Ebu v Evara [1983] PGNC 25; [1983] PNGLR 201; N426 (27 June 1983)

N426

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS
AND IN THE MATTER OF ALLAN EBU

V

ROY AUA EVARA

Waigani
Bredmeyer J

17 June 1983
20 June 1983
22-24 June 1983
27 June 1983

PARLIAMENT - Elections - "Candidate" - Disputed election petition - Bribery or undue influence by candidate - When person becomes candidate - Organic Law on National Elections, ss 2, 215.

Section 215 of the Organic Law on National Elections provides that if:

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

Section 2 provides that unless the contrary intention appears "candidate" in Pts II and XVII includes a person who within three months before the first day of the polling period announces himself as a candidate for election as a member of Parliament.

Part II covers administration and Pt XVII deals with offences.

Held

(1) The word "candidate" when used generally in the Organic Law on National Elections means a person who has duly nominated in the correct manner as prescribed by ss 82 and 84.

(2) For the purposes of Pts II and XVII of the Organic Law, s. 2 extends or widens the definition to include in addition to a duly nominated candidate a person who announces himself as a candidate in the three month period before the commencement of polling.

Petition

This was a petition to the National Court contesting the validity of an open parliamentary election on the grounds of bribery and undue influence during the course of which his Honour made separate rulings on each of the grounds relied upon. The ruling reported hereunder related to the allegations of undue influence.

Counsel

B. Narokobi, for the petitioner.
I. Shepherd, for the respondent.
J Everingham, for the Electoral Commissioner.
Cur. adv. vult.

27 June 1983

BREDMEYER J: Section 215 of the Organic Law on National Elections provides:

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

Allan Ebu has brought an electoral petition against Roy Evara who was the successful candidate in the Kikori Open Electorate in the National Elections held in mid 1982. Allan Ebu ran second to Roy Evara in those elections.

Mr Ebu alleges acts of bribery, undue influence, and electoral irregularities by the officials. I initially heard the evidence for both sides on the bribery allegations and, in an unpublished ruling on 17 June, rejected those allegations. I have now heard all the evidence offered on the undue influence allegation and I am now going to rule on it. I consider I am allowed to adopt this unusual stage-by-stage procedure under s. 217 of the Organic Law on National Elections and that it is desirable to do so. The parties have consented to this procedure.

Mr Ebu alleges that Mr Evara committed two acts of undue influence as follows:

(1) The first act occurred at Wouobo village on 15 March 1982. On that day Mr Evara addressed a meeting of villagers and told them that if you vote for me I will reopen the logging camp at Paia and will build a road from Paia to the Highlands so that you can sell your produce in the Highlands. Then he is alleged to have said the following words "if you do not vote for me, I’ll close the logging and the road from your village to the Highlands".

(2) The second incident occurred at Kikori Government Station on 16 March 1982, when Mr Evara addressed a meeting there. He told the people of the equipment he had arranged for them, three deep freezers, three refrigerators, three generators, three drums of petrol, three drums of diesel, and various fishing nets which were intended as gifts to three villages for fishing projects. He asked the people to vote for him and then said "if I lose, I will put you in court and I will take all those things back".

The respondent Roy Evara admits that he attended those meetings at those places but strongly denies uttering the words of undue influence alleged and strongly denies that those meetings were held on the 15 and 16 March 1982. He says the meetings were held on the 11 and 14 December 1981.

It is necessary to resolve the conflict of evidence over dates.

[His Honour considered the evidence and concluded:]

I consider Evara totally correct on the dates at Wouobo, on Friday, 11 December and at Kikori on Monday, 14 December 1981 and the respondent’s witnesses totally wrong on the dates.

I have laboured my discussion on the dates because I consider it has enormous consequences because of the law. I have already quoted s. 215; it means in this context that if a successful candidate has committed or attempted to commit undue influence I must declare the election void. To succeed the petitioner must prove to my entire satisfaction (1) that Evara was a candidate and (2) that he committed or attempted to commit an act of undue influence. I wish to dwell on the first aspect. The petitioner must show that Evara was a candidate within the meaning of s. 215 on 11 or 14 December 1981.

The word "candidate" is defined in s. 2 of the Organic Law as follows:

In this Law, unless the contrary intention appears:

"Candidate" in Pts II and XVII includes a person who within three months before the first day of the polling period announces himself as a candidate for election as a member of Parliament.

That definition is not particularly helpful because s. 215 is in Pt XVIII of the Organic Law. Part II deals with Administration and s. 22 uses the word candidate. It provides that no candidate can be appointed an electoral officer. Part XVII deals with offences. There are numerous offences which can be committed by or against the candidate or in relation to a candidate, for example under ss 181, 182 and 202. To determine what the word candidate means in s. 215 I ask: What does it mean generally in the Organic Law? and then; What special meaning does it have in Pts II and XVII? I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner under ss 82 and 84. He is required to submit a written nomination on a prescribed form (form 11) giving certain particulars of himself. The form must be lodged with the Returning Officer by a certain date accompanied by a K100 deposit. The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate.

I remind myself of the timing of nominations; see ss 77 and 78. The electoral process begins with the issue of a writ. The writ must then allow 28 to 42 days before nominations close. It must also allow a period of 10 to 12 weeks from the issue of the writ to the commencement of polling. Section 2, the interpretation section, is I consider based on that definition which I have given; that is a candidate is one who has formally nominated in the correct way before nominations close. Once nominated the candidate remains a candidate until the return of the writ. Section 2 is based on that definition, it assumes that definition, and extends it or widens it for the purposes of Pts II and XVII to a person who announces himself as a candidate in the three-month period before the commencement of polling. The prohibitions and offences contained in those two parts of the Organic Law not only apply to nominated candidates but also to announced candidates — that is those who have announced publicly within the three-month period before polling that they intend to stand for election. The extended definition makes good sense. Consider s. 22. It would be foolish to allow a man to be appointed a returning officer if he is an announced candidate. Consider Pt XVII. If the definition was not extended, an unscrupulous fellow for up to six weeks could avoid all the prohibitions of Pt XVII, for example as to the size of posters, hand bills, the method of advertisements etc. He could avoid it by delaying his nomination until the last day for nominations and he could thus have six weeks of unscrupulous campaigning ignoring all the "rules" contained in Pt XVII designed to ensure a fair election.

Part XVII is designed to ensure fair play within the period of 12 or 14 weeks between the issue of the writ and the conclusion of polling. The extended definition means that in the early part of that period the nominated candidates and the intending candidates (that is those who have not yet nominated) are on an equal footing and together must abide by the rules otherwise they can be prosecuted. But the extended definition only extends to persons who announce their intention to nominate within three months from the first day of polling and then only for the purposes of Pts II and XVII. It does not extend to the conduct of an announced or intending candidate seven months before the day of polling, nor for the purposes of s. 215.

Under the Organic Law there can be no candidates, i.e. nominated candidates, earlier than three months before the start of polling. Polling commenced in the Kikori Open Electorate on 5 June 1982. The writ issued on 15 March 1982. I consider that before 5 March 1982, there were no candidates in either of the two legal senses used in the Organic Law, that is on the normal definition or the extended definition. Before 5 March 1982, there were only intending candidates. Thus prior to the 5 March the intending candidates could campaign how they liked: they could erect enormous posters, they could say defamatory things about one another, they could offer bribes and commit acts of undue influence etc. — without regard to the Organic Law on National Elections. In other words they could disregard the rules of the game or the rules designed to provide for fair elections contained in the Organic Law. They would, however, be restricted by other laws — the Criminal Code, the Summary Offences Act, and the Defamation Act. I note that an act of bribery or undue influence committed in December 1981 could be prosecuted under the Criminal Code, ss 102 and 103. Those sections say "any person who commits ..." not any candidate. They too, like s. 215 of the Organic Law, can result in a Member of Parliament vacating his seat.

I consider that whatever words Roy Evara uttered on 11 and 14 December 1981, and whether they amounted to undue influence or not, I cannot avoid the election because he was not a candidate at that time within the meaning of s. 215. I cannot treat this electoral petition as a private information under the Criminal Code. The two procedures are very different. For example the court can use informal rules of evidence when hearing an election petition but not when hearing a criminal prosecution. The criminal prosecution by way of private information requires the leave of the court; an electoral petition does not. On a private information greater security for costs can be ordered than the K200 which is required in an electoral case. Roy Evara was not a candidate as the word is used in s. 215 in December 1981. For this reason I dismiss the undue influence allegations contained in par. 2(a)(1) of the petition.

I wish to advise the losing candidate that the Supreme Court this week is expected to hand down a decision on whether or not an appeal or a review will be allowed against the decision of a judge on an electoral petition.

To allow the petitioner to consider his position I propose to adjourn the balance of the petition for a period of two months. I therefore adjourn this case until Monday, 22 August 1983, for mention. If Mr Narokobi then advises me that the case is to go on, on the question of electoral irregularities, I will then fix a date for hearing. If it is not to go on, then I will dismiss the petition and hear submissions on costs.

Orders accordingly.

___________________________________

Lawyer for the petitioner: B. Narokobi.
Lawyer for the respondent: Beresford Love, Francis & Co.
Lawyer for the Electoral Commissioner: Acting State Solicitor, O. Amos.