SC2491

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

Waigani: Cannings J
2023: 30th October, 3rd November

REVIEWS – application for stay of National Court decision upholding election petition, pending determination of Supreme Court review – Constitution, s 155(4) – Supreme Court Rules 2012, Order 5 rule 6 – whether single Judge of Supreme Court has jurisdiction to grant stay of National Court decision – whether stay ought to be granted.

The applicant was elected to the National Parliament. An election petition by the first respondent challenging his election was upheld. The National Court ordered that he was not duly elected and that there be a by-election. The applicant then was granted leave to apply to the Supreme Court for review of the National Court decision. He then applied for a stay of the National Court decision and an order that he be allowed to resume duty as a member of Parliament pending determination of the application for review. He argued that a stay of the National Court decision was necessary to do justice in the circumstances to preserve his right to have the National Court decision reviewed and to protect his subsisting membership of the Parliament and avoid prejudice to the rights of the people of the electorate that he had been elected to represent. The second respondent, the Electoral Commission, supported the application. The first respondent opposed it. 

Held:

(1)	A single Judge of the Supreme Court has jurisdiction under Order 5 rule 6 of the Supreme Court Rules 2012 in an election petition review to make interlocutory orders which seem just, which are not determinative of the issues under review, and this includes orders of the type sought by the applicant.

(2)	The applicant bears the onus of satisfying the Court that the orders sought are necessary to do justice in the circumstances of the case. It is a heavy onus as subject to a successful review, the decision of the National Court should be presumed to be made in accordance with law and shall be put into effect under s 155(6) of the Constitution.

(3)	The applicant failed to discharge that onus. It was not necessary, to preserve his right to review the National Court decision, to stay the decision. He had no subsisting right to be a member of the Parliament. Though the rights of the people of the electorate may be adversely affected by the absence of a member of Parliament, those rights are not extinguished and there are processes available to ameliorate the adverse effects of the absence of an elected member of Parliament. 

(4)	It does not look right to allow a person who has been declared by the National Court to have been not duly elected to go back into the Parliament and resume their seat as if nothing has happened. 

(5)	Application refused. Costs followed the event.

Case Cited

The following cases are cited in the judgment:

Arore v Warisan [2008] PNGLR 495
Basa v Quoreka & Electoral Commission (2023) SC2468
Duban v Yama (2014) SC1383
Powi v Kaku (2021) SC2147
Quoreka v Basa & Electoral Commission (2023) N10267
Seravo v Giheno (1998) SC555
Yagama v Yama (2013) SC1219

Counsel
S Ranewa, for the Applicant
M J Alu, for the First Respondent
W Pep, for the Second Respondent

3rd November 2023

1.      CANNINGS J: The applicant, Patrick Basa, was elected to the National Parliament as member for Kabwum Open in the 2022 general election. An election petition by the first respondent, Haring Quoreka, challenging his election was upheld. The National Court constituted by Justice Manuhu ordered on 26 May 2023 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). 

2.     The applicant then on 2 October 2023 was granted leave to apply to the Supreme Court for review of the National Court decision (Basa v Quoreka & Electoral Commission (2023) SC2468). I was the Judge of the Supreme Court who granted leave. 

3.     The applicant has since applied on 9 October 2023 for a stay of the National Court decision and an order that he be allowed to resume duty as a member of Parliament pending determination by the Supreme Court of his application for review. 

4.    The applicant argues that a stay of the National Court decision is necessary to do justice in the circumstances to preserve his right to have the National Court decision reviewed and to protect his subsisting membership of the Parliament and to avoid prejudice to the rights of the people of the electorate that he was elected to represent. The second respondent, the Electoral Commission, supports the application. The first respondent opposes it.

JURISDICTION

5.    I have jurisdiction sitting as a single Judge of the Supreme Court to hear the application. It used to be the case that applications for a stay of a decision of the National Court in an election petition or for other interlocutory orders had to go before the full court of the Supreme Court (Seravo v Giheno (1998) SC555). However, as pointed out by Gavara-Nanu J in Powi v Kaku (2021) SC2147, Order 5 rule 6 of the Supreme Court Rules 2012 now makes it clear that such applications can be heard and determined by a single Judge. Order 5 rule 6 states:

A Judge may grant leave to proceed, give any directions  desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.

6.     The Supreme Court confirmed in Arore v Warisan [2008] PNGLR 495 that the overriding jurisdiction of the Court to grant a stay of a National Court decision in an election petition is conferred by s 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

7.     The Court held:

The person seeking the orders bears the onus of satisfying the Supreme Court that the orders being sought are necessary, to do justice in the circumstances of the particular case. There is no need to prove special or exceptional circumstances. 

8.     Arore v Warisan was followed in Yagama v Yama (2013) SC1219 Duban v Yama (2014) SC1383. In both those cases the full court of the Supreme Court refused applications to stay decisions of the National Court in election petitions, pending the outcome of Supreme Court reviews.  

9.    In my view the decision of the National Court in the present case should be presumed to be made in accordance with law and put into effect under s 155(6) of the Constitution, which states:

Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

10.     That means that the applicant bears a heavy onus to prove that the National Court decision should not be given effect, but be stayed.

DETERMINATION

11.     I am not satisfied that any of the three grounds on which this application are based provide good reason to grant the orders sought.

12.     First, I do not consider that it is necessary, to preserve the applicant’s right to review the National Court decision, to stay the decision. Mr Ranewa, for the applicant, submits that there is a risk that if the National Court decision is not stayed, the Electoral Commission will conduct a by-election, which would make the review before the Supreme Court a futile exercise. However, I think that risk is remote, given that the Electoral Commission supports the stay application. It sounds as if the Commission has no interest in organising a quick by-election. It seems to be content to wait for the outcome of the Supreme Court review. 

13.    The second ground put forward in support of the stay application is difficult to comprehend. Mr Ranewa refers to ss 103 and 104 of the Constitution. These are the provisions that set out the qualifications for and disqualifications from membership of the National Parliament (s 103) and provide for the circumstances in which the seat of a member of the Parliament becomes vacant (s 104). 

14.     Section 103 states:

(1)	A member of the Parliament must be not less than 25 years of age.

(2)	A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(3)	A person is not qualified to be, or to remain, a member of the Parliament if—
(a) 	he is not entitled to vote in elections to the Parliament; or
(b)	he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c)	subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d)	he is adjudged insolvent under any law; or
(e)	he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f)	he is otherwise disqualified under this Constitution.

(4)	Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—

(a)	the end of any statutory period allowed for appeals against the conviction or sentence; or
(b)	if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.

(5)	The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.

(6)	If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.

(7)	In this section—

"appeal" includes any form of judicial appeal or judicial review;

"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.

15.     Section 104 states:

(1)	An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.

(2)	The seat of a member of the Parliament becomes vacant—

(a)	if he is appointed as Governor-General; or
(b)	upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
(c)	if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
(d)	if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
(e)	if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
(f)	if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
(g)	on his death; or
(h)	if he is dismissed from office under Division III.2 (leadership code).

(3)	For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.

16.   Mr Ranewa submits that nowhere in ss 103 or 104 does it say that a person such as the applicant, who was elected to the Parliament in a general election, becomes disqualified from membership of the Parliament or has his seat declared vacant just because an election petition challenging his election has been upheld. He submits that the applicant enjoys a subsisting right to membership of the Parliament, and further that he is at risk of losing his right to membership of the Parliament if he is not allowed to attend Parliament sessions.

17.    Mr Ranewa is correct in pointing out that the declaration of the National Court in an election petition that a person was not duly elected is not stated as a circumstance in either ss 103 or 104 that the person becomes disqualified from membership or that his seat becomes vacant. However, while his qualification for membership of the Parliament is not necessarily affected by the National Court decision, there can be no doubt that his seat becomes vacant when the National Court ordered that he was not duly elected. Section 104 in my view is not providing an exhaustive list of circumstances in which a member will vacate their seat. The National Court in this case ordered a by-election. That makes it crystal clear that there is no subsisting right to membership of the Parliament. The applicant need not worry about his continued absences from Parliament. His seat is already vacant.

18.    As to the third ground regarding the rights of the people of Kabwum Open electorate, the applicant has presented evidence from various Kabwum District officials as to the difficulties in obtaining access to discretionary funds due to his absence. There are problems in getting cheques cleared by banks. Service delivery by the Kabwum District Development Authority, of which the member for Kabwum is Chairman, are hampered by the absence of the member. He argues that the rights of the people of Kabwum under s 50 of the Constitution to be represented in the National Parliament and in the Morobe Provincial Assembly are also adversely affected.

19.    Yes, the rights of the people of the electorate are adversely affected by the absence of a member of Parliament. But those rights are not extinguished. The District Development Authority is a statutory corporation. It continues to exist and can function effectively in the absence of the local member of Parliament. Administrative or perhaps judicial intervention can be sought to address problems in getting access to funds. There are processes available to ameliorate the adverse effects of the absence of an elected member of Parliament. 

20.    It is a normal part of the life of the Parliament that there will from time to time be electorates that have no direct representation. Members lose their seats in a variety of circumstances such as death, dismissal from office under the Leadership Code, becoming insolvent, being convicted of an indictable offence or as in this case having their election declared void by the National Court after an election petition. The people of the electorate can no doubt be prejudiced by the absence of a member. But this is not by itself a good reason to stay a decision of the National Court.

21.     It does not look right to allow a person who has been declared by the National Court to have been not duly elected to go back into the Parliament and resume their seat as if nothing has happened. This would tend to make a mockery of the election petition process that has taken place under the Organic Law on National and Local-level Government Elections. 

CONCLUSION

22.     I am not persuaded that it is in the interests of justice to grant a stay of the National Court decision. It is not appropriate, fair or just to order that the applicant be allowed to resume official duties as a member of the Parliament. The application must be refused. Costs will follow the event.

ORDER

(1)	All relief sought in the applicant’s application filed 9 October 2023 is refused.

(2)	The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.
___________________________________________________________
Kawat Lawyers: Lawyers for the Applicant
Supasonixs & Alu Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent