SC2468

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 33 OF 2023

PATRICK BASA
Applicant

V

HARING QUOREKA
First Respondent

ELECTORAL COMMISSION
Second Respondent

&

SC REV (EP) NO 34 OF 2023

ELECTORAL COMMISSION
Applicant

V

HARING QUOREKA
First Respondent

PATRICK BASA
Second Respondent

Waigani: Cannings J
2023: 25th September, 2nd October

ELECTIONS – applications for leave to apply for review by Supreme Court of decision of National Court to uphold election petition and order that successful candidate not duly elected – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The respondents in an election petition (the successful candidate was first respondent and the Electoral Commission was second respondent) conducted in the National Court each filed an application in the Supreme Court seeking leave to review the decision of the National Court to uphold the petition and order that the first respondent was not duly elected. There was a joint hearing of the two applications for leave. 

Held:

(1)	To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2)	The proposed grounds of review in both applications for leave raised important points of law regarding exercise of the Electoral Commission’s power in s 175(1A) of the Organic Law on National and Local-Level Government Elections to declare the result of an election in “special circumstances”, which were not without merit. 

(3)	There is little National Court or Supreme Court authority on the question of the circumstances in which the Electoral Commission – as distinct from a returning officer – may invoke s 175(1A), and the obligations imposed on the Commission before and after the provision is invoked. This fact, together with the decision of the National Court being final in nature, gave rise to exceptional circumstances, making it in the interests of justice that leave be granted. 

(4)	Leave granted. 

Cases Cited

The following cases are cited in the judgment:

Basa v Quoreka & Electoral Commission (2023) SC2376
Mune v Poto [1997] PNGLR 356
Powi v Kaku (2022) SC2290
Pundari v Yakos (2023) SC2345
Quoreka v Basa & Electoral Commission (2023) N10267
SC Ref No 4 of 2002 Reference by Attorney-General re Failure of Elections  [2002] PNGLR 696

Counsel

SCREV (EP) 33 of 2023
S Ranewa, for the Applicant
M J Alu, for the First Respondent
H Nii, for the Second Respondent

SCREV (EP) 34 of 2023
H Nii, for the Applicant
T T Yamarhai, for the First Respondent
S Ranewa, for the Second Respondent

2nd October 2023

1.     CANNINGS J: This is a ruling on two applications for leave to apply for review of one decision of the National Court, constituted by Justice Manuhu. His Honour’s decision was made on 26 May 2023 in the election petition EP No 43 of 2022 in which the petitioner Haring Quoreka challenged the return of Patrick Basa as the member for Kabwum Open in the 2022 general election. Mr Basa was first respondent in the EP, the Electoral Commission was second respondent.

NATIONAL COURT DECISION

2.     His Honour upheld the petition and ordered that the first respondent was not duly elected and that the declaration that he was the member is null and void and that there shall be a by-election (Quoreka v Basa & Electoral Commission (2023) N10267). 

3.    His Honour ruled that the Electoral Commission’s reliance on s 175(1A) of the Organic Law on National and Local-Level Government Elections, to declare the first respondent as the successful candidate in “special circumstances” was improper. Section 175(1A) states:

Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a)	unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b)	in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

4.     His Honour found that counting of votes started on 15 July and continued on 16 July 2022 and at the end of the day on 16 July was suspended until the next day. But in the early hours of 17 July 2022 unidentified persons broke in to the Kabwum district office and burned all the ballot papers to ashes. That brought counting to an abrupt end. At the time only first preference votes from 14 of the 29 ballot boxes for the electorate had been counted. The top four candidates were:

Patrick Basa 5,498
Don Sawong 2,850
Mainuwe Motang Fenamu 1,893
Haring Quoreka 1,046.

5.     The returning officer forwarded a situation report dated 19 July 2022 to the Electoral Commissioner.

6.     The Commissioner on 8 August 2022 declared Patrick Basa as “member-elect for Kabwum Open seat”. 

7.      It was put to his Honour that because of the decision of the Supreme Court in Powi v Kaku (2022) SC2290, the question of whether special circumstances existed was within the sole and unlimited discretion of the Electoral Commissioner; and that was the case due to the unanimous Supreme Court decision in SC Ref No 4 of 2002 Reference by Attorney-General re Failure of Elections  [2002] PNGLR 696. His Honour held that that case did not relate to s 175(1A). 

8.     His Honour ruled that because of destruction of the ballot papers, determination of the “result” of the election was not by scrutiny as required by s 168 of the Organic Law. The word “result” in s 175(1A) has the same meaning it has in s 168, therefore as there was no result under s 168, s 175(1A) did not apply. His Honour held:

[34] Consequently, a result that is determined in accordance with s 168(1) would be a valid result. Conversely, a result that bypasses or falls short of s 168(1) would be a defective or invalid result.  There is no result if the counting was incomplete. There is no provision in the Organic Law that validates a progressive result for the purpose of making a declaration. Neither can the Electoral Commission declare a winner on account of a progressive, incomplete, or invalid result. … 

[38] When the Electoral Commissioner elected to rely on an incomplete, if not invalid, result to make the declaration, he effectively undermined the right of candidates to stand for an elective office and the right of electors to vote in an election (s 50, Constitution).  In my view, this was a material error.  It is contrary to the very reason the Electoral Commission exists.  

PROPOSED GROUNDS OF REVIEW 

9.    Mr Basa argues by way of proposed grounds of review in SCREV (EP) 33 of 2023 that his Honour:

•	erred in fact and law by not requiring that the petitioner plead and prove the absence of special circumstances in s 175(1A), this being a requirement for challenging the exercise of discretion under that provision as explained by the Supreme Court in Powi v Kaku (2022) SC2290;

•	erred in fact and law by deciding that only two of the eight grounds of the petition were worthy of consideration – Nos 1 and 5 – despite giving the parties the impression during the trial that ground No 1 was not worthy of consideration and despite the facts pleaded in the petition not supporting ground 1;

•	erred in law by regarding ss 175(1A) and 175(2) as “inquiry provisions” and not regarding s 175(1A) as a standalone provision, which does not depend for its operation on completion of scrutiny under s 168;

•	erred in fact and law by making adverse findings against the Electoral Commission for not securing the counting centre, when the destruction of ballot papers did not occur at the counting centre;

•	erred in law by granting relief that was not sought by the petitioner and ignoring the dictates of binding Supreme Court authority such as Mune v Poto [1997] PNGLR 356.

10.     The Electoral Commission’s proposed grounds of review in SCREV (EP) 34 of 2023 overlap with those proposed in SCREV (EP) 33 of 2023, namely that his Honour:

•	erred in fact in not identifying the persons who destroyed the ballot papers;

•	erred in fact and law by not dismissing the petition due to its failure to plead the absence of special circumstances warranting the exercise of power under s 175(1A); 

•	erred in law by finding that there had to be a result following scrutiny before s 175(1A) could be invoked and purporting to prescribe circumstances under which the Electoral Commission could lawfully exercise its powers under s 175(1A);

•	erred in law by taking irrelevant considerations into account, such as finding the Electoral Commission at fault for not securing the counting centre, when the ballot boxes were stored at Kabwum district office (which was not the counting centre), and expressing the opinion that the Electoral Commission had the option of ordering a supplementary election under s 97 of the Organic Law, when the use of s 97 was not raised in the petition and it was not open to the Court to raise it or express any opinion on its possible application;

•	erred in law by not dismissing the petition due to its failure to plead relief provided for by s 212(1) of the Organic Law and by granting relief that was not sought. 

CRITERIA 
11.     There are many cases that have over the years set out the criteria to be considered when determining applications for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. His Honour spelt out the criteria for granting leave. The applicant must show:

(a)	in so far as the application relates to a point of law, that it is an important point, which is not without merit, or in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and 

(b)	there are exceptional circumstances; and 

(c)	it is in the interests of justice to grant leave.

12.     Both applicants want me to disregard his Honour’s inclusion of the “extra” requirements about exceptional circumstances and the interests of justice. I am unpersuaded. I agree with Hartshorn J’s approach and will apply it. There needs to be strict criteria for granting leave to review decisions of the National Court in EP cases, especially interlocutory decisions. This is not an interlocutory decision that the applicants are seeking leave to review. It is a final decision, but the criteria for granting leave are the same. 

APPLYING THE CRITERIA 

13.     I now assess the two applications for leave against the criteria spelt out in Pundari v Yakos (2023) SC2345. 

14.    I reject the argument raised by counsel for Mr Quoreka that the principle of res judicata applies, because some of the proposed grounds of review were determined in previous Supreme Court proceedings when the applicants sought leave to apply for review of the decision of the trial judge to refuse objections to competency of the petition (Basa V Quoreka & Electoral Commission (2023) SC2376). Those were different proceedings and the applications for leave related to a different decision of the trial judge. 

15.      I consider that most of the proposed grounds of review are arguable. Most are in line with and supported by the judgment of Kandakasi DCJ in Powi v Kaku (2022) SC2290. His Honour addressed the preconditions to operation of s 175(1A) and the meaning of “special circumstances” and the discretion conferred on the Electoral Commission to determine the existence of such circumstances. His Honour’s judgment is also relevant to the applicants’ argument that the trial judge erred in law by not dismissing the petition for pleading relief outside s 212(1) of the Organic Law and granting relief that was not sought. 

16.     However, the applicants’ counsel, Mr Ranewa in SCREV (EP) 33 of 2023 and Mr Nii in SCREV (EP) 34 of 2023, must be careful when framing arguments based on Powi v Kaku (2022) SC2290. There were three Judges, Kandakasi DCJ, Yagi J and Makail J, and each gave a separate judgment; and Makail J dissented. It is misleading to refer to Kandakasi DCJ’s judgment as being the opinion of “the Supreme Court”, as that is certainly not the case. His Honour’s opinions are interesting and certainly support the arguments in the applicants’ proposed grounds of review. But they should not be elevated to the status of being the opinion of the Supreme Court.

17.     The fact remains, however, that the proposed grounds of review in both applications for leave raise important points of law regarding exercise of the Electoral Commission’s power in s 175(1A) of the Organic Law on National and Local-Level Government Elections to declare the result of an election in “special circumstances”, which are not without merit. 

18.     There is little National Court or Supreme Court authority on the question of the circumstances in which the Electoral Commission – as distinct from a returning officer – may invoke s175(1A), and the obligations imposed on the Commission before and after the provision is invoked. This fact, together with the decision of the National Court being final in nature, does give rise to exceptional circumstances, making it in the interests of justice that leave be granted. 

CONCLUSION

19.     Both applications for leave to review the decision of the National Court will be granted. Costs will follow the event.

ORDERS

SCREV (EP) 33 of 2023

(1)	The application for leave, filed 6 June 2023, to apply for review of the decision of the National Court of 26 May 2023 in EP No 43 of 2022, is granted. 

(2)	The first respondent shall pay the applicant’s costs of the application on a party-party basis, which shall if not agreed be taxed.

SCREV (EP) 34 of 2023

(1)	The application for leave, filed 8 June 2023, to apply for review of the decision of the National Court of 26 May 2023 in EP No 43 of 2022, is granted. 

(2)	The first respondent shall pay the applicant’s costs of the application on a party-party basis, which shall if not agreed be taxed.
___________________________________________________________

SCREV (EP) 33 of 2023
Kawat Lawyers: Lawyers for the Applicant
Supasonixs & Alu Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

SCREV (EP) 34 of 2023
Harvey Nii Lawyers: Lawyers for the Applicant
Supasonixs & Alu Lawyers: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent