In the Matter of The Election for The Lufa Open Electorate; Wasege v Karani and Electoral Commission of PNG [1997] PGNC 122; N1617 (30 September 1997)

Unreported National Court Decisions

N1617

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 23 OF 1997
IN THE MATTER OF THE ELECTION FOR THE LUFA OPEN ELECTORATE
KOMANE ASANO WASEGE - PETITIONER
MATHIAS KARANI - FIRST RESPONDENT
ELECTORAL COMMISSION OF PNG - SECOND RESPONDENT

Waigani

Woods J
25 September 1997
30 September 1997

ELECTION PETITION - application to strike out petition - compliance with Organic Law on National and Local-level Government Elections Section 208 - facts on which petition grounded - pleading the appropriate relief.

Counsel

J Bray for the Petitioner

P Paraka for the First Respondent

D Steven for the Second Respondent

30 September 1997

WOODS J: This is a Petition disputing the validity of the Election for the Lufa Open seat in the Eastern Highlands Province in the 1997 National Elections. The Respondents have moved the Court to strike out the Petition on the basis that the Petition does not comply with the provisions of section 208 of the Organic Law on National and Local-level Government Elections.

Generally the submissions raised by the respondents have been that the various clauses in the Petition fail to specify the facts relied upon to invalidate the election. As to what facts are required has been determined by the National and Supreme Court in various cases, the main statements being tn the cases Holloway v Ivarato [1988] PNGLR 99, and the case Agonia v Karo & Electoral Commission [1992] PNGLR 463. And the principles outlined and highlighted in these cases are guided by the fundamental principles outlined by the Supreme Court in the case Biri v Ninkama [1982] PNGLR 342 which I will repeat here. This Court in acting under the Organic Law as what is often called a Court of Disputed Returns is not an open forum for unspecified complaints where after all parties have aired their dissatisfaction the Court sifts the complaints and reports whether on a balance of probabilities the election can be considered satisfactory or whether a new election should be held. A Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by specific charges that, if proved, will result in an election being set aside. As the Supreme Court said:

The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with S. 208. It is not difficult to see why. An election petition is not an ordinary cause. It is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expressing of the will of the majority. In our opinion it is beyond argument that if a petition does not comply with all the requirements of S. 208 of the Organic Law then there can be no proceedings on the petition because of S. 210.

So what are the objections here.

Most of the allegations are of bribery. Allegation 1 is that a Mr Weyamo Imara being a campaign committee for the first respondent gave an elector an envelope containing some money and the allegation is that it was for the elector to procure votes of electors. However the allegation is only of bribery by Mr Imara, there is no allegation that the first respondent was involved in this alleged bribery therefore it was not bribery by the first respondent. It therefore can only be an allegation under Section 215 (3) and it becomes a question whether the result of the election could have been affected. In this situation there was only the alleged bribery of one person. This could not have affected the election. It is not therefore an allegation that should continue to be pursued. This allegation should be struck out.

Allegation 2 alleges that a Nori Korani attempted to bribe certain named persons. This allegation is alleged to have happened with the knowledge of the first respondent so it is therefore attempted bribery by the first respondent. There are sufficient details included in this allegation, there are names of persons who were given cash, when this happened and how much was involved. Applying the principles enunciated in the cases, there are enough facts for the purpose of compliance with Section 208 (a). I am satisfied that this allegation should go to trial.

Allegation 3 is an allegation of bribery by the first respondent. There are names of persons alleged to have been bribed and the amounts involved. There are enough facts for the purpose of the Section. I am satisfied that this allegation should go to trial.

Allegation 4 is an allegation that the first respondent gave money to Councillor Ilivilo for bribery purposes. It was not just given to Councillor Ilivilo for his own purposes but to induce others and the names of the persons who received the amounts is given. So it is not a matter of just giving the money to a committed supporter, it was for him to induce others. I am satisfied there are sufficient facts for the purpose of the Organic Law. I am satisfied this allegation should go to trial.

The allegation 5 is that an employee of the first respondent gave benefits to people to induce them to vote. It is alleged that this was done with the knowledge of the first respondent. There are names of people who received these benefits. I am satisfied that the connection with the first respondent is sufficient. There are sufficient facts and I am satisfied that this matter should go to trial.

Allegation 6 is really an alternative to allegation 5 so it must be read together with 5 and is sufficient to go to trial.

Allegation 7 is an allegation of errors by electoral officials. The allegation appears quite bare, saying there was a mystery box. There is no statement of how it could have affected the election. Surely when the votes were counted and the ballot papers were taken from that box the people knew how many votes came from that box. Cases have emphasised that a petitioner needs to allege how the use of the votes in that box affected the results. There is no allegation that the counting of that box was done in secret so people could not know. For example as I have said in Paua v Ngale [1992] PNGLR 563, scrutineers have an obligation to keep their own notes of boxes counted if it appears that there may be irregularities. We have said many times that such an allegation required more details to identify the problem alleged. Although in the case Holloway v Ivarato [1988] PNGLR there was no need to furnish more particulars of the ‘persons’ in the way ballot papers were given out so long as there are sufficient facts to indicate the problem. There are insufficient facts here to warrant this allegation going to trial.

There is also an objection that the relief sought does not comply with the requirement of section 208 (b) of the Organic Law. The allegations against the First Respondent are allegations of bribery and undue influence and therefore come within section 215 (1) of the Organic Law and therefore if any one is proved then in accordance with that section his election should be declared void. It is submitted that the petitioner has failed to seek that relief. However when one looks at the relief sought in the petition it is quite clear that in 4 is sought a declaration that the said election of the first respondent was absolutely void. This is quite in accordance with the wording in Section 215 (1) and in accordance with what a Supreme Court has recommended in an unpublished case. So this objection to the petition cannot be supported.

This petition must therefore go for trial on allegations 2, 3, 4, 5 and 6.