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 services from 1997 to 2000. In 2002 after the first appeal in the matter of Walter Enuma, Belden Namah, Bola Renagi, Michael David and Linus Osaba was finalized, Mr Parkop was put off the payroll. From 2002 to 2004 he was not engaged on any assignment and therefore not on the payroll but still a reserve officer with the rank of Captain.

17. On 4 October 2004, Mr Parkop’s commission was reactivated. This time it was to provide legal services and representation for Privates Jimmy Miria and Thomas Paraka in Supreme Court Appeals SCRA No 5 of 2003.

18. On 4 October 2004, Mr Parkop was promoted to the rank of Major. He did not sign any new declaration or loyalty or oath of office as he was already a member of the Reserve Force. He said that as far as he was concerned he was a Reserve Officer in the PNGDF up to the time of his nomination and up to his decommissioning on 20 July 2007.

COLONEL MAI’S EVIDENCE

19. Colonel Paul Mai corroborated Mr Parkop’s evidence on all these matters concerning his status in the PNGDF and said Mr Parkop was a member of the Reserve Force.

PETITIONER’S EVIDENCE AND CASE

20. The Petitioner has conceded that Mr Parkop was commissioned as a Reserve Officer in the PNGDF. The Petitioner however contends that when he was reactivated in 2004 he was reactivated into the Regular Force. Whether the contention is in law has not been made clear or has not been stated to the court.

DISCUSSIONS ON THE ISSUE

21. On the evidence presented before the court, can this court conclude that Mr Parkop was a member of the Regular Force of the PNGDF. The evidence is abundantly clear that Mr Parkop was a member of the Reserve Force when he enlisted and that he remained so until his discharge on 20 July 2007.

22. The Petitioner relies on s.67(1)(a) of the Defence Act. It reads:-

S.67.	Political activities, etc.

(1)	A member of the Defence Force serving in the Regular Force—

(a)	is not eligible to be a member of, or subject to Section 68 to be a candidate for election to, the Parliament, a Provincial Government or a Local-level Government Council or Authority; and………"

23. The First Respondent has maintained that he was not a member of the Regular Force but that he was a Member of the Reserve Force and that as such s.67(1)(a) did not apply or that he is not bound by s.67(1)(a). That is a pretty straight forward answer.

24. The Petitioner, however submitted and suggested that Mr Parkop did enlist as an officer in the Reserve Force but that when his commission was reactivated in 2004, he was reactivated and promoted into the Regular Force. There is not dispute that Mr Parkop was reactivated and promoted to the rank of Major in 2004, when he was tasked to represent some of the soldiers in the Moem Mutiny case. However, the First Respondent disputes he was reactivated into the Regular Force.
25. Section 35(2) of the Defence Act says that a member of the Reserve Force may, at his request be transferred to the Regular Force in such manner and on such conditions as are prescribed.

26. There is no evidence from Mr Parkop or Colonel Paul Mai that Mr Parkop requested to be transferred to the Regular Force from the Reserve Force at the time he was reactivated and promoted. Mr Parkop never asked to be transferred to the Regular Force. In any case there is no allegation that he asked to be transferred and was so transferred.

27. Colonel Paul Mai’s evidence is that Mr Parkop was never a member of the Regular force in the PNGDF. When he enlisted, he was an active member of the Reserve Force and was drawing salaries from the payroll. When he became inactive he was put off the payroll. When he was reactivated in 2004 he was put back on the payroll.

28. In 2004, when Colonel Paul Mai wrote to Mr Parkop to act for the soldiers involved in the Moem Mutiny he advised that Mr Parkop’s reserve commission which had been inactive would be reactivated. There was no suggestion or intimation that Mr Parkop’s Commission was being reactivated into the Regular Force. Moreover there was no discussion, no correspondence and no signal to advise that the First Respondent was to transfer from the Reserve Force to the Regular Force. I cannot see the basis legal or otherwise, for the petitioner’s contention that the First Respondent was reactivated into the Regular Force.

29. Section 12 reads:

"S. 12 The Defence Force shall consist of—

(a)	a Regular Force; and
(b)	a Reserve Force.

30. Section 12 of the Defence Act creates the Regular Force and the Reserve Force in the PNGDF. 

31. Section 14 of the Defence Act provides what the Reserve Force is to consist of. It reads: 

"S.14.	Constitution of the Reserve Force.

 (1)	The Reserve Force shall consist of—

(a)	persons who, having been discharged from the Regular Force, have volunteered and been accepted for service in and have been enlisted in the Defence Force otherwise than for continuous full-time service; and

(b)	persons transferred from the Regular Force to the Reserve Force under this Act; and

(c)	subject to Section 41, other persons enlisted in the Reserve Force otherwise than for continuous full-time service.

(2)	The Head of the State, acting on advice, may from time to time determine the maximum number of members in the Reserve Force under Subsection (1)(a), (b) or (c).

(3)	Members of the Reserve Force shall render such service as is prescribed."

32. In Mr Parkop’s case he would have been engaged under s.14(1)(c) of the Defence Act.

33. Mr Parkop’s contention that he remained a member of the Reserve Force since his enlistment and was reactivated into the Reserve Force is given some credence by s.7 of the Defence (Period of Service) Regulations. Section 7 reads:-

7.	Officers in Reserve Force.

(1)	Subject to the Act, the initial period of service required of an officer in the Reserve Force is five years.

(2)	Where—

(a)	an officer in the Reserve Force has served—

(i)	his initial period of service; or

(ii)	a period of re-engagement; and

(b)	he has applied or again applied to be re-engaged; and

(c)	the appropriate authority has approved his application,
the appropriate authority may re-engage the officer in the Reserve Force, subject to Subsection (3), for such period as the appropriate authority determines, not exceeding five years.

(3)	The period of service or re-engagement of an officer of the Reserve Force shall not extend beyond the date on which the officer attains retirement age.

33. This provision provides for re-engagement of officers in the Reserve Force into the Reserve Force. Mr Parkop was engaged in the Sandline case from 22 February 2000 to 2002 a period of 3 years. He was deactivated and put off the payroll. On 4 October 2004, he was re-engaged up to the 20 July 2007. Both periods of service or re-engagements are below 5 years which is the required number of years a reserve officer is to serve at any one time under the Regulations.

34. Section 7 of the Regulations also appears to give weight to the contention that when ones engagement has been deactivated as an officer in the Reserve Force, that officer may be re-engaged or reactivated as a Reserve Officer again. The Petitioner’s contention was that when Mr Parkop was reactivated he was reactivated into the Regular Force as he could not be reactivated into the Reserve Force. Section 7 of the said Regulations does not support that contention because he could be reactivated into the Reserve Force.

DID MR PARKOP BECOME A MEMBER OF THE REGULAR FORCE BY THIS APPOINTMENT UNDER SECTION 48(1) OF THE DEFENCE ACT.

35. Section 48(1) reads:

48.	Prosecutors and defenders.

(1)	For the purpose of proceedings before the Defence Force Judge or a Defence Force Magistrate, the Commander of the Defence Force may appoint members of the Defence Force approved by the Defence Force Judge to be prosecutors or defenders.

36. The scheme under s.48 of the Defence Act is that lawyers whether they be private or public lawyers are engaged or enlisted and commissioned as officers in the PNGDF so that they become "members of the Defence Force". When they became members of the Defence Force they are either members of the Regular Force or Reserve Force. In this case Mr Parkop enlisted as a Major and a lawyer so that he became a "member of the Defence Force". On his engagement he was engaged as a Major in the Reserve Force as shown in his enlistment documents to provide part time service.

37. The fact that he was engaged under s.48(1) of the Defence Act does not automatically make him an officer in the Regular Force. The enlistment documents will or should show whether a lawyer is being engaged in the Regular Force or the Reserve Force. In this case Mr Parkop’s documents show he was engaged in the Reserve Force. His service was not for a continuous full time service as envisaged by s.14 of the Act. His services were part time as provided under s.14 (3) of the Act.

38. Section 14(3) reads:

"Members of the Reserve Force shall render such services as is prescribed".

39. In this case, Mr Parkop was prescribed a certain specific task to perform and that was to provide legal services and represent members of the PNGDF in the Moem Mutiny in their appeal to the Supreme Court. Mr Parkop rendered that service from 4 October 2004 up to 20 July 2007.

THE FACT THAT MR PARKOP WAS ON THE DEFENCE FORCE PAYROLL WAS HE AN OFFICER IN THE REGULAR FORCE ON ACCOUNT OF THAT FACT.

40. The Defence Force is made up of the Regular Force and the Reserve Force (see s.12 of the Act). Those who become members of the Defence Force go through the enlistment process under s.30 of the Act.

41. Mr Parkop was in the business of providing professional legal service to those who paid for his services. He was a registered legal practitioner.

42. The soldiers who were charged for mutiny requested his service. The Defence Force could not afford to pay his legal fees at commercial rates and so it was agreed between the parties that Mr Parkop enlist as an officer in the Reserve Force to be paid his fees. The method of payment to Mr Parkop was for convenience more than anything else. It did not affect his status as a Reserve Officer. Mr Parkop had to be paid for his professional services that he was rendering to the members of the Defence Force.

43. In the Defence Force not only members of the Regular Force must get paid but officers in the Reserve Force must also get paid for their services. That is why they must enlist so that their salaries can be paid.

PURPOSES OF SECTIONS 67 AND 68 OF THE DEFENCE ACT.

44. My reading of s.67 of the Defence Act is that a serving member of the Defence Force in the Regular Force is not eligible to nominate for election to Parliament. If a member of the Defence Force serving in the Regular Force wishes to nominate for election to Parliament that member must first resign from the PNGDF or invoke the provisions of s.68. Section 68 reads:

68.	Election to the Parliament.

(1)	Where a member of the Defence Force serving in the Regular Force—

(a)	applies to the Defence Council to be transferred to the Reserve Force; and

(b)	satisfies the Council that he intends, if he is transferred, to become a candidate for election to the Parliament at an election specified by him in the application,
the Defence Council may transfer him to the Reserve Force.

(2)	If the member—

(a)	fails to nominate; or
(b)	withdraws his nomination; or
(c)	fails to be elected,
the Defence Council may transfer him back to the Regular Force in the rank equivalent to the rank that he held immediately before his transfer to the Reserve Force.

(3)	Where a member of the Defence Force is transferred back to the Regular Force under Subsection (2), the period of his transfer to the Reserve Force shall be deemed to be a period of leave without pay from the Regular Force.

45. This is a clear indication that a member of the PNGDF serving in the Reserve Force may nominate for elections to Parliament.

46. In this case Mr Parkop was not a serving member of the Regular Force and therefore there was no need for him to resign or to invoke the provisions of s.68 of the Defence Act.

47. It would appear that if a serving member of the Reserve Force was elected to Parliament, that member would not be liable to perform any duty as a member of the Reserve Force. This is because s.67(3) would preclude him from so doing. Section 67 (3) reads:-

(3)	No member of the Parliament, and no holder of an office prescribed by the regulations for the purposes of this subsection, who is a member in the Reserve Force is liable to perform, or may perform, any duty as a member of that Force.

48. It appears to me that a serving officer in the PNGDF serving in the Reserve Force may nominate to contest in an election to Parliament and if he was so elected he cannot perform any duty as a member of the Reserve Force. The scheme under s.67 and s.68 of the Defence Act is that a serving member of the PNGDF in the Reserve Force need not resign to nominate for election to Parliament.

49. In this case Mr Parkop, being a serving member of the PNGDF Reserve Force was not required to resign from that service. He has now been duly elected to Parliament, he now cannot perform any duty as a member of the Reserve Force as directed by s.67(3).

50. The issue of eligibility to nominate for election to Parliament ends here with the finding:

(1)	Mr Parkop was a member of the PNGDF serving in the Reserve Force.
(2)	Mr Parkop was engaged to perform a specific task as a member of the Reserve Force and that was to provide legal services and represent members of the PNGDF involved in the Moem Mutiny case in the Supreme Court Appeal.
(3)	Mr Parkop was eligible to nominate for elections to Parliament.
(4)	Mr Parkop was not required to resign as a member of the Reserve Force.
(5)	Now that Mr Parkop is a Member of Parliament he cannot perform any duty as a member of the Reserve Force, that is, he cannot now continue to provide legal service and represent the soldiers in the mutiny appeal.

51. For those reasons I dismiss the petition.

IS THE INELIGIBILITY UNDER S.67(1)(a) OF THE DEFENCE ACT AMONG DISQUALIFICATIOS UNDER S.103 OF THE CONSTITUTION

52. To answer this question, with respect, would be an academic exercise which I do not wish to descend into. I will however say this one thing and that is that a breach of s.67 is most likely a breach of service discipline and will be dealt with under the Code of Military Discipline under Clause C4(1). It reads:-

"A person subject to this Code who commits an act or omission that is:-

(a)	prejudicial to good order and military discipline; or
(b)	unbecoming of a member of the Defence Force is guilty of a breach of service discipline within the meaning of this Code".

53. Clause C7 of the Code of Military Discipline provides for punishments for breaches of service discipline. One of the punishments is dismissal from the Defence Force.

54. In this case if Mr Parkop was a serving member in the Regular Force and he nominated for election into Parliament without first being transferred to the Reserve Force, he would have been in breach of service discipline and would have been liable to be dismissed from the Force and risk loosing all his service entitlements.

55. In my view the provision of s.67 and s.68 of the Defence Act are there to facilitate, assist and enable Defence Force members both in the Regular Force and Reserve Force to run for public office.

56. The orders of the Court are that:-

(1)	The Petition is dismissed.
(2)	Mr Powes Parkop is the duly elected Member of Parliament for the National Capital District.
(3)	Costs are awarded to the Respondents, that is the First, Second and Third Respondents.
_____________________________________________

Jerewai Lawyers: Lawyer for the Petitioner
Kelly Naru Lawyers: Lawyer for the Respondents