Unreported National Court Decisions
N493
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF: THE ORGANIC LAW ON NATIONAL ELECTIONS AND DISPUTED RETURNS FOR UNGGAI-BENA OPEN ELECTORATE
BETWEEN
KEVIN MASIVE
PETITIONER
AND
IAMBAKEY OKUK
RESPONDENT
Waigani
Woods J
11-13 June 1984
29 June 1984
6 July 1984
25 July 1984
PARLIAMENT - ELECTIONS - Disputed election petition
CONSTITUTIONAL LAW - Constitution s.103(2) Residential Qualifications for a candidate for Parliament - whether candidate resident in electorate.
Held:
(1)      That on the finding of facts the respondent had not satisfied the requirement of residence in the Unggai-Bena Open Electorate by having a place available there which he visited at various times when he clearly had a home in Port Moresby in which he resided much of the time by reason of his position since 1972 as a Government Minister and also clearly had a home in Chimbu by virtue of the fact that he was the Regional Member from 1972 to 1982 and had business interests there.
(2)      The election for the Unggai-Bena Open Electorate in 1983 is absolutely void.
Case No. SC283 30th November 1984 being Supreme Court Reference No. 3 of 1984 applied.
Counsel:
P. Donigi, for the petitioner.
D. Awaita, for the respondent.
D. Everingham, for the Electoral Commissioner.
Cur. adv. vult.
6 December 1984
WOODS J:  The petitioner KEVIN MASIVE is disputing the validity of the election of the respondent IAMBAKEY OKUK to the National Parliament following the results of the election for the Unggai-Bena electorate in 1983.
Following the hearing of evidence the issue under the petition was whether the respondent was qualified under s.103 of the Constitution to nominate for the Unggai-Bena electorate and had further narrowed to whether the respondent has resided in the Unggai-Bena electorate for a period of five (5) years at any time.
As this issue involved the interpretation of s.103 of the Constitution I was bound under s.18 of the Constitution to refer certain questions to the Supreme Court even though in 1977 and 1979 the National Court had considered that the doctrine of constructive residence could apply in Papua New Guinea.
The Supreme Court in Decision No. SC283 November 1984 in deciding that the five years period at any time mentioned in s.103(2) need not be continuous, it can be discontinuous or intermittent, gave clear guidelines as to what residence means. Briefly residence required by s.103(2) is real permanent residence, it is not constructive residence.
Section 103 uses the word ‘reside’ before a candidate is qualified. Bredmeyer, J. at p.3 states:
“All three dictionary meanings of the words ‘reside’ emphasise the permanence of residency.”
At p.4:
“I have said that a person resides where he permanently lives. Whether a person lives permanently in an electorate or not depends on his occupation, mode of living and personal circumstances.
He finds that, “a Minister in the National Government who spends alot of time in Port Moresby in connection with his ministerial and parliamentary duties and alot of time in his home electorate, can be fairly said to reside in both places.” Bredmeyer, J. at p.7 finds that Frost, C.J. was plainly wrong in applying the doctrine of constructive residence to s.103. He said at p.8 that:
“The plain words of s.103 should not be added to or distorted by a common law doctrine.”
McDermott, J. in discussing the word reside for the purposes of s.103 emphasises that a man resides where he has his home and that the development of a so-called constructive residence doctrine is in many ways unfortunate. At p.15:
“ ‘Constructive’ residence arises when a person is not factually resident. In my view, the use of this approach can be misleading in deciding electoral qualifications.
And at p.18:
“... there be a degree of permanence, something more than short visits; that the residence is not a sham but one from which real home ties are either maintained or can be expected to develop through continuity; that there be a development of a sense of home-that it can be said ‘this is my home’. All these guides presuppose a physical presence.”
Amet, J. at p.21 emphasises the meaning of reside as; “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a place”. At p.27 he observed that “the thrust of the Constitutional Planning Committee’s recommendations was that in order for a person to qualify to represent people of a particular area or electorate, that person must have physically lived in the area or electorate for a continuous period of two years immediately preceding his nomination or have physically lived in the area or electorate for an aggregate period of five years at any time.
This would thus enable the candidate to get to know the area and its people and to represent the people with whom he had ‘real home ties’ ”.
His Honour went on at p.28 to disagree with the former Chief Justice and Deputy Chief Justice in 1977 and 1979 respectively in their opinions as to the suitability and appropriateness of the doctrine of constructive residence in Papua New Guinea at this present time. And finally Amet, J. concludes at p.29 by saying:
“I am of the opinion therefore that the interpretation to be given to the word ‘reside’, consistent with the basis discussed, is to ‘physically live permanently or for a considerable time in, or at a particular place.’ Thus, the phrase ‘have resided’ in s.103(2) should be construed to mean ‘have physically lived permanently or for a considerable time’ ”.
The Supreme Court therefore has ruled quite clearly that the residence required by s.103(2) is real permanent residence, it is not a constructive residence.
In applying this to the facts as found by me in this case, and I refer here to the finding of facts in the Reference dated 25th July 1984, it is quite clear that merely having a place available in Unggai-Bena which was visited occasionally mainly for holidays did not in 1983 satisfy the requirement of residence in s.103(2) where the respondent clearly had a home in Port Moresby which he resided in much of the time by reason of his position at various times since 1972 as a Government Minister and Deputy Prime Minister and also clearly had a home in Chimbu by virtue of the fact that he was the Regional Member from 1972 to 1982 and had business interests there.
I therefore pursuant to s.212 of the Organic Law on National Elections declare the election for the Unggai-Bena Open Electorate in 1983 absolutely void.
A new election will have to be held.
I order that the sum of K200 paid by the petitioner as security for costs be repaid to him.
In accordance with s.221 of the Organic Law a copy of the order of the Court will be forwarded to the Clerk of Parliament.
Lawyer for the Petitioner: P. Donigi
Lawyer for the Respondent: D. Awaita
Lawyer for the Electoral Commissioner: The Principal Legal Adviser