Kevin Masive v Iambakey Okuk and Johannes Kenderop [1985] PNGLR 263

• Jurisdiction: Papua New Guinea
• Judge: Woods J:
• Judgment Date: 29 August 1985
• Court: Supreme Court
• Citation: [1985] PNGLR 263
• Docket Number: Supreme Court Reservation No 2 of 1985
• Year: 1985
• Judgement Number: SC301

Full Title: Supreme Court Reservation No 2 of 1985; Kevin Masive v Iambakey Okuk and Johannes Kenderop [1985] PNGLR 263

Supreme Court: Kidu CJ, Pratt J, Bredmeyer J, Amet J, Woods J

Judgment Delivered: 29 August 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 2 OF 1985

KEVIN MASIVE

V

IAMBAKEY OKUK AND JOHHANNES KENDEROP

Waigani

Kidu CJ Pratt Bredmeyer Amet Woods JJ

30 April 1985

7 May 1985

29 August 1985

PARLIAMENT — Elections — Qualifications for — Qualification disputed — Jurisdiction of National Court before polling commenced — Jurisdiction available — Organic Law on National Elections, ss 3, 206 — Constitution, ss 50, 57, 135.

PARLIAMENT — Elections — Candidates for — Right to stand for election — Right in one properly qualified — Right enforceable against candidate not properly qualified — Constitution, ss 50, 57.

The Organic Law on National Elections, s 206, provides that "the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise".

The Constitution, s 135, provides that the "National Court has jurisdiction to determine any question as to (a) the qualifications of a person to be or to remain a member of Parliament; or the validity of an election to the Parliament".

Held

(1) The National Court has jurisdiction to determine a person's qualifications to stand as a candidate in an election to the National Parliament after nominations have been declared under the Organic Law on National Elections, s 92, and before the commencement of polling.

(2) The words "to be" in the Constitution, s 135 (a), are to be interpreted as meaning "to become".

(3) The word "election" in the Constitution, s 135 (b), is to be interpreted as referring to the declaration of a person to be a successful candidate.

(4) The word "election" in the Organic Law on National Elections, s 206, is to be interpreted as meaning "return" and therefore an election petition can only be filed after the result of an election has been declared.

(5) (Obiter) Because the Constitution, s 50, guarantees a right to a citizen qualified to stand for election, to stand in a genuine election, it follows that a citizen properly qualified may seek, pursuant to the Constitution, s 57, to enforce such a right against a candidate not properly qualified.

Cases Cited

Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 WLR 300; 3 All ER 70.

Jababa v Okuk [1983] PNGLR 69.

Kevin Masive v Iambakey Okuk and Johhannes Kenderop [1985] PNGLR 105.

McDonald v Keats [1981] 2 NSWLR 268.

Moresby North East Election Petition, Re; Patterson Lowa v Goasa Damena [1977] PNGLR 429.

Moresby North East Parliamentary Election Petition (No 2), Re; Goasa Damena v Patterson Lowa [1977] PNGLR 448.

SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390.

Simbu Provincial Election, Re; Okuk v Nilkare [1983] PNGLR 28.

Reference

This was a reference to the Supreme Court made pursuant to the Constitution, s 18 (2), on the following question:

"Once nominations have been declared under s 92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate?"

Counsel

I Molloy and G Lay, for the plaintiff.

D Colquhoun-Kerr, for the first defendant.

A Tadabe, for the second defendant and the Principal Legal Adviser.

Cur adv vult

29 August 1985.

KIDU CJ: In this reference made under the Constitution, s 18 (2), the court is asked to answer the following question:

"Once nominations have been declared under s 92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate?"

I emphasise from the outset that the question this Court is asked to answer is a very specific one. It is concerned with the jurisdiction of the National Court with respect to the determination of a person's qualifications to stand as a candidate in an election to the National Parliament after the close of nominations but before the commencement of polling.

The reference came before the court on 30 April 1985 and the urgency of the matter (polling was to commence on 11 May) required an urgent answer. So on 7 May the court answered the question without publishing reasons. The answer was in the affirmative. We now publish our reasons.

Pratt J and Bredmeyer J have in their joint judgment set out the background of the reference. It is not my intention to cover this same ground.

The jurisdiction of the National Court is provided for in the Constitution, s 166. It provides as follows:

166. Jurisdiction of the National Court

" (1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in:

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision 111.3.D (enforcement); and

(c) Section 155 (the National Judicial System),

and otherwise as provided by this Constitution or any other law."

Section 135 is not specifically included in s 166 so it is one of the jurisdictions "otherwise as provided by this Constitution". It specifically empowers the National Court to entertain questions relating to a person's qualifications to be or to remain a member of the National Parliament:

135. Questions as to Membership, etc.

"The National Court has jurisdiction to determine any question as to:

(a) the qualifications of a person to be or to remain a member of the Parliament; or

(b) the validity of an election to the Parliament." [Emphasis mine.]

There can be no doubt whatsoever that s 135 confers three very distinct jurisdictions on the National Court:

(a) determination of any question as to a person's qualifications to be a member of the Parliament; and

(b) determination of any question as to a person's qualifications to remain a member of the Parliament; and

(c) determination of any question as to the validity of an election to the Parliament.

The qualifications for and disqualifications from membership of the National Parliament are set out in the Constitution, s 103. The relevant provisions are subss (1), (2) and (3). They read as follows:

" (1) A member of the Parliament must be not less than 25 years of age.

(2) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.

(3) A person is not qualified to be, or to remain, a member of the Parliament if:

(a) he is not entitled to vote in elections to the Parliament; or

(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or

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

(d) he is otherwise disqualified under this Constitution." [Emphasis mine.]

In his submission Mr Colquhoun-Kerr urged the court to treat s 135 as merely an enabling provision and nothing more. The reason, he submitted, was that without s 135 the National Court would have no jurisdiction to entertain matters relating to qualifications for a person or persons to be or to remain members of Parliament or matters relating to the validity of an election as these are covered by constitutional laws and the Constitution, s 18, says, among other things, that subject to the Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a constitutional law. There can be no doubt that s 135 enables the National Court to determine matters that otherwise would be the exclusive province of the Supreme Court. But s 135 is not a mere enabling provision, it is a grant of power and substantial power at that. To say that it is merely enabling misconceives the true nature of that provision o the Constitution. I deal with the three categories of power in s 135 by considering the last one first.

POWER TO DETERMINE THE VALIDITY OF AN ELECTION TO THE PARLIAMENT (S 135 (B) )

The extent of this power is dependent on the meaning of "election". It can mean the whole election process from the issue of a writ to the declaration of the result of the election, or the result itself, depending on the context in which the word is used in any particular statutory provision. If "election" in s 135 (b) means the whole of the electoral process then I cannot see the reason for s 135 (a). It seems to me, therefore, that the word "election" in s 135 (b) means the declaration of a person to be the successful candidate or member of...