Review Pursuant to Constitution, Section 155(2)(b); Peter Charles Yama v Jerry Singirok and Electoral Commission (2020) SC1982

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Batari J, Mogish J, Cannings J, Anis J
• Judgment Date: 06 August 2020
• Court: Supreme Court
• Citation: (2020) SC1982
• Docket Number: SC REV (EP) NO 13 OF 2018
• Year: 2020
• Judgement Number: SC1982

Full Title: SC REV (EP) NO 13 OF 2018; Review Pursuant to Constitution, Section 155(2)(b); Peter Charles Yama v Jerry Singirok and Electoral Commission (2020) SC1982

Supreme Court: Salika CJ, Batari J, Mogish J, Cannings J, Anis J

Judgment Delivered: 6 August 2020

SC1982

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 13 OF 2018

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

PETER CHARLES YAMA

Applicant

V

JERRY SINGIROK

First Respondent

ELECTORAL COMMISSION

Second Respondent

Waigani: Salika CJ, Batari J,

Mogish J, Cannings J, Anis J

2020: 23rd June, 6th August

ELECTIONS –National Parliament – participation of disqualified candidate – whether acceptance by Electoral Commission of nomination of disqualified candidate is a ground on which election can be declared void –Organic Law on National and Local-level Government Elections, s 218– whether petitioner obliged to allege and prove that participation of disqualified candidate affected result of election.

ELECTIONS – candidates – qualifications – Constitution, s 50 (right to vote and stand for public office), s 103 (qualifications for and disqualifications from membership) – whether a person still on parole in relation to sentence for indictable offence is “under sentence” for purposes of s 50(1)(a) and s 103(3)(c)–relationship between Constitution, ss 50(1)(a) and s 103(3)(c) and Constitution s 103(3)(e) – whether s 103(3)(e) has the effect of imposing a lifetime disqualification on a person who has been convicted of an indictable offence.

ELECTIONS – qualifications of candidates – jurisdiction of National Court to determine questions as to qualifications of persons to be or remain a member of the Parliament – Constitution, s 135.

PRACTICE AND PROCEDURE –objection to competency of proceedings made orally and without notice – abuse of process.

The third-placed candidate in an election for the National Parliament disputed, in a petition addressed to the National Court, the validity of the election of the successful candidate on the ground that the second-placed candidate was unlawfully permitted to participate in the election (due to him, despite being on parole, being “under sentence” for an indictable offence of more than nine months, and therefore disqualified under ss 50(1)(a) and 103(3)(c) of the Constitution). The National Court upheld the petition, finding that the second-placed candidate was disqualified under s 103(3)(c), and that his presence in the count up to the final elimination may have affected the order in which other unsuccessful candidates were eliminated and may have allowed other candidates to benefit from his preference votes. The National Court set aside the declaration of the poll and return of the writ, declared that the election was void and ordered a recount, to be conducted on the basis that the disqualified candidate’s first-preference votes would be treated as though he had already been eliminated. The successful candidate, aggrieved by the decision of the National Court, and having been granted leave, applied to the Supreme Court for review under s155(2)(b) of the Constitution of the decision of the National Court. His principal contention was that the National Court erred in law by not requiring the petitioner (the first respondent in the Supreme Court review) to plead and prove under s 218(1) of the Organic Law on National and Local-level Government Elections that the error of the Electoral Commission (the second respondent) in accepting the disqualified candidate’s nomination, affected the result of the election, and that the National Court decided to declare the election void on the basis of conjecture and speculation that participation of the disqualified candidate may have affected the result. Other arguments of the applicant were: that the National Court misconstrued ss 50(1)(a) and 103(3)(c) of the Constitution; that the trial judge had failed to properly deal with an objection to competency of the petition; that the trial judge erred in law by consolidating two petitions against validity of the same election and hearing the petitions together; and that the trial judge erred by not allowing an affidavit into evidence that would have shown that one of the attesting witnesses to the first respondent’s petition had misstated his occupation, rendering the petition a nullity. At the hearing of the application for review, the first respondent (the petitioner in the National Court) objected to the competency of the application on the ground that the form of the application for review was non-compliant with the mandatory requirements of the Supreme Court Rules due to the failure to annex to the application for review, a copy of the judgment or order of the National Court. It was argued that the non-compliant form of the application deprived the Court of jurisdiction, and for this reason the application should be dismissed. As to the merits of the application the first respondent argued that there was ample evidence to demonstrate that the result of the election was affected by the error of the Electoral Commission in allowing a disqualified candidate to contest the election, and that the National Court made no errors in its decision.

Held:

Per Salika CJ, Batari J, Mogish J, Cannings J:

(1) The objection to competency was an abuse of process and was without merit and was dismissed.

(2) The second-placed candidate was disqualified under ss 50(1)(a) and 103(3)(c) of the Constitution as he was, despite being on parole, under sentence of imprisonment for a period of more than nine months.

(3) The Electoral Commission wrongly accepted the second-placed candidate’s nomination, which amounted to an “error … of an officer” for purposes of s218(1) of the Organic Law, and provided a ground on which the result of the election could potentially have been avoided.

(4) Prior to upholding a petition under s 218(1) the petitioner needs to plead and prove that the error in question did actually (not possibly or probably) affect the final result.

(5) The primary judge erred in law by (a) not requiring the petitioner to prove that the result of the election was affected; and (b) upholding the petition on the basis of conjecture that the result of the election may have been affected by inclusion of the disqualified candidate. The applicant’s principal contention was upheld.

(6) The applicant’s other arguments were without substance.

(7) The application was granted, the orders and declarations of the National Court were quashed and it was declared for the avoidance of doubt that the applicant was the successful candidate. The Electoral Commission was ordered to pay the costs of both the applicant and the first respondent.

Per Salika CJ and Batari J:

(8) The first respondent, or any other candidate, ought to have challenged the qualifications of the second-placed candidate immediately after his nomination had been accepted, invoking the original jurisdiction of the National Court under s 135 of the Constitution, rather than waiting until after the return of the writ to challenge the result via an election petition.

Per Anis J (dissenting):

(9) The application for review was non-compliant with the Supreme Court Rules, the objection to competency was made on good grounds and therefore the application for review ought to be dismissed.

Cases Cited

The following cases are cited in the judgment:

Application by Ben Semri (2003) SC723

Benham Satah v Rabura Mataio (2016) SC1548

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Electoral Commission v Bire Kimisopa (2019) SC1810

Father Louis Ambane & Electoral Commission v Thomas Tumun Sumuno (1998) SC565

In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917

Kevin Masive v Iambakey Okuk [1985] PNGLR 263

Luke Alfred Manase v Don Pomb Polye (2009) N3718

Michael Kandiu v Powes Parkop (2015) SC1597

Nipo Investment Ltd v Nambawan Super Ltd, Luther Sipison, Secretary of Lands and Physical Planning and The State (2017) SC1642

Nominees Niugini Ltd v IPBC (2017) SC1646

Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354

Reipa v Bao [1999] PNGLR 232

Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87

Supreme Court Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214

The State v James Yali [2005] PNGLR 468

The State v James Yali (2006) N2989

William Hagahuno v Johnson Tuke &Electoral Commission (2020) SC1966

Yali v Yama & Electoral Commission and Singirok v Yama & Electoral Commission (2018) N7145

APPLICATION

This was an application for review under s 155(2)(b) of the Constitution of a decision of the National Court on an election petition.

Counsel

P B Lomai, for the Applicant

B S Lai, for the First Respondent

6th August, 2020

1. SALIKA CJ: This is an application pursuant to s155(2)(b) of the Cons...