to (f) suffered similar defect except (g) which is differently worded but nevertheless must all be struck out as incompetent.
8. Mr Parkop appearing in person argued to the contrary. He said the petition contained all relevant facts as to dates, times and places where certain things were alleged to have happened and named persons as well as the First Respondent himself in person allegedly doing acts purportedly prohibited by law.
9. In this proceeding the petitioner relies on an Amended Petition made pursuant to Rule 11 of the Election Petition Rules filed 7 September 2006. He does not rely on the earlier Election Petition filed 25 August 2006, close to 24 days following declaration of results or 14 days after the return of the Writ. There is no dispute that the Amended Petition was filed within 40 days period prescribed by law.
10. There are a total of seven grounds in the Petitioner raising similar allegations of bribery and possibly one for undue influences which as alleged, were not properly pleaded in the Petition. Those grounds are as follows:
"(a) On the 4th of July 2006 at around 4.00 pm in the afternoon, after the issuance of the Writs for the By election for the Regional Seat for National Capital District, the First Respondent did give an amount of K20,000 in cheque to electors at Vanagi Settlement, Badili, including one Steven Haro, an elector, Noel Tony, an elector, Biliso Osake also an elector with the intended purpose of influencing Mr. Steven Haro, Mr. Noel Tony, Biliso Osake and other electors who are residents of the said Vanagi Settlement into voting for the First Respondent during a rally held at the said settlement. The cheque was received on behalf of the members of the Vanagi Community by the said Steven Haro, a community leader of the said Vanagi Settlement who subsequently had the cheque of K20,000 cashed and with the knowledge and authority of the First Respondent, distributed the amount to electors in Vanagi Settlement on the 7th of July 2006, including Hetape Pepe and his family; Eddie Makara, an elector and his family, in the presence of Biliso Osake, an elector and his family. The whole purpose of the giving of the cheque and the payment of cash after the cheque was cashed was to induce the said electors and other electors in the Vanagi Settlement, Badili into voting for the First Respondent in the By Election contrary to s. 103 of the Criminal Code and s. 215 of the Organic law on National and Local Level government Election.
(b) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election, on Saturday the 24th of June 2006 at about 11.30 am after the issuance of the Writs for the By election for the Regional Seat for National Capital district, the First Respondent did give an amount of K40,000 in cheque to electors at Kaugere Settlement in the National Capital District, including one Allan Omaro, an elector, Mathias Mulupe, an adult, Jonah Kamura, an elector and Minara Tumai, also an elector with the intention to influence Mr. Allan Omaro, Mathias Mulupe, Jonah Kamura, Minara Tumai and other electors at Kaugere to vote for the First Respondent in the By-Election or to influence electors in the Kaugere are of National Capital District into voting for the First Respondent in the said by-Election. The said cheque was received on behalf of the electors of Kaugere settlement by the said Mr. Allan Omaro, an elector who later had the cheque cashed and with the knowledge and authority of the First Respondent, distributed the said money to other electors in the said settlement, including one Minara Tumai, also an elector who received an amount of K1,000.
(c) On the 24th of June 2006 between 4.00 pm to 6.00 pm at the University field at the Back of Institute of Public Administration and near the Catholic Church at Waigani, National Capital district, well after the issuance of the Writs for the By election for the Regional Seat for National Capital district, the First Respondent did promise to give an amount of K50,000 to electors at the said rally, including Emanuel Mulupe as a means of inducing the said electors to vote for the First Respondent at the By Election contrary to s. 103 of the Criminal Code and s. 215 of the Organic law on National and Local Level Government Elections.
Four (4) days later on the 29th of June 2006, Mr. Joe Foxy, a Campaign Official and an agent of the First Respondent went to the First Respondent and collected the money promised by the First Respondent and distributed the same to electors at the Waigani Church area with the knowledge and authority of the First Respondent, including Emmanuel Mulupe who received K220 together with his family. Prior to giving the K220 to the elector, Emmanuel Mulupe and his family, Mr. Joe Foxy told the elector that if he did not give his first preference vote to the First Respondent in the By-Election, he will have to refund the K220, thereby confirming the intention of the First Respondent when giving the cheque of K50,000.
(d) On Sunday the 11th of June 2006, after the issue of the Writs of the By Election for Regional Seat for National Capital District, the First Respondent herein at a rally held on his behalf at Kukipi Block, Nine Mile settlement did induce electors at the said Kukipi Block, including Kakare Lare and Joe Kairu, to vote for him at the said by election by promising to give electors there an amount of K40,000 contrary to s. 103 of the Criminal code and s. 215 of the Organic law on National and Local Level Government Election. The electors who were present at the said rally at Kukipi Block 9 Mile, National Capital district include Mr. Kakare Lare and Mr. Joe Kairu.
The intention of the First Respondent was confirmed later when on the 25th of June 2006 between 1.30 to 2.00 pm Mr. Joe Oakiva a campaign official and agent of the First Respondent together with a female representative of the First Respondent went up to the same Kukipi Block at Nine Mile, under police escort and paid the K40,000 to the electors and members of the Kukipi Block at 9 Mile, NCD generally with the knowledge and authority of the First Respondent. The amount of K40,000 as promised by the First Respondent was paid out and received as follows, except for an amount of K4,000:
(e) On Wednesday the 21st of June, 2006 at around 8.00 pm, after the issuance of the Writs for the By-election for the Regional Seat for National Capital District, the First Respondent did promise to give an amount of K10,000 to electors and other adult person at Nine Mile Settlement in the National Capital District with the intended purpose of influencing them into voting for the First Respondent and with the intention to cause other persons present to influence electors at the 9 mile settlement into voting for the First Respondent in the said by election contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election. Those other adult person present include Mr. Rex Kope and Mr. Timon Porawi, who are adult residents of 9 Mile settlement, National Capital District. The intention of the First Respondent was apparent when the First Respondent announced at the said rally that he would give the electors there an amount of K10,000 to distribute among themselves and that they should give their first preference to him in the election.
(f) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election, the First Respondent did promise to give an amount of K30,000 to electors at Tete Settlement during a rally held at the said settlement on the 12th of June 2006. The promise of payment of K30,000 was intended to influence electors to vote for the First Respondent, including Kipi Charlie, an elector because when making the promise the First Respondent encouraged the electors assembled at the rally including Kipi Charlie to give their first preference vote to the First Respondent.
About two weeks later on Monday the 26th of June, 2006 after making the promise, some of the First Respondent campaign officials including Mr. Russle Warvik went to Tete Settlement and paid out the K30,000 in cash to the electors at the said settlement, with the knowledge and authority of the First Respondent, thus confirming the intention of the First Respondent to influencing the electors at Tete into voting for him at the said By election.
(g) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local level Government election, the Prime Minister, Grand Chief Sir Michael Somare when campaigning for the First Respondent and with the knowledge and authority of the First Respondent, at a campaigns rally held at Unagi oval for people originating for Hela Region in the southern Highlands Province residing in the National Capital District on the Saturday 1st day of July 2006 did promise the electors and people at that rally that if they voted for the First Respondent at the said By-Election or support the election of the First Respondent, his government would grant to the people of Hela a Province of their own and that his Government would amend the National Capital District Commission Act to make the First Respondent the Governor of the National Capital District.
The said promises were intended to influence or induce electors and others attending the said rally into voting for the First Respondent given that the person making the promise was the Prime Minister and that the promise was made even though the Prime Minister Grand Chief Sir Michael Somare knew or ought to have known that the promises could not be delivered or was unrealistic but made the promise anyway knowing that electors and others at the rally would rely on it as it was being made in his capacity as the Prime Minister and that the First Respondent was the Candidate endorsed by his party, the National Alliance Party in the said By Election.
The Petitioner says that the promise was unrealistic or otherwise false in that the Prime Minister knew that the decision whether to grant or not to grant Hela Province had been delayed to the Parliament elected after the 2007 National election as it was never part of the recommendation of the National Boundaries Commission Report that the Parliament had rejected early in 2006 and deferred any further discussion and decision on it to the Parliament elected after the 2007 Election."
11. One ground was abandoned on 12 October 2006 during the pre-trial process before Justice Sevua, the Judge Manager for election petitions.
12. The relief that the Petitioner seeks are as follows:
"(a) A declaration or finding that the First Respondent was not lawfully or duly elected as the Member for the National Capital District Regional Seat.
(b) An order that the declaration of the First Respondent as duly elected Member for the National Capital District Regional Seat is null and void,
(c) an order pursuant to section 104 of the Criminal Code that the First Respondent be barred from holding any public office, including the office of the Regional Member for National Capital District in the National Parliament for the next three (3) years.
(d) An order that the Petitioner be declared as the duly elected Member of Parliament for the National Capital District Regional Seat given that the First runner up Candidate, Ms. Janet Sape has failed to challenge the declaration and election of the First Respondent and that there will be insufficient time to conduct a by election before the writs for the General Election are issued.
(e) An order that the First Respondent pay the Petitioner’s cost of this Petition and cost incidental to the said election.
(f) Such further Orders as the Court deems fit to make."
13. The Notice of Objection to Competency of the Petition sets out the following grounds:
Ground 9.1(a) of the Petition
14. Similar complaints were raised in respect of petition grounds 9.1(b) to (f) except (g) where the objection raised was on the basis that –
The ground omitted to plead specifically in addition to the facts pleaded –
(a) names of the electors who attended the said rally when the alleged promise was made by the Prime Minister; and
(b) that the result of the election was affected or likely to be affected.
15. At the hearing of the application the First Respondent argued that failure to actually plead that the result of the election was affected or likely to be affected was critical because the Petitioner named other persons as receiving money and distributing them to those named and unnamed persons. It was also argued that in grounds 9.1(a) to 9.1(d), the persons allegedly received the money from the First Respondent gave no disposition or affidavit, so there is every possibility that they are unlikely to be called as witnesses whose evidence are or could be vital in linking the alleged payments to the First Respondent.
16. The Petitioner argued in effect that the First Respondent misunderstood his petition by invoking section 215(3) of the Organic Law on National Election as he was relying on section 215(1). He said the grounds complained of concerned the First Respondent in person and him personally giving money or making promises to named persons at different times, places and dates when they happened.
17. Bribery is a criminal offence under section 103 of the Code which on conviction carries a penalty of K400 fine or one year imprisonment. Section 103 provides as follows:
"A person who—
(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."
18. In line with this provision of the law, to establish bribery for purpose of the election laws stipulated in section 215 of the Organic Law on National Election and complying with the test formulated in Agonia v. Karo [1992] PNGLR 463, the Petitioner must set out, in my view, the following facts:
19. Reading section 215 of the Organic Law on National Election as a whole, what this law is saying is that a person declared as winner in the election shall not be declared not duly elected by the National Court or no election must be declared void on account of illegal practices falling short of bribery or undue influence or attempted bribery or undue influence committed by a person other than the candidate who was declared winner. The only time when the person returned can be declared not duly elected or the election declared void on account of illegal practices not amounting to bribery or undue influence or attempted bribery or undue influence is when the Court is satisfied that the result of the election was likely to be affected and that it is just that the candidate returned as winner be declared not to be duly elected or his election should be declared void.
20. This being one interpretation of section 215 of the Organic Law on National Election as I understand from my reading of it, applying that in context of the objection raised by the First Respondent, I am not exactly sure whether the argument advanced is supportive of that view. I am not sure it does. I think it is advocating a completely different proposition which might not accord with intended reasoning of the second limb of section 215 of the OLNE.
21. It would seem to me that this interpretation may have led the First Respondent into mounting his objection on the competency of the petition based on the second limb of section 215 of the OLNE and further prompted by the extended pleading in the grounds of the petition which bundled both limbs in the one ground. The second limb of section 215 was invoked in the past in allegation of illegal practices other than bribery and undue influence such as double voting, irregularities at polling or counting, or errors and omissions where specific number of votes were affected which if election had been conducted without or free of them, the result of the election might have been different. A classical example of this is Peter Yama v. Melchior Kasap and the Electoral Commission which ultimately went to the Supreme Court and is reported in [1988-89] PNGLR 197. The petitioner Peter Yama was an unsuccessful candidate for Madang Regional Seat. The winner was Melchoir Kasap who won the seat from Hon. Tom Pais, the then sitting Member. Tom Pais did not challenge the result although he was the runner-up so the Petitioner who came third petitioned the Court alleging gross irregularities at the counting and errors and omissions. In the course of the trial it was discovered that there was a huge discrepancy between the Master Tally Sheet kept at the Central Tally Room in Madang Town with the Tally Sheets brought in from the Six Electorates. The Master Tally Sheet maintained at the Central Tally Room had Melchior Kasap ahead of other candidates and he was so declared winner, however, when the results from the Tally Sheets kept for the Regional Seat in the six Electorates were counted and added together, it showed Tom Pais the sitting member, as the winner. This was a case of illegal practice or maybe a genuine error or omission by somebody other than the candidate returned as the winner which clearly affected the result of the election because had it not been for that illegal practice, Tom Pais would have been returned. The Court therefore exercising its powers under section 212(1)(f) and (g) declared Melchior Kasap not duly elected and declared Tom Pais as duly elected. On this issue the case went to the Supreme Court for review and the Supreme Court dismissed the appeal and upheld the National Court decision. But I am not sure and indeed I do not believe that section 215(3) OLNE was and is intended to be read and applied as argued by the First Respondent given the general circumstances pleaded in the petition in all those grounds the Petitioner relies upon.
22. This reasoning would be consistent with the general understanding of the law that where bribery or undue influence is relied upon in an election petition, only one act of bribery or undue influence is all it takes to declare an election void and a new election ordered.
23. Returning now to the grounds in the amended petition, these are my findings on this preliminary issue of competency:
Ground 9.1(a)
24. It states that on 4 July 2006, at around 4.00 pm in the afternoon, after the issuance of the writs for the By Election for the Regional Seat for National Capital District, the First Respondent did give an amount of K20,000.00 in cheque to electors at Vanagi Settlement, Badili, including one Steven Haro, an elector, Noel Tony, an elector, Billy Osake also an elector with the intended purpose of influencing Mr. Steven Haro, Mr. Noel Tony, Biliso Osake and other electors who are residents of the said Vanagi settlement into voting for the First Respondent during a rally held at the settlement.
25. The pleadings in this ground in very elaborate detail set out all the facts that are to be relied upon to invalidate the election or return. The allegation is one of bribery against the First Respondent in person who allegedly paid money in the form of a cheque for K20,000.00 during an election rally on a specific date, time and place to the settlers of Vanagi settlement who received the cheque through these named persons for and on behalf of the rest of the settlers. Such payment or donation made during an election while campaigning by a candidate to electors who are potential voters in the electorate he has nominated and is standing for can and does have far-reaching influence on the mind of voters to vote in a particular way, as an ordinary human reaction.
26. The ground itself goes further and explains the distribution of the proceeds of the cheque after it was cashed from the payment made some days later which for purposes of section 215(1) OLNLLGE was unnecessary. And because it was pleaded in that manner, it properly attracted the objection as raised. The fact that there is this extended pleading does no harm to the ground itself and there is no danger to the petition. If there is evidence subsequently led on this aspect had it not being pleaded, so be it as it is still part and parcel of that process of fulfilment of the giving of the benefit or of the promise made of such benevolent gesture.
27. Ground 9.1(a) is competent to go to trial.
Ground 9.1(b)
28. This ground specifically says that it was the First Respondent in person who on specific date, time and place after the writ had issued and during a campaign trail for the vacant NCD Regional Seat gave a cheque of K40,000 to named electors at Kaugere Settlement for and on behalf of the residents of Kaugere settlement with intention to influence them to vote for him.
29. For purpose of section 215(1) of OLNE, the pleading sets out in detailed manner all relevant and material facts for this ground to go to trial. To expect anything more will be pleading evidence or matters not relevant to the issue in the petition.
30. The petitioner on the other has gone far beyond those facts set out above by actually pleading the manner in which other persons went about distributing the proceeds of the cheque after being cashed as to amount and recipients. In my view this additional pleading was unnecessary as it was a consequence of reading both subsections (1) and (3) of section 215 OLNE erroneously as having simultaneous application when they are not. Each constitutional law is to be read separately and as a whole.
31. This ground must therefore go to trial.
Ground 9.1(c)
32. This ground again refers to the First Respondent in person on a specific date, time and place after the writ had issued and during campaign while attending a rally at the University field behind the Institute of Public Administration promised those gathered to give K50,000.00 to the Catholic Church at Waigani. The ground also states the name of one elector who was present at this rally when this promise was made. The ground says that the promise was made with the intention to induce potential voters who were members of Waigani Catholic Church to vote for him.
33. Although the facts as stated were adequate for purpose of pleading bribery allegations, the Petitioner went further to provide further facts as to what transpired four days later with respect to the promise allegedly made by the First Respondent when a named campaign official and agent of the First Respondent collected the money from the First Respondent and paid to a named elector and his family.
34. It is a matter for evidence to substantiate these facts and I therefore allow the ground to go to trial.
Ground 9.1(d)
35. This ground is similar to the last one. The venue was Kukipi Block 9-Mile and many electors were present including those named in the petition. On Sunday 11 June 2006 after writ had been issued and at a campaign rally the First Respondent in person promised to give K40,000.00 to the settlers there if they voted for him.
36. As pleaded the ground sufficiently set out the facts necessary for this ground to go to trial but the Petitioner went further by stating the date, time and place when that promise was actually fulfilled about two weeks later with cash and cheque payments made to various groups in that same locality of Kukipi Block at 9-mile.
37. I am satisfied that the ground as it is pleaded is competent and fit for trial and I shall allow it to proceed.
Ground 9.1(f)
38. This ground is also similar to the others. It says that the First Respondent in person promised to give K30,000.00 to electors at Tete settlement during a rally held on 12 June 2006 for his campaign and he made that promise with the intention to induce the electors from that settlement to vote for him.
39. For purposes of section 215(1) the facts are sufficiently pleaded but the Petitioner went further to state facts relating to the fulfilment of that promise two weeks later when his campaign officials returned to the settlement and paid out the money he promised to the people.
40. I am satisfied that this ground is sufficiently pleaded and must go to trial.
Ground 9.1(g)
41. This ground is different from the rest. It alleges that at a public campaign rally held at Unagi Oval for the people of one ethnic origin in the Southern Highlands of Papua New Guinea on 1 July 2006, the Prime Minister of Papua New Guinea, Grand Chief Right Honourable, Sir Michael Somare urged the people gathered to vote for the First Respondent who was a candidate running for the By election under the Prime Minister’s own Party ticket. He promised the Hela people gathered that if they voted for the First Respondent the National Government would grant a separate Province for Hela people and also amend the relevant law on NCD to make the First Respondent Governor of NCD. The ground pleads that the Honourable Prime Minister made these statements with the knowledge and authority of the First Respondent.
42. Mr. Parkop conceded that this ground cannot come under section 215(1) OLNE because it is not the First Respondent in person. It was also pointed to Mr. Parkop that the pleading falls short of showing whether the First Respondent was also present in person at the same rally when these alleged promises were made.
43. I have given careful thought to this ground in the light of its pleading and the general factual circumstances as pleaded in support of the ground. While the absence of the First Respondent at this rally at the material time when the Prime Minister allegedly uttered these promises to the target group of electors concerned could pose difficulty with respect to the element of ‘with the knowledge and authority of the First Respondent’, on the other hand, the pleading is clear in linking the Prime Minister to the First Respondent as having special relationship, a bond that naturally would entitle one to help the other, being member of the Prime Minister’s own Political Party, so I am inclined to think that the ground as it is can be allowed to go to trial because only evidence can clear the air of speculation.
44. At this juncture of choosing grounds for trial and discarding those without merits, the trial judge has the ultimate discretion which of course must be exercised judicially. The discretion is exercised within the bounds of law and common sense.
45. In the exercise of my discretion, I will also allow this ground to proceed.
The Law
46. Only one act of bribery needs to be proven for a petition to succeed and an entire election declared void. That is the law. Woods, J (as he then was) in Michael Mel v. William Ekip Wii [1993] N1178 reiterated this statement of the Law.
47. The Organic Law in making bribery and undue influence as the most serious of illegal or corrupt practices at elections which justifying nullification of an election result secured through bribery and undue influence clearly reinforces the democratic principle of fairness and free exercise of franchise and is determined to forego the result reached under such evil and corrupt circumstances. Therefore whilst election is a serious matter and the majority wish must be revered and respected, the law prescribes the means by which an aspirant for an elective including political office must get there. End does not justify the means.
48. In this regard I endorse the sentiments expressed in Jimson Sauk v. Don Pomb Polye [2004] SC 769 by the Supreme Court in a review application following dismissal of petition at the preliminary hearing when it said:
‘We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) when commenting on another National Court decision that had been relied on and referred to him:
"With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard." (Underlining ours.)
This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of His Honour. Because of the frequent nit-picking technical objection raised in the guise of real substantive issues of competency or jurisdiction (based either on ss.208, 209 and 210 Organic Law, supra, or ss. 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility is to organise, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the election.’
49. This is a very powerful statement that the Supreme Court has ever made in defence of election petitions and this Court is bound by what the Supreme Court has expressed. The Supreme Court justified its reasoning by examining the history of election petitions since the First National Elections after Independence where the then Chief Justice Frost then said in the Menyamya Open Parliamentary Elections (1977) PNGLR 298 at 300:
"The Organic Law thus givens full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void."
50. Both are authoritative statements of law and wisdom that this Court is bound to pay heed to without reservation.
51. The end result is that the objection to competency is dismissed. The petition shall proceed to trial on all the remaining grounds from 9.1(a) to 9.1(g).
52. I order costs in favour of the Petitioner.
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