Review Pursuant to Constitution Section 155(2)(b); Kapi v Kapi, Electoral Commission [1998] PGSC 10; SC548 (1 April 1998)

Unreported Supreme Court Decisions

SC548

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 88 OF 1997
REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)
DANIEL DON KAPI - APPLICANT
V
TAKAI KAPI - FIRST RESPONDENT
ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Woods Sawong Kirriwom JJ
24 February 1998
1 April 1998

1 April 1998

WOODS SAWONG KIRRIWOM JJ: This is an application under s. 155 (2) (b) of the Constitution to review the decision of the National Court sitting in its electoral jurisdiction to Petition disputing the election of the election of the First Respondent for the Wabag Open Electorate in the National Elections.

The National Court sitting in its electoral jurisdiction is a creature of Statute created by the Organic Law on National and Local-Level Government Elections (the Organic Law). Section 220 of the Organic Law states that a decision of the National Court is final and conclusive and without Appeal and shall not be questioned in any way. This provision precludes any application by way of an appeal to the Supreme Court. However, the Supreme Court has in a number of cases held that s. 155 (2) (b) does give it inherent jurisdiction to review all judicial acts of the National Court. We refer here to the principles and reasons expounded in the various cases such as Avia Ahia v The State [1981] PNGLR 81, and Balakau v Torato [1983] PNGLR 242, and Sunu & Os v The State [1984] PNGLR 305. These authorities provide that the discretionary power of the Supreme Court to grant a review of a decision of the National Court under s. 155 (2) (b) of the Constitution should be exercised only where (a) it is in the interests of justice (b) there are cogent and convincing reasons or exceptional circumstances, and (3) there are clear legal grounds meriting a review of the decision.

The Applicant, who was a candidate in the 1997 National Elections, was the runner-up in the final tally to the First Respondent. He has filed a Petition under the Organic Law on National and Local-Level Government Elections disputing the election of the First Respondent for the Wabag Open Electorate in the National Parliament. One of the matters challenged in the Petition was the right of the First Respondent to be nominated and stand for the Wabag Open Electorate it being alleged that he was not properly qualified under the Constitution by reason of the fact that he was not enrolled as a voter in that Electorate. At a hearing of certain matters under the Petition the trial Judge found that the First Respondent and winning candidate Takai Kapi was enrolled on the Common Roll and therefore was entitled to nominate for Parliament and the trial Judge thereupon dismissed the Petition.

The Applicant has now sought review of that finding and the Order dismissing the Petition. There are a number of grounds raised for this Court to exercise its discretion and hear the review. Generally the grounds are that the Judge erred in law in finding that the First Respondent was correctly on the roll and that there was more than one roll. This review is therefore asking this Court to review findings of fact made by the Trial Judge. The evidence before the Trial Judge was that the First Respondent had sought to become enrolled at Wabag and that he completed the appropriate application form which was accepted by the Returning officers who then placed his name on the records kept at Wabag. The evidence suggests that the application was then forwarded to Port Moresby for inclusion in what is called the Principal Roll of Electors. It is submitted on the evidence that due to some error Mr Takai’s name was not placed on the published Common Roll which appears in the form of a large book. It is clear in the evidence that the First Respondent does not appear in the Principal Roll under the name of Takai Kapi. However there was evidence that he did claim that his name may have been on the Common Roll as Tarak Joeri which he calls his village name, although it is noted on the evidence that that name on the roll was entered as the name of a female.

It is submitted that through all this evidence of the name it was suggested either that the First Respondent was on the roll under his village name or the application for enrollment shows clear irregularities in the enrollment. Firstly it is clear that there is too much confusion and doubt about the name Tarak Jeori to find that that name was the enrollment of the First Respondent and anyway it is noted that the Trial Judge made no ruling about that name and its relevance as the trial judge clearly was finding on the evidence of the Returning Officer that the First Respondent’s name was placed on some roll, even if it was only some set of records kept by the Returning officer which did not necessary keep up with the printed book called the Common Roll. However it is submitted that the trial judge made a serious error in overlooking the fact on all the evidence he had only sought to enroll by filling in the form at the time he came and nominated. And it is submitted that at the time he nominated he was therefore not on the common roll. It is submitted that as one of the requirements for membership of the National Parliament is entitlement to vote in election to the Parliament, see Constitution s. 103, a candidate for election must have complied with the Organic Law requirements for enrollment to vote. We consider these submission to have some merit, therefore it is necessary to consider the relevant provisions of the Constitution and The Organic Law. We consider the relevant provisions of the Constitution are ss. 50 and 103 of the Constitution. Section 50 reads:

It is quite clear that the right to vote and stand for public elective office provided by s. 50 is not an absolute right. It is in fact a restricted right because of the expression “Subject to the expressive limitation imposed by this Constitution”. It is clear that the right to vote and stand for public office is a restricted right. It is for instance restricted by s. 103 of the Constitution.

In Okuk v Nilkare, judgement No N406, Andrew J considered these provisions. He said:

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.

It is our view that Elections to the Parliament must be conducted in accordance with the provisions of the Organic law (Constitution s. 126), in this case the Organic Law on National and Local Level Government Elections. Further we consider that by s. 52 of the Organic Law all persons who have a right to vote under s. 50 of the Constitution and who comply with the requirements for enrolment set out in Part VII of the Organic Law, in respect of an electorate are entitled to be enrolled.

Section 57 of the Organic Law (which is in Part VII) provides for compulsory enrolment.

It is our view that the intention and spirit of the provisions we have referred to above, is that in order for a person to stand for and vote in an Election, is that he or she must comply with the provisions of the Organic Law relating to enrolment. A person cannot vote or stand for elective office, if he or she has not been enrolled in the first place. If a person has not enrolled in accordance with the provisions of the Organic Law, then that person is not qualified to be entitled to vote in elections to the Parliament. It follows that such a person is not qualified to be a or remain a member of Parliament (s. 103 (3) of the Constitution).

To be entitled to vote, one must comply with these requirements of the Organic Law on enrolment. In other words, a person must be enrolled in order to exercise that right to vote. If a person has not enrolled then that person is not entitled to vote nor stand for an election. A person must be qualified to stand and or vote in an election. If a person is not qualified then that person cannot stand and or vote in an election.

Section 52: (1) All persons who have right to vote under section 50 of the Constitution who comply with the requirements of Part VII for enrolment for an electorate are entitled to enrolment.

Section 57 provides for compulsory enrolment and transfer.

The effect of the above is that you cannot be a member or aspire to be a member of Parliament unless you have enrolled as an eligible voter in your electorate. By virtue of section 60 a person cannot be enrolled after the day of the issue of the writ. So if your name is not on the roll for your electorate by the date of the issue of the writ then you are not qualified to nominate for that electorate. The evidence before the trial judge seemed to be quite clear that as at the date of the issue of the writ the First Respondent’s name was not in the book called the Common Roll for his electorate. However on the evidence before the trial judge he found that he had filled in a form to enrol sometime before he nominated. The evidence of Alphonse Kipakapu is that he recalls the First Respondent came and enquired about his name being on the Common Roll. There is talk of the First respondent wanting to check if his name was on the Common Roll, then not finding it, and then taking a form away to enrol and filling in the form and lodging it.

The evidence before the trial judge was that this application form for enrolment by the First Respondent was late and in contravention of s. 60 of the Organic Law. The evidence was that the First Respondent completed the application for enrolment on 16 April 1997 well after the time period allowed under s. 60 of the Organic Law.

Section 60 of the Organic Law is in mandatory terms. It says that:

“notwithstanding anything in this law (Organic Law) claims for enrolment or transfer of enrolment which are received after 4 pm on the day of the issue of the Writ for an election shall not be registered until after the end of the polling period for the election...”

The trial Judge was satisfied on the evidence of the Returning Officer that the First Respondent had done what was necessary to be enrolled and was thereupon placed on the Roll of eligible voters. The Judge did find that whilst his name may not have been on the Book produced and called the Common Roll, that Book was not the complete Roll and that there was what he called the Principal Roll which was some complete roll of eligible voters.

The evidence is that the Writ for the 1997 election was issued on The application for enrolment by the First Respondent was made and received on 16 April 1997, some six days after the Writ was issued. This was clearly a breach of s. 60 of the Organic Law. The finding made by the trial judge was clearly not based on the evidence.

We consider that this was a clear legal ground meriting a review. We would grant the review sought and quash the decision of the trial judge.

Pursuant to s. 212 (f) of the Organic Law we declare that First Respondent was not duly elected. In the circumstances we order that a by-election be held for the Wabag Open Electorate.

We therefore find there is no reason to support a review of the finding of the trial judge here. We dismiss the application.