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Yama v Pariwa [2025] PGSC 123; SC2811 (1 September 2025)

SC2811

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC REV (E.P) NO. 68 OF 2023 (IECMS)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN
PETER CHARLES YAMA
Applicant

AND
HON. RAMSEY PARIWA
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: TOLIKEN J, POLUME – KIELE J, ANIS J, NUMAPO J, KOSTOPOULOS J
28 JULY, 01 SEPTEMBER 2025

SUPREME COURT RULES 2012: Application to dismiss review proceedings - Order 13 Rule 16(1)(a) – substantive review proceeding pending - Order 5 Rules 8,9,10 and Order 5 Rules 18,19 and 20 – Organic Law on National and Local level Elections 1997 – Application of Section 220 of the Organic law

NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS – Election petition dismissed – s. 206 of Organic Law on National and Local level Government Elections 1977 – aggrieved petitioner applied for review – leave granted – substantive review proceeding pending – First Respondent applied to dismiss proceedings on lack of standing relevant to section 84 of Organic Law on National and Local level Government Elections 1977 - Section 220 of the Organic Law applied no right of review – Applicant was a candidate in the Madang Provincial Seat in 2022 National Election – now a candidate in the Unio/Bundi By-Election 2025 – issue of when does the Applicant cease to be a candidate in the Madang Provincial Seat in 2022 National Election relevant to standing (locus standi) of Applicant in this appeal. – section 155 of the Constitution relevant to the administration of justice

Cases cited
Allan Ebu v Roy Aua Evara [1983] PNGLR 204
Ganzik v Iguan [2024] PGSC 134
Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634
Scarf v Jardine per Lord Blackburn (1882) 7 AC
Singirok v Fairweather [2014] N5577
S.Kaprow & Co Ltd McIelland & Co Ltd per Wrottesley LJ (1948); 1 KB 618
State v Minai [2025] N11370
Supreme Court Reference No. 2 of 1982; Re Organic Law on Election (Amendment) Act 1981 [1982] PNGLR 214
Yama v Pariwa [2023] N10536
Evele Kala v. Sir Puka Temu and 1 Or (2018) N9234
Somare, Re, [1981] PNGLR 265
Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346
Steamships Trading Ltd v. Minister for Lands and Physical planning [2000] PGNC 11; N1959
Kenn Norae Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and 2 Ors (2007) SC886
Dawidi v Jacob [2001] PGNC 130; N2083
Vanimo Jaya Ltd v. East New Britain Provincial Government and 1 Or (2018) SC1734

Counsel
Mr. B. Lomai for the applicant
Mr. M. Kombri for the first respondent
Mr. B. E. Kua for the second respondent

JUDGMENT

TOLIKEN J: The First respondent, the Hon. Ramsey Pariwa (Mr. Pariwa) challenges the Applicant Mr. Peter Charles Yama’s standing to pursue his Application for Review of the dismissal of his petition against the former’s return as Provincial member for Madang in the 2022 National Elections. The Applicant’s substantive Review is not before us.
The background ground facts leading up to this Application are sufficiently summarized in Justice Kostopoulos’s opinion which I shall respectfully adopt.
What is undisputed though, and perhaps, the only facts upon which this Application will turn are these; Mr. Yama and Mr. Pariwa were candidates for the Madang Provincial Seat in the 2022 General Elections which the latter won. The Writs were duly returned and Pariwa took his seat in Parliament as Provincial Member (Governor) for Madang.
Aggrieved by the result, Mr. Yama filed a petition in the National Court. His petition was dismissed. Further aggrieved by that decision, Yama successfully sought and was granted leave to apply for a review the decision of the National Court. While the Review was still pending, Yama nominated to contest the Usino-Bundo seat which became vacant upon the passing of the incumbent Member, the Late Jimmy Uguro MP.
Mr. Pariwa’s challenge is predicated on the assertion that since Mr. Yama has now nominated for the Usino-Bundi Open Electorate By-election, he no longer has standing to pursue his Review against the dismissal of his petition by the National Court, essentially on the basis that he cannot be a “candidate” for both the Madang Provincial Seat and the Usino-Bundi Open Electorate. Mr. Pariwa relies on Section 84 of the Organic Law on National and Local-level Government Elections. (OLNLLGE) Section 84 provides –

84. QUALIFICATIONS FOR NOMINATION.

No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn.

Mr. Pariwa asserts that since Mr. Yama disputed and still disputes the results of the election for the Madang Provincial seat, he is deemed to be still a candidate within the meaning of the term “candidate” under Section 84 of the Organic Law on National and Local Government Elections. (OLNLLGE)
This is a rather mischievous and fallacious argument. The Writ for the Madang Provincial Seat was returned, and Mr. Pariwa sits in Parliament, enjoying the powers and privileges of Office.
Does the fact that Mr. Yama is still pursuing his grievance against the results make him (Mr. Pariwa) still a “candidate” also? The absurdity of this argument does not deserve serious consideration. Mr. Yama’s candidacy for the Madang Provincial seat ended at the return of the writ for the Madang Provincial Seat. He is no longer a candidate, but a person aggrieved by the results, which results will stand until and unless set aside.
I have read the detailed opinions of my brothers Anis Numapo JJ, and I too agree that Mr. Yama is not a “candidate” within the definition of the term under Section 84 of the OLNLLGE.
To the term “candidate” which Justice Anis also canvassed fully in his opinion, I only have this to add to stress point made by his Honour.
The term “candidate” is defined by Section 3(1) of the Organic Law in the following terms -

“candidate”, in Parts II and XVII, includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of the Parliament;

Parts II of the Organic Law deals with matters of administration while Part XVII deals with electoral offences.
In Ebu v Evara [1983] PNGLR 201, Bredmeyer J, had occasion to consider the term “candidate” both in its general meaning under the OLNLLGE, and its extended meaning under Section 3(1) for the purpose of Part II and Part XVII. His Honour pertinently said at p. 203 –

... I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner under ss 82 and 84. He is required to submit a written nomination on a prescribed form (form 11) giving certain particulars of himself. The form must be lodged with the Returning Officer by a certain date accompanied by a K100 deposit. The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate.

...

Section 2, the interpretation section, is I consider based on that definition which I have given; that is a candidate is one who has formally nominated in the correct way before nominations close. Once nominated the candidate remains a candidate until the return of the writ.

Clearly then, a candidate is a person who has formally nominated in compliance with the procedure prescribed under the Organic Law. His candidacy is, however, not indefinite. He ceases to become candidate upon the return of the writ. A person who is aggrieved by the result of an election is an aggrieved person and not a candidate as correctly submitted by Mr. Yama.
Now, notwithstanding that Mr. Yama is no longer a “candidate” for the Madang Provincial seat, but now a person pursuing his grievance against the dismissal of his petition challenging the return of Mr. Pariwa as Member for Madang Provincial seat, is he estopped or prevented from nominating for the Usino-Bundi Open Seat? And now that he had actually nominated, can Section 84 of the Organic Law disqualify him from pursuing his Review Application in this Court? In other words, does he have standing to pursue his Review in this Court against the dismissal of his petition by the National Court?
Justices Polume-Kiele and Numapo sufficiently discussed the law of standing. I only wish to add the following.
Mr. Pariwa contends that Section 84 disqualifies Mr. Yama from pursuing his Substantive Review when he nominated for the Usino-Bundi seat. This contention is untenable for a couple of reasons.
First, Mr. Yama is no longer a candidate for the Madang Provincial Seat for the foregoing reasons. Section 84 is obviously directed against people nominating for more than one electorate. And there are good reasons for that, one being the possibility that a candidate who nominates for more than one seat may win both seats. This defeats the whole purpose of electing a single representative for each electorate. This in fact is prohibited by Section 101(3) of the Constitution.
I believe Section 84 is not directed a situation this Court is now confronted with. A fair, liberal and purposive reading of the provision does not lend support to Mr. Pariwa’s contention.
The situation here is not one where Mr. Yama has nominated for two different electorates at the same election which Section 84 is clearly directed at. Rather, whilst pursuing his Review, Mr. Yama also nominated for the Usino-Bundi By-election. This, in my respectful view, is not contemplated by section 84. It, as we pointed out at the hearing, presents a novel issue which may not necessarily require interpretation. On my part I am not persuaded to expand the clear meaning of Section 84 to include the situation under consideration.
Justices Polume-Kiele and Numapo have sufficiently discussed the law on standing in their respective opinions. I am compelled to hold that Mr. Yama had standing to nominate for the Usino-Bundi seat and more importantly, has standing to pursue his substantive Review before this Court.
For Mr. Yama to be disqualified from pursuing his Review, let alone contesting the Usino-Bundi seat in the recently concluded By-election, he must be so disqualified by Section 50 of the Constitution, the OLNLLGE or some other laws.
Section 50 of the Constitution (Right to Vote and Stand for Public Office) provides –

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, has the right, and shall be given a reasonable opportunity—

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."

The right to vote and stand for public office is one that is the exclusive preserve of every citizen of full capacity and of voting age. It is, however, not an absolute right. It is subjected to the express limitations imposed by the Constitution. Principally, persons under sentence of death or imprisonment for a period of more than nine months, or those convicted of election related offences under an Organic Law or an Act of Parliament within three years prior to the first day of polling at any given election are not qualified. Speaking of this right in Supreme Court Reference No. 2 of 1982; Re Organic Law on Election (Amendment) Act 1981 [1982] PNGLR 214, at 233 and 234, Kapi J (as he then was) said -

at 233 - 234 –

"The right guaranteed under s. 50 is a special right given to all citizens. Every citizen has this right except those persons who are excepted under s. 50 (1)(a), (b). Section 50 not only gives the right but gives an enabling provision so as to give the citizens "a reasonable opportunity" to meaningfully exercise that right... It is clear from the provisions of s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principle which directs the law-making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.”

Subsection (2) of section 50 stipulates that the exercise of the right to vote and stand for public office may be regulated by a law. Such a law must, however, be “reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”
Section103 of the Constitution provides specifically for qualifications and disqualifications. This includes age and residential qualifications, mental capacity and sentence of death or imprisonment in excess of nine months and the effect of an appeal or pardon thereto.
In the context of the issue before us, has Parliament regulated against the type of conduct under consideration? The short answer is no; it has not. So, what recourse should this Court take? There is issue that this Court may assume its interpretative jurisdiction and supply what may be lacking.
The principles of Constitutional Interpretation are settled in this jurisdiction. The Supreme Court reaffirmed these in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233 and I restate them here.
- (i) In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution s 158(2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Sch 1.4. Each Constitutional Law is intended to be read as a whole: Constitution, Sch 1.5(1).

(ii) In cases where the word of expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.
(iii) But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2).
(iv) The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR No 1 of 1980 [1980] PNGLR 326, SC Ref No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336, SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No 3) [1994] PNGLR 197. The Judges are urged to use “judicial ingenuity” in appropriate cases, to do justice”: Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a Constitutional Law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500.
(v) However, there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not shy away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.
(vi) In interpreting the Constitution, the Judges may use certain aids. These include the Reports of the Constitutional Planning Committee (Constitution, s 24) and the National Goals and Directive Principles (Constitution, s 25).

In the matter before us, there is obviously a gap in the Law. Should it be filled by “judicial ingenuity” through interpretation as urged upon this Court by Kearney J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila (supra), or should the Court defer to the Legislature to fill the gap? (SC Ref No 5 of 1980 Re Joseph Auna (supra)
While it may be argued that Mr. Yama cannot be allowed to take two contradictory positions – the common law principle of approbate and reprobate – as postulated by Justice Kostopoulos in his well-reason opinion, coupled with any perceived injustice or unfairness, there is a gap that must be filled - not by judicial ingenuity but through legislation. To attempt to fill the gap as urged upon us by Mr. Pariwa would be to descend into the realm of the Legislature.
In conclusion I am of the considered view that there are no Constitutional or legal impediments preventing Mr. Yama from pursuing his substantive review in this Court. He has standing to do so.
Mr. Pariwa’s application is therefore misconceived and ought to be dismissed with costs to Mr. Yama to be taxed if not agreed upon.
My orders shall therefore be –
1. The Application by Mr. Pariwa to dismiss Mr. Yama’s Review shall be dismissed.
2. Mr. Pariwa shall pay Mr. Yama’s cost of this Application which shall be taxed if not agreed.
3. The matter is referred to the Listing Judge for listings.
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
POLUME-KIELE J: The background facts to this application has been adequately set out in the judgment of his Honour Kostopoulos J and I need not repeat it here.
Further the relevant questions to be answered are also adequately set out in the judgment of Anis J and Numapo J whose opinion I have perused, and I agree with the reasons and conclusion proposed.
My remarks will be confined to the stipulations provided for under s 50(2) of the Constitution.
Whilst it is noted that the second respondent has not greatly assisted this Court in their submission, I am minded to accept that the issue in dispute is one of law, but overall, it involves the progress of the pending review application.
Counsel for the applicant (Hon. Ramsey Pariwa, MP) made submissions that because the principal applicant (Sir Peter Yama) by nominating for the Usino-Bundi Open Seat By-Election; he lacks standing to continue to pursue his review application pending before the Review Court. He seeks orders under Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012 (SCR) and Section 84 of the Organic Law on National and Local -level Government Elections (OLNLLGE) to summarily determine the review application in his favour with costs.
Whilst it is noted that the second respondent, (Electoral Commission of Papua New Guinea (ECPNG) has not greatly assisted the court in its submission, I am minded to accept that in reality, the second respondent is not in a position to prevent any citizen of this country from standing for public office, as stipulated under s 50 of the Constitution, unless off course if restricted by law or where the exercise of those rights are regulated by law that is reasonably justifiable for the purpose in a democratic society: see the observations made by his Honour Kapi J (then) in SCR NO 2 of 1982 when dealing with the issue of an increase in national election nomination fees. In that Reference, his Honour Kapi J stated, and I quote:

“the reasonable opportunity to exercise the right under section 50(1) may be regulated by a law under section(2)(a) to the extent that it regulates, it must be a law that is ‘reasonably justifiable for the purpose in a democratic society that has proper regard for the rights and dignity of mankind; and (b) can only regulate the exercise of the right but cannot prohibit or takeaway the right from any class or group of citizens...”

In this application, the first respondent (Hon. Ramsey Pariwa, MP) seeks to dismiss the review proceedings pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012. I understand his grounds for this current application is that the principal Applicant (Sir Peter Charles Yama) has now nominated as a candidate for Usino/Bundi Open Seat By-Election. Thus, the principal applicant lacks standing “(locus standi)” to pursue the substantive review proceeding. The first respondent relies on s 84 of the Organic Law on National and Local Level Government Elections (OLNLLGE) and invites this Court to make a determination that the principal applicant’s review proceedings cannot proceed any further and seeks several reliefs to be granted in his favour.
Essentially Section 84 states: -

“No person is qualified for nomination for an electorate while he is nominated for another electorate and that the last–mentioned nomination has not been withdrawn.”

Firstly, I must state here that the applicant (Hon. Ramsey Pariwa, MP) and the principal applicant (Sir Peter Yama) have not nominated for the Usino-Bundi Open Seat By-Election, only Sir Peter Yama has nominated for the Usino-Bundi By-Election.
Secondly, the review application concerns the Madang Provincial Regional Seat in the 2022 National Elections. Nominations for candidacy opened on 12 May 2022 and closed on 26 May 2022. The writs were returned to the Governor General on 18^th August 2022. The applicant, Hon. Ramsey Pariwa, MP was declared the winning candidate on 18^th August 2022. He was sworn in as the Member for the Madang Provincial Regional Seat thereafter. He currently holds office as the Governor of Madang Provincial Government, performing the duties of the office of Governor of Madang Provincial Government to this date irrespective of the pending review application.
The chronology of events are set out in the affidavit of the first respondent in the judgment of Kostopoulos J where he narrated these facts as:

“The Applicant was a candidate for the Madang Provincial Electorate Seat in the 2022 National Election. The First Respondent was declared as the winner and the Applicant came 4th in the race.

Being aggrieved, the Applicant challenged the election and return of the First Respondent in an election petition referenced EP No. 95 of 2022 (IECMS); Sir Peter Charles Yama v. Ramsey Pariwa and Electoral Commission of Papua New Guinea.

That election petition referred to above in Paragraph 5 was wholly dismissed on 23rd October 2023 after a trial. The judgment by the National Court is unreported but numbered as Yama v. Pariwa [2023] PGNC 364; N10536 (23 October 2023).

Being aggrieved with the dismissal of his election petition on 23rd October 2023, the Applicant appealed that decision to the Supreme Court and hence this proceeding.

...”

So, for our purposes, the 2022 National Election for the Madang Province has concluded. All writs have been returned and all declared winners are currently serving their 5-year tenure, which concludes sometime in May of 2027 except for any By-Elections ordered by the Courts.
It is however accepted that there are some petitions and reviews pending determination before the respective Courts.
Overall, it is common ground that there is no current National Election being held for the Madang Provincial Seat.
The issue in dispute before this Court is that the principal applicant has now nominated to contest the Usino/Bundi Open Seat By-Election.
The question for determination is whether the review application instituted by the principal applicant to challenge the Madang Provincial Seat through the review process be allowed to continue or be terminated based on the grounds that the principal applicant now lacks standing.
This then leads to the next issue which I believe is what this Court is tasked to deliberate on which is whether this Court can restrict or regulate the decision made by the principal applicant, Sir Peter Charles Yama from exercising his right to stand for public office as stipulated under s 50 of the Constitution.
Section 50 - Right to vote and stand for public office.-

“(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

has the right, and shall be given a reasonable opportunity—

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."

Essentially, Section 50 of the Constitution gives special rights to citizens of this country. The rights guaranteed under s. 50 are special rights given to all citizens, except those specified by s. 50 (1)(a)(b). As Kapi J (as he then was) expressed in SCR 2 of 1982 at 233 – 234 –

"The right guaranteed under s. 50 is a special right given to all citizens. Every citizen has this right except those persons who are excepted under s. 50 (1)(a), (b). Section 50 not only gives the right but gives an enabling provision so as to give the citizens "a reasonable opportunity" to meaningfully exercise that right... It is clear from the provisions of s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principal which directs the law-making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.”

The reasonable opportunity to exercise the right under s. 50(1) may be regulated by a law under s. 50(2) of the Constitution. For a law to be within the provisions of s. 50(2)-
- (a) to the extent that it regulates, it must be a law that is "reasonably justifiable for the purpose the democratic society that has proper regard for the rights and dignity of mankind";
- (b) can only regulate the exercise of the right but cannot prohibit or take away the rights from any class or group of citizens. A law, which has this effect, is not allowed; (see schedule 1.20 of the Constitution".
The Supreme Court in Supreme Court Ref. No 1 of 1992 [1992] PNGLR 73 confirmed this view. The Court at pp 76 - 77 said:

"Section 50(1) of the Constitution commences with the words:

"Subject to the express limitations imposed by this Constitution, ..." and provides as a special right of citizens of full capacity and who have reached voting age (subject to some exceptions) that they have the right, and shall be given a reasonable opportunity to be elected to public office at genuine, periodic, free elections. By s. 50(2) this right may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

The wording of s. 50, "Subject to the express limitations imposed by this Constitution", is important because it means that the special rights of citizens contained in s. 50 can only be limited by the Constitution itself. Sections 8, 9 of the Constitution in defining the laws of Papua New Guinea draw a distinction between "This Constitution" and the Organic Laws and all other laws. Whilst an organic law is a constitutional law (Sch 1.2), it cannot expressly limit the rights in s. 50 of the Constitution although it may regulate those rights due to s. 50(2)."

The rights under s. 50 are qualified rights of citizens. Only a citizen is entitled to exercise these rights and are entitled to seek their enforcement where there is a breach.

The right to stand for and hold public office is a qualified right and therefore Parliament may enact appropriate legislation to regulate that right. However, it cannot by legislation prohibit or take away those rights.

The special rights given to the citizens may be regulated by a law that is reasonably justifiable for the purpose in a democratic society. A law that is intended to regulate any of those special rights in s. 50 must state the right that is to be regulated, and state the purpose why it intends to do so. It must also state why it is "reasonably justifiable in a democratic society" to do so.

Such a law cannot prohibit or take away any of those rights - if it does so, then it would contravene s. 50(2) and thus would be invalid”

LEGAL PRINCIPLES

To address this issue, I refer to the Application by James Yali [2022] PGSC 91; SC2288 (1 September 2022), In that case, the Court held that:

“It is settled law that the Supreme Court has discretion in deciding whether an applicant under s 18(1) of the Constitution has standing. The discretion is to be exercised in accordance with considerations referred to as the “Somare Rules” formulated in Re Petition of M T Somare [1981] PNGLR 265 and affirmed in many subsequent cases including Namah v Pato (2014) SC1304.

In Namah v Pato (supra) at [24], the Supreme Court stated:
1. The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:
  - has personal interests or rights that are directly affected by the subject matter of the application; or
  - is a citizen who has a genuine concern for the subject matter of the application; or
  - is the holder of a public office, the functions of which relate to the subject matter of the application.
2. The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues;
3. The applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, e.g. as a tactic of delay;
4. The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing”. (Emphasis added)
In my attempt to address the issues raised, I refer to and adopt the judgment of his Honour Amet CJ (then). In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP [2001] PGSC 6; SC678 (16 November 2001), in that reference, his Honour Amet CJ reasoned that the Applicant, who is the Member of the National Parliament for the National Capital District (NCD) who filed this Reference under s. 18(1) of the Constitution seeking interpretation as to the constitutional validity of two amendments to the National Capital District Commission Act 1990 - (the Principal Act). He sought declaration that the National Capital District Commission (Amendment) Act 2001, (the First Amendment) and the National Capital District Commission (Amendment No. 2) Act 2001, (the Second Amendment), are unconstitutional on the following basis:

“ That the First Amendment purports to regulate the special rights of citizens under s. 50 of the Constitution in so far as it regulates or restricts the rights and the opportunity of the Applicant and others:

(a) to take part in the conduct of public affairs of the NCD Commission (NCDC) through freely chosen representatives, and

(b) to hold public office on the NCDC, and to exercise public functions as a Commissioner of the NCDC.

Mr. Skate submitted that as the amending acts purport to "regulate" those special rights each must comply with the requirements of s. 38 of the Constitution, and under s. 38(2), each must:

(a) be expressed to be a law that is made for the specified purposes, and

(b) specify the right or freedom it regulates or restricts, and

The NCD is established by s. 4 of the Constitution. It provides that an Organic Law or an Act of Parliament shall make provision in respect of the NCD government.
The Organic Law on Provincial Governments and Local-level Governments (the Organic Law) intended that the system of Provincial Governments would apply to the government of the NCD, upon notice being given to effect it. However, no notice had been given to date. The Principal Act thus provides for the government of the NCD.
In the Application by Skate (supra), the Court also considered the applications of Sections 38 and 39 of the Constitution as to its relevance to s 50 of the Constitution (right to stand for public office). I am minded to say that ss 38 and 39 are relevant in this application. In that s 38 provides for general qualifications on qualified rights in the following terms:

“(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity”.

Regarding what is ‘reasonably justifiable in a democratic society’; Section 39 provides as follows:

“(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to-

(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.

Applying the above principles to this current application, I am minded to say that this application before us does not deal with any law or an amendment to a law, it is an application as I understand it, to “put an end to the review application” which is pending before the review court, and once constituted, this application can be dealt with by the review court proper.
Responding to the application, Mr. Lomai submitted that the principal applicant has standing to pursue his review application for the Madang Provincial Regional Seat, and this does not affect his right to stand for public officer under s 50 of the Constitution. The decision by the principal applicant to nominate for the Usino-Bundi Open Seat rests on him exercising his right to vote and stand for public office contained in Section 50 (right to vote and stand for public office) of the Constitution. I understand this right under s 50 of the Constitution is a declared law which is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind under s 50(2). To an extent, the right to nominate for public office may be restricted but cannot be prohibited by a regulating law under s 50 (2) of the Constitution.
Here s. 50(2) applies to the "regulation" of a s. 50(1) right, and this is where I adopt and apply the reasoning applied by his Honour Kearney, DCJ in SCR No. 2 of 1982 (supra), In this review, his Honour Kearney, DCJ in SCR No. 2 of 1982 (supra), stated:

“I deal first with the first submission on s. 50(2), which distinguishes between "restricting" and "regulating". Mr. Doing submitted that s. 50(2) does not permit any restriction of the right to have a reasonable opportunity to stand for election; that is, that "regulation" does not extend to "restriction" and that the requirement of K1,000.00 deposit is a restriction. He relies on the distinction between "regulating" and "restricting" apparently drawn in the Constitution, ss. 44-49, 51 and 52. I do not think that submission is valid. In the ordinary use of language, "regulate" does not include "prohibit". ..... And the Constitution, Sch. 1.20, makes it clear that a law passed under the Constitution, s. 50(2), cannot, under the guise of regulating, in law or in effect prohibit the exercise of the s. 50(1) rights. ....The difference between regulating and restricting is one of degree, not of kind, and I think the distinction is this: that the power to restrict in those provisions can extend to prohibition, while the power to regulate in s. 50(2) cannot”

In this scenario, the applicant submits that the principal applicant lacks standing to pursue the review proceedings because he is no longer a candidate for Madang Provincial Seat in the 2022 National Elections but a current candidate for the Usino/Bundi Open Seat By–Elections and therefore lacks standing to pursue his review application.
Furthermore, under s 84 of the Organic Law on National & Local-Level Elections, “he cannot be qualified for nomination for an electorate while he is nominated for another electorate and that the last–mentioned nomination has not been withdrawn.” He submits further that the entire proceeding be dismissed, and the costs of the proceeding be awarded in his favour.
The principal applicant in these proceedings is an aggrieved person; in the (EP NO. 95 of 2022 (IECMS)); Sir Peter Charles Yama v. Ramsey Pariwa and Electoral Commission of PNG) in accordance with the legal processes available to him. Thus I am of the view that the principal applicant cannot be lightly removed from his review process. His interest in the review proceeding is not diminished by him nominating for the Usino-Bundi Open Seat By-Election. The applicant has not pointed this Court to a law which restricts or regulates the exercise of right of standing for public office.
As a related matter, the stipulations prescribed under s 50 of the Constitution (right to vote and stand for public office) and qualification for nominating as a candidate for the National Elections and qualification under s 84 election are two different processes and these have been adequately covered by their Honours, Anis J and Numapo J in their judgment which I adopt and apply to this application.
Further and in addition, the review grounds were not matters for hearing and determination by this Court. This is where I adopt and apply the reasoning provided by their Honours Anis J and Numapo J. In that s 84 of the Organic Law (OLNLE) does not apply and that the principal applicant had standing to file his election petition in 2023 and that’s the reason; the review application has progressed this far. Several case authorities on standing which includes the case authorities of Somare, Re, [1981] PNGLR 265, Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, Kenn Norae Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and 2 Ors (2007) SC886 and Vanimo Jaya Ltd v. East New Britain Provincial Government and 1 Or (2018) SC1734; In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP [2001] SC678 stand for this proposition.
As to the grounds of the principal applicant being a candidate for the Usino-Bundi Open Seat By-Elections, again, I repeat the provisions of s 50 of the Constitution and say that there is no law restricting the principal applicant (Sir Peter Yama) from contesting the Usino-Bundi Open Seat By-Elections. The applicant has not pointed to this Court any law which regulates or restricts him for exercising his right to stand for public office.
Section 50(2) does not contain any guidance as to the kinds of "purpose/s" for the achievement of which the law may "regulate" the rights. It is relevant therefore to refer to the purposes specified in s. 38(1), for which a law may "regulate" or "restrict" the exercise of a qualified right or freedom under Subdivision C of the Constitution. It stipulates that the regulation or restriction might be "for the purpose of giving effect to the public interest in defence, public safety, public order, public welfare, public health (including animal and plant health), the protection of children and persons under disability (whether legal or practical) or the development of under-privileged or less advanced groups or areas." Furthermore, Section 38(2) stipulates that the law that is intended to regulate the right "must be expressed to be a law that is made for that purpose, and specify the right or freedom that it regulates or restricts." see The State v. NTN PTA Limited [1992] PNGLR 1; In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP In this current application, the grounds raised does not meet any of the requirements of s. 50(2).
Clearly, there is a review application pending before the Review Court when properly constituted to hear the applicant’s grievances as set out in the Review Application. This Court be minded not to curtailed a citizen exercising his rights to stand for public office (s 50 (1) of the Constitution unless such a right is restricted or regulated by law in a reasonably democratic society, under s 50 (2) as doing so will infringe on his rights to stand for public office unless such exercise of right is restricted or regulated by law.
In conclusion, I am of the view that the application is misconceived and must fail with costs to the principal applicant to be taxed if not agreed.
ANIS J: The Applicant (Peter Yama) filed EP. No. 95 of 2023 (IECMS) in the National Court challenging the election return of the First Respondent (Ramsey Pariwa, MP) as Regional Member for Madang.
A trial was conducted on the 8th and 9th of September 2023 on the grounds of “undue influence”. The trial judge, Cannings J dismissed the petition on the 23rd of October 2023.
The Applicant then filed an application for leave to review the decision of Cannings J in the Supreme Court on the 6th of November 2023. Kangwia J of the Supreme Court granted leave on the 20th of February 2024 to review the decision of the National Court made on the 23rd of October 2023.
The current application filed by the first respondent (Application) which is before us seeks to dismiss this Review proceeding (the Review) by the Applicant. The Application reads in part:

1.1 Pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012, this proceeding be dismissed in its entirety for lack of standing of the Applicant to continue this proceeding pursuant to the operation of Section 84 Organic Law on National and Local-level Government Elections.

1.2 The costs of the proceeding be awarded to the First Respondent.

SOURCE

Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012 (SCR) and Section 84 of the Organic Law on National and Local -level Government Elections (OLNLLGE) are set out as follows:

16. (1) The Court may summarily determine a matter:

(a) on application by a party; or

......

84. Qualifications for nomination

No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn.

So, we have been asked to dismiss the Review because the first respondent claims that the Applicant has no standing by operation of law or because of what is stipulated under s.84 of the OLNLLGE.
That is what is before us to decide.

GROUND

The ground for dismissal is purported lacked standing by the Applicant because he has now nominated as a candidate for the Usino-Bundi Open Electorate Seat where there is presently a By-Election underway.
The fact that the Applicant has nominated as a candidate for the Usino-Bundi Seat is not an issue.
The first respondent contends, and I will paraphrase, that because the applicant is ‘presently’ a ‘candidate’ for the 2022 Madang Regional Seat, a seat which is presently being challenged by the Applicant in the Supreme Court by this Review, his action (i.e., in nominating himself to stand as a candidate for the Usino-Bundi Seat) breaches or contravenes s.84 of the OLNLLGE. And consequently, what this means is that the Applicant has lost his standing in the present review.

MISCONCEPTIONS

Before addressing the merit of the Application, there are, in my view, matters which I would categorise as misconceptions of the (i) facts as well as (ii) the Application as presented by the first respondent.
The first misconceived assertion, in my view, is the first respondent’s claim that the Applicant is ‘presently’ a ‘candidate’ for the Madang Regional Seat. The Applicant was or had been a candidate for the Madang Regional Seat in the 2022 General Elections. He was an un-successful candidate after the General Elections for the Madang Regional Seat and has since challenged the election results for that electorate. The first respondent was the successful candidate and now serves as the Governor for Madang.
The definition of a ‘candidate’ and its tenure in a general election, in my view, were settled in National Court by Bredmeyer J in Allan Ebu v. Roy Aua Evara [1983] PNGLR 201. Bredmeyer J’s decision was considered valid many years later by Cannings J in Jerry Singirok v. Ken Fairweather and 2 Ors (2014) N5577 including the decision by our president Toliken J in Evele Kala v. Sir Puka Temu and 1 Or (2018) N9234.
Bredmeyer J in Allan Ebu v. Roy Aua Evara (supra) stated:

To determine what the word candidate means in s 215 I ask: What does it mean generally in the Organic Law? ... I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner ... He is required to submit a written nomination on a prescribed form (form 1) giving certain particulars of himself. ... The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate. [Underlining mine]

His Honour also stated:

The electoral process begins with the issue of a writ. The writ must then allow 28 to 42 days before nominations close. It must also allow a period of 10 to 12 weeks from the issue of the writ to the commencement of polling. Section 2, the interpretation section, is I consider based on that definition which I have given; that is a candidate is one who has formally nominated in the correct way before nominations close. Once nominated the candidate remains a candidate until the return of the writ. Section 2 is based on that definition, it assumes that definition, and extends it or widens it for the purposes of Pts II and XVII to a person who announces himself as a candidate in the three-month period before the commencement of polling. The prohibitions and offences contained in those two parts of the Organic Law not only apply to nominated candidates but also to announced candidates that is those who have announced publicly within the three-month period before polling that they intend to stand for election. [Underlining mine]

So, the Applicant is not ‘a candidate’ for the Madang Regional Seat but rather was a ‘candidate’ for the said seat. Because he was a former candidate, he had standing to file his election petition in 2023. I would refer to the various case authorities on standing including Somare, Re, [1981] PNGLR 265, Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, Kenn Norae Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and 2 Ors (2007) SC886 and Vanimo Jaya Ltd v. East New Britain Provincial Government and 1 Or (2018) SC1734. Further, the Applicant had standing when he successfully applied for leave for review against the decision of Cannings J of 23 October 2023. The Review now pending a full hearing and may be heard unless this Court is satisfied and grants the Application.
The second misconception, in my view, is reliance by the first respondent on s.84 of the OLNLLGE. Again, the section reads, “No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn”.
Section 84, in my view, is express. It also has expressed qualifications. But there can be no doubt on what it stipulates or means. The heading to the section reads, “Qualifications for nomination”. Right there, it signifies that the provision would address persons that may qualify to nominate as a candidate for election purposes. The next crucial word in the provision is the use of the word “while” which means during or at the time of the nomination of the said candidate. In other words, what it simply means, and as an example, is that if a candidate has nominated for an open seat, he or she cannot at the same time or during nomination period, nominate himself or herself as a candidate to contest in another seat, to be voted in as a member of parliament. The provision concludes by indicating that if a candidate has already nominated but has changed his or her mind and intends to nominate as a candidate for a different electorate or seat, he or she must first withdraw himself or herself from the first nomination.
However, having stated that, that situation does not arise here. The facts in the present matter are different ‘as night and day’; they are not the same as those that may give rise to a situation that is qualified or restricted by s.84. We are talking about different elections, namely, the 2022 General Elections and the 2025 By-Elections for the Usino-Bundi Electorate. And I remind myself that the Applicant is not a candidate per se for the Madang Regional Seat. He had been a candidate for the said seat in the 2022 General Elections, but the elections had already concluded in the same year. Therefore, and because the Applicant is no longer a candidate per se for the 2022 General Elections for the Madang provincial electorate seat, that is another reason why the first respondent’s reliance on s.84 is misconceived.
The third misconception in my view is this: The applicant appears to make this assumption that the way to correct this purported error by the action of the Applicant, is for the Applicant to withdraw the Review or that the Court should dismiss this review, because if that happens then the Applicant can be regarded as being compliant with s.84 of the OLNLLGE in regard to his candidacy to stand for the Usino-Bundi Electorate.
With respect, this argument or line of thinking is misconceived and in fact contravenes s.84 as well as the purpose and intent of the said Organic Law. The first respondent’s misconceived belief (i.e., that the Applicant holds 2 candidacies therefore there is a need to get rid of one) is disallowed by s.84. According to said Organic Law, a candidate must first relinquish his or her first nomination before he may register as a candidate to contest in another electorate. Section 84 does not in any way endorse the situation where a candidate my concurrently register as candidates in 2 or more electorates in a general election thereby he or she may then have the option to pull out of one or more candidacies so that he could keep only one. Such a practice may, amongst others, be deemed illegal or in contravention of s.84 of the OLNLLGE. Again, and having stated that, that is also not the factual situation in the present matter that is before us.

SUMMARY

Based on these reasons, the Application is misconceived and must fail. The first respondent, it seems and with respect, appears to fit the described of a busybody with this Application.

COST

I will order cost of the Application to follow the event against the first respondent, that is, to be taxed if not agreed.

ORDERS

The orders I make will be as follows:
1. The Application by the First Respondent to dismiss the Review is dismissed.
2. The First Respondent shall pay the Applicant’s cost of the Application which may be taxed if not agreed.
3. The matter is referred to the Listing Judge for listings.
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
NUMAPO J: This is an application by the First Respondent (Ramsey Pariwa) challenging the Applicant’s (Peter Yama) standing to pursue his Review after the National Court had dismissed his election petition on the 23^rd October 2023. Applicant challenged the election result of the Madang Regional Electorate Seat won by the First Respondent who got elected as the Regional Member for the Madang Province.
Applicant filed an application for leave to review the decision of the National Court that dismissed his election petition. On 6^th November 2023, a single judge of the Supreme Court granted the Applicant leave to Review the decision of the National Court that was made on 23rd October 2023.
Whilst the matter is pending hearing of the substantive Review, the First Respondent filed this application. We are only required to deal with this application. The substantive Review is not before this Court.
1. APPLICATION
The application by the First Respondent seeks to dismiss the proceedings and is made pursuant to Order 13 Rule 16 (1) (a) of the Supreme Court Rules (SCR).
Orders sought in the application was for this proceeding to be dismissed in its entirety for lack of standing of the Applicant pursuant to Order 13 Rule 16 (1) (a) of the SCR and by operation of Section 84 of the Organic Law on National and Local –level Government Elections (OLNLLGE.
Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012 (SCR) states:

16. (1) “The Court may summarily determine a matter:

(a) on application by a party;”

Section 84 of the OLNLLGE states:

“No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn”.

Section 84 is explicitly clear with respect to nomination and candidacy. There can only be one nomination and a person can only be nominated for one electorate at a time as a candidate.
Section 83 states that; “no person is qualified to be elected as a member unless he has been duly nominated.”
Section 3 of the Interpretation section of OLNLLGE defines “candidate’’ to mean a person who has nominated or who nominates for election to the Parliament includes a former candidate.
1. MAIN GROUND
The First Respondent is contending that the Applicant has lost his standing to continue pursuing this Review by operation of Section 84 of the OLNLLGE. According to the First Respondent, the Applicant is presently a ‘candidate’ for the Madang Regional Seat which is currently being challenged in the Supreme Court. He cannot nominate for another Seat whilst still being a candidate for the Madang Regional Seat. By doing so, the Applicant is in breach of Section 84 of the OLNLLGE. Section 84 allows a candidate to nominate only for one Seat at a time. The fact that the Applicant has now nominated as a candidate for the Usino-Bundi By-Election, he cannot continue to maintain this proceeding as a candidate for the Madang Provincial Seat. Consequently, he has no standing in the current proceeding. The First Respondent did not take any issue with the nomination of the Applicant as a candidate for the Usino-Bundi Open Seat. In any event, it is not in his interest to raise it as it does not have any bearing on his case.
In response, the Applicant submitted that he was a candidate for the Madang Regional Electorate Seat in the 2022 National Election. The First Respondent was declared the winner and the he came 4^th in the race. Being aggrieved, he challenged the election result in an Election Petition which was dismissed by the National Court after a trial. Being aggrieved by the decision of the National Court, the Applicant applied for leave to review the decision of the National Court and he was granted leave to Review by the Supreme Court.
Whilst the Review was pending, the nominations for Usino-Bundi By-Election opened. Applicant exercised his constitutional rights under Section 50 of the Constitution to contest the By-Election. Section 50 of the Constitution gives every citizen who is of a full capacity and has reached voting age, has the right to vote and stand for public office.
1. DETERMINATIONS
- (a) Candidate
This Court is asked to make a determination in respect to the Applicant’s standing to run for public office as a candidate. More specifically, as a ‘candidate’ in a general election and the tenure of his candidacy.
Bredmeyer J in Allan Ebu v Roy Evara [1983] PNGLR 201 defined the word ‘candidate’ by stating that:

“To determine what the word candidate means in s 215 I ask: What does it mean generally in the Organic Law? ... I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner ... He is required to submit a written nomination on a prescribed form (form 1) giving certain particulars of himself. ... The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate”.(Underline mine).

There is a process involved for one to become a candidate. Having qualified under Section 50 of the Constitution to vote and stand for public office, he must duly be nominated in a correct manner on a prescribed form to be a candidate. The Applicant, it seems, has satisfied the requirements and is therefore duly nominated as a candidate to contest the Usino-Bundi By-Election.
Cannings J adopted and applied the view held in Ebu v Evara (supra) in the subsequent case of Jerry Singirok v Ken Fairweather and 2 Ors (2014) N5577 followed thereafter, by Toliken J in Evele Kala v Sir Puka Temu and 1 Or (2018) N9234.
With respect to the tenure of the candidacy, His Honour Bredmeyer went onto say that:

“The electoral process begins with the issue of a writ. The writ must then allow 28 to 42 days before nominations close. It must also allow a period of 10 to 12 weeks from the issue of the writ to the commencement of polling. Section 2, the interpretation section, is I consider based on that definition which I have given; that is a candidate is one who has formally nominated in the correct way before nominations close. Once nominated the candidate remains a candidate until the return of the writ. Section 2 is based on that definition, it assumes that definition, and extends it or widens it for the purposes of Pts II and XVII to a person who announces himself as a candidate in the three-month period before the commencement of polling. The prohibitions and offences contained in those two parts of the Organic Law not only apply to nominated candidates but also to announced candidates that is those who have announced publicly within the three-month period before polling that they intend to stand for election.”(Underline mine)

A candidate, once nominated, remains a candidate until the return of the writ. Furthermore, the definition of candidate further extends to the three –month period under Parts II and XVII of the OLNLLGE for a person who announced himself to be a candidate before the commencement of the polling.
In so far as tenure or duration of candidacy is concerned, firstly; a candidate who has fulfilled all the criteria and nominated will continue to remain as a candidate until the return of the writ. When the writ is returned, which is usually after an election declaration is made, the person is no longer a candidate. Secondly, the definition of candidate extends for a period of three-months when a person announced himself to be a candidate before the polling starts. After the commencement of the polling and at the conclusion of the three-month period, the person is no longer a candidate.
The National Election is held every five years. There is only one writ issued for each electorate during the election. A person is nominated and announced his candidacy for only one electorate/seat (Open or Regional). At the conclusion of the polling period and the return of the writ to the Governor General, the tenure of candidacy ends. Everyone who have nominated and contested the election as candidates are no longer candidates within the meaning of Section 84, once the writs are returned. The privilege of being a candidate does not extend after the return of the writ in the particular election.
The Applicant was a candidate for the Madang Regional Seat in the 2022 National General Election. He lost the election when the writ was returned and the First Respondent was declared the Provincial Member for Madang. With the return of writ, the Applicant no longer enjoys the privilege of being a candidate for that Seat. To suggest that his candidacy continues after the return of the writ, is absurd and misconceived.
With respect to this Review proceeding, the Applicant is an aggrieved party and appears in court in that capacity not as a candidate as the writ of the Madang Regional Seat has been returned to the Governor General already some 3 years ago. Applicant is no longer a candidate and cannot be referred to as such.
With respect to his nomination as a candidate for the Usino-Bundi By-Election, as a citizen, it is well within his rights to vote and stand for public office (s. 50 Constitution) and he has exercised his rights to contest the election. Just because he had previously contested another Seat does not bar him from contesting this Seat. These are two different Seats altogether. Applicant does not hold two candidate’s positions as suggested by the First Respondent. The assertion is without basis. The First Respondent’s reliance of s. 84 is misconceived.
- (b) Standing (Locus Standi)
On the issue of sufficient interest and standing (locus standi), there are sufficient number of case laws that addressed the issue of standing starting with the seminal case of Re: Somare [1981] PNGLR 265 followed by Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346; Kenn Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886 and Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC 1734.
The question relating to sufficient interest and locus standi varies from case to case and is often answered by examining the nature of the decision and the context in which it was made. In Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959, his Honour Sheehan J held that; “.....it is essentially a mixed question of fact and law, a matter of fact and the degree of relationship between the plaintiff and the subject matter of his or her complaint....” See also: Dawidi v Jacob [2001] PGNC 130; N2083.
The requirements of sufficient interest is broad in its application and not restrictive. So long as the Applicant is able to show that he has some relationship with the subject matter and that his relationship or interest in the subject matter is so affected by a decision of a public body or in this case the election results, that is sufficient ground to seek review. In Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (supra), the Supreme Court held that; “On application for leave the Court must be satisfied that the applicants has sufficient interests in the subject matter of the application...Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include community, environmental, cultural interest and areas of special expertise.”
In the present case, I am satisfied that the Applicant had sufficient interest hence, standing when he challenged the election results in the National Court via an election petition. The petition was dismissed in the National Court after a trial. Being aggrieved with the dismissal of his election petition, he applied for leave to review the decision of the National Court that dismissed his election petition. He was granted leave to review by a single-man Supreme Court. As an aggrieved party he has standing to pursue the review after been granted leave. However, whilst the matter was pending hearing of the substantive Review, the First Applicant filed this application. All in all, I am satisfied that the Applicant has standing. The Applicant does not need to be a candidate to have standing to bring proceedings be it the Madang Regional Seat or the Usino-Bundi Seat. He has standing by virtue of him being an aggrieved party from an election petition which was dismissed earlier.
To suggest that the Applicant is a candidate for the Madang Regional and therefore cannot nominate for the Usino/Bundi By-Election, is not only misconceived but is also absurd. There is simply no legal basis for such assertion. Furthermore, I am not able to see how the First Respondent’s interest would be affected by raising the Applicant’s nomination for the Usino-Bundi Seat. This is a matter for those contesting the Usino-Bundi By-Election to raise, not the First Respondent. In that regard, I concluded that the First Respondent is a busybody raising matters that does not affect his interest or concern him.
1. CONCLUSION
Based on the above, I conclude that the Application is misconceived and without basis. It cannot stand. The Application is dismissed forthwith.
I will order cost of the Application to follow the event against the first respondent, that is, to be taxed if not agreed.

ORDERS

The following orders are made:
1. The Application by the First Respondent is dismissed.
2. The First Respondent shall pay the Applicant’s cost of the Application which may be taxed, if not agreed.
3. The matter is referred to the Listing Judge for listings.
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
KOSTOPOULOS J: The Applicant (interchangeably referred to as the Petitioner) challenged the election return of the First Respondent (Ramsey Pariwa, MP) as Member for Madang in the National Court below before Cannings J in matter EP No. 95 of 2023.
A trial was conducted on the 8th & 9th of September 2023 on the grounds of “undue influence” and “allegations of offences” being committed by the successful candidate.
The trial judge, Cannings J dismissed the petition on the 23rd of October 2023 in the National Court (the judgment below).
The Applicant then filed an application for leave to review the decision of Cannings J in the Supreme Court on the 6th of November 2023 before a single judge.
Kangwia J of the Supreme Court granted leave on the 20th of February 2024 to review the decision of the National Court made on the 23rd of October 2023 before the Supreme Court.
The current Application it to set aside and dismiss the Review proceedings filed by the Petitioner, Peter Yama in this Court.
The First Respondent (Ramsey Pariwa, MP) seeks to dismiss the review proceedings pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012.
The Petitioner has now been nominated as a candidate for Usino/Bundi By-Election, causing the First Respondent to complain that Yama no longer has standing (locus standi) to pursue the substantive review proceedings before this Court.
The First Respondent relied on section 84 of the Organic Law on National and Local level Government Elections (Organic Law) and submitted that it cannot support the Applicant to pursue his review proceedings any further. Section 84 states: -

“No person is qualified for nomination for an electorate while he is nominated for another electorate and that the last–mentioned nomination has not been withdrawn.”

Issues

By operation of Section 220 of the Organic Law does the Petitioner have a right of his judicial review of the judgment below?
When does the Petitioner’s standing cease to exist in the context of the First Respondent’s current application?
When does the Petitioner cease to be a candidate for the Madang Provincial Seat in the 2022 National Election?
Is the presumption of regularity violated leading to an election by Yama’s conduct to be a candidate for the Usino – Bundi by – election by the Applicant in the circumstances?

Evidence

The issue is one of law. The facts are not in dispute.

The position of the parties

The First Respondent, the Second Respondent and the Applicant each filed Affidavits supporting their respective positions.
The Second Respondent neither supports nor opposes the application. The position of the Electoral Commission remains a neutral position which will be discussed further in this judgment.
In arguendo, Counsel for the Electoral Commissioner’s response to Toliken J’s question directed to him to provide his legal view as to the interpretation of section 84 of the Organic Law was, in my view, unhelpful, pithy and unresponsive.
The response did not assist the Court’s task of interpreting the section in dispute.
The First Respondent deposes in his affidavit in support filed 23rd May 2025 at paragraphs 3 – 8 the following:-

“3.	In support of this Application, I say the following.
4.	The Applicant was a candidate for the Madang Provincial Electorate Seat in the 2022 National Election. The First Respondent was declared as the winner and the Applicant came 4th in the race.
5.	Being aggrieved, the Applicant challenged the election and return of the First Respondent in an election petition referenced EP No. 95 of 2022 (IECMS); Sir Peter Charles Yama v. Ramsey Pariwa and Electoral Commission of Papua New Guinea.
6.	That election petition referred to above in Paragraph 5 was wholly dismissed on 23rd October 2023 after a trial. The judgment by the National Court is unreported but numbered as Yama v. Pariwa [2023] PGNC 364; N10536 (23 October 2023).
7.	Being aggrieved with the dismissal of his election petition on 23rd October 2023, the Applicant appealed that decision to the Supreme Court and hence this proceeding.
8.	The Applicant had now nominated on 1st May, 2025 to contest the 2025 By – Election for the Usino/Bundi Open Seat and is an official candidate.”

Submissions – Applicant

Counsel for the Applicant, Mr. Lomai addresses two key points in his submission; first, the issue of locus standi of the Applicant at large to maintain the review in this court and, second, when locus standi ceases as a candidate in the elections.
First, Mr. Lomai submits that the Applicant has locus standi in the current application on the basis that the Applicant is an aggrieved party and pursuant to his right under section 206 of the Organic Law and Order 5, Rules 8 – 10 and 18 – 20 of the Supreme Court Rules 2012 to, file a petition and if further aggrieved, file an application to review the decision of the court below as an aggrieved party.
Second, Mr. Lomai submits that the Applicant is no longer a candidate in the 2022 National General Elections for the Provincial Seat as the term in which the Applicant would have enjoyed the privilege and status of a candidate has expired.
Mr. Lomai referred to sections 78, 83, 84 and 215 of the Organic Law, and reasonings of various judges in the authorities; Allan Ebu v Roy Aua Evara [1983] PNGLR 201 and Singirok v Fairweather [2014] PGNC 53; N5577.
In a legal sense, it is my view that Mr. Lomai is submitting that the principles of the doctrine of election by the conduct by a party between two inconsistent legal rights applies.
It is my view that, where the rights are inconsistent the one with the other, neither one may be enjoyed without the extinction of the other which I will discuss further in this judgment, must prevail.
The petitioner in this case is Mr. Yama who is asserting a set of rights he says he has the benefit, a benefit denied to him so long as both benefits or rights remain in existence; S.Kaprow & Co Ltd McIelland & Co Ltd per Wrottesley LJ (1948); 1 KB 618 at pp.629 – 630 (at 646); Scarf v Jardine per Lord Blackburn (1882) 7 AC at 361. Also see Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634.

Submissions – First Respondent

The First Respondent (Ramsey Pariwa, MP) submitted that the Applicant initially had sufficient interest or standing in the proceedings for review and was granted leave pursuant to Order 5 Rules 8 – 10 and 18 – 20 of the Supreme Court Rules when the Applicant was aggrieved by the decision of the National Court as a petitioner.
However, when the Applicant nominated as a candidate to contest the Usino/Bundi by–elections in May 2025, the complaint is that any standing in the review proceedings pending before this court, offends the characterization of ‘candidate’ pursuant to section 84 of the Organic Law on National and Local Level Government Elections.
The Applicant relied on sections 3, 78, 83 and 84 of Organic Law to provide a definition of the term “candidate”.

3. INTERPRETATION

The definition of “candidate”, is set out in Parts II and XVII, includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of the Parliament.”

78. DATE AND PERIOD OF NOMINATION

“Nomination of the candidates shall commence on the date of the writ, and the period of nomination shall not exceed seven days, including the date of the writ.”

83. CANDIDATES MUST BE NOMINATED

“No person is qualified to be elected as a member unless he has been duly nominated.”

84. QUALIFICATIONS FOR NOMINATION

“No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn.”

The First Respondent also relied on section 208 of the Organic Law (Requisition of Petition) and submits that the Applicant is a “candidate” for Madang Provincial Seat in 2022 National Election, within the meaning of subsection (c): -

“A petition shall–

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”

In response, the Petitioner, Yama relies on his submissions by applying the authority of Bredmeyer J in Allan Ebu v Roy Aua Evara [1983] PNGLR 201 to discuss the meaning of “candidate”:

“It was alleged that Mr. Evara, the successful candidate for the Kikori Open Seat at the at the 1982 general elections, had committed two undue influence offences (threatening to close a road and take villages to court if they did not vote for him) in December 1981 in the course of early campaigning. The petitioner, Mr. Edu, argued that Mr. Evara had committed the offence at a time that he was a “candidate” as he had announced his intention to stand for election and he was campaigning.”

Bredmeyer J rejected the argument, holding that Mr. Evara did not become a “candidate” within the meaning of that term in section 215 (Voiding Election for Illegal Practices) of the Organic Law until he “has duly nominated in the correct manner.”

s. 215.

(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.”

In reaching that conclusion his Honor noted the definition of “candidate” in the interpretation section of the Organic Law, which stated: “candidate” in Parts II and XVII includes a person who within three months before the first day of the polling period declares himself as a candidate for election as a member of Parliament or attempts to do so.
His Honor found, however, that that definition was not helpful as it only applied to Part II (administration) and Part XVII (offences), whereas Section 215 is in Part XVIII (disputed elections, returns etc). His Honor stated that:

“To determine what the word candidate means in s.215 I ask: What does it mean generally in the Organic Law? .... I consider the word candidate when used generally in Organic Law means a person who has duly nominated in the correct manner ... He is required to submit a written nomination on a prescribed form (Form 1) giving certain particulars of himself. ... The form and manner of nomination is prescribed by law. When a person has nominated in that way, he is a candidate, and prior to that he is an intending or progressive candidate.”

Cannings J in Singirok v Fairweather [2014] PGNC 53; N5577 (24 April 2014) said this when discussing what it means to be a ‘candidate’:

“As explained earlier when discussing the importance of determining whether at the time the offence was allegedly committed or attempted the successful candidate was actually a candidate, I prefer and will apply the reasoning of Bredmeyer J in Allan Ebu -v- Roy Aua Evara [1983] PNGLR 201. The critical date is the date on which Mr. Fairweather nominated, which I have determined to be 23 May. That is two days after the events at Matugar.”

Current relief sought by Applicant (Petitioner) before the Court

Relief Sought:
1. The First Respondent’s Application for Review of the National Court decision dated 20th February 2024 by Kangwia J be refused and consequently dismissed.
2. Matter be returned to Supreme Court listing Judge for further directions and conduct of this matter and allocate a hearing for substantive review.
3. Costs be paid by the First Respondent on a party/party basis.
4. Time be abridged.

Second Respondent: the position of the Electoral Commissioner

The Second Respondent (Electoral Commissioner) relies on the Affidavit of Mr. Norman Napam, the legal officer employed at the Electoral Commission, sworn 15 July 2025.
In Norman Napam’s Affidavit, he deposed that the Applicant in the Review proceeding (Peter Yama) has been nominated and is a candidate contesting the Usino/Bundi Electorate by-election which are common undisputed facts in this application.
The Applicant was not qualified to nominate and become a candidate for the 2025 By-Election for Usino/Bundi open seat because he was, and still is, a candidate in the Madang Provincial Electorate in the 2022 National Election due to the currency of the challenge on the results of the Madang Provincial Electorate Seat in the 2022 National Election in the Supreme Court.
The successful Governor in the National elections is currently serving a term of 5 years in office commencing on 18 August 2022 when the election results were declared thus his office as Governor expires on 18 August 2027.
It is my view that since the Applicant had nominated and is now an official candidate for the 2025 by-election for the Usino/Bundi open seat, the Applicant had constructively withdrawn his candidacy for the Madang Provincial Electorate Seat in the 2022 National Election as at the date he is a candidate for the upcoming Usino/Bundi by – election.
The petitioner’s conduct seems to violate section 84 of the Organic Law, either by his actual candidacy as a challenging party to the Madang electoral seat in 2022 before this Court and the fact he is a candidate in the May 2025 Usino – Bundi seat concurrently.
In my view, the festering issue that remains outstanding is the position that the Applicant has elected to take as a candidate in the 2025 by - elections of the Usino/Bundi Open Seat.
Therefore, it is my view that the candidacy of the Applicant for the Madang Provincial Electorate Seat in the 2022 National Election has been terminated by his recent election to contest the Usino/Bundi seat as a candidate.
There is no dispute that the above facts are correct, leading to the conclusion that the Applicant has by his conduct abandoned his standing to contest Madang, which would dissolve his right to continue to pursue the substantive review of the judgment below in this Court.
The First Respondent submits that, the Applicant will argue that he had exercised his constitutional right to contest in the by-election for Usino/Bundi By-Election under section 50 of the Constitution (Right to Vote and Stand for Public Office), however, the First Respondent relied on the authority by DCJ Kearney in Supreme Court Reference No. 2 of 1982; Re Organic Law on Election (Amendment) Act 1981 [1982] PNGLR 214 at 225:

“Section 50(2) does two things: first, it affirms that any eligible citizen may hold elective public office; second, every eligible citizen must be “given a reasonable opportunity” to secure such office though the electoral process”. First is a primary right; the second is a derivative right, designed to make effect the primary right.”

The point being that assuming an election is called after a successful review of the court below by the Appellant in the next 12 months, Mr. Yama would only be entitled to serve as Governor for less than 2 years of the current term before the next election in August 2027.
The court is entitled to examine what utility the application Mr. Yama has now filed in this court ultimately serves the citizenry of Madang for the good governance of the province.
Section 50(2) of the Constitution states that “the exercise of those rights may be regulated by law...” and this Court must examine the justice of the review of the Madang election by applying the change in circumstances of the petitioner now being a candidate in this May Usino/Bundi by – election.
Kapi J after making reference to the above, made the following observation in SCR NO 2 of 1982:

The decision of Kapi J above dealt with the issue of the increase in the nomination fees for national elections to K1000.
The current argument is that the Applicant has a right to become a candidate for the Usino/Bundi open seat, but only on the basis that he should withdraw his candidacy for the 2022 National Election for Madang Provincial Seat by withdrawing the current Review Application challenging the past 2022 Madang elections.
In my view and in a practical way, it makes common sense that the Applicant discontinue the current review proceedings to focus on his candidacy for the seat of Usino/Bundi as a candidate by terminating his candidacy for Madang Provincial Seat in the 2022 National Elections if the appeal is ultimately successful.
Since the Applicant did not do that and has now nominated to contest the by - election of Usino/Bundi Open Seat in 2025, he continues to challenge the Madang seat through the judicial review process in a situation of legal convulsion.
It is argued and ‘characterized’ by the First Respondent, that the Applicant has terminated his standing to pursue these current proceedings in the Supreme Court because he is no longer a candidate for Madang Provincial Seat in the 2022 National Elections and is a current candidate for the Usino/Bundi By – elections by his own voluntary act.
The First Respondent as the Petitioner submits the entire proceedings be dismissed, and the costs of the proceedings be awarded to the First Respondent.
The Applicant was the candidate for the Madang Provincial Seat in the 2022 National Election which resulted in the First Respondent declared as the winner and the Applicant came 4th in the electoral results.
As an aggrieved person, the Applicant challenged the election and the electoral returns of the First Respondent (Sir Peter Charles Yama v. Ramsey Pariwa and Electoral Commission of PNG) in accordance with the legal processes and rights available to him at the time the decisions of Cannings J was published.
However, the question arises does section 220 of the Organic Law permit the Petitioner to apply for review of the judgment below in this Court?

The Election Petition – the effect of Section 220 of the Organic Law

The Election Petition referred to above was wholly dismissed on 23rd October 2023 after the hearing before Cannings J (Yama v Pariwa [2023] PGNC 364; N10536 (23 October 2023).
Conveniently, the authority of Yama v Pariwa as a final decision in the matter supports my view that the current review application in this Court by the Petitioner is incompetent and impermissible pursuant to section 220 of the Organic Law and the court process.
The decision of Cannings J is final for all intents and purposes as no appeal is permitted under section 220 of the Organic Law notwithstanding a single judge of this court granting leave to Yama to continue the judicial review of the findings made in the court below.
To explain, Section 220 of the Organic Law can be interpreted as a fecund of prohibition against the petitioner to challenge a previous election result in the Supreme Court once the National Court has issued its decision.
Section 220 of the Organic Law contains three statutory conjunctions as the operative words when an election dispute is heard by the National Court, namely:

“Section 220 states – A decision of the National Court is;

Final; and
Conclusive; and
Shall not be questioned.”

The interpretation of the Organic Law is clear. There is no right of the Petitioner Yama to appeal the decision of Cannings J below unless special circumstances arise which are not proven by the evidence, the examples that come to mins are actual or apprehended bias by the trial judge or that the law and the facts were palpable erroneous.
I refer to, adopt and apply the decision of Hartshorn J in Ganzik v Iguan [2024] PGSC 134 at paragraphs 1 – 10 relevant to the finality prescribed by s.220 of the Organic Law to dismiss the entire proceedings against the Petitioner for the reasons below:

“1.	HARTSHORN J: I have read the draft judgment of Justice Anis and agree with His Honor that this Review should be dismissed.
2.	This judgment sets out my own reasoning. I gratefully rely upon the background to the matter as detailed by Justice Anis.
3.	At the hearing the Court raised the issue of s. 220 Organic Law on National and Local-level Government Elections (Organic Law) and whether that section is applicable. The parties had not covered this issue in their submissions but did not object to the issue being raised by the Court. The parties did not seek an adjournment of the hearing for them to be better prepared to argue the issue.
4.	Section 220 Organic Law is as follows: A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way
5.	The fair and liberal meaning of s.220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal and shall not be questioned in any way. Section 220 is in the part of the Organic Law which is concerned specifically with election petitions. It is not a general provision and is expressed in mandatory terms: Sir John Pundari v. Peter Yakos (2023) SC2345.
6.	That leave to review has been granted, does not detract from the relevance and operation of s.220. A decision of a single Supreme Court judge does not have the effect of negating, or setting aside a statutory provision or a section of an Organic Law. Order 5 Rule 17 Supreme Court Rules in providing that a decision to grant or a refusal to grant leave is final and not subject to further review, does not and is unable to prevent the operation of s. 220 Organic Law.
7.	As this Review is brought pursuant to s. 155(2)(b) Constitution, a consideration of the interpretation of s. 155(2)(b) Constitution and s.220 Organic Law is necessary. In Sir Peter Ipatas v. Laken Lepatu Aigilo (2023) SC2447, I considered the interpretation of these two provisions and at [13] and [14]... ...
8.	As pursuant to s. 220 Organic Law there is no right to request a review or a right to review a decision of a National Court in an election petition pursuant to s. 155(2)(b) Constitution, this review should be dismissed.
9.	If to any extent this Court pursuant to s. 155(2)(b) Constitution, may be able to review a decision of the National Court in an election petition, it has not been shown in this instance that there exist extraordinary circumstances and that it is in the interests of justice that a review be undertaken. Consequently, this Review should be dismissed.
10.	I would order that this Review be dismissed and that the applicant shall pay the costs of and incidental to the Review proceedings to both respondents, such costs to be taxed if not otherwise agreed.”

Additional reasons the application for Review by Yama must be dismissed, I provide additional reasons for the entire proceedings to be dismissed in seriatim below.

Additional reasons the application for Review by the Petitioner must be dismissed

I provide additional reasons to the application of section 220 of the Organic Law for the entire proceedings to be dismissed in seriatim below.

The presumption of regularity

The Papua New Guinea Electoral Commission (PNGEC) is the national institution responsible for elections in Papua New Guinea.
It is an independent office established by the Constitution of Papua New Guinea.
The commission is headed by an Electoral Commissioner, appointed by the Governor-General of Papua New Guinea on the advice of the Electoral Commission Appointments Committee.
Patilias Gamato has been the Electoral Commissioner since November 2015.
In PNG elections, the presumption of regularity generally means that electoral processes are assumed to have been conducted properly unless proven otherwise.
This presumption is applied to the actions of electoral officials and the conduct of the election itself, providing a degree of deference to the Papua New Guinea Electoral Commission (PNGEC)'s administration.
However, this presumption is not absolute and can be rebutted by evidence of irregularities or breaches or violations of the law that entitle the petition to litigate his/her grievances to finality in the National Court under the Organic Law.

What is the presumption of regularity?

The presumption of regularity is a legal principle that assumes public officials have properly performed their duties and that official actions are valid.
In the context of elections, it means that the PNGEC and its officers are assumed to have followed the law and proper procedures when conducting an election.
This presumption is a form of judicial deference, meaning courts are likely to uphold actions taken by electoral officials unless there is strong evidence to the contrary.
The Petitioner Yama was unable to persuade Cannings J that strong evidence existed to rebut the presumption of electoral regulatory in the Court below.

How is it applied in PNG elections?

The PNGEC is responsible for administering federal elections under the Constitution and the applicable Organic Laws.
The PNGEC can seek injunctions to prevent or stop actions that contravene the law, according to the PNG Electoral Commission.
The presumption of regularity means that courts are likely to accept the PNGEC's explanation of its actions, unless there is clear evidence of a violation of the Act.
Examples of areas where the presumption might be relevant include the counting of votes, the conduct of polling officials, and the registration of candidates, according to the PNG Electoral Commission.
Allegations of undue influence or criminality prosecuted by petitioners like Yama must be proven to the higher evidentiary standard that failed before Cannings J.

When can the presumption be rebutted?

The presumption of regularity is not absolute and can be rebutted by evidence of irregularities or breaches of the Organic Law or other breaches.
For instance, if there is evidence that the PNGEC failed to follow proper procedures for handling ballot papers, or if there is evidence of voter intimidation, the presumption of regularity might be rebutted.
A court would then need to consider the evidence and determine whether the alleged irregularity was significant enough to affect the outcome of the election which Cannings J examined in his judgment below finding against the allegations of the Petitioner Yama involving the Madang election in 2022.

Important Considerations

The presumption of regularity is a complex legal concept.
The PNGEC provides guidance on to the voter’s electoral law and procedures.
The presumption of regularity is not intended to shield the PNGEC from legitimate scrutiny; rather, it is designed to balance the need for efficient and lawful administration of elections with the requirement that those elections are conducted fairly, transparently and conclusively as has occurred in these proceedings.
In the critical findings of facts set out in the judgment of Cannings J commencing at paragraph 28ff, the acceptance or rejection of the evidence at the trial are set out more fully below:

“I find that the petitioner has failed to prove his case to my entire satisfaction for the following reasons:

The petitioner presented only one eyewitness, Gideon Jerome, who testified that he was present at the campaign event at Tugutugu village, Karkar Island. His evidence was entirely uncorroborated. It is difficult to see a good reason for no other witness being able to be identified by the petitioner and organised to give evidence, given that it was a campaign even at which apparently many people were present, and it was clear that the first respondent was not going to admit making the statements about the petitioner being corrupt. This was evidence that required corroboration but there was none.
Gideon Jerome’s oral testimony departed from the allegations of fact in the petition in a material way, in that in oral testimony he said that after hearing the first respondent’s speech he was persuaded not to give the petitioner his #1 vote, but gave his #1 vote to Jerry Singirok and only gave the petitioner his #2 vote, whereas in the petition it is alleged that after he heard the first respondent’s speech, he was persuaded not to vote at all for the petitioner.
Gideon Jerome was not a particularly convincing witness. I cannot find that he lied under oath but there were some parts of his evidence that did not ring true. He said that he was a qualified civil engineer, having graduated from Unitech, Lae, some years ago, but he gave evidence of an irregular employment history, and he elected to give his evidence in Tok Pisin, not English. Of course, he was entitled to do that, but it did not add credibility to his evidence.
Though four other witnesses gave evidence for the petitioner about the first respondent making similar statements at two pre-campaign events, their evidence was not so strong as to give rise to an inference that the first respondent must have said similar things at the campaign event at Tugutugu village, Karkar Island.
Though Mr Lomai validly pointed out that it was strange that the first respondent chose to rely exclusively on his own evidence and presented no witness to support his version of the events at Tugutugu village, Karkar Island or the so-called awareness exercise at Posdam care centre, and strange too that the first respondent did not attempt to rebut the evidence of Paul Terry on the awareness exercise at Sarakeng No 2 village, Bogia District, it was not the first respondent’s responsibility to disprove the allegation that he made false and defamatory statements at Tugutugu village, it was the petitioner who at all times bore the burden of proof.
The first respondent was a reasonably convincing witness. He spoke firmly and authoritatively. He said he was an experienced lawyer who understood full well the presumption of innocence which is a constitutional right of all persons charged with criminal offences. He knew that the petitioner had not been convicted of any offence including any offence concerning alleged misappropriation of K6 million of Manam Resettlement Authority funds. But he reiterated that the petitioner and others including Mr Lomai had been charged and that this was a well-known fact. The first respondent’s case would have been much stronger, given that the petitioner’s case rested essentially on just one witness, if he had presented some corroboration. While there is a lingering doubt therefore about whether the first respondent was telling the truth when he denied saying that the petitioner was corrupt, there is not enough doubt to tilt the case in the petitioner’s favour.
Ultimately, in any criminal or quasi-criminal case (which an election petition relying on s 215 of the Organic Law is, as the petitioner must prove that a criminal offence has been committed) if the prosecution (here, the petitioner) presents only one witness to prove his case and that witness is not really convincing, and the accused person (here the first respondent) is the only witness for the defence, it is very difficult for the prosecution to discharge the onus of proof. That has turned out to be the story of this case. The petitioner’s case is simply not strong enough to warrant a finding that the first respondent committed the offence of undue influence under s 102(b) of the Criminal Code.”

The Appellant being aggrieved with the dismissal of his election petition on 23rd October 2023 by Cannings J, applied for a review of the judgment and the decision to the Supreme Court.
The uncontested fact is that the Applicant had now nominated on 1st-May-2025 to contest the 2025 By-election for the Usino/Bundi as an officially registered candidate.
The single judge of this Court granted leave to review the National Court’s decision before Cannings J did not apply with his mind, with respect, in my view, the interpretation of section 220 of the Organic Law as the final result and refuse leave in the circumstances.

The Current Application

The application made on 19-Jun-2025 by the First Respondent seeks orders that:-
1. Pursuant to Order 13, Rule 16(1) (a) of the Supreme Court Rules, this proceeding be dismissed in its entirety for lack of standing of the Applicant to continue this proceeding pursuant to the operation of section 84 of Organic Law on National and Local Level Government Elections.
2. Costs be awarded to the First Respondent.
3. Time be abridged,
4. Such other orders as the court deems fit.

Grounds to support the Application
1. The Applicant was a candidate for Madang Provincial Electorate Seat in the 2022 National Elections.
2. The First Respondent was declared winner, and the Applicant came 4^th in the elections.
3. The Applicant’s election petition was wholly dismissed on 23^rd Oct-2023 subject to the right of the review existing pursuant to section 220 of the Organic Law.
4. Being aggrieved with the dismissal of his election on 23^rd October 2023, the Applicant appealed. The Applicant was a candidate for election as a member of the Parliament for Madang Provincial Electorate Seat in 2022 National Election pursuant to section 3(1) of the Organic Law.
5. Because the Applicant was a candidate, he challenged the results and the return of First Respondent as the winner for the Madang provincial Electorate Seat after the 2022 national Election in EP NO. 95 of 2022. Hence, the Applicant’s candidacy was still alive when his election petition was filed and prosecuted at the National Cout until its final determination on 23^rd October 2023.

As the grounds for the Application to set aside and dismiss the review are as stated in the “Submission” by First Respondent (Ramsey Pariwa, MP).

The maintenance of 2 candidacies – the legal absurdity of the current status of the Applicant

The position of the Applicant despite sound (or seemingly sound reasoning) from an acceptable legal framework, requires a careful examination of this court as it leads, in my view, to an ultimate conclusion that turns the faults into logically unacceptable or the (self -contradictory) legal result of the petitioner’s status from his initial candidacy in Madang to the present application.
The paradox of what is contested by Mr. Yama requires further explanation in the court’s reasoning in the additional reasons in the judgment.
The voters in Madang and other candidates in both Madang and in the upcoming by – election in Usino/Bundi are entitled to rely on the presumption of regulatory when candidates like Mr. Yama are contesting the seat in Usino/Bundi so there is compliance with the presumption in Yama taking the official act as a candidate that everything he is doing is presumed right and solemn about his act or conduct.
The 2022 Madang election was fully conducted with Yama receiving votes placing him in 4th place, the Petitioner then reviewed the election results before Cannings J and failed, leaving Yama with no further avenue to review the matter further under s.220 of the Organic Law.
Plato 360 BC stated, “the law is the public conscience”. Section 220 if the public conscience that there must be finality in challenges to the electoral process.

The status of the Applicant as a failed candidate in Madang.

First, section 5 of the Preamble to the Constitution guarantees the Applicant his basic rights among other things, to “(b) the right to take part in political activities” of which the Applicant exercised by participating as a candidate in the Madang election in which he failed by arriving in fourth place in the election now the subject of the challenge in this court.
Second, section 5 of the Constitution guarantees the Applicant his basic social obligations, among other things, to:

“...(c) to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it...”

to participate fully in the government of the nation of which the Applicant exercised his rights for a candidate in Madang.

Third, subject to the original interpretative jurisdiction of the Supreme Court relevant to the purpose of any enactment or legislation, pursuant to section 18 of the Constitution, the Applicant is entitled to vote and stand for public office, for which he did in Madang, pursuant to section 50(c) – (e) of the Constitution.
The qualification under section 50 of the Constitution when applying the enforcement procedures set out in section 22 of the Constitution, read as follows:

“s.50(2) the exercise of these rights (referring to sections 50(c) – (e) may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has proper regard for the rights and dignity of mankind.”

By applying section 38(1)(b) of the Constitution which states that in making reasonable provision for cases where the exercise of one such right may conflict with the exercise of another.
In these proceedings, the Governor of Madang who won the election in which the Applicant failed might have expected that by the conduct of the Applicant to choose to run as a candidate for the upcoming Usino/Bundi elections, the petitioner has elected by his own voluntary conduct, to forego him rights to pursue the challenge to the Madang election complying with the requirements of section 38(1) of the Constitution as the party asserting these rights.
In other words, the onus remains on Petitioner Yama to prove he is entitled to concurrent rights to run as a candidate in the Usino/Bundi by - election and continue the review the Cannings J decisions in the Supreme Court if that is available to him in the circumstances which involves the political exercise of self reflection to make the proper alignment of choices and ethics on the Petitioner’s part
Fourth, Cannings J found that Yama as the petitioner in the court below failed to prove his case to discharge his higher evidentiary burden before Cannings J’s in that the evidence at the trial below (paragraph 28ff of the findings) failed to establish that there had been criminal offences or irregularities committed pursuant to section 215 of the Organic Law.
Further, Cannings J found that the petitioner’s case was simply not strong enough to warrant a finding that the First Respondent committed the offence of undue influence under section 102(b) of the Criminal Code.
It is my view that the critical findings made by a senior trial judge on a higher onus of proof in civil trials to prove, in effect, that criminal violations have been committed by a party in national elections is a difficult review in further challenging and ultimately overturning a trial judge’s findings on the facts unless special circumstances exist, like findings are palpable perverse in the judgment.
Fifth, the court when protecting and enforcing the guaranteed rights and freedoms of any person must under section 57 (5) of the Constitution examine:

“The jurisdiction and power of the courts under this section to, and not in derogation of their jurisdiction and powers under any other provision of this Constitution.”

In other words, this Court must examine the prejudice or imbalance one right asserted by a party may infringe or violate the rights of other parties to the proceedings.
Section 59(1) of the Constitution state:

“Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that never developed for control of judicial and administrative proceedings.”

Read together, section 59(2) of the Constitution state:

“The minimum requirement of natural justice is the duty to act fairly and in principle to be seen to act fairly”.

In controlling judicial proceedings guaranteed by s.59(1) of the Constitution, sections 84 and 220 of the Organic Law are relevant to an election is clear that by applying the purposive test to the section it means “no person is qualified for nomination for an electorate while he/she is nominated for another electorate and that last – mentioned nomination has not been withdrawn”.
The obvious and necessary purpose of the Statute was to include (‘any petitioner before the National and Supreme Courts challenging a previous election result’) to complete the unanswered definition in these proceedings and the prohibition of section 220 for any judicial review permitted in this court.
Otherwise, in my view this minimises the function of section 84 to ensure that any person seeking public office as a member of the National Parliament elects or either challenge a previous elections result before nominating for any further election, or stands election as a candidate and foregoes his right to challenge the existing controversial election to satisfy the purposive test of section 84 of the organic law.
This contention in my view has obvious onerous implications to the general electorate. So, in this instance, Yama is either a genuine candidate for the Usino/Bundi by – election or is he still challenging the Governor of Madang for his seat in the disputed election as a candidate.
I find that, the two positions advocated by petitioner Yama cannot remain concurrent as it causes prejudice to the citizens of PNG represented by the electing public who are voting in the upcoming 2025 Usino/Bundi by – election.
The unequivocal conduct of Mr. Yama with the knowledge of the facts that he is mid-stream in challenging Cannings J’s judgment as a failed petitioner in this court, when voluntarily nominating himself as a ‘candidate’ pursuant to the Organic Law for the Usino/Bundi by – election in May 2025, are internally inconsistent acts taken by Yama in the circumstances.
I find that, Mr. Yama has elected the Usino/Bundi by – election over his current review application in this Court binding him to the decision he has now made.
It is my view that his locus standi to continue to prosecute the review application has, by his own election, and applying the Section 10 of the Constitution that “all written laws shall be read and construed by the Constitution itself in order of precedence,” been abandoned by the petitioner Yama.
Examining section 101(3) of the Constitution which states:

“... (3) No member may represent two or more electorates at the same time.”

The Applicant’s intention is an attempt to represent two electorates, namely;
1. Madang Provincial Electorate if his appeal is successful and he wins the second election; and
2. Usino Bundi by - election if as a candidate he is elected as a member of the National Government.
In my view, resulting in the fact that he cannot represent two electorates at the same time.
I refer to to the Annexure marked “NN 2” of the Affidavit of Norman Napam filed 16th July 2025 which is a copy of the Form 23 Nomination of Candidate for Election as Member of National Parliament signed by the Applicant in which form, the Applicant declares at paragraph 3 that he “has not nominated for another electorate” as not reflecting an accurate position in these proceedings.

Putative Position of the Applicant

On the assumption that the Applicant is:
1. Successful in the National Parliament seat of Usino/Bundi and becomes a member of the National Parliament pursuant to section 101 of the Constitution in the by – election pursuant to section 106 of the Constitution; and
2. Successful on the appeal in the matter before the court to review the decision of Cannings J and the appellate court orders a new election for the position of governor for Madang and [assumes] governorship of Madang;

then the putative position of the Applicant would be that he would offend, or attempt to offend, section 101(3) of the Constitution in that “no member may represent two or more electorates at the same time”.

The persistence of the Applicant to continue this review application and concurrently run as a candidate in the by – election creates a legal absurdity in the petition in the court below of the Applicant violating section 101(3) of the Constitution and section 84 of the Organic Law in that:

“No person is qualified for nomination for an electorate while he is nominated for another electorate and that last mentioned nomination has not been withdrawn.”

for personal ulterior and/or collateral political purposes.

In other words, if the review is successful, the Applicant would return to being nominated for the Governor’s position in Madang whilst being nominated in the by – election in Usino Bundi which are both seats in the National Parliament.

Approbation and Reprobation

The Applicant should elect which position he intends to take in his run for public office and not use the courts as a device to blow ‘hot and cold’ by his actions.
In my view supported by the facts the petitioner Yama would be approbating and reprobating as a candidate for 2 electorates concurrently or, in simple terms, “having his cake and eating it too”.
I refer to my judgment on sentencing in State v Minai [2025] N11370 where I discussed the operation of the maxim of ‘approbation and reprobation’ at paragraphs 80, 87, 91 and 94 - 96:

“The maxim of ‘approbate and reprobate’ reflects the principle whereby a person cannot both approve and reject an instrument, often more commonly described as ‘blowing hot and cold, or having one’s cake and eating it too.’ ...

...A simpler example of the doctrine is discussed in Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320 where the plaintiff put forward one argument in the claim and a contradictory argument in the counterclaim. They were unable to do so, through the application of the principle of approbate and reprobate in the context of election...

Finally, in the matter of Hitachi Pty Limited v. O’Donnel Griffin Pty Limited [2008] Adj.LR 06/17 Supreme Court of Queensland Skoien AJ who criticised the multinational Hitachi in its conduct by stating at paragraphs [93-96] with reference to VACC Insurance Co Limited v. BP Australia Ltd [1999] NSWCA 427; (1999) 47 NSWLR 716 at 72 that:

“I am satisfied that Hitachi has committed a material abuse of process.... which led to a denial of natural justice to ODG. The adjudication cannot stand.”

The law generally prohibits a party from taking contradictory positions in judicial processes, particularly when asserting and denying the legality of a specific document, evidence, facts, events, or transaction.

The court summarises the principles arising from the case law as follows for the purpose of directions the court will follow on sentencing the offender:

First, the approbating party must have elected, that is made his/her choice, clearly and unequivocally.
Second, it is usual but not necessary for the electing party to have taken a benefit from his election such as where he has taken a benefit from the evidence.
Third, the electing party’s subsequent conduct must be inconsistent with his earlier election or approbation.

In essence, the doctrine is about preventing inconsistent conduct and ensuring a just outcome.”

Remarks and Conclusion in the Disposition of the Proceedings

I find the following legal principles are relevant to this application by the First Respondent challenging the locus standi (standing) of the Petitioner Yama’s appeal of Cannings J’s judgment leading to the conclusions set out below:-
1. The election by conduct of Yama to be a candidate for the Usino/Bundi by – elections of May 2025 is inconsistent with his challenge of the August 2022 election for governor of Madang.
2. The approbation and reprobation of his position to take two inconsistent positions in the current review proceedings on appeal in this court.
3. The presumption of regularity in taking official action as a candidate for the Usino/ Bundi May 2025 election has been validated by Mr. Yama maintaining this appeal to review the August 2022 election for Governor in Madang.
4. The findings of Cannings J to dismiss the petition proceedings brought by Yama in the court below are relevantly determinative that he found no criminality on the relevant burden of proof to set aside the election results.
5. The Petitioner Yama is prohibited by the operation of Section 220 of the Organic Law to commence to prosecute these proceeding in the Supreme Court.
The totality of the voluntary action of Mr. Yama to run as a candidate for the seat of Usino /Bundi in the National Parliament has displaced in his standing to challenge the decision of Cannings J in the present review application to warrant this court’s intervention in the interests of justice for the voting public of Usino/Bundi preventing any electorate prejudice sufficient for this court to uphold the Second Respondent’s application and dismiss the entire proceedings filed by Mr. Yama.

Orders

For all the reasons and findings above, I make the following orders:
1. The application by the First Respondent is upheld.
2. The leave granted for the review by Kangwia J on 20th February 2024 is set aside and dissolved.
3. The entire review proceedings filed in this Court by the Applicant/Petitioner Mr. Yama be dismissed.
4. The Applicant Petitioner is to pay the costs of the First Respondent as agreed or assessed for this application and the entire proceedings.
5. The Second Respondent to pay his or its own Costs including this Application brought by the First Respondent and for the entire proceedings.
6. Order that the case is closed.

FINAL ORDERS

The Court therefore orders by majority that:
1. The Application by the First Respondent is dismissed.
2. The First Respondent shall pay the Applicant’s cost of the Application which shall be taxed, if not agreed.
3. The matter is referred to the Listing Judge for listing of the substantive review.
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.
__________________________________________________________________
Lawyers for the applicant: Lomai & Lomai Attorneys
Lawyers for the first respondent: Kombri & Associates
Lawyers for the second respondent: Kuman Lawyers

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