N3321

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: 15 & 19 February

(No.2)

NATIONAL PARLIAMENT – Elections – By-Election - Relief sought by the Petitioner - Court of Disputed Returns – Jurisdiction and Powers – whether the court can grant relief outside those specifically provided for under s.212 and 215 of the Organic Law on National and Local Level Government Elections – whether the court can declare the Petitioner as duly elected – whether the court can grant one or more of the relief provided under s.212 and s.215 not withstanding s.106(a) Constitution which prohibited by-election taking place where vacancy in Parliament occurred within 12 months of the fifth anniversary of the return of the writs for the previous general elections – Organic Law on National and Local Level Government Elections, ss.212 & 215 – Constitution of PNG, s.106

The petitioner filed a petition seeking declaration that the election of the First Respondent is null and void on the ground of bribery and for the First Respondent to be declared not duly elected. The petitioner also sought other relief including him being declared duly elected although he was not the first runner-up and that the First Respondent to be barred from holding elective public office for two years if bribery was established in the evidence against him as provided for under s.104 of the Criminal Code Act of PNG. The Court was also asked to rule whether it could nevertheless go ahead and hear the petition notwithstanding that a by-election cannot be held if bribery was established by evidence against the First Respondent because s.106 (a) Constitution of Papua New Guinea prohibited it from taking place where a vacancy in the Parliament occurred within the twelve months of the fifth anniversary of the return of the writs for the previous general elections.

Held: 

(1) the court can order by-election under s.212 OLNLLGE as envisaged under s.215 (1) OLNLLGE.

(2) In the instant case, there can be no by-election ordered by the court or by operation of the law as it is specifically prohibited under s.106 (a) Constitution of PNG as the next general elections are only two months away before the writs are issued by the Governor General.

(3) Where evidence sustains bribery against the First Respondent and he is declared not duly elected following declaration of the election void, the court cannot declare the petitioner or any other losing candidate as duly elected. Application for Review by Melchior Kasap and SCR No. 6 of 1988 and Application for Review by Peter Yama [1988-89] PNGLR 197 (SC 365) distinguished.

(4) Where evidence sustains bribery against the First Respondent and the court so finds, it can only declare the election void and further declare the First Respondent not duly elected.

(5) where evidence sustains bribery against the First Respondent and he is declared not duly elected and result of the election invalidated, the court cannot make an order barring the First Respondent from holding elective public office for two years as stipulated in s.104 of the Criminal Code Act of PNG as it falls outside the scope of relief available under Part XVIII Disputed Returns and Elections of OLNLLGE.

Cases referred to or cited

Neville Bourne v Manasseh Voeto [1977] PNGLR 298
The State v Manasseh Voeto [1978] PNGLR 119
SC Review No 16 of 1998; Review Pursuant to Constitution s155(2)(b); Aita Ivarato v Peti Lafanama and Electoral Commission of Papua New Guinea; SC563
Application for Review by Melchior Kasap and SCR No. 6 of 1988.
Application for Review by Peter Yama [1988-89] PNGLR 197 (SC365).

Counsel

P Parkop, in person
A Jerewai, for 1st Respondent
R Williams, for 2nd and 3rd Respondents

JUDGEMENT ON RELIEFS SOUGHT

19 February, 2007

1.	KIRRIWOM, J: At the outset of the hearing of this election petition, after I had dismissed the objection to competency of the petition and ordered the petition to proceed to trial, a serious question arose as to the utility or practical necessity of the petition proceeding to the trial where the only ultimate relief of by-election under s.106 of the Constitution was prohibited from taking place as the vacancy occurred in the seat of the Member of Parliament within the twelve months of the fifth anniversary of the return of the writs for the previous general elections. I felt that it was important to clear the air on this issue before proceeding further when the grounds relied upon in the petition were of bribery and under s.215(1) of Organic Law on National and Local Level Government Elections (OLNLLGE) once bribery, even a single act of bribery, is established, the election of the successful candidate must be declared void. The reason being that in a matter of two to three months, writs for the next general elections will issue and the country will go to the polls to elect new members of Parliament. This is a fact which I take judicial notice of as this petition is heard in the thick of preparations for this occasion presently underway.

2.	A brief background to this petition is that on 3 January 2006 the National Capital District Regional Seat became vacant upon the sudden death of Hon. Bill Skate, MP who held that seat, following a heart-attack. As the consequence a by-election was held in accordance with section 106 of the Constitution.

3.	On 1 August 2006 the Second Respondent declared the First Respondent as the winner. Unhappy with his declaration, the Petitioner who is the second runner up filed a petition on 7 September 2006 challenging the First Respondent’s win on various grounds of bribery.

4.	When the hearing of this petition commenced on 6 February 2007 the First Respondent took a first swipe at the Petitioner’s petition by challenging its competency under section 210 of the Organic Law on National and Local Level Government Election (OLNLLGE) for not complying with s. 208(a) of OLNLLGE by not pleading sufficient facts. The competency issue was resolved in favour of the Petitioner.

5.	Since then a review against that ruling had been filed and is pending before the Supreme Court.

6.	The court proceeded into the hearing of this petition by first addressing the issue of relief sought by the Petitioner. As cases can be decided on questions of facts alone, purely on law, or on both facts and law combined, it was considered appropriate to hear submissions on the relief sought as the first matter, based on some assumed agreed facts to facilitate this process. 

7.	Therefore accepting an hypothetical situation which assumed that the Petitioner had proved one or more of his allegations of bribery against the First Respondent in person and his election was declared absolutely void and he was declared not duly elected, the Court was asked to rule on whether the National Court has jurisdiction to make the following consequential orders:

1.	Order a by-election to the said Seat pursuant to section 106 of the Constitution.

2.	Declare the Petitioner as being duly elected for the Seat pursuant to section 212(g) OLNLLGE.

3.	Declare another losing candidate in the by-election as being duly elected pursuant to section 212(g) of OLNLLGE.

4.	Bar the First Respondent from holding public elective office for a period of three years pursuant to section 104(a) of the Criminal Code.

General Elections and By-Elections

8.	I bear in mind that the election result under challenge stems from a by-election. If the Petitioner’s allegations of bribery are proven and the First Respondent’s election is declared void, a vacancy therefore occurs in the Parliament which under ordinary circumstances as envisaged under s.106 of the Constitution would necessitate yet again another by-election.

9.	The Constitution under s.105(a) provides that a general election to the Parliament shall be held within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election. It is by virtue of this law, the country is now preparing to go to the polls when the writs for the general elections issue is just a little over two months from now.

10.	Under this prevailing circumstance, this petition now comes before this Court for hearing prompting the issue of the practical utility of the petition proceeding to trial being addressed at the earliest opportunity.

11.	Section 106 of the Constitution provides:

"If the office of an elected member of Parliament become vacant otherwise than by virtue of section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurred –

(a)	within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or

(b)	after the writ has been issued for an election under section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first returned writ shall be declared to have been revoked.

12.	Mr. Parkop argued that section 215(1) of the Organic Law must not be read conjunctively with section 106 of the Constitution thereby making it mandatory for the Court to order a by-election once it finds bribery proven. He said section 215(1) OLNLLGE must be read as being capable of providing an absolute remedy which is that of declaring the election of the successful candidate void.

13.	This argument is also supported by Mr. William for the Second and Third Respondents who submits that section 106 of the Constitution exists independently of OLNLLGE and its operation is not pre-condition on section 215(1) OLNLLGE coming into play when an election petition comes before the Court. He submitted that section 106 can be invoked at anytime when such need arises without court order.

14.	Mr. Jerewai for the First Respondent argues that it serves no practical purpose to simply declare an election void and declare the First Respondent not duly elected, if the Court cannot go further to order by-election for the seat because of section 106(a) of the Constitution. He submits that the only purpose for the petition proceeding is for the Petitioner to prove his case against the First Respondent and to have him declared not duly elected and the election declared absolutely void.

15.	Indeed this was the thrust of Mr. Parkop’s submission. He knew at the outset before he filed his petition that by-election was already out of question under section 106(a). All he wanted was to prove his case and have the First Respondent’s election declared void and him being declared not duly elected. For this reason he did not specifically seek by-election amongst the relief he sought in his petition.

16.	After hearing counsel on this point, I am inclined to agree with Mr. William that both section 215(1) OLNLLGE and section 106(a) Constitution are not to be read conjunctively. In other words, it does not automatically follow that a by-election is always a natural consequence of an election being declared absolutely void under section 215(1) on proof of bribery against the successful candidate.

17.	Sections 215(1) provides:

"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."

18.	If every Constitutional law is to be read as a whole, the declaration of election as void is the final consequence of the petitioner proving his allegation and the finding of bribery by the Court.

19.	The relief specifically provided under section 215(1) OLNLLGE is further supported by section 212 which sets out the general power of the Court in an election petition. Amongst these powers is the power to declare a candidate returned as elected not duly elected (s. 212(f) and to declare a candidate duly elected who was not returned as elected (s. 212(1)(g)) and even declare an election absolutely void (s. 212(1)(h)).

20.	Section 212 provides as follows:

"Powers of court.

 (1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.

(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4)	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election."

21.	I am persuaded by the argument put forward by the Petitioner and counsel for the Second and Third Respondents that powers provided in sections 212(1) and 215(1) OLNLLGE were intended to be read exclusively as deposing of the case entirely, meaning that their application was not tied to any other law such as section 106 of the Constitution. I am therefore satisfied that if evidence adduced sustains the ground or grounds of bribery as alleged, the Court’s findings can be enforced by the consequential relief provided in section 215(1) to declare the election of the successful candidate void or resort to the relief provided under section 212(1)(f) and (g). As the Supreme Court in SC563	- SC Review No 16 of 1998; Review Pursuant to Constitution s155(2)(b); Aita Ivarato v Peti Lafanama and Electoral Commission of Papua New Guinea said that the statutory declaration that the election of the successful candidate is void upon proof of undue influence under section 215(1) is mandatory.

22.	In this case, notwithstanding that by-election is out of question as it is precluded by section 106(a) Constitution, the Court need not go that far, suffice that the First Respondent’s election is declared void.

Can the Court declare the Petitioner or another losing candidate as duly elected?

23.	Mr. Parkop submitted that the Court does have power under section 212 to declare him or another losing candidate as duly elected if bribery is proved and the First Respondent is declared not duly elected. He premised his argument on the Court’s general power to order a by-election in appropriate cases where it applied although no specific provision was made for it in the Organic Law especially in section 212 OLNLLGE. He argued that the power to order by-election is provided under section 106 of the Constitution and if the Court can invoke that relief which is outside section 212 OLNLLGE, certainly the Court must have power to declare him or another losing candidate as duly elected.

24.	Mr. Parkop relied on SCR No. 5 of 1988: Application for Review by Melchior Kasap and SCR No. 6 of 1988: Application for Review by Peter Yama [1988-89] PNGLR 197 (SC 365). He adopted the broad definition or meaning given to the word ‘candidate in section 212(1)(g) by Woods, J (as he then was) where he said in that case that the word ‘candidate’ cannot be restricted to mean the ‘petitioner’. It must mean any of the persons who duly nominated and stood. It is therefore open to find a candidate the winner whether he was a party to the petition or not.

25.	Mr. Parkop stressed this argument because as the second runner-up in the election, he fell into this situation like Peter Yama in the case referred to above. Peter Yama petitioned the Court although he was the second runner-up. The winner was Melchior Kasap while the first runner up was the sitting Member Tom Pais. The Court declared Tom Pais the winner for the reasons I explain fully later in this judgment.

26.	Both Mr. Jerewai for the First Respondent and Mr. William for the Second and Third Respondent endorsed this view although Mr. Jerewai went further to submit that the Court can only declare the runner-up as duly elected. In the present case the Petitioner was not the runner up so he cannot be declared the winner. Both counsel also made reference to Kasap and Yama case (supra).

27.	As I pointed out to Mr. Parkop and Mr. Jerewai during their submissions in their reliance on the case authority of Kaspa and Yama (supra) that there were several fundamental differences between the factual situations in that case with the one now before me. Probably I have a better knowledge of the case than both the Petitioner and counsel for the Respondents referred to because I was one of the counsel in that case representing Melchior Kasap.

28.	The first difference is that the petition was determined on the ground alleging errors and omission by the electoral officials during the counting. Because of the errors made in posting or not posting counts coming to the main Tally Room from the Six Open Electorates Counting Centres, the final results posted on the Master Tally Sheet in the Central Provincial Counting Centre that showed Melchior Kasap in the lead was wrong but declaration was made on that figure. When the documents especially the Tally Sheets from the Six Open Electorate were received by the Provincial Returning Officer who double-checked the individual Tally Sheets and compared them with the Master Tally Sheet it was discovered that Melchior Kasap was prematurely declared winner without the rest of the counts being received and recorded in the Master Tally Sheet at the Central Provincial Counting Room.

29.	Secondly, the discovery of error in the counting did not give rise to the entire election being declared void as is the requirement in bribery allegation under s. 215(1) OLNLLGE. The entire election was not declared void. The Court simply declared Melchior Kasap not duly elected and declared Tom Pais as duly elected as he had the voters’ mandate.

30.	Thirdly, the declaration of Tom Pais as the duly elected winner of the election was not founded on the basis of him being the runner up, he was indeed the actual winner according to the ballot.

31.	For these reasons this case can be easily distinguished with Kasap and Yama (supra).

32.	I therefore reject any suggestion that in an election petition where the ground alleged and proved to the satisfaction of the Court is bribery and the election of the successful candidate is declared void, another losing candidate runner up or not, can be declared as duly elected in place of the disgraced winner. I don’t think that is what the law intended at all.

33.	Vesting the Court with such power is the same as empowering it to substitute the People’s choice of leader by popular vote with one that the Court chooses. That would defeat the whole purpose of election.

34.	Where an entire election is marred by bribery according to the evidence presented, the logical consequence that ordinarily follows is that the entire election is declared absolutely void and the successful candidate declared not duly elected. When this happens section 106 automatically comes into play because a vacancy has occurred in the seat of a Member of Parliament. The declaration of election absolutely void simply means that there was no free election at all. One act of bribery is sufficient to corrupt an entire election and influence a voting population like bush fire so no losing candidate in that same election can claim victory in place of one found guilty of bribery because all those votes collected by the winner or successful candidate could have gone to anyone in that election had the election been free of bribery and corruption.

35.	It is my view therefore that in an election petition founded on allegations of bribery against the successful candidate, if proved the only remedy is declaration of entire election void and the successful candidate declared not duly elected. This is all that can happen. A further step to be taken under section 106 Constitution is the prerogative of the Government at the instigation of the Electoral Commission of Papua New Guinea.

Can the Court order the First Respondent to be barred from Holding elective Public Office for Three Years Pursuant to section 104 of the Criminal Code?

36.	One of the reliefs that the Petitioner seeks is that the Court must bar the First Respondent from holding an elective public office for three years if the Court finds bribery against him proven. The Petitioner is invoking section 104 of the Criminal Code which is headed Further Penalty For Corrupt Practices. The Petitioner repeats the same submissions that the Court’s powers are not restricted to section 212 OLNLLGE. He argues that in the same way the Court can invoke section 106 Constitution to order by-election by the same token, it can bar the First Respondent from holding public office for three years if found guilty of bribery.

37.	Section 104 (Further Penalty for Corrupt Practices) of the Code provides:

 (1)	A person convicted of an offence against Section 99, 100, 101, 102 or 103 committed with respect to a parliamentary election becomes incapable, for three years from the date of the conviction—

(a)	of being registered as an elector or of voting at any parliamentary election or of holding any judicial office, and if he holds any such office the office is vacated; or

(b)	being elected or appointed to or of sitting in the Parliament, and, if at the time of the conviction he is a member of the Parliament his seat is vacated.

(2)	Any person convicted of any offence referred to in Subsection (1) committed with respect to a local government election becomes incapable, for two years from the date of the conviction, of holding any local government office, and, if he holds any such office, the office is vacated."

38.	Both Mr. Jerewai and Mr. William disagree with Mr. Parkop on this submission. It is submitted that the further consequential order under section 104 Criminal Code is not open to the Court of Disputed Returns. That remedy falls exclusively within the domain of the Criminal Court where the First Respondent is charged with committing those specific offences under the Code.

39.	I agree with both counsel for the First, Second and Third Respondents. This relief is not available to the Petitioner. If the Petitioner seeks this remedy, he should commence criminal prosecution of the First Respondent in the appropriate Court and establish his case on the required standard of proof beyond reasonable doubt. After all bribery and undue influence provided in sections 102 and 103 are electoral offences which are criminal in nature and meant to be prosecuted in the District or National Court exercising criminal jurisdiction upon proper charges being laid. An election petition alleging bribery or undue influence applies different standard of proof which is lower but higher than the ordinary civil standard. This is already well settled in this jurisdiction in Neville Bourne v Manasseh Voeto [1977] PNGLR 298 where Frost CJ said:

"The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference". Salford Election Petition (1869) 20 L.T. N.S. 120; Northallerton Election Petition (1869) 21 L.T. N.S. 113 at p. 116 and Re Welland Election (1875) H.E.C. 187 applied. 

40.	The Court in election petition is always mindful of section 217 OLNLLGE which emphasizes real justice to be observed and rules of evidence are quite relaxed.

41.	The crucial word in section 104 that takes this provision away from the Court of Disputed returns is ‘conviction’. The word conviction in relation to a statutory offence is synonymous with criminal trials where an offender is charged for committing an offence and prosecuted before a court of law which if finds the charge proven convicts him and imposes a penalty. The Court of Disputed Returns does not convict anyone as it is not its role to convict other than to find whether a petitioner’s complaint in respect of an election result has been proven. The First Respondent or the winning candidate must first be convicted of either bribery or undue influence before section 104 Criminal Code can be invoked. A finding of bribery committed at the elections in the Court of Disputed Returns is not a conviction as in a criminal prosecution. The case of The State v Manasseh Voeto [1978] PNGLR 119 is a classical example where the accused was charged with ‘undue influence’ for allegedly, by fraud, obstructing the free exercise of the franchise at the 1977 National Elections for the Menyamya Open Electorate by telling an elector that he would pay a fine of K400 if he did not vote for the accused.

42.	This is a misconception of the election petition track. The objective of this litigation under Part XVIII – Disputed Elections and Returns of the Organic Law is not to impose a criminal or associated sanction. The relief sought is founded on misconception and misunderstanding.

43.	The Court therefore cannot make such an Order as sought by the Petitioner.

44.	In the final analysis, the Court concludes as follows:

1.	The Court can order by-election if the election is voided and the successful candidate is declared not duly elected but in this case the Court cannot order by-election as it is prohibited by section 106(a) Constitution.

2.	In the circumstances the Court can only order the election of the First Respondent void and declare the First Respondent not duly elected in accordance with the mandatory requirement of section 215(1) together with section 212(1) (f) and (h) of the OLNLLGE, if the allegations of bribery are proven.

3.	The Court does not have power to declare the Petitioner or another losing candidate as duly elected when an election is voided on the ground of bribery and the successful candidate who was returned as elected declared not duly elected.

4.	The Court of Disputed Returns does not have power to bar the First Respondent from holding public office under section 104 of the Criminal Code which is only open to the court in a criminal trial following a conviction recorded against a successful candidate.

______________________________

Powes Parkop Lawyers: Lawyers for Petitioner
Jerewai Lawyers: Lawyers for First Responden
Nonggorr & Associates: Lawyers for Second & Third Respondents