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Moresby Northeast Parliamentary Election, In re (No 1); Damena v Lowa [1977] PNGLR 424 (29 September 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 424 - Moresby North East Parliamentary Election, In re (No. 1); Goasa Damena v Patterson Lowa

[1977] PNGLR 424

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE MORESBY NORTH EAST PARLIAMENTARY ELECTION

(NO. 1)

GOASA DAMENA

V

PATTERSON LOWA

Waigani

Frost CJ

29 September 1977

PARLIAMENT - Elections - Disputed election petition - Lack of residential qualifications - Jurisdiction of National Court - Whether petition can be founded under Div. 1 Pt. 1 of the Organic Law on National Elections - Discretion of Parliament to refer such questions - Procedures co-existent - Organic Law on National Elections s. 228[cdlxiv]¹, s. 206[cdlxv]².

On the hearing of a disputed election petition brought under s. 206 of the Organic Law on National Elections by a losing candidate for relief on the ground that the elected member did not have the necessary residential qualifications as required by s. 193 of the Constitution, a preliminary objection was taken on behalf of the respondent that the Court did not have jurisdiction to grant relief on the ground relied upon unless the proceedings were by way of parliamentary reference under s. 228 of the Organic Law on National Elections.

Held

The procedure of parliamentary reference under s. 228 of the Organic Law on National Elections, is upon the limited grounds it covers, an alternative to the procedure by petition under s. 206 of the Organic Law on National Elections, and after the expiration of the two months’ period prescribed by s. 208(3) of the Organic Law on National Elections, for a petition to be filed, it provides an additional means of obtaining a decision by the National Court upon questions respecting the qualifications of a member, and accordingly the Court had jurisdiction to hear the petition.

Petition

This was a petition to the National Court, sitting as a court of disputed returns, pursuant to s. 206 of the Organic Law on National Elections, contesting the validity of an open parliamentary election on the ground that the elected candidate did not have the necessary residential qualifications as required by s. 193 of the Constitution. The matter is reported here on the ruling made as to the jurisdiction of the National Court to hear and determine the matter. For a determination of the issues of fact see, In re Moresby North East Parliamentary Election (No. 2) [1977] P.N.G.L.R. 448.

Counsel

G. J. Lay, for the petitioner.

W. J. Andrew, for the respondent.

K. N. Gregory, for the Electoral Commission.

Cur. adv. vult.

29 September 1977

FROST CJ: The ground of this petition is that Mr. Patterson Lowa was not qualified to stand for the seat of Moresby North East at the recent general elections as, it is alleged, he was not born nor had he resided in the electorate for the period required in the Constitution.

A preliminary objection is now taken on behalf of Mr. Patterson Lowa that this Court has no jurisdiction to grant Mr. Goasa Damena, the petitioner, relief on this ground. There is sufficient authority for the proposition that this Court may exercise its powers, under the Organic Law on National Elections, on hearing an election petition under s. 212(1) (including the powers to declare that a person was returned as elected, was not duly elected, or to declare an election void) on the ground that the person returned lacked the necessary qualifications. Halsbury’s Laws of England, 3rd ed., Vol. 11, p. 244; Harbison v. Dobson[cdlxvi]³. This was not disputed by Mr. Gregory who appeared for the Electoral Commissioner, and indeed Mr. Gregory cited other cases from the Australian jurisdictions on this point.

The basis of the submissions by Mr. Andrew, who appeared for Mr. Patterson Lowa, consists of the provisions of Pt. XVIII, Div. 2 which is headed “Qualifications and Vacancies”. That division contains s. 228 which provides that a question respecting the qualifications of a member or respecting a vacancy in the Parliament, may be referred by resolution of the National Parliament to the National Court, and the Court shall thereupon have jurisdiction to hear and determine the question.

There are additional provisions in Div. 2 requiring the Speaker to transmit to the Court a statement of the question together with all necessary papers, s. 229, and also enabling the Court to allow interested parties to be heard on the reference — s. 230. It is important also to note that on the hearing of a reference under this Division, the Court has all the powers conferred by s. 212(1) upon the hearing of a petition but there are additional powers upon a reference by the Parliament.

When the Court is hearing a reference under Div. 2 it has the additional powers (a) to declare that a person was not qualified to be a member, (b) to declare that a person was not capable of being chosen or sitting as a member, and (c) to declare that there is a vacancy in the Parliament, s. 231.

The argument in support of the preliminary objection is that under the Organic Law on National Elections the Constituent Assembly chose to exclude lack of qualifications on the part of the successful candidate as a ground for an election petition, and limited the petitioner to grounds such as official errors or corrupt and illegal practices. The question of the qualifications of a candidate, it is thus argued, can be examined only if Parliament by a majority of members, resolves to refer the question to the National Court.

It was very properly conceded on behalf of Mr. Lowa that the Parliament had a discretion that it was not bound to make a reference to the Court, and indeed that follows from the plain words of the section.

This Court would assume that the Parliament would exercise its powers responsibly and give serious consideration to referring any question respecting a member’s qualifications unless the objections were plainly frivolous or vexatious, but this does not exclude the possibility that the Parliament may go into the merits of the issue and may decide against a reference. For a citizen who has genuine ground for disputing an election to be shut out of the courts of justice and left without redress if the resolution is defeated, would seem to me to require legislation in clear terms.

Mr. Gregory cited cases from the Australian States which touched on the issue. I refer to the case of In re Walsh[cdlxvii]⁴, and a decision of the High Court of Australia, In re Webster[cdlxviii]⁵. In each case the procedure was adopted of a reference by the Parliament. But in my opinion these authorities do not bear directly upon the point of construction which has arisen under Pt. XVIII of the Organic Law on National Elections, nor were counsel able to cite any other authority directly on the point.

It is not suggested that there is found in Pt. XVIII any express exclusion of lack of qualifications as a ground upon which the Court may uphold the petition. If there is any exclusion of such a ground, it must be found by necessary implication in the procedure for questions respecting qualifications of a member being referred by Parliament under Div. 2.

Mr. Lay, for the petitioner, submitted that the respondent’s argument amounted to the application of the rule of construction expressio unius est exclusio alterius. (The express mention of one thing causes the exclusion of another). He cited Odgers’ Construction of Deeds & Statutes, 5th ed., pp. 94-95. This passage stresses the need for caution in the application of the rule. The rule itself has been explained in terms also applicable to the issue under consideration: “Another general rule with regard to the effect of an enabling Act is expressed in the maxim, Expressio unius est exclusio alterius, (Express enactment shuts the door to further implication). ‘If there be any one rule of law clearer than another, it is this, that, where the legislature have expressly prescribed one or more particular modes of dealing with property, such expression always excludes any other mode, except as specifically authorised’.” — citing Blackburn v. Flavelle[cdlxix]⁶, Craies on Statute Law, 7th ed., pp. 259-260.

The question thus is, has the Constituent Assembly prescribed the procedure by parliamentary reference as the exclusive mode for determining the question whether a member is qualified to sit in Parliament? The issue in my opinion does not admit of doubt.

Consider the operation of Pt. XVIII. An election petition must be filed within the limited period of two months after the declaration of the result; a reference may be made at any time during the lifetime of Parliament. Accordingly a parliamentary reference may be made if a defeated candidate prefers not to incur the trouble and expense of a second election, or for any reason not to go to law. Similarly, there may come to the light of day only after the two months’ period has expired facts which raise doubts about a member’s qualification, for example, if during the lifetime of a Parliament unsoundness of mind becomes apparent in a member, or if a member is convicted and is under imprisonment for a period of more than 9 months; or becomes otherwise disqualified under the Constitution. These are all matters which may render a member subject to disqualification — Constitution, s. 103(3)(b), (c) and (d).

In these cases of supervening circumstances respecting the qualifications of a member, procedure by parliamentary reference is particularly appropriate. That procedure thus has a much wider operation than the Division relating to petitions. Mr. Gregory submitted that there was some significance in s. 231 which confers the additional powers upon the National Court sitting under Pt. XVIII. However, these powers are appropriate to effectuate a finding of the National Court in cases such as I have referred to. Mr. Gregory also referred to the Constitution, ss. 135 and 136, and the Organic Law on National Elections, s. 226, which provides for the effect of the decision of the National Court; but in my opinion they are insufficient to establish the exclusive operation of Div. 2 contended for.

The conclusion I have reached is that the procedure of parliamentary reference is, upon the limited ground it covers, an alternative to the procedure by petition under s. 206, and after the expiration of the two months’ period for a petition to be filed it provides an additional means of obtaining a decision of the National Court upon questions respecting the qualifications of a member. There is no reason why these two modes of procedure should not exist side by side. For these reasons, in my opinion, the Court’s jurisdiction to hear and determine the present petition is not ousted, and the preliminary objection fails.

Ruled accordingly.

Solicitors for the petitioner: L. Keith Young & Associates.

[cdlxiv]Section 228 of the Organic Law on National Elections provides: A question respecting the qualifications of a member or respecting a vacancy in the Parliament may be referred by resolution to the National Court by the Parliament and the Court shall thereupon have jurisdiction to hear and determine the question.

[cdlxv]Section 206 of the Organic Law on National Elections provides: The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

[cdlxvi](1871) 2 A.J.R. 51.

[cdlxvii][1971] V.R. 33.

[cdlxviii](1975) 49 A.L.J.R. 205.

[cdlxix] (1881) 6 App. Cas. 628, 634.