Dick Mune v Anderson Agiru, Ruben [Reuben] Kaiulo and Electoral Commission (1998) SC590

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (1998) SC590
• Date: 17 February 1998
• Year: 1998

Full Title: Dick Mune v Anderson Agiru, Ruben [Reuben] Kaiulo and Electoral Commission (1998) SC590

Supreme Court: Amet CJ, Woods J, Injia J

Judgment Delivered: 17 February 1998

1 Judicial review—Constitution, s155(2)(b)—Election petition—Grounds—Illegal practices—Facts constituting grounds—Meaning of "illegal practices" in the Organic Law on National and Local–level Government Elections, s206, s207, s208(a); s220, s178, s222, s217, s191 (Offence No 5); s151–154, s187, s218, s151, s154, s108–110; Constitution s37(2); s155(2)(b); Criminal Code, s105–106, s78; 98–116.

2 Re Koroba–Lake Kopiago Open Parliamentary Election: Andrew Wabiria v Payale Elo [1977] PNGLR 328, Avia Aihi v The State (No 1) [1981] PNGLR 81, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Iambakey Okuk v John Nilkare [1983] PNGLR 28, Malipu Balakau v Paul Torato [1983] PNGLR 242, Danny Sunu v The State [1984] PNGLR 305, Holloway v Ivarato [1988] PNGLR 99, Raymond Agonia v Albert Karo [1992] PNGLR 463, In the Matter of Thomas Kavali and James Kuru Kupul (Unreported and Unnumbered judgment dated 26 November 1982) and Albert Karo v Lady Carol Kidu [1997] PNGLR 28 referred to

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Amet CJ:

I agree with the opinions of their Honours Justices Woods J and Injia J.

Woods J:

This is an application for review of the judgment of the National Court sitting as a Court of Disputed Returns in a preliminary objection to a Petition disputing the election of the First Respondent for the National Elections for the Southern Highlands Provincial Electorate.

The National Court sitting as a Court of Disputed Returns is a creature of Statute under the Organic Law on National and Local–level Government Elections. S220 of the Organic Law on National and Local–level Government Elections states that a decision of the National Court is final and conclusive and without Appeal and shall not be questioned in any way. Whilst this provision appears to preclude any application by way of appeal to the Supreme Court, the Supreme Court has in a number of cases considered its role as the final judicial authority of the people under the Constitution and whether this final power or authority can be restricted by any other Act or Law of the Parliament. And the Supreme Court has considered that the Constitution s155 does give it an overriding power to review all matters from other courts or judicial bodies. I do not need to re–iterate the principles and reasons expounded in the various cases such as Avia Aihi v The State (No 1) [1981] PNGLR 81, and Malipu Balakau v Paul Torato [1983] PNGLR 242, and Danny Sunu v The State [1984] PNGLR 305, where the following was stated in the latter case:

The discretionary power to grant a review of a decision of the National Court under s155(2)(b) of the Constitution should be exercised only where:

it is in the interests of justice;

there are cogent and convincing reasons or exceptional circumstances; and

there are clear legal grounds meriting a review of the decision.

The applicant is seeking review on a number of grounds but in summary they are that:

1. The judge erred in striking out allegations on the basis that they not illegal acts within the meaning of s178 of the Organic Law on National and Local–level Government Elections and certain sections of the Criminal Code.

2. The trial judge erred in determining whether acts complained of amounted to illegal acts when that issue should have been determined in the trial proper.

3. The trial judge failed to consider whether acts complained of could have been illegal practices.

4. The trial judge erred in ruling that certain allegation did not contain enough material facts.

5. The trial judge erred in stating that the effects of the results of the allegation were not stated.

The Petitioner in his Petition has made a number of allegations of irregularities in the counting of the votes which in effect allege that the scrutiny of the votes as provided for under s154 of the Organic Law on National and Local–level Government Elections was not done in accordance with that section. The allegations are that unauthorised persons were allowed to take over the control and scrutiny of the counting of votes at Tari Station on 22, 24, and 26 June. The allegations are contained in Clauses 6(A), (B), and (C) of the Petition with quite substantial details. The allegations clearly state the times and place and name names of persons and include suggestions of threats to people.

There is no doubt that if the allegations are proved to be correct they do raise serious questions about the scrutiny of the votes and the counting of the votes and because of the numbers of votes involved as stated in the allegations there was the potential for the final count and result to have been affected.

However the judge at the preliminary hearing of objections has ruled that these allegations do not refer to illegal acts as defined either by the Organic Law on National and Local–level Government Elections or the Criminal Code as illegal practices. The judge refers to s178 of the Organic Law on National and Local–level Government Elections for a guide as to what are illegal acts during elections and then as the Court has clearly recognised that illegal acts are also referred to in the Criminal Code, he refers to the relevant sections of the Criminal Code namely s78, and s98 to s116 and cannot find these particular acts of interfering with the scrutiny or the counting as coming within those provisions. The judge then notes that the Parliament has not created any of the acts complained of as an illegal practice, and it is not the role of the court to create new practices as illegal acts where the whole conduct of elections is a creature of statute and must be bound and governed wholly by that statute which in effect has the higher status of an Organic Law on National and Local–level Government Elections.

However the judge does admit that 'at the highest the acts complained of would fall within the ambit of s108, s109, and s110 of the Code':

S108—interference at elections

S109—electors attempting to violate secrecy of ballot

S110—stuffing ballot–boxes.

but he then finds that the pleadings fail to plead facts in the terms of those provisions.

I find this rather strange, he admits that they would be acts that come within those provisions of the Criminal Code. What does he mean by fails to plead them in the terms of the provisions. I note that the petitioner does not name the particular sections of the Criminal Code. But by any reading of the allegations there are clear allegations of interference and forced marking of ballot papers in various subclauses of paragraphs 6(A), (B), and (C).

There is no doubt that there is a body of law which correctly states that the right to challenge an election being a creature of statute and also an action that can have serious consequences to the representation of the people of the country in the parliament then there must be strict compliance with the Organic Law on National and Local–level Government Elections. And therefore as was clearly emphasised in the case Holloway v Ivarato [1988] PNGLR 99, 'the facts which must be set out under s208(a) of the Organic Law on National and Local–level Government Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved'.

So has the petitioner clearly alleged relevant or material facts...