Schulze v Somare [1998] PGLawRp 754; [1998] PNGLR 139 (16 December 1998)

[1998] PNGLR 139

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-GOVERNMENT ELECTIONS FOR THE ANGORAM OPEN ELECTORATE

LUDWIG SCHULZE

V

ARTHUR SOMARE; and
THE ELECTORAL COMMISSION

WEWAK: WOODS J
7 – 10, 16 December 1998

Facts

The first respondent was successfully elected as the Member of Parliament for the Angoram Open Electorate in the 1997 National Elections. The petitioner disputed the election of the first respondent alleging that the first respondent was not a resident of the electorate and therefore he was not qualified to stand for the electorate.

Held

1. The concept of residency as required under s 103(2) of the Constitution is one, which shows a real connection to the electorate. The resident must show a real interest in developing the electorate.
   
2. Where a person, is not born in the electorate and does not have a permanent residence in the electorate but shows a spiritual and parental connection to the electorate and conducts a permanent business and actually resides in the electorate for the purpose of managing the business, qualifies as a resident for purposes of s 103(2) of the Constitution.
   

Papua New Guinea cases cited

In Re Moresby North East Parliamentary Elections (No.2) [1977] PNGLR 448.

Masive v Okuk [1984] PNGLR 390.

Counsel

M Kuwimb, for the petitioner.
J Alman, for the first respondent.
A Kongri, for the second respondent.

16 December 1998

WOODS J. The petitioner, Ludwig Patrick Schulze, is disputing the validity of the election of the respondent, Arthur Somare, to the National Parliament following the results of the election for the Angoram Open Electorate in 1997. Originally the petitioner raised a number of allegations however, following a preliminary hearing of objections to the petition, a number of allegations were struck out. The sole matter remaining in the petition is that the respondent was not qualified to be nominated as a candidate for the Angoram Open Electorate by virtue of the fact that he did not comply with the residence requirements in s 103(2) of the Constitution. The requirement is, the candidate must either:

1. Be born in the electorate; or
   
2. Has resided in the electorate for a continuous period of two years immediately preceding his nomination; or
   
3. Has resided in the electorate for a period of 5 years at any time.
   

The petition notes that on his nomination form dated the 15th April 1997 the first respondent claimed his qualification to nominate as having resided in the electorate for a continuous period of 2 years immediately preceding the nomination. The petition then alleges that the first respondent has no residential qualification because he does not have a permanent or even temporary residence anywhere in the whole of the Angoram Open Electorate and has never had any residence for any appropriate period within that electorate and notes further that he was born in Wewak.

The onus of proof in an election petition has been clearly laid down in the case In re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448 where it was stated that the onus of proof is on the petitioner to prove that the elected candidate was not qualified to stand. The standard of proof required is such that the court should require clear and cogent proof so as to induce, on a balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications.

The evidence of the petitioner and his witnesses is that whilst it is acknowledged that both the first respondent’s mother and father came from and belong to villages in the electorate and even that because of that history the first respondent may undoubtedly have traditional rights in the electorate, the fact is that he was born in Wewak town when his father was living and working in Wewak town and then went to school in Wewak and Port Moresby and even Australia and that during all his childhood years because of his father’s position, his home or place of residence was either Wewak or Port Moresby. Witnesses gave evidence that they had never seen the respondent living in any village in the electorate at any time during his growing up years. And then in his adulthood he had never been seen living in the electorate. Even in the recent years witnesses stated that they had never seen him in the electorate, some said that they had never even known of his existence, until shortly before the 1997 elections when he was presented to them as Sir Michael Somare’s son and therefore they should vote for him. With reference to whether the respondent had been involved in some timber project in the Kaup area between 1992 and 1997, the witnesses deny that the respondent even had any permanent residence in that area but may have visited occasionally from Wewak.

The first respondent himself does not deny that he was born in Wewak town and spent his childhood years in schools in Wewak and Port Moresby and Australia. The fact appears that the first respondent suffered from the position of being born to the nation’s first Chief Minister and first Prime Minister and therefore because of his father’s position he ended up living away from what would be regarded as his traditional or spiritual home as both his mother’s and his father’s traditional villages are in that electorate. However, the respondent states that in 1992 when he became interested in being involved in a development project in what he regards as his home area, he first of all got involved in an awareness campaign for a timber project in the Kaup area. The awareness campaign involved him in lengthy travel and consultation around a number of villages in the Kaup area during 1992 and into 1993 during which he helped to organise all the agreements necessary from the people and traditional landowners for a timber project to be considered. During that period he stated that he had lived with a Michael Saulep who lived in a house belonging to the respondent’s father in the Gavien Resettlement area. That was from 1992 until 1993. Then the respondent states that he spent 1993 to 1994 working on all the studies and reports and applications necessary for the timber project and during most of this time he was staying at his mother’s village Kis. Then in 1994 the project management agreements were signed and the timber project commenced and a camp was commenced at what was called Kaup Base Camp, the respondent states that he then moved to that Kaup Base Camp to live from 1994 until the elections in 1997. His role at the Base Camp was as the consultant and project manager for the timber project. At first as the Base Camp was being set up at the same time as the actual logging was started the facilities at the Base Camp were rather rudimentary but gradually they improved and by 1996 there were a number of buildings including what is called a containerised living/office quarters was installed. Photographs taken in June 1996 show a number of buildings at the Base Camp. It is this residence at what is called the Kaup Base Camp in the electorate from 1995 to 1997, which the respondent relied upon for his eligibility to nominate for the election. He does state that many times in those years from 1992 to 1997 he had to travel to Wewak and even to Port Moresby for business meetings and matters relating to the operation of the timber project during that period but he claims that for general purposes of residency, his staying and working on the project at the Kaup Base Camp is a proper and suitable residency for the purposes of s 103 of the Constitution. He does not deny that his wife and children may have lived in Wewak during this time and that he often visited them in the Wewak home however, his residency for his work with the timber project is still a real residency for the purposes of the Constitution.

I therefore need to analyse the evidence in more detail.

The evidence from the petitioner and his witnesses is generally evidence that something did not happen, namely evidence of a negative that the respondent did not reside at certain places. It is very difficult to prove a negative as an empirical fact. All that witnesses can say is that they did not see, or they did not have the knowledge. Of course that does not mean that something did not happen or was not in existence when they were not around to see it. The petitioner and some of his witnesses can only say that when they were there to observe, they did not see the respondent. But of course they were not there all the time, merely occasionally passing the area or visiting. However, some of the witnesses do claim to have been working and residing at the Kaup Base Camp during the period 1995 to 1997. They do agree that the respondent was involved in the timber operation and that he was there at the site at times. And they even agree that he may have resided occasionally at the site. However, aspects of their evidence do appear confusing. Their evidence suggests that the Base Camp was a very rudimentary operation, one initially said just 2 bush material buildings, yet photographs produced which they then reluctantly agree was of the Base Camp clearly indicate at least at the time of the photographs namely June 1996 that there were a number of buildings commensurate with a proper Logging Base Camp. Namely not just rough bush material buildings but more substantial buildings including what is noted as a typical construction site office/accommodation containerised module. It is almost as if those witnesses are deliberately talking down the operation. This must affect the credibility of their evidence. No one was pretending that the Base Camp was an ideal set-up, which would include proper housing for families. However, this does not mean that it was not suitable for managers as well as workers. I have no difficulty in finding that site and project managers in such operations in PNG often live in very rudimentary accommodation. So the fact that there was no proper modern type family house suitable for the type of person the witnesses assumed the respondent would require does not mean that he could not have lived at the Base Camp or even anywhere in the electorate.

There were some vague generalisations in the witness’s evidence about what other people may have thought and done, these of course can have little weight. Thus, many people stated a common opinion that many people voted for the respondent out of fear or respect for the petitioner’s father yet no witness actually said that they did vote for that reason, so this common comment must be disregarded as vague opinions of what witnesses believed about other people and unsupported by any facts. Many witnesses stated that they did not know the respondent until the actual election and thus imply that others also would not have known him yet the results of the election itself must cast doubts on that.

I have already referred to the respondent’s evidence above of how he came to be involved in the area during the relevant years. And he agreed that he often had to travel away from the area to Wewak and to Port Moresby for business matters involved with the timber operation. His evidence of his involvement with the timber operation was supported by two other witnesses who were also directors of the landowner company involved namely the Sepik River Development Company and they agree that he was resident at the Base Camp once the operation got under way. And of course they were aware that he often had to travel away to Wewak and Port Moresby for the operation.

So what is the residency required for the purposes of s 103 of the Constitution. Given that it appeared that the respondent’s wife and family may have been living elsewhere than in the electorate, namely in Wewak, is it possible for a person to have another place of residency, not what is called a constructive residency which is a concept developed in other countries, but which is not now accepted as such in this country, but a residency which is connected with a real presence to be involved in a community. The subject of residency was discussed in the case Masive v Okuk [1984] PNGLR 390 where it was noted that a residency for the purpose of s 103 of the Constitution must be one which shows a real connection, a real presence to develop the interests of the area, and not a sham. It must be a real permanent and physical residence. That case noted that a real permanent presence may depend on a person’s occupation, mode of living and personal circumstances. It may therefore, be possible for a person to have more than one residence, so long as one is not a sham. In this case the respondent is claiming that by virtue of his parental and spiritual connection with the Kaup or more broadly Muruk Lakes area and his involvement with a business operation in the area whereby he then actually resided in the area for the management of the business, even though he had a family living elsewhere and even though he had to travel a lot away from the area for business reasons, still showed a real connection with the area for the purpose of the residency requirement in the Constitution. His real connection must have had some effect by reason of the number of votes he received.

The residency qualification in the Constitution was clearly to ensure that a person who nominated and represented the people in the National Parliament really did represent the people of the area and really did have home ties. The Supreme Court clearly ruled out the concept of constructive residence such as merely having a house in an area in your name which you may pay the rates etc on and which you may visit occasionally. But the respondent is not putting forward anything like a constructive residence. He is saying that he was helping to manage a timber operation in the area and that was his sole occupation at the time and he was there most of the time except for the necessary business trips away.

Some guideposts suggested in the Okuk case for construing the concept of residing are:

• there must be a degree of permanence, something more than short visits;
  
• the residence is not a sham but one from which real home ties are either maintained or can be expected to develop through continuity;
  
• there must be development of a sense of home.
  

All these guides presuppose a physical presence.

I am satisfied on all the evidence that the first respondent had a real physical presence at the Kaup Base Camp for the purpose of the residency qualification in the Constitution s 103 and this was for at least a 2 year period immediately prior to his nomination for the Elections.

I dismiss the petition.

Lawyers for the petitioner: Warner Shand Lawyers.
Lawyers for the first respondent: John Alman.

Lawyers for the second respondent: Nonggorr & Associates Lawyers.