Wari James Vele v Powes Parkop and Andrew Trawen, Chief Commissioner Electoral Commissioner Papua New Guinea, and Electoral Commission of Papua New Guinea (2007) N3244

• Jurisdiction: Papua New Guinea
• Judge: DISCUSSIONS ON THE ISSUE
• Judgment Date: 30 November 2007
• Court: National Court
• Citation: (2007) N3244
• Docket Number: EP 1 OF 2007
• Year: 2007
• Judgement Number: N3244

Full Title: EP 1 OF 2007; Wari James Vele v Powes Parkop and Andrew Trawen, Chief Commissioner Electoral Commissioner Papua New Guinea, and Electoral Commission of Papua New Guinea (2007) N3244

National Court: Salika, J

Judgment Delivered: 30 November 2007

N3244

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 1 OF 2007

BETWEEN:

WARI JAMES VELE

Petitioner

AND:

POWES PARKOP

First Respondent

AND:

ANDREW TRAWEN, Chief Commissioner

Electoral Commissioner Papua New Guinea

Second Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Third Respondent

Waigani: Salika, J

2007: 25 & 26 October,

30 November

ELECTION PETITION – Eligibility of a member of the Defence Force to nominate – Election of a member of the Papua New Guinea Defence Force into Parliament – Section 67(1)(a) of the Defence Act – Was the First Respondent a Member of the Regular Force in the Papua New Guinea Defence Force.

Counsel:

A W Jerewai, for the Petitioner

K Naru, for the First Respondent

30 November, 2007

1. SALIKA J: Background: This is an Election Petition filed by the Petitioner challenging the First Respondent’s win as the duly elected Member for the National Capital District Seat.

2. The Petition is filed pursuant to s.206 of the Organic Law on National and Local Level Government General Elections (Organic Law).

3. The petition relied on one ground which challenged the eligibility of the First Respondent to nominate to contest the election to be a Member of Parliament. The ground relied on by the petitioner was that at the material time the First Respondent was a regular member of the Papua New Guinea Defence Force (PNGDF) and therefore pursuant to s.67(1)(a) of the Defence Act he was ineligible to nominate to be a Member of Parliament.

4. On 25 October, 2007, the First Respondent raised objection to the competency of the petition. The court heard those objections and reserved the ruling to the next day.

5. On 26 October, 2007, the court ruled that some of the objections could not be sustained and dismissed them while some were matters that were for trial.

6. On the same day the court proceeded to hear the substantive petitions. Counsel for the petition and the respondent made oral submissions and ordered that parties file written submissions by the 1st of November.

7. By 1 November, 2007, the First Respondent filed his submission. The court was then away on circuit and did not receive the petitioner’s submissions until it came back, thus the delay in the courts decision from its original decision date.

GROUNDS

8. The principal ground of the petition is that the First Respondent was not eligible to nominate and to be a Member of Parliament but the ground is divided as follows:-

(a) The First Respondent, Powes Parkop, was at all material times, at the time of nomination on the 10 May, 2007, to be a candidate for the National Capital District Regional (Provincial) electorate, and after the said nomination, continued to be a serving member of the Regular Force of the Papua New Guinea Defence Force, and was therefore ineligible and not qualified to be a candidate for the said election as specified under Section 67(1)(a) of the Defence Act Chapter No 74 of the Revised laws of Papua New Guinea in that –

(i) the First Respondent was enlisted into the said force on or about mid year 2004, and commenced drawing salaries of a regular serving member of the said Force from the 13th of October, 2004, up to and including the last salary drawn and paid on the 28th of July, 2007 into his savings account Number 1000444417 held with the Bank of South Pacific; and

(ii) the First Respondent had omitted or failed to resign from the said Force prior to his said nomination, or had omitted or failed to apply to be transferred to the Reserve Force of the said Force prior to his said nomination.

(b) The First Respondent , Powes Parkop, was at all material times, at the time of being declared on the 23rd of July, 2007, as being duly elected as a member of Parliament for the National Capital District Regional (Provincial) electorate, a serving member of the Regular Force of the Papua New Guinea Defence Force, and was therefore ineligible and not qualified under Section 67(1)(a) of the Defence Act to be a member of Parliament as declared, and is therefore ineligible and not qualified to be returned as such a member of Parliament in that –

(i) the First Respondent was enlisted into the Regular Force as

(ii) the First Respondent had omitted or failed to resign from the said force prior to being declared duly elected; or omitted or failed to apply to be transferred to the Reserve Force of the said Force prior to his declaration.

(c) Notwithstanding ground (b) above, the First Respondent having omitted or failed to resign or apply to be transferred and not having actually been transferred to the Reserve Force of the said force, he remained ineligible and not qualified to be a candidate for the said elections and by virtue of his said ineligibility and disqualification, the First Respondent had not been lawfully and duly nominated and had not been lawfully and duly elected as a Member of Parliament for the aforesaid Electorate.

(d) The First Respondent had been in breach of Section 67(1)(a) of the Defence Act at the time of his nomination; at the time of his declaration; and continues to be in breach when he was returned as a Member of Parliament.

ISSUES

9. The primary issues are:

(i) Whether the First Respondent was a member of the Regular Force of the PNGDF at the time he nominated to contest the National Elections.

(ii) Whether the First Respondent was a member of the Regular Force in the PNGDF at the time he was declared as duly elected Member of Parliament for the National Capital District seat.

(iii) If the First Respondent was a member of the Regular Force in the PNGDF was he eligible to nominate as a candidate in the election and to be declared as duly elected to Parliament stipulated under s.67(1)(a) of the Defence Act.

(iv) Whether the First Respondent was a member of the Reserve Force in the PNGDF and if he was, was he eligible to nominate as a candidate in the election and to be duly declared as a Member of Parliament as stipulated under s.67((1)(a) of the Defence Act.

(v) Whether in view of the First Respondent drawing regular salaries up to and including the pay period ending 1 August 2007, the First Respondent ought to be deemed to be a member of the Regular Force of the PNGDF and therefore ineligible to nominate to contest in the National Elections and be declared a Member of Parliament for the National Capital District Seat.

(vi) If the petition should succeed, whether the election of the First Respondent should be declared absolutely void, and that fresh elections should be conducted for the electorate or whether the petitioner who was the runner up should be declared as the duly elected Member of Parliament for the National Capital District seat.

CONCESSIONS BY THE PETITIONER

10. The Petitioner conceded that in view of the evidence of Colonel Paul Mai, the Chief of Personnel of the PNGDF, who was summoned by the court to give evidence, “the First Respondent was a member of the Reserve Force enlisted pursuant to s.14(1)(c)” of the Defence Act.

11. The Petitioner however contends that the First Respondent was activated from the Reserve Force into the Regular Force for the purpose of the specific engagement to represent the soldiers in their appeal against conviction arising out of the mutiny charges in Wewak (Moem Barracks) in 2004.

12. The petitioner contends that the First Respondent has never been deactivated or transferred from the Regular Force to the Reserve Force and had remained a member of the Regular Force when he nominated to contest the elections and when he was declared a duly elected Member of Parliament for the National Capital District seat.

WAS POWES PARKOP A REGULAR MEMBER OR RESERVE MEMBER OF THE PNGDF

13. Evidence on this primary issue is from Mr Parkop himself and Colonel Paul Mai the Chief of Personnel in the PNGDF.

PARKOP’S EVIDENCE

14. Prior to nomination and being declared as a Member of Parliament he was a full time private lawyer practicing law under the business name of POWES PARKOP LAWYERS. He had been so practicing since 2000. Prior to that he was a teaching fellow and a lecturer at the University of PNG at its Law School. At one time he was a partner in the firm of Parkop, Harricknen and Associate Lawyers. He also was a full time Director of Individual and Community Rights Advocacy Forum, a non government organization engaged in human rights training and advocacy.

15. Mr Parkop’s evidence is that on 22 February 2000, he was commissioned as a Reserve Officer with the rank of Captain in the PNGDF. He was engaged to provide legal services and represent the then Major Walter Enuma and other officers charged with mutiny as a result of the Sandline Crisis in 1997. The PNGDF decided to commission him as a Reserve Officer because it could not pay Mr Parkop on commercial terms for his services. Mr Parkop agreed to be commissioned and to be paid for his services on a fortnightly basis for convenience. He was commissioned by Colonel Paul Mai who was then the Chief of Personnel then and still is today on 22 February 2000 at a formal ceremony. He signed his declaration of loyalty and oath of office as a Reserve Officer.

16. Mr Parkop was subsequently put on the payroll and paid for his services in that way from 2000 to 2002. He was not paid for his...