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Okuk v Nilkare [1983] PNGLR 28 (17 February 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 28 - Re Disputed Returns for Simbu Provincial Election: Iambakey Okuk v John Nilkare 

[1983] PNGLR 28

N406

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND IN THE MATTER OF DISPUTED RETURNS FOR THE SIMBU PROVINCIAL ELECTION;

IAMBAKEY PALMA OKUK

V

JOHN NILKARE

Kundiawa

Andrew J

15-17 February 1983

PARLIAMENT - Elections - Disputed election petition - Illegal practices - Unsuccessful candidate under required age - Effect of illegal practices where committed by unsuccessful candidate - Effect of illegal practices where committed by successful candidate - Organic Law on National Elections, s. 215.

The Organic Law on National Elections, s. 215, provides:

“(1)    If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

...

(3)      The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void:

(a)      on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b)      on the ground of an illegal practice other than bribery or undue influence, unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

Held

(1)      Conduct whereby a candidate for election indicates on his nomination form that he is not under the age of twenty-five years and avoids indicating details of when and where he was born amounts to an “illegal practice” under ss 187, 191 and 195 of the Organic Law on National Elections.

(2)      Section 215(3)(a) is to be read alone. It does not cut down nor is it a proviso to s. 215(3)(b). So read, where an unsuccessful candidate commits any illegal practice without the successful candidate’s knowledge or authority, the election may not be declared void.

(3)      Section 215(3)(b) is to be read with s. 215(1). So read, where a successful candidate commits bribery or undue influence or attempts either, his election will be declared void, but where the successful candidate commits some other illegal practice the court must under s. 215(3)(b) apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare the election void.

Cases Cited

Charlie Maino Auki, In the matter of [1973] P.N.G.L.R. 243.

Koroba-Lake Kopiago Open Parliamentary Election, In re [1977] P.N.G.L.R. 328.

Nahau Rooney v. James Pokasui [1982] P.N.G.L.R. 351.

Thomas and James Kuru Kupul Kavali, In the matter of (Unreported judgment, dated 26 November 1982).

Petition

This was a petition to the National Court, brought pursuant to s. 206 of the Organic Law on National Elections and disputing the validity of an election on the ground inter alia that one of the unsuccessful candidates was not of the required age of twenty-five years.

Counsel

D. Cassidy Q.C., for the petitioner.

M. Cholai, for the respondent.

J Everingham, for the Electoral Commissioner.

Cur. adv. vult.

17 February 1983

ANDREW J: This is a petition to the National Court pursuant to s. 206 of the Organic Law on National Elections disputing the validity of the election and return of the Simbu Provincial Electorate in the 1982 national elections. The petitioner, Mr Iambakey Okuk was the runner-up and he polled 19,379 votes which was 2,908 votes less than the successful candidate, Mr John Nilkare who polled 22,287.

At the commencement of the hearing, it was agreed between all counsel and myself that as a matter of practicality, we would deal first with Ground C of the petition and that a ruling would then be given upon it.

Ground C is as follows:

“C.      A candidate for the Simbu Regional Electorate, one Wera Mori who polled 10,953 votes and came third in the Simbu Provincial Election is under-aged and was not entitled to stand for elective public office. The total of the votes he collected would have affected the end results substantially.”

Evidence has been called from the parents of Wera Mori to the effect that he was born in 1958. There is documentary evidence from Chuave hospital and other evidence which clearly supports the fact that he was born in 1958. Indeed, it is not disputed and I am satisfied that he was so born in 1958 and accordingly turned twenty-four at some time in 1982. He was thus under the age of twenty-five as required by s. 103 of the Constitution as the minimum age for a member of parliament.

Under s. 212(3) and s. 215 of the Organic Law on National Elections, this Court has power to declare that a person who was returned as elected was not duly elected or to declare an election absolutely void, on the ground that illegal practices were committed in connexion with the election.

I am satisfied that the candidate Wera Mori was aware of the fact that he was under twenty-five when he nominated for the election. In an earlier application to join the army, he gave his date of birth as 1 February 1958. He is a person of good education, up to University level and it is apparent that his date of birth was well-known. On his nomination form as a candidate for the elections he indicated that he was not under the age of twenty-five years and he avoided indicating the details of where and when he was born. The question is whether this amounts to an illegal practice under the Organic Law on National Elections.

The expression “illegal practice” is one which historically has been used to denote offences relating to elections. They are set out in the Criminal Code and in s. 179 of the Organic Law. But the list contained therein is not exhaustive. I agree with the passage of Pritchard J in In re Koroba-Lake Kopiago Open Parliamentary Election [1977] P.N.G.L.R. 328 at 335, (and followed by Woods A.J in In the matter of Thomas Kavali and James Kuru Kupul (Unreported judgment dated 26 November 1982)) that:

“When one looks at s. 215 of the Organic Law, it is perfectly clear that the expression ‘illegal practice’ was intended to describe more than those offences spelt out in s. 179 or those in s. 105 and s. 106 of the Criminal Code. If not, why in s. 215(3)(b) was it necessary to exclude undue influence and bribery from the general expression ‘illegal practice’ if they were not by inference deemed to be included in the first place. They quite clearly were included and, in my view, all offences in the Code Chapter XIV ‘Corrupt and Improper Practices at Elections’, s. 98 — s. 117, Chapter X ‘Interfering with Political Liberty’, s. 78, together with the offences created under Pt. XVII of the Organic Law are all included in the meaning of that expression.”

More specifically, the conduct of Mr Wera Mori amounted to an illegal practice under ss 187, 191 (offences nos. 4 and 12) and s. 195 of the Organic Law and it is therefore necessary to consider the effect of s. 212(3) and s. 215 of the Organic Law.

Section 212(3) gives a general power to declare a person not duly elected or to void an election on the ground that illegal practices were committed and in the circumstances of this case, where the illegal practice has been committed by a person other than the successful candidate, it is necessary to consider s.215.

Section 215 is as follows:

“215.   Voiding election for illegal practices

(1)      If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2)      A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3)      The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void:

(a)      on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b)      on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

In my judgment, s. 215(3)(a) puts an end to the matter for in plain language it says that the National Court shall not declare that a person returned as elected was not duly elected or declare an election void on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority and in my opinion s. 215(3)(b) does not cut down nor is it a proviso to s. 215(3)(a).

Section 215(3)(a) is the only section dealing with the circumstance of an illegal practice committed by a person other than the successful candidate. Section 215(3)(b) makes no reference to illegal practices committed by such persons (and it is relevant that it follows s. 215(3)(a)) and to read this into that section would in my view make nonsense of s. 215(3)(a) which covers the field for all illegal practices by persons other than the successful candidate.

Section 215(3)(b) is confined to illegal practices other than bribery or undue influence or attempted bribery or undue influence committed by the duly elected candidate. This may be seen from the opening words of s. 215(3), namely, that the National Court shall not declare that a person returned as elected was not duly elected or declare an election void — indicating that it is dealing with his conduct — and may be further seen from the concluding words of the section namely that the conduct would mean:

“that it is just that the candidate should be declared not to be duly elected or that the election should be declared void”.

How could it be that a successful candidate who has not committed any illegal practice himself is not answerable for any illegal practice committed by someone else and without his knowledge or authority (by virtue of s. 215(3)(a)) — yet where there is an illegal practice other than bribery or undue influence or an attempt to do either by someone else, becomes by that fact alone answerable, to the court, or the court must then consider, whether the result of the election was likely to be affected and that it is just he should be declared not to be duly elected?

It may be seen by s. 215(1) that the most serious form of illegal practice is that of bribery or undue influence or an attempt to do either, for if proved it results in the immediate voiding of the election without reference to the likely effect on the result. Then when that conduct is committed by someone else, as I have said, the successful candidate is not answerable for it. Again, it would make nonsense of s. 215(3)(a) to place a greater burden upon him for some lesser illegal practice (and in my view the terms of s. 215(3)(b) contemplate something less than bribery or undue influence) by making him responsible for someone else’s such conduct in the sense that he is liable to show that it is just that he be declared duly elected and that the result was not likely to be affected.

I think that s. 215(3)(b) should be read with s. 215(1). That is, that under s. 215(1), a successful candidate who commits bribery or undue influence or attempts either will have his election declared void, but if he commits some other illegal practice, then by s. 215(3)(b), the court must apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare the election void.

In my opinion, the section is poorly drafted but I cannot agree with the conclusion reached in In the matter of Thomas Kavali and James Kuru Kupul (supra) at 2 that:

“if anyone including the candidate commits an illegal practice other than bribery or undue influence... the National Court must be satisfied that the result of the election was likely to be affected and it is just that the candidate should be declared not to be duly elected or that the election should be declared void”.

In my opinion, s. 215(3)(b) is confined to conduct by the successful candidate.

Here, the respondent was clearly not aware of Mr Mori’s illegal practice and he is not responsible for it.

Even if I was wrong in this view and it could be said that s. 215(3)(b) did apply to unsuccessful candidates, it cannot be shown, in the circumstances of this case, that the result of the election was likely to be affected. This follows, in my view, because one cannot speculate in any way as to where those 10,953 votes would have gone. See In the matter of Charlie Maino Auki [1973] P.N.G.L.R. 243, and Nahau Rooney v. James Pokasui [1982] P.N.G.L.R. 351.

If the court cannot speculate as to who would have obtained the votes, it means that at the highest, it could be said that the result might or could have been affected. This is a different thing from saying that it is likely that the result would have been affected, bearing in mind, that the onus rests upon the petitioner and also considering that the respondent has won by almost 3,000 votes.

Again, even if I was wrong on that point, it would not be just, in my judgment, that the respondent be declared not to be duly elected because of the fact that some other candidate was a few months under the required age of twenty-five and the respondent had no knowledge of this. I think it is an exaggeration to say that the 10,953 persons who voted for Mr Mori have been dis-enfranchised. At the time of the declaration of the poll, those votes were like any other votes for other unsuccessful candidates.

It seems to me that some relevant factors in considering what is just in the circumstances are that the respondent clearly obtained the will of the majority and that it would be wrong that he should be penalized for Mr Mori’s behaviour in all of the circumstances, especially where that behaviour is less heinous than say bribery or undue influence. In my opinion, it would be unjust if the respondent was declared not to be duly elected or that the election should be declared void under this ground.

I should also refer to the submission of counsel for the Electoral Commissioner and of counsel for the respondent. That submission, briefly stated, is, that Mr Mori was in fact a legally qualified candidate. This, it was said flowed from s. 50 of the Constitution, namely, that every citizen who is of full capacity and has reached voting age has the right and shall be given a reasonable opportunity to vote for and to be elected to, elective public office at genuine, periodic free elections and that he may hold public office. Under s. 126 of the Constitution, the voting age is eighteen. The argument then goes that s. 103 of the Constitution says only that a member of Parliament must be not less than twenty-five years of age. It does not refer to a candidate so that presumably a person over the age of eighteen could be a candidate and stand for the national elections (provided he was prepared to run the risk of completing a false nomination form by declaring that he was not under twenty-five) but that if elected he could not take his seat in Parliament.

However, I think that this argument fails at the threshold because s. 50 of the Constitution is subject to the express limitations imposed by the Constitution and s. 103 is just such an express limitation. The two sections can quite easily be read together. In my opinion, it is not conceivable that Parliament in adopting the Constitution could have contemplated that a man could be a candidate and stand for national elections when it was known that when he came to take his seat, he would not be qualified. It must follow from s. 103 of the Constitution that if the candidate is not twenty-five when he comes to take his seat, that he was not qualified to stand in the first place.

Elections to the Parliament shall be conducted in accordance with an Organic Law (Constitution, s. 126), in this case the Organic Law on National Elections, and by s. 86 of the Organic Law, no nomination is valid unless the person nominated consents to act if elected and declares that he is qualified under the laws of Papua New Guinea to be elected as a member. This cannot be achieved by a person under the age of twenty-five without infringing s. 103 of the Constitution.

For these reasons, the argument fails, that Mr Mori was qualified to be a candidate.

For all of the above reasons, I would dismiss Ground C of the petition.

Grounds A and B alleging undue influence and bribery by the respondent and electoral malpractices by electoral officials, have not been proceeded with.

Accordingly, I dismiss the petition in whole, pursuant to s. 212(i) of the Organic Law on National Elections. I award the costs of the respondent and of the Electoral Commissioner against the petitioner pursuant to s. 223 of the Organic Law and I further order that the sum of K200 paid as deposit be applicable towards costs (pursuant to s. 224 of the Organic Law).

Orders accordingly.

Lawyer for the petitioner: K. Kara.

Lawyers for the respondent: P. Donigi and M. Cholai.

Lawyers for the Electoral Commissioner: The State Solicitor.