James Yali v Peter Yama

• Jurisdiction: Papua New Guinea
• Judge: Higgins, J
• Judgment Date: 01 March 2018
• Citation: (2018) N7145
• Court: National Court
• Year: 2018
• Judgement Number: N7145

Full : EP 63 of 2017; In the matter of a disputed return for the Madang Provincial Electorate; James Yali v Peter Yama and the Electoral Commission of Papua New Guinea & EP 69 of 2017; Jerry Singirok v Peter Yama and the Electoral Commission of Papua New Guinea (2018) N7145

National Court: Higgins, J

Judgment Delivered: 1 March 2018

N7145

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 63 OF 2017

IN THE MATTER OF

A DISPUTED RETURN FOR THE MADANG PROVINCIAL ELECTORATE

BETWEEN:

JAMES YALI

Petitioner

AND:

PETER YAMA

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

&

EP 69 OF 2017

BETWEEN:

JERRY SINGIROK

Petitioner

AND:

PETER YAMA

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Higgins, J

2018: 8, 9, 12, 13, 14, 15 & 16 February,

1 March

ELECTIONS – petitions – validity of return of a member of the National Parliament disputed by petition – alleged errors by polling officials – alleged bias of returning officer and assistant returning officer – proof of bias – alleged delays in polling – alleged failure to control unlawful voting – alleged errors in counting – obstruction of scrutineers.

ELECTIONS – petitions – powers of court in event of proof of errors by polling officials – Organic Law, Section 218.

QUALIFICATIONS OF CANDIDATES – one candidate disqualified – nomination accepted by Electoral Commission – candidate under sentence of imprisonment but on parole until after elections concluded.

PNG case cited

State v James Yali [2005] PGNC 191; N2988 & [2006] PGNC 26 N2989

Counsel:

Mr. F. Lunge, for the Petitioner, James Yali

Mr. B. Lai, for the Petitioner, Jerry Singirok

Mr. W. Otto assisted by Mr. T. Ilaisa, for the First Respondent

Mr. L. Okil, for the Second Respondent

1 March, 2018

1. HIGGINS, J: Two electoral petitions have been presented concerning the election of a member for the Madang Provincial Electorate at the 2017 National General Elections. The first to be heard was presented and filed on 7 September 2017 by Mr Jerry Singirok, an unsuccessful candidate in the election (EP No. 69 of 2017). The respondents are Honourable Peter Yama MP, the successful candidate, and the Electoral Commission of Papua New Guinea as the second respondent.

2. Mr Yama initially relied, in his Petition, on two grounds. The second allegation of bribery was withdrawn. The remaining allegation is that the second respondent (Electoral Commission) erred in accepting the nomination of the Petitioner in the second matter (EP No. 63 of 2017), Mr James Yali. It is contended that Mr Yali was not qualified to stand for or to be elected. The stated ground for that conclusion was that, at the time of nomination, Mr Yali was rendered disqualified from being elected by reason of the operation of Sections 50 and 103 (3)(c) and (e) of the Constitution.

3. Section 50 confers upon every citizen a right to vote and stand for public office. Those rights are not, however, unqualified.

“50 (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 elections concerned, of an offence relating to elections that is prescribed by an Organic Law an Act of the Parliament for the purposes of this paragraph, has the right and shall be given a reasonable opportunity-

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(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.”

4. A provision regulating the right of citizens to stand for Parliament is Section 103 of the Constitution.

5. Relevant for present purposes is Section 103(3) -

“A person is not qualified to be or to remain a member of the Parliament if:–

(c) subject to subsection (4) and (7), he is under sentence of death or imprisonment for a period of more than nine months; or

….…..

(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment no. 24 – Electoral Reforms; or

(f) he is otherwise disqualified under the Constitution.”

6. Under subsection (4), a disqualification by virtue of Section 103(2)(c) is suspended until the appeal period has expired or, if an appeal has been lodged, the appeal has been determined.

7. Subsection (6) provides:

“If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty, the writ for the by-election has not been issued, the member is restored to his seat.”

8. A key question then is whether the amendment to Section 103(3) inserting Section 103(3)(e) was enacted and in force as at the date of Mr Yali’s offence for which he was convicted and sentenced. A further question is whether in any event, Section 103(3)(c) applies to Mr Yali.

9. The facts as found by Cannings J in the State v James Yali [2005] PGNC 191; N2988 & [2006] PGNC 26 N2989 were that Mr Yali did on 13 October 2004, commit the offence of rape contrary to Section 347 of the Criminal Code. The conviction was recorded on 13 December 2005 and a sentence was imposed on 19 January 2006 of 12 years imprisonment commencing on the date upon which the offender, Mr Yali, had been taken into custody.

10. The expiry of that sentence would have occurred on a date less than 12 years after its commencement. Mr Yali was entitled to some remissions. There is also evidence that he was granted parole. The order for Parole records that Mr Yali was granted parole on 9 February 2010. It was noted that his sentence would expire on 12 December 2017. It follows that, at the time he was nominated as a candidate for the Madang Provincial Electorate, Mr Yali was still subject to the sentence imposed by Cannings J on 19 January 2006 albeit that he was not in custody. He was and remained at conditional liberty until 12 December 2017 when his sentence expired.

11. I note that Section 21(3) of the Parole Act 1991 provides that time spent on parole is deemed to be time served towards that part of the parolee’s sentence that is remaining at the time of his release on parole. That is to be contrasted with “remission” of a sentence. A remission occurs pursuant to the Correctional Service Act 1995, Section 120.

12. Section 120 (1) provides:

“Subject to this section, the Commissioner shall grant to a detainee remission equal to one third of the period of sentence.”

13. Section 120 (3)(b) provides:

“Remissions do not apply in respect of the period of sentence served while on parole, subject to the Parole Act 1991.”

14. It is therefore clear that time spent by Mr Yali whilst released on parole was time served in respect of the original sentence as reduced by remissions granted prior to release on parole but the time to be spent on parole before the expiration of the sentence is not reduced by, or eligible to be reduced by, remissions by virtue of Section 120 of the Parole Act.

15. It follows that until 12 December 2017, Mr Yali was “under sentence of imprisonment for a period exceeding nine months.”

16. I do not accept the submission by Mr Yali’s counsel that the sentence of imprisonment becomes less than or equal to nine months if the sentence has nine months or less to run before its expiry. The sentence is and was until its expiry, a sentence of imprisonment for a period exceeding nine months.

17. It further follows, therefore, that when nominated and at the casting and counting of votes and declaration of the poll, Mr Yali was a person “not qualified to be or remain, a member of Parliament” within the meaning of s.103(3) Constitution. A question was raised as to whether Mr Yali was also disqualified by virtue of Section 103(e) of the Constitution. That added Section 103(3)(e) as a ground of disqualification. i.e: [that]:-

“he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment no. 24 – Electoral Reforms.”

18. The amendment in question was, on 25 June 2002, certified as having passed the Parliament with the requisite majorities on 29 August 2011 and 23 January 2002. The amendment was to come into operation “on certification”. The amendment is stated to have been effected by legislative instrument 881 of 2006 Section 1. If so, it was brought...