Application under Section 155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, Ken Fairweather v Jerry Singirok and Emily Siamoli, in her capacity as the Returning Officer for the Sumkar Open Electorate and the Electoral Commission of Papua New Guinea (2013) SC1279

• Jurisdiction: Papua New Guinea
• Judge: Kassman, J
• Judgment Date: 02 August 2013
• Court: Supreme Court
• Citation: (2013) SC1279
• Docket Number: SC REVIEW (EP) NO. 41 OF 2013
• Year: 2013
• Judgement Number: SC1279

Full Title: SC REVIEW (EP) NO. 41 OF 2013;Application under Section 155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, Ken Fairweather v Jerry Singirok and Emily Siamoli, in her capacity as the Returning Officer for the Sumkar Open Electorate and the Electoral Commission of Papua New Guinea (2013) SC1279

Supreme Court: Kassman, J

Judgment Delivered: 2 August 2013

SC1279

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 41 OF 2013

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

AND

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

BETWEEN

KEN FAIRWEATHER

Applicant

AND

JERRY SINGIROK

First Respondent

AND

EMILY SIAMOLI, in her capacity as the Returning Officer for the Sumkar Open Electorate

Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kassman, J

2013: 17th July & 2nd August

Cases cited:

Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935

Ephraim Apelis v Sir Julius Chan (1998) SC573

Amet v Yama SC 1064

Nomane v Mori & Electoral Commission SCR No. 15 of 2013

Isoaimo v Aihi (2012) N4921

Anton Yagama v. Peter Charles Yama (2013) SC1219

Yagama V Yama SC Review 55 of 2012

Waranaka v Dusava (Unreported SC 942 of 2008)

Legislation cited:

Order 1 Rule 7 Supreme Court Rules 2012

Order 5 Rules 1 and 32 Supreme Court Rules 2012

Order 5 Rule 8 Supreme Court Rules 2012

Order 5 Rule 16 Supreme Court Rules 2012

Order 5 Division 2 Rules 7 to 48 Supreme Court Rules 2012

Sections 215(1) and (3)(a) (b) Organic Law on National & Local Level Government Elections

Sections 102 and 103 Criminal Code

Section 208(a) Organic Law

Counsel:

Mr Mal M. Varitimos and Mr Philip Tabuchi, for the Applicant

Mr Burnie W. Meten, for the First Respondent

Mr Siminji, for the Second and Third Respondents

DECISION

(Application for Leave)

2nd August, 2013

1. KASSMAN J; Ken Fairweather (“Fairweather”) applies for leave of the Supreme Court to review a decision of the National Court of His Honor Justice Gavara-Nanu made on 6 June 2013 in the matter EP No. 8 of 2012 Jerry Singirok v. Ken Fairweather & Electoral Commission of Papua New Guinea.

2. In that decision, the National Court dismissed all but one of the objections raised by Fairweather and the Electoral Commission (“EC”) to the competency of Jerry Singirok’s (“Singirok”) petition.

3. Fairweather now seeks leave to review that decision. The EC supports Fairweather’s application for leave but has not filed its own application. Singirok opposes the application for leave.

Jurisdiction as a single judge

4. The parties agree that I have the jurisdiction to hear and determine this application exercising powers as a single judge of the Supreme Court. Order 5 Rule 16 of the Supreme Court Rules 2012 provides “The application for leave shall be made before a judge.” and Order 1 Rule 7 states “Judge” “means a judge of the Supreme Court of Justice”.

5. The Application for Leave to Review was filed on 20 June 2013.

Law and principles applicable on an application for leave to review

6. Order 5 Division 2 of the Supreme Court Rules 2012, being Rules 7 to 48 inclusive, provide for election petition reviews.

7. The principles applicable on an application for leave to review are as discussed by the Chief Justice Sir Salamo Injia where, as Deputy Chief Justice at that time, in Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935, His Honour said;

a. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Shulze (1998) SC572

b. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold:-

i. First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC855; Application of Ludwig Patrick Shulz (1998) SC572.

ii. Second, insofar as the application relates to facts, there is gross error or clearly apparent or manifested on the face of the evidence before the court: Kasap v Yama [1988-89] PNGLR 81, Application of Ludwig Patrick Shulz (1998) SC572.Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723; and such that a review of the findings of fact is warranted.

c. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave to review a decision on an election petition. The applicant for leave to review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The judge of course is not determining the merits of the substantive application and the judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The judge should be able determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied on by the parties.”

8. I have underlined parts that are the pertinent criteria.

Singirok’s petition

9. There were eight grounds in the petition, all of which are set out in paragraph 8 of the petition. Singirok withdrew Ground 8(6). The National Court dismissed Ground 8(3) as being incompetent and Singirok has not sought review of that decision.

10. All six remaining grounds in the petition allege bribery and/or undue influence committed by Fairweather and/or other persons with the consent, knowledge and authority of Fairweather.

11. Three grounds namely Grounds 8(1)(a), 8(2) and 8(7) contain allegations of bribery and undue influence committed by persons other than the candidate Fairweather and with the consent, knowledge and authority of Fairweather.

12. The other three grounds namely Grounds 8(1)(b), 8(4) and 8(5) contain allegations of bribery and undue influence committed by the candidate Fairweather.

13. Fairweather argues the National Court erred in refusing to dismiss the six remaining grounds in Singirok’s petition as incompetent when they all:

a. Failed to plead that the illegal practices committed by persons other than the candidate:

i. Were likely to affect the result of the election; and

ii. It is just that the candidate should be declared not to be duly elected or that the election should be declared void;

b. Failed to plead which of the particular categories of bribery offences, as prescribed by section 103(a) – (g) of the Criminal Code, are alleged to have been committed.

14. The petition pleads Fairweather scored 9624 votes and Singirok scored 7004 votes, a winning margin of 2,620 votes. Fairweather argues, that gives further emphasis to the need for the petition to plead that the illegal practice committed by persons other than the candidate were likely to affect the result of the election and it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

15. Fairweather’s argument arises from his interpretation of section 215 of the Organic Law on National & Local Level Government Elections (“OLNLGE”) which provides:

“215. Voiding elections for illegal practices

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void –

a) On the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

b) On the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is...