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Masive v Okuk and Kenderop [1985] PNGLR 263 (29 August 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 263 - SCR No 2 of 1985; Kevin Masive v Iambakey Okuk and Johannes Kenderop

[1985] PNGLR 263

SC301

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 2 OF 1985

KEVIN MASIVE

IAMBAKEY OKUK AND JOHHANNES KENDEROP

Waigani

Kidu CJ Pratt Bredmeyer Amet Woods JJ

30 April 1985

7 May 1985

29 August 1985

PARLIAMENT - Elections - Qualifications for - Qualification disputed - Jurisdiction of National Court before polling commenced - Jurisdiction available - Organic Law on National Elections, ss 3, 206 - Constitution, ss 50, 57, 135.

PARLIAMENT - Elections - Candidates for - Right to stand for election - Right in one properly qualified - Right enforceable against candidate not properly qualified - Constitution, ss 50, 57.

The Organic Law on National Elections, s 206, provides that “the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise”.

The Constitution, s 135, provides that the “National Court has jurisdiction to determine any question as to (a) the qualifications of a person to be or to remain a member of Parliament; or the validity of an election to the Parliament”.

Held

(1) The National Court has jurisdiction to determine a person’s qualifications to stand as a candidate in an election to the National Parliament after nominations have been declared under the Organic Law on National Elections, s 92, and before the commencement of polling.

(2) The words “to be” in the Constitution, s 135(a), are to be interpreted as meaning “to become”.

(3) The word “election” in the Constitution, s 135(b), is to be interpreted as referring to the declaration of a person to be a successful candidate.

(4) The word “election” in the Organic Law on National Elections, s 206, is to be interpreted as meaning “return” and therefore an election petition can only be filed after the result of an election has been declared.

(5) (Obiter) Because the Constitution, s 50, guarantees a right to a citizen qualified to stand for election, to stand in a genuine election, it follows that a citizen properly qualified may seek, pursuant to the Constitution, s 57, to enforce such a right against a candidate not properly qualified.

Cases Cited

Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435; [1977] 3 WLR 300; 3 All ER 70.

Jababa v Okuk [1983] PNGLR 69.

Kevin Masive v Iambakey Okuk and Johhannes Kenderop [1985] PNGLR 105.

McDonald v Keats [1981] 2 NSWLR 268.

Moresby North East Election Petition, Re; Patterson Lowa v Goasa Damena [1977] PNGLR 429.

Moresby North East Parliamentary Election Petition (No 2), Re; Goasa Damena v Patterson Lowa [1977] PNGLR 448.

SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390.

Simbu Provincial Election, Re; Okuk v Nilkare [1983] PNGLR 28.

Reference

This was a reference to the Supreme Court made pursuant to the Constitution, s 18(2), on the following question:

“Once nominations have been declared under s 92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate?”

Counsel

I Molloy and G Lay, for the plaintiff.

D Colquhoun-Kerr, for the first defendant.

A Tadabe, for the second defendant and the Principal Legal Adviser.

Cur adv vult

29 August 1985.

KIDU CJ: In this reference made under the Constitution, s 18(2), the court is asked to answer the following question:

I emphasise from the outset that the question this Court is asked to answer is a very specific one. It is concerned with the jurisdiction of the National Court with respect to the determination of a person’s qualifications to stand as a candidate in an election to the National Parliament after the close of nominations but before the commencement of polling.

The reference came before the court on 30 April 1985 and the urgency of the matter (polling was to commence on 11 May) required an urgent answer. So on 7 May the court answered the question without publishing reasons. The answer was in the affirmative. We now publish our reasons.

Pratt J and Bredmeyer J have in their joint judgment set out the background of the reference. It is not my intention to cover this same ground.

The jurisdiction of the National Court is provided for in the Constitution, s 166. It provides as follows:

166. Jurisdiction of the National Court

“(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in:

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision 111.3.D (enforcement); and

and otherwise as provided by this Constitution or any other law.”

Section 135 is not specifically included in s 166 so it is one of the jurisdictions “otherwise as provided by this Constitution”. It specifically empowers the National Court to entertain questions relating to a person’s qualifications to be or to remain a member of the National Parliament:

135. Questions as to Membership, etc.

“The National Court has jurisdiction to determine any question as to:

(a) the qualifications of a person to be or to remain a member of the Parliament; or

(b) the validity of an election to the Parliament.” [Emphasis mine.]

There can be no doubt whatsoever that s 135 confers three very distinct jurisdictions on the National Court:

(a) determination of any question as to a person’s qualifications to be a member of the Parliament; and

(b) determination of any question as to a person’s qualifications to remain a member of the Parliament; and

The qualifications for and disqualifications from membership of the National Parliament are set out in the Constitution, s 103. The relevant provisions are subss (1), (2) and (3). They read as follows:

“(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.

(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 otherwise disqualified under this Constitution.” [Emphasis mine.]

In his submission Mr Colquhoun-Kerr urged the court to treat s 135 as merely an enabling provision and nothing more. The reason, he submitted, was that without s 135 the National Court would have no jurisdiction to entertain matters relating to qualifications for a person or persons to be or to remain members of Parliament or matters relating to the validity of an election as these are covered by constitutional laws and the Constitution, s 18, says, among other things, that subject to the Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a constitutional law. There can be no doubt that s 135 enables the National Court to determine matters that otherwise would be the exclusive province of the Supreme Court. But s 135 is not a mere enabling provision, it is a grant of power and substantial power at that. To say that it is merely enabling misconceives the true nature of that provision of the Constitution. I deal with the three categories of power in s 135 by considering the last one first.

POWER TO DETERMINE THE VALIDITY OF AN ELECTION TO THE PARLIAMENT (S 135(B))

The extent of this power is dependent on the meaning of “election”. It can mean the whole election process from the issue of a writ to the declaration of the result of the election, or the result itself, depending on the context in which the word is used in any particular statutory provision. If “election” in s 135(b) means the whole of the electoral process then I cannot see the reason for s 135(a). It seems to me, therefore, that the word “election” in s 135(b) means the declaration of a person to be the successful candidate or member of Parliament.

POWER TO DETERMINE THE QUALIFICATIONS OF A PERSON TO REMAIN A MEMBER OF PARLIAMENT (S 135(A))

There can be no doubt that this second limb of s 135(a) means exactly what it says. It quite explicitly applies to a person who is already a member of Parliament either by being elected or appointed.

POWER TO DETERMINE THE QUALIFICATIONS OF A PERSON TO BE A MEMBER OF PARLIAMENT (S 135(A))

The words “to be” vary in their meaning depending on the context in which they are used. For instance a man who says “I want to be a judge” means that he wants to become a judge. In s 135(a), because of the context in which they are used, there can be no question that they mean “to become” and therefore give the National Court the power to entertain challenges to a person’s qualifications to become a member of the National Parliament.

It is without a scintilla of doubt that the Organic Law on National Elections makes no provision for this situation. The two relevant provisions of this law provide as follows:

“3. Reference of certain questions to National Court.

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court”.

“206. Method of Disputing Returns.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.” [Emphasis mine.]

Section 3 clearly provides for a post-election situation. It applies in a case where a person has been elected to Parliament. It, therefore, has no relevance to this reference.

Section 208(a), (e) of the Organic Law puts beyond doubt that s 206 relates to a post-election situation. It provides:

“A petition shall:

(e) be filed in the Registry of the National Court at Port Moresby within two months after the declaration of the result of the election in accordance with s 176(1)(a).” [My emphasis.]

As the Organic Law does not relate to the first limb of the power vested in the National Court by the Constitution, s 135(a), the machinery for invoking this jurisdiction must be found outside the Organic Law. There are no specific provisions in the Rules of the National Court concerning the matter in question. However these rules can be utilised by virtue of the Constitution, s 185, which is in the following terms:

“185. Lack of Procedural Provision

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

In this case the National Court would have the power to use the National Court Rules to entertain the challenge by the plaintiff. Of course this would be subject to the locus standi of the plaintiff.

Mr Molloy for the plaintiff had a second argument in support of his submission that the National Court had jurisdiction and this was that his client had the right to stand for election, a right guaranteed by the Constitution, s 50. This provision guarantees the right to a citizen qualified to stand for election, to stand in a genuine election. Such a person undoubtedly has the right to come to court if this right is under threat by a person who is not qualified to stand. As this right in question is guaranteed by the Constitution, s 50, it is enforceable in the National Court under the Constitution, s 57(1):

“57. Enforcement of Guaranteed Rights and Freedoms

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court ....”

I would answer the question in the affirmative.

PRATT BREDMEYER JJ: This is a reference to the Supreme Court by Los J. The background to it is that in 1983 Mr Iambakey Okuk won the Unggai-Bena seat in the National Parliament in a by-election. Kevin Masive, an unsuccessful candidate in that by-election, filed an election petition under the Organic Law on National Elections (Ch No 1) (s 206), (hereinafter called the Organic Law) claiming that Mr Okuk was not residentially qualified to stand for Parliament under the Constitution, s 103(2). The election petition was heard by Woods J, and in the course of hearing it he referred to the Supreme Court a number of questions on the correct interpretation of s 103(2). The Supreme Court answered the questions referred to it and interpreted s 103(2) in SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390. Woods J in an unreported decision delivered on 6 December 1984 went on to determine the election petition, ruled that Mr Okuk was not residentially qualified, and declared the election void.

As a result of that decision a writ for a second Unggai-Bena by-election has been issued. The returning officer has declared the nominations received by him and Mr Okuk and Mr Masive are two of the four candidates declared. Mr Masive applied to the National Court by way of originating summons seeking a declaration that Mr Okuk is not qualified to stand as a candidate and an order directed to the returning officer that Mr Okuk’s name not be placed on the ballot paper. Mr Masive cannot, and does not, claim res judicata, that the decision of Woods J decides the issue of Mr Okuk’s residential qualifications for all time, because, obviously, although Woods J decided that Mr Okuk did not reside in the Unggai-Bena electorate for a continuous period of two years immediately preceding his nomination for the 1983 by-election, the facts could be otherwise in the two years preceding his nomination for the 1985 by-election.

This case was argued before us on 30 April. Because polling was scheduled to commence on 11 May we announced our decision on 7 May declaring that the National Court did have jurisdiction to determine the question of the qualifications of a candidate prior to the election result being announced. We said we would supply our reasons later. On 9 May, one of us, Pratt J, dismissed the originating summons on a number of procedural grounds: see Kevin Masive v Iambakey Okuk and Johhannes Kenderop [1985] PNGLR 105. We now publish our reasons for the affirmative answer given to the question asked of us.

The sole question referred to us is:

“Once nominations have been declared under s 92 of the Organic Law on National Elections, but before commencement of polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualifications of another candidate?”

The key sections of the Constitution, namely ss 103, 135 and 166, have been quoted by the Chief Justice. To these we would add s 126(7).

Section 126 is headed “Elections”. Section 126(7) provides:

“An Organic Law shall make provision for and in respect of:

(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and

(b) the electoral system; and

(d) appeals to the National Court in electoral matters.”

In this appeal Mr Molloy, counsel for Mr Masive, who was the plaintiff in the court below, contends that the National Court has jurisdiction to decide whether a person is qualified to stand as a candidate for Parliament before polling commences. He relies on the first part of the alternatives mentioned in s 135(a):

“The National Court has jurisdiction to determine any question as to:

(a) the qualifications of any person to be ... a member of Parliament.”

He says that the words “to be” are future tense, they indicate a future situation and hence apply to a person who wants to be a member of Parliament. They contrast with the second phrase in the subsection, “or to remain a member of Parliament”, which applies to one who is already a member. We agree that it is certainly not unusual in the English language to use the infinitive “to be” in the sense of “to become”, and it seems to us to do injustice to the language of s 135 to interpret it in any sense other than “to become”.

The identical words used in s 135(a) are also used in s 103(3) quoted by Kidu CJ. There are four kinds of disqualification mentioned in that section which in brief are:

(a) not entitled to vote;

(b) unsoundness of mind;

(d) “he is otherwise disqualified under this Constitution”.

Under (d) would come two matters:

(1) if he is under twenty-five years of age (Constitution, s 103(1)); and

(2) if he is not residentially qualified in accordance with s 103(2).

On the basis of s 135 and s 103 which we read together, the National Court has jurisdiction to determine the qualifications of a person to be (or to remain) a member of Parliament on these six matters. We stress these six matters because there are other matters which would disqualify a person from being a member of Parliament but which are not stipulated in the Constitution; for example, if he fails in his nomination paper to declare that he is qualified under the laws of Papua New Guinea to be elected, if he fails to get his nomination to the returning officer before the hour of nomination, or if he fails to accompany it with K100 in money or in a bankers cheque. These three matters are requirements of the Organic Law on National Elections, s 86, not matters for disqualification listed in the Constitution.

The Organic Law makes provision for the matters set out in the Constitution, s 126(7), and it regulates the right to vote and stand for public office conferred by s 50(1). We consider, in the words of s 50(2), that the Organic Law is a law which is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

The relevant parts of the Organic Law for the purposes of this discussion are ss 3, 206, 228 and 231.

Section 3 reads:

“Reference of certain questions to National Court

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant, shall be determined by the National Court.”

We note that the section is not as wide as the Constitution, s 135. It gives the National Court power to determine whether a person has been validly elected as a member of Parliament and whether the seat of a member has become vacant. The section presupposes that a person has been elected or has been made a member. (Some members may be nominated.) The section thus gives the court power to hear a challenge only after the election; that is after the election result is known.

Section 206 provides:

“206. Method of disputing returns.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.”

The section refers to “an election or return” suggesting a contrast between the two things. Mr Justice Srivastava in his Law of Indian Elections and Election Petitions, at p 489 suggests the following:

“The word ‘election’ is commonly used in two senses. In the narrower sense it is used to mean the final selection of a candidate ... . In the wider sense, the term is used to connote the entire process of election culminating in a candidate being declared elected, in other words, it includes the whole procedure of election .... Nomination is a part of election in the wide sense of the term and questioning of the order of the Returning Officer at the nomination stage would amount to the questioning of ‘election’.”

A similar view was expressed by Powell J in McDonald v Keats [1981] 2 NSWLR 268 at 274, where his Honour says:

“... upon its proper construction, the word ‘election’ is not to be restricted to the declaration of the poll, but is apt to extend to each and every step in the election process from the issue of the writs to the various returning offices up to and including the declaration of the poll ... .”

Yet while we accept counsel’s suggestion that an election is made up of a number of parts, a challenge to any of which following completion of an election must amount to a challenge to the election itself, we do not agree that the same is true where the election process has not run its full course. If someone challenges the nomination during the course of an election, and more particularly before polling commences, such challenge to the nomination is nothing more than that. It cannot be a challenge to “the election” for the election has not yet been run. It should also be noted that the phrase occurring in s 206, “the validity of an election”, is found in the first instance in the Constitution, s 135(b) itself. If the challenge to the qualifications of a person to be a member of Parliament is also the same thing as a challenge to the validity of the election, what is the point in placing two separate matters within s 135 at all. The answer can only be that s 135(a) envisages the possibility of a challenge to qualifications before the election has run its course, that is in respect of a future event taking place, namely, the realisation of the nominee’s hope to be a member, that is to become a member of Parliament in the immediate future. Action under the first part of s 135(a) is more likely to be expected and to be taken before any declaration of a poll whereas action concerning whether or not a person can remain a member clearly must take place after election to the House has been declared; and it may or may not be involved with election procedures. Qualifications to remain a member may well come under review if for example the occupant has been convicted of a serious criminal offence or has been declared insane.

The word “return” in s 206 means the return of the writ by the returning officer declaring the result of the election in accordance with s 176. The use of the phrases “return” and “an election” in contradistinction to one another suggests that an election petition can be brought at any time during the course of an election; for example, before, during or after polling. But that suggestion is negatived by s 208(1)(e) which provides that the petition must be filed within two months after the declaration of the result of the election; and s 210 which provides that there can be no proceedings on a petition unless the requirements of s 208 and s 209 are strictly complied with. We conclude from these sections that s 206 is to be read narrowly, that the word “election” in it means the same as “return”, and that an election petition can only be filed after the result of an election has been declared. The section means that the validity of an election result may be disputed by a petition and not otherwise. Section 206 as interpreted, when read with the first part of s 3, means that the National Court has jurisdiction to determine whether a person has been validly elected as a member of Parliament and the only means of determining that question is by way of election petition. There is nothing contained in Jababa v Okuk [1983] PNGLR 69 which suggests to the contrary, despite the fact that that matter arose from an application by way of an appeal from the issue of a writ of mandamus by the National Court against the electoral officer. What Kidu CJ and Andrew J say at 71 is that an electoral petition is appropriate to dispute the validity of an election return (that is, of a completed election) but is not appropriate to question the validity of an enrolment or nomination for a forthcoming election.

The second part of s 3 is as follows: “Any question ... whether the seat of a member has become vacant shall be determined by the National Court.” That part refers to Div 2 of Pt XVIII of the Organic Law. In that Division s 228 and s 231 are of special importance.

Section 228 provides:

“228. Reference of question of qualification or vacancy

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.”

Section 231 provides:

“231. Powers of court.

On the hearing of a reference under this Division, the National Court shall sit as an open court and has the powers conferred by Section 212 so far as they are applicable, and in addition has power:

(a) to declare that a person was not qualified to be a member; and

(b) to declare that a person was not capable of being chosen or of sitting as a member; and

We consider that the jurisdiction conferred by the Constitution, s 135, is wider than that conferred by s 206 and s 228 of the Organic Law although there is some overlap. The first part of s 135(a) gives the National Court jurisdiction to determine any question as to the qualifications of a person “to be” a member of Parliament and that includes a candidate’s qualifications. The Organic Law does provide in s 206 (the electoral petition) a method of disputing the qualifications of a candidate after he has been declared elected but does not provide any procedure whereby those qualifications can be established prior to the election result. We consider that a person can apply to the court to dispute a candidate’s qualifications prior to the election result. The court has jurisdiction to hear the question by s 135.

Cases from other jurisdictions are of limited assistance to the Court because of different constitutional and statutory provisions. We agree with the submissions by both counsel that in most common law jurisdictions Parliament has reserved to itself the full and exclusive right and power to determine its own membership but has delegated part of this power to a court of disputed returns. Consequently, it is unknown in those jurisdictions to challenge the qualifications of a candidate at any stage before the declaration of the poll. The framers of our Constitution, however, decided at the very outset that such power would not be placed by the people in the exclusive hands of Parliament but was an area of concern to the judicial arm of Government (Constitution, s 135) also to be shared in certain circumstances with Parliament as recognised in the Organic Law (for example s 228).

It is not necessary in answering the question referred to us to consider in any detail the procedure or methods by which an applicant can apply to the court to ask it to exercise that jurisdiction prior to the declaration of the election result. We agree with the learned Chief Justice and our brother Amet that the applicant could apply to the court under the Constitution, s 57, for enforcement of his right under s 50 to stand for election without the handicap of opposition from an unqualified opponent. One of us, Pratt J in Masive v Okuk and Kenderop [1985] PNGLR 105, has said that the method chosen in this case of applying for a declaration that Mr Okuk is not qualified is inappropriate, and that applying by way of a writ of summons or by an application for judicial review is more appropriate. As we have stated it is not necessary for us to determine these questions.

We would answer, yes, to the question referred to us.

AMET J: The first observation I wish to make is that in interpreting and construing these various provisions of the Constitution and the Organic Law on National Elections, an overriding consideration which ought to be borne in mind is the unique autochthonous nature of this Constitution. Any references to and study of case law from other jurisdictions of notions and principles, which may have been borrowed or adopted, may lose their persuasive value in the context of this background in particular circumstances. The devolution of rights, powers and functions under our Constitution devolves from the people through the Constitution and is not delegated from the legislature, the National Parliament.

It is trite to remember that pursuant to the Constitution, s 9 and s 10, the Organic Laws are subordinate to the Constitution in the hierarchy of laws and shall be read and construed subject to the Constitution.

The question referred for the opinion of this Court is:

“Once nominations have been declared under s 92 of the Organic Law on National Elections, but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualifications of another candidate?”

The plaintiff submits that the National Court does have such a jurisdiction. The defendants submit that though the National Court does have jurisdiction, that jurisdiction can only be invoked by the process of a “petition” addressed to the National Court after the conclusion of the “election” process “and not otherwise”: see the Organic Law on National Elections, s 206.

The defendants concede that such jurisdiction is conferred by the Constitution, s 135. But they submit that the Constitution provides for the exercise and regulation of this jurisdiction in s 126(7) which provides that an Organic Law shall make provision for, inter alia, the electoral system, safeguarding the integrity of elections and appeals to the National Court in electoral matters. They submit that the Organic Law on National Elections thus implements the Constitution, s 126(7) and s 135.

The defendants’ bold submission is that the Organic Law and in particular Pt XVIII prescribes an exclusive mechanism for challenging the validity of an election. Further it was submitted for the defendants that s 135 is only an enabling provision, it simply confers jurisdiction and nothing more, and the process and procedures enabling this jurisdiction to be exercised are provided in the Organic Law pursuant to s 126(7). It was submitted further that generally the term “election” used in s 206 of the Organic Law should be construed to extend to each and every step in the election process from the issue of the writ up to and including the declaration of the result of the election.

I accept the submission that generally the term “election”, as used in contradistinction to the term “return”, means the whole process from the issue of the writ to and including the declaration of the result of the election: see McDonald v Keats [1981] 2 NSWLR 268. The term “return” is the technical act of the returning officer, publicly declaring the result of the election and the name of the candidate elected and endorsing on the writ the name of the candidate elected, and returning the same through the Electoral Commission, as provided in s 176 of the Organic Law.

The defendants submitted that, upon this construction of the term election” the legislature has intended that the Organic Law would be an exclusive code for the purposes of all issues as to the validity of an “election”; that the validity of an “election” or “return” may only be disputed by a petition addressed to the National Court “and not otherwise”. And by virtue of s 208(e), “Requisites of Petition”, such a petition can only be filed within two months after the declaration of the result of the election.

It was submitted that this construction of s 206 of the Organic Law is not inconsistent with the jurisdiction conferred upon the National Court under s 135. There are no reasons of convenience or justice that are against holding that the election petition procedure prescribed under Pt XVIII of the Organic Law is exclusive. Indeed it was urged that such a process is exclusive in the United Kingdom and Australia. Strong public policy considerations of the finance involved and inconvenience were advanced by the defendants in support of the construction submitted by them.

However, notwithstanding this general rule, I am of the opinion that the issue revolves around the interpretation to be attributed to the Constitution, s 135, and the scope of that jurisdiction. Section 135(a) confers jurisdiction upon the National Court to determine any question as to the qualifications of a person in two circumstances; (a) “to be” or (b) “to remain” a member of the Parliament; and under s 135(b) the jurisdiction to determine any question as to “the validity of an election to the Parliament”. It is worthy to note that identical terms “the validity of an election” are used in s 206 of the Organic Law. It emphasises the distinction in jurisdiction.

I too am of the opinion that the term “to be” used in s 135(a) speaks of an event in the future. The section relates to the qualifications of a person who desires to become a member of Parliament; one who intends to be a candidate, or one who is a candidate, but who is not yet an elected member. In contradistinction, the term “to remain” in my opinion speaks of the position where a person is already an elected member, and the issue relates to his qualifications to remain or continue to be a member.

These two jurisdictions are separated and distinguished from that conferred by s 135(b) on “the validity of an election”. The two jurisdictions envisaged by s 135(a), as I perceive them are these: first, the jurisdiction to determine a dispute as to the qualifications of a person to become a member of the Parliament can be invoked at any time from nomination to the completion of the casting of votes and the declaration of the results; and secondly, a dispute as to the qualifications of a person to remain a member, it being after the declaration of the result, can be invoked by petition pursuant to s 206 or by reference from the National Parliament under s 3 and s 228 of the Organic Law.

It is significant to note also in the Constitution, s 103(3), the terms, “qualified to be, or to remain”, being used in the third major category of grounds for disqualification. It becomes overwhelmingly clear, in my opinion, when s 135(a) and (b) are read with s 103(1), (2) and (3), and with s 206 of the Organic Law, that the qualifications spoken of by s 103 are grounds which do not have to do with the process and procedures of nominations, campaigning, voting, counting of votes, declaration of the election results and the like. Grounds under s 103 are absolute, they do not depend upon the ultimate results of the election, the notion of “real justice”, “substantial merits and good conscience of each case”.

In contrast, other grounds which may lead to a successful challenge to the validity of the “election”, such as illegal practices, bribery, undue influence (Organic Law, s 215) are grounds which are subject to questions as to whether or not election results may have been affected. They are not grounds of disqualification; they relate to the validity of the election.

It is abundantly clear to me that the Constitution has treated grounds of disqualification as distinct from other grounds upon which the validity of an election may be challenged. They are threshold issues which are permitted to be resolved prior to the completion of the election process. Similarly, the question may arise well after the election which may not have anything to do with the validity of the election process. It may be that a sitting member has become disqualified under the Constitution, s 103(3)(b) or (c), because he has become of unsound mind or has been convicted of an offence and imprisoned for a term of more than nine months.

In my view, these are the circumstances envisaged by s 135(a) as distinct from the Constitution, s 135(b) and the Organic Law, s 206.

The jurisdiction conferred by s 135(b), I consider, is enabled by s 126(7) and the Organic Law machinery under Pt XVIII for its exercise and regulation. This is consistent with the identical words used in the Constitution, s 135(b), and the Organic Law, s 206.

The total jurisdiction under s 135(b) as to the validity of an “election” in its extended definition does overlap the jurisdictions under s 135(a). For instance the challenges to qualifications on the basis of age and residency under the Constitution, s 103, in past National elections have been post-election and by way of petition under the Organic Law, s 206: see Re Moresby North East Parliamentary Election Petition (No 2); Goasa Damena v Patterson Lowa [1977] PNGLR 448 and In Re Simbu Provincial Election; Re Okuk v Nilkare [1983] PNGLR 28.

This is perfectly proper because the validity of the “election” is being challenged on these respective bases, and that it is proper that it be done by the process of a petition under s 206. The “election” process is completed upon the declaration of the results and the certification by the returning officer of the name of the candidate elected, under the Organic Law, s 176.

The “election”, the validity of which is to be disputed by petition, is in my opinion a completed “election” process, consistent with s 208(c) — “Requisites of Petition”. There are no provisions in the Organic Law for challenges to parts of the “election” process. I consider therefore that challenges to various processes forming parts only of the election process such as nominations, qualifications to nominate or to become a member or disqualifications from becoming a member are not challenges to “the validity of an ‘election’” and are outside the ambit of the Organic Law, s 206. That is the substantial distinction which is the flaw in the defendants’ submission, that because the “election” has commenced by the nomination the only manner in which it can be challenged is by petition in accordance with s 206. My view is that that is the commencement of the process, it is not yet an “election” until the result is declared. The defendants’ submission is non-sequitur.

This in my view is the distinction envisaged by s 135(a) and (b). It follows, therefore, that challenges to the qualifications of a person who has been nominated as a candidate for election can be made and be entertained by the National Court at any stage of the election process prior to the completion of voting and declaration of the result. Consistently with the practice to date, similar challenges to the qualifications of a candidate who has been declared elected is a challenge to “the validity of an election” and so shall be strictly in accordance with the provisions of the Organic Law.

Having determined that the National Court has jurisdiction under the Constitution, s 135(a), to determine the qualification of a candidate prior to the “election” being completed and thus distinct from and wider than the jurisdiction conferred by s 135(b) which is implemented by the Organic Law, the next issue is by what process or under what provision of the Constitution or other laws such challenges can be made to the National Court.

The plaintiff in the National Court applied by originating summons, seeking a declaration that the first defendant, Iambakey Okuk, also a candidate in the election, is not qualified to be a candidate and also seeking an injunction directed to the second defendant that the first defendant’s name not be placed on the ballot papers. He has made a three pronged submission as to the constitutional basis for invoking this jurisdiction at this stage of the electoral process.

It is first submitted that the plaintiff, as a candidate duly nominated for election as a member of Parliament and who is duly qualified, has the right, and shall be given a reasonable opportunity, to be elected to elective public office at genuine, periodic, free elections: s 50(1)(d). It is submitted that the issue as to the residential qualifications of the first defendant is fundamental to the right of the plaintiff to contest and be elected to elective public office at a genuine and free election. As the plaintiff alleges in his application before the National Court, the first defendant is not residentially qualified to be a member of Parliament for that constituency. If this were ultimately proven to be the case, so submits the plaintiff, then his right to stand for public office in a genuine and free election would have been infringed by the candidacy of the first defendant who was not properly qualified to so contest the election. The election would not have been genuine and free. It would have been invalid if the first defendant were the successful candidate.

The plaintiff submits therefore that he has an interest in the protection of his right to stand for public office in a genuine and free election and it is enforceable in the National Court upon his application.

I do find this submission attractive. The process of the petition under the Organic Law, s 206, is consistent with the enforcement of this right, but only after the election. I accept that there is such a right in a candidate contesting an election for public office to have such an election free from illegalities and to be genuine. Several real examples were highlighted in the course of argument to illustrate this. For instance, a candidate who is without any shadow of doubt less than twenty-five years of age (s 103(1)), or who is a non-citizen (s 56(1)), or is disqualified under s 103(3)(a), (b), (c) or (d), and if such disqualifications are known and or alleged at the earliest possible time in the electoral process, then in my view public policy considerations require that such threshold issues, fundamental to free and genuine elections be resolved at the outset before voting commences.

In the case of Re Moresby North East Election Petition; Patterson Lowa v Goasa Damena [1977] PNGLR 429, in rejecting the submissions that Div 1, Pt XVIII of the Organic Law was invalid in that it was a mere Act of Parliament by construction of the Organic Law, s 1, and not an Organic Law as directed by the Constitution, s 126(7)(d), Prentice Dep CJ said at 436:

“... Were these provisions to be regarded as invalid, I would nevertheless construe the Constitution as requiring the National Court (s 22) and presumably (on review) this Court, to provide the necessary machinery and procedures to ensure that a citizen may stand for Parliament, and not have his right to be elected defeated by a candidate lacking the necessary constitutional qualifications, or by one who had indulged in illegal or grossly unfair practices — if no such protection had been provided by legislation. If I felt constrained to find or provide such machinery to allow the s 135 (the Constitution) jurisdiction to be exercised, and the National Court to be approached (s 22 of the Constitution), I would be prepared to determine the provisions of Div 1, Pt XVIII, as being appropriate machinery to so safeguard and enforce the said rights.”

This passage has been relied on by the plaintiff to support his contention that he has such a right to contest and be elected in a genuine and free election and for it not to be defeated by the first defendant who, he submits, lacks constitutional qualifications. I do accept this submission, but Prentice Dep CJ was there addressing the validity of the petition process under the Organic Law, s 206, after the election. In this instance, the jurisdiction is being invoked in the course of the “election” process. I accept the submission, however, that it reinforces the plaintiff’s right under s 50(1)(d) to be elected to elective public office in a genuine and free election. I accept that Div 1, Pt XVIII of the Organic Law is a law permitted by the Constitution, s 50(2) to regulate this right after the election.

There is however, no other machinery or provision, apart from s 3 and s 228 of the Organic Law, enabling the jurisdiction under the Constitution, s 135(a), to be exercised. I consider therefore that the power of the National Court under the Constitution, s 57, can be invoked to protect and enforce such a right under s 50. The plaintiff has locus standi. I consider that this power can be exercised within the framework of s 57(3) and (5).

I consider that the appropriate relief would be by way of declaration that such a candidate is or is not qualified. I accept the defendant’s submission that an application for injunction directed against the returning officer is inappropriate in these particular circumstances, wherein it is the constitutional qualifications of the first defendant which are being challenged and not any act or omission of the returning officer. He has committed no error. He had no power to inquire into the constitutional qualifications of a candidate. He merely has to be satisfied that the formalities of nomination are complied with, and the necessary statutory declaration is sworn as to qualifications. It is not his duty nor within his power to inquire into the correctness, truth or otherwise of declarations as to a person’s constitutional qualifications to be a candidate. I think therefore that if, as it is accepted in this instance, the returning officer had committed no error, and had done all that was lawfully required of him, then the relief of injunction directed against him is inappropriate.

I consider that the appropriate relief is one of declaration by the Court that such a candidate is or is not constitutionally qualified. If the candidate were declared disqualified on the basis of lack of residential qualification, then he was disqualified to be a member ab initio, and it followed that he was not qualified to be nominated as a candidate. This fact would have been beyond the competence of the returning officer to determine. It would follow from such a declaration that the nomination was invalid at the outset.

The second basis for the plaintiff’s submission that he had the right to invoke the jurisdiction of the National Court under the Constitution, s 135(a), was by virtue of either s 22 or s 23(2) to enforce s 103 prohibition or restriction on qualifications to be a member of Parliament. It was submitted that the first defendant was by his lack of residential qualification infringing s 103(2) and (3) by his nomination as a candidate to be a member. The plaintiff contended that his right under s 50 was being infringed by this act of the first defendant and thus he had locus standi. It was submitted that the National Court had discretion, “if it thinks it proper to do so, to make any order that it thinks proper for preventing or remedying a breach of the prohibition”. I consider that this remedy is arguably open.

The third and final basis on which the plaintiff submitted he had a right to go before the National Court was that pursuant to several provisions of the Organic Law (ss 86(a), 187(1) and 191), the first defendant was committing electoral or criminal offences and so the plaintiff was entitled to apply to the Court to restrain the first defendant from committing these offences. I consider these are offences under the Organic Law for which there is ample machinery and procedures for their prosecution. I do not consider injunctive relief appropriate at this point.

I have held that the remedy of declaration is a more appropriate one than injunction in the circumstances and the nature of the dispute. Both injunction and declaration are equitable remedies and discretionary in nature. A declaration is a statement by a superior court of the legal position obtaining between the parties. It is a non-coercive remedy. Breach is not visited with punishment, but declarations are almost certain to be obeyed, at least by any public authority: see Sykes, Lanham and Tracey, General Principles of Administrative Law, Ch 21 and Ch 22.

A useful analysis of the nature of this declaratory relief is found in the speech of Lord Diplock in Gouriet v Union of Post Office Workers [1977] UKHL 5; [1977] 3 All ER 70 at 99, 100.

In the end result, my answer to the question referred is that the National Court does have jurisdiction under s 135(a) and this may be invoked by virtue of the Constitution, ss 50, 57, 23(2), by way of application for declaration, under the appropriate rules of National Court Rules.

WOODS J: I agree with the reasons of Pratt and Bredmeyer JJ and have nothing further to add.

Question answered, “Yes”

Lawyers for the plaintiff: Young & Williams.

Lawyer for the first defendant: Duncan Colquhoun-Kerr.

Lawyer for the second defendant: State Solicitor.

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