N7039
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 65 OF 2017

BETWEEN
FRANCIS KIKIN SIUNE
 Petitioner

AND
BARI PALMA
 First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2017: 7th & 15th December

ELECTION PETITION – Qualification of a candidate – Right to stand and hold public office – Candidate adjudged insolvent after nominating – Member adjudged insolvent by National Court – National Court decision stayed by Supreme Court – Effect of – Whether person remains member of Parliament – Constitution – Section 103 (3) (d)

Cases cited:

Tony Waterupu Aimo v. Ezekiel Anisi & Electoral Commission (2012) N4870
Ludwig Schulze v. Arthur Somare (1997) N1798
Yii Ann Hii v. Deputy Commissioner of Taxation of Commonwealth of Australia (2017) SC1626
Mesach Autahe v. Paul Kererua (2008) SC956

Counsel:
Mr. J. Kolkia, for Petitioner
Mr. W. Otto, for First Respondent 
Mr. J. Simbala, for Second Respondent

JUDGMENT
15th December, 2017

1.	MAKAIL, J:    This was a short trial of a petition seeking to invalidate the election of the first respondent as Member for Kerowagi Open electorate in the Simbu Province in the 2017 General election. 

Allegations 

2.	The petition was grounded on two allegations.  First, errors or omissions committed by electoral officials when they permitted by accepting the nomination of the first respondent to stand for public office at the time he was adjudged insolvent and thus, disqualified under Section 103 (3) (d) of the Constitution.  The allegation, as set out at paragraph B (A) (1) and (2) of the petition was, with leave, withdrawn at trial.  

3.	It was because the first respondent was adjudged insolvent after he had nominated to contest the election.  By virtue of Section 103 (3) (d) of the Constitution, he was, at the material time, qualified to nominate to stand for public office.  

4.	That left the second allegation that, after he was adjudged insolvent by the National Court and was elected as member, he was disqualified to remain a member of the Parliament by operation of Section 103 (3) (d) of the Constitution.

Evidence

5.	The affidavits tendered by consent which largely formed the uncontested facts were:

•	Affidavit of petitioner sworn on 23rd October and filed 29th October 2017 (exhibit “P1”);
•	Affidavit of first respondent sworn and filed 11th November 2017 (exhibit “D1”); and
•	Form 23 – Application for Nomination of first respondent (exhibit “D2”).

Uncontested Facts

6.	The uncontested facts may be summarised as follows:

•	24th April 2017 – 	the first respondent nominated.

•	1st June 2017 – 	the first respondent was adjudged insolvent by the 
National Court in proceedings MP (Comm) No 35 of 2016: Camillus Dangima Bongoro v. Bari Palma.

•	5th June 2017 – 	the first respondent filed an appeal in the Supreme 
Court against the order adjudging him insolvent in proceedings SCA No 81 of 2017: Bari Palma v. Camillus Dangima Bongoro.

•	20th June 2017 – 	the Supreme Court granted an order staying the order 
adjudging the first respondent insolvent including the implementation of the insolvency process.

•	28th July 2017 – 	the first respondent was declared candidate elected.

Issue

7.	The issue was whether by being adjudged insolvent, the first respondent was disqualified to remain a member of the Parliament.  

Disqualification of Member – Adjudged Insolvent

8.	Being adjudged insolvent is one of the grounds of disqualification of a member of Parliament under Section 103 (3) (d) of the Constitution. It states:

“103.	Qualifications for and disqualifications from membership.

(1)	............
(2)	............
(3)	A person is not qualified to be, or to remain, a member of the Parliament if—

(a) 	..........; or
(b)	..........; or
(c)	..........; or
(d)	he is adjudged insolvent under any law; or
(e)	...........; or
(f)	............
(4)	........... —
(a)	.........; or
(b)	..........

(5)	...........
(6)	.............
(7)	.........”. 

9.	Mr. Kolkia of counsel for the petitioner made a forceful submission that where a person has been adjudged insolvent by the National Court and regardless of whether or not he has filed an appeal and obtained an order from the Supreme Court staying the order adjudging him insolvent, he remains insolvent.

10.	It would follow that regardless of an appeal and order staying the order adjudging the first respondent insolvent, he remained an insolvent.  And by operation of Section 103 (3) (d) of the Constitution, he was disqualified from being a member of the Parliament.

11.	It was further submitted that even so, there was a period where there was no order staying the decision of the National Court.  That was from 1st to 19th June 2017.  Given this, the first respondent was disqualified from remaining a member of the Parliament.

12.	Counsel relied on the case of Yii Ann Hii v. Deputy Commissioner of Taxation of Commonwealth of Australia (2017) SC1626 and submitted that this case adopted the decision in Mesach Autahe v. Paul Kererua (2008) SC956 which stood for the proposition that an insolvent lacked locus standi to file an appeal and apply for an order to stay pending the determination of an appeal.  

13.	By analogy as the first respondent has been adjudged insolvent, he has no standing to appeal that order and remains insolvent and was disqualified from remaining a member of the Parliament.  

14.	He also referred to two past cases where an election of members of Parliament have been declared void by reason of being under the age of 25 when nominating and on residential grounds.  The case of Tony Waterupu Aimo v. Ezekiel Anisi & Electoral Commission (2012) N4870 is one example of the former and the case of Ludwig Schulze v. Arthur Somare (1997) N1798 is an example of the latter.  But they are not helpful to resolve the question of being adjudged insolvent after nomination.  

15.	In addition to the grounds of disqualification being different, in Tony Waterupu Aimo and Ludwig Schulze the Court upheld the petitions because the grounds for disqualification existed prior to the members nominating to stand for election. When they were proved, the elections of the members had to be declared void because they had no right to stand for public office in the first place.  

16.	In this case, there was no issue that the first respondent was qualified to nominate.  It was after that and only when he was adjudged insolvent and became member that it became an issue.  Thus, those cases are distinguishable and not useful.

17.	The cases of Yii Ann Hii and Mesach Autahe are also not useful because the aggrieved parties were persons adjudged insolvent by the National Court and appealed to the Supreme Court.  The question of locus standi was argued.   In this case, it is not clear if the question of locus standi was argued in SCA No 81 of 2017: Bari Palma v. Camillus Dangima Bongoro.

18.	In any case, the question of standing of the first respondent in legal proceedings is not to be construed and equated with one of qualification and/or disqualification to stand for public office under Sections 50 and 103 of the Constitution.  They are distinct requirements and should be considered in their respective context.  

19.	 But I consider the submissions of the respondents pertinent to the issue.  Both counsel for the respondents pointed out that the order of the Supreme Court of 20th June 2017 effectively stayed the order of the National Court which adjudged the first respondent insolvent.  By virtue of that order, the position of the first respondent prior to being adjudged insolvent has been restored and he was not disqualified to remain a member of the Parliament.

20.	I agree and uphold their submissions.  By the order for stay, the status of the first respondent prior to being adjudged insolvent has been restored and he remains solvent until the determination of the appeal.  It would follow that there would be no basis to have him disqualified from remaining a member of the Parliament.

21.	Even if the argument that between the date of being adjudged insolvent of 1st June 2017 and date of the order for stay of 20th June 2017, the first respondent was not protected by a stay order and was by operation of law (Section 103 of the Constitution) disqualified from being a candidate must fail.  

22.	This is because it was not known at that stage of the election process if the first respondent was going to be elected as member.  It was not until 28th July 2017 when the first respondent was declared as candidate elected that it was known and remained member since that time.  By then, an order for stay of 20th June 2017 was in place restoring him to his original position as if he was not adjudged insolvent and remained a member.

23.	This view is consistent with Section 103 (3) (d) of the Constitution which states that “A person is not qualified to be, or to remain, a member of the Parliament if he is adjudged insolvent under any law”. (Emphasis added).

24.	There are two parts to Section 103 (3) (d).  First, the phrase “A person is not qualified to be a member of the Parliament” refers to a person who nominates to stand for public office.  Where that person has been adjudged insolvent prior to nomination, he is disqualified from nominating.  This was not what had happened here. 

25.	Second, the phrase “A person is not qualified to remain a member of the Parliament” refers to a person who is a member of the Parliament.  Where that person has been adjudged insolvent, he is disqualified from remaining a member.  

26	It was further suggested by counsel for the first respondent that by filing this petition, the petitioner was in contempt of the Supreme Court order and that Court should also consider taking appropriate action against his counsel.  This aspect will not be considered because it has not been raised as an issue for consideration.

Conclusion

27.	In conclusion, the allegation has not been made out.  It is dismissed.

Order

28.	The orders are:

1.	The petition is dismissed.  
2.	The petitioner shall pay the costs of the proceedings, to be taxed, if not agreed.
3.	The sum of K5,000.00 held by the Registrar of the National Court as security deposit shall be paid to the respondents in equal portions. 
_______________________________________________________________
Johnny Kolkia Lawyers:		Lawyers for Petitioner
Win & Win Attorneys at Law:	Lawyers for First Respondent
Harvey Nii Lawyers:		Lawyers for Second Respondent