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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC OS NO. 02 OF 2003
BETWEEN
THE OMBUDSMAN COMMISSION
-First Plaintiff-
AND:
ILA GENO - CHIEF OMBUDSMAN
-Second Plaintiff-
AND:
BERNARD NAROKOBI
-Third Plaintiff-
AND:
THE NATIONAL PARLIAMENT
-First Defendant-
AND:
ANO PALA, CLERK OF THE NATIONAL PARLIAMENT
-Second Defendant-
AND:
THE HONOURABLE BILL SKATE, SPEAKER OF THE NATIONAL PARLIAMENT
-Third Defendant-
SIR ALBERT KIPALAN
-Fourth Defendant-
AND:
THE NATIONAL EXECUTIVE COUNCIL
-Fifth Defendant-
AND:
THE RT HON MICHAEL SOMARE, PRIME MINISTER
-Sixth Defendant-
WAIGANI: KAPI CJ, INJIA DCJ, SALIKA, JALINA, SAKORA, JJ.
2003: 5th, 6th, 21st November
CONSTITUTIONAL LAW – National Parliament - Practice and Procedure- Election of Governor-General - Locus Standi – Originating Summons seeking Declaratory orders – Action by Ombudsman Commission and Chief Ombudsman and a private citizen – whether they have standing – Constitution S.18(1).
CONSTITUTIONAL LAW – National Parliament – Nomination of Governor-General – Members of Parliament as proposer and a supporter of more than a candidate – Duties of Clerk of Parliament – Compliance with Constitutional Laws and Procedures – whether Clerk of Parliament has complied with such requirements - Organic Law ss.2,4,5,6,7, 8 and 9.
CONSTITUTIONAL LAW – National Parliament - Interpretation and Application of Constitutional Laws – Election of Governor-General – Compliance with Constitutional Laws and Procedures – Whether election of Governor-General void – Organic Law ss.2,4,5,6,7,8 and 9.
CASES CITED:
SCR No. 4 of 1980; Re Petition of M.T. Somare [1981] PNGLR 265
The State v. Wik Kor [1983] PNGLR 24.
Counsel:
D. Cannings for the First and Second Plaintiffs.
C. Narokobi for the Third Plaintiff.
J. Nonggorr for the First Defendant.
S. Gabi for the Second Defendant.
A. Jerewai for the Third Defendant.
L. Henao for the Fourth Defendant.
J. Kumura for the Fifth and Sixth Defendants.
21st November, 2003
BY THE COURT: This is an originating process filed by way of originating summons seeking declaratory orders under s.18(1) of the Constitution. The background to this action may be described briefly as follows.
The Ombudsman Commission filed a Special Reference under s.19 of the Constitution (SCR No. 3 of 2003) on 3rd of October 2003. The reference raised seventeen (17) questions for the Supreme Court to give its advisory opinion. It is not necessary to set out the questions for the present purposes. The questions were referred on the basis of assumed facts. The reference was argued on Thursday 31st October and Friday 1st November.
On the 1st November, Mr Loani Henao, counsel for the Third Intervener (Sir Albert Kipalan), raised objection to the manner in which the reference was brought. His objection in essence was that while the reference was based on assumed facts, they resembled the real facts relating to the nomination of his client as Parliament’s nominee for appointment as Governor-General under the Constitution and the Organic Law on the Nomination of the Governor-General (Organic Law). He submitted that depending on the answers given to the questions referred, interested parties may file consequential cause of action against his client. To allow this to happen in this manner, he submitted, is to have multiplicity of proceedings constituting an abuse of the process of court as well as costly.
We did not hear full arguments on this issue. However, all the parties considering that there was some merit in the submission, agreed to adjourn the s 19 reference generally in order to give opportunity to any interested party to consider instituting an appropriate cause of action which would bring all issues of fact and constitutional law in the one proceeding.
After adjourning the special reference as agreed, the First and Second Plaintiffs filed this cause of action on Monday 3rd November. During the Directions hearing on the morning of 3rd November, Mr Bernard Narokobi sought to be joined as a plaintiff. As there was no objection to this application, the Court ordered Mr Bernard Narokobi to be joined as Third Plaintiff. The Defendants however, took issue with the locus standi of the First and Second Plaintiffs which we consider later.
It is helpful however to set out the undisputed facts which constitute the basis of the originating summons. On the 18th November 1997, the Queen as the Head of State appointed Sir Silas Atopare to be Governor-General of the Independent State of Papua New Guinea on and from the 20th November 1997. Under s.91 of the Constitution, the term of office is for a period of six (6) years. This term expired on the 19th of November 2003.
On 7th July 2003, the Acting Speaker of the National Parliament announced that the term of office of Sir Silas Atopare as Governor-General would expire on 19th November 2003 and that s.88(3) of the Constitution requires that the Speaker should call a meeting of the Parliament within the period of three months before the expiration of the term of the Governor-General. The Acting Speaker also called for nominations including any indication by the incumbent if he wishes to hold office for a second term.
During the period from about 10th to 18th September 2003 nine (9) forms of proposal for nomination of a person for appointment as Governor-General were submitted to the Clerk of the Parliament. This included an indication by Sir Silas Atopare seeking appointment for a second term.
On 12th September 2003, the Parliament resolved to meet at 2.00 pm on 18th September 2003 for the purpose of considering the nomination for appointment of the Governor-General.
The Parliament met on the 18th September with Speaker, the Hon. Bill Skate presiding. The Speaker informed the Parliament that Sir Silas Atopare had been proposed for a second term as Governor-General. The Member for Western Province then moved that the Parliament resolve that Sir Silas be approved for appointment for a second term. A ballot was conducted in accordance with s.87(5) of the Constitution and on the count of the votes, Sir Silas failed to muster the required two-thirds absolute majority.
The Speaker then informed the Parliament that the Clerk had furnished him a list of eight (8) candidates for nomination as Governor-General:
Sir Albert Kipalan
Sir Arnold Amet
Mr Bernard Narokobi
Mr Mathew Bendumb
Sir Pato Kakaraya
Sir Paulias Matane
Sir Thomas Kavali
Sir Tom Koraea
The voting was conducted in accordance with s.9 of the Organic Law. The results of the first ballot were as follows:
Sir Albert Kipalan 10
Sir Arnold Amet 14
Mt Bernard Narokobi 13
Mr'Mathew Bendumb 4
Sir Pato Kakaraya 12
Sir Paulias Matane 18
Sir Thomas Kavali 6
Sir Tom Koraea 3
Informal 2
The Speaker declared that Sir Tom Koraea be excluded from further ballot in accordance with s.9(3) of the Organic Law and proceeded to the second ballot. The results of the second ballot were as follows:
Sir Albert Kipalan 18
Sir Arnold Amet 20
Mr Bernard Narokobi 14
Mr Mathew Bendumb 2
Sir Pato Kakaraya 14
Sir Paulias Matane 17
Sir Thomas Kavali 5
The Speaker declared that Mr Mathew Bendumb be excluded from further ballot under s.9(3) of the Organic Law and proceeded to the third ballot. The results of the third ballot were as follows:
Sir Albert Kipalan 21
Sir Arnold Amet 18
Mr Bernard Narokobi 15
Sir Pato Kakaraya 13
Sir Paulias Matane 17
Sir Thomas Kavali 6
The Speaker declared that Sir Thomas Kavali be excluded from further ballot under s.9(3) of the Organic Law and proceeded to the fourth ballot. The results of the fourth ballot were as follows:
Sir Albert Kipalan 21
Sir Arnold Amet 19
Mr'Bernard Narokobi 15
Sit Pato Kakaraya 16
Sir Paulias Matane 19
The Speaker declared that Mr Bernard Narokobi be excluded from further ballot under s.9(3) of the Organic Law and proceeded to the fifth ballot. The results of the fifth ballot were as follows:
Sir Albert Kipalan 28
Sir Arnold Amet 20
Sir Pato Kakaraya 18
Sir Paulias Matane 25
The Speaker declared that Sir Pato Kakaraya be excluded from further ballot under s.9(3) of the Organic Law and proceeded to the sixth ballot. The results of the sixth ballot were as follows:
Sir Albert Kipalan 32
Sir Arnold Amet 27
Sir Paulias Matane 32
The Speaker declared that Sir Arnold Amet be excluded from further ballot under s.9(3) of the Organic Law and proceeded to the seventh, and final ballot which was conducted in accordance with s.8 of the Organic Law and the results were as follows:-
Sir Albert Kipalan 46
Sir Paulias Matane 45
The Speaker then declared Sir Albert Kipalan as the Parliament’s nominee to be forwarded for appointment by the Queen in accordance with s.88(1) of the Constitution.
The Plaintiffs in the originating summons filed in this Court seek a declaratory order that the election of Sir Albert Kipalan on 18th September as Governor General was void and of no effect. They also seek consequential orders to direct the Parliament to conduct the appointment of its nominee in accordance with the Law.
Locus Standi
On 4th November 2003, counsel for the Fourth Defendant raised objection to the standing of all the Plaintiffs in this action. We heard full arguments on the issue and ruled on 5th November that:
"(1) We reserve our decision on the standing of the First Plaintiff.
(2) The Second Plaintiff has standing
(3) The Third Plaintiff has standing.
We will make our ruling on the standing of the First Plaintiff and publish our full reasons for decision on standing in respect of the Second and Third Plaintiffs when we hand down our decision in the substantive action in this matter."
We then proceeded with the trial and heard arguments on 5th and 6th November 2003. Before we deal with substantive issues in this matter, we wish to deal with our reasons for decision on standing of the Second and Third Plaintiffs as well as our ruling on the standing of the First Plaintiff.
As we have indicated earlier, Counsel for the Fourth Defendant objected to standing of each of the Plaintiffs. First, he submitted that the First Plaintiff can have no standing because the cause of action brought before this Court does not fall within the functions of the Ombudsman Commission under the provisions of the Constitution and the relevant Organic Laws.
Second, he objected to the standing of the Second Plaintiff, ‘Ila Geno’ as Chief Ombudsman. He submitted that while ‘Ila Geno’ is a citizen, his actions were taken as Chief Ombudsman and not as a private citizen. He submitted that the arguments advanced with regard to the standing of the First Plaintiff apply equally to his standing as Chief Ombudsman. That is to say that the action taken by the Chief Ombudsman does not fall within any of his functions under the Constitution and the Organic Law. In essence he submitted that to give standing to the First and Second Plaintiffs is to grant the Ombudsman Commission and the Chief Ombudsman new powers by way of judicial act. The essence of this submission as we understand the argument, is that this Court is not empowered to legislate by way of judicial act.
While accepting the fact that the Chief Ombudsman is a citizen, counsel for the Fourth Defendant further submitted that standing of Chief Ombudsman as citizen remains a matter of discretion of the Court. For this proposition, he relied on SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265. He submitted that we should in the exercise of our discretion refuse standing on the basis (1) that the action was not instituted immediately after the decision was made by the Parliament (2) that the Chief Ombudsman did not exhaust all the alternative methods of correcting any non-compliance with the constitutional laws (3) that the number of ballots conducted under s 9 of the Organic Law corrected any defects. He submitted that in the exercise of our discretion we should not give the Chief Ombudsman any standing.
In respect of the Third Plaintiff, counsel for the Fourth Defendant submitted that while he acknowledged that he is a citizen and a candidate proposed for nomination by the Parliament, he has no standing on the basis that he was eliminated during the fourth ballot and therefore he has no interest in the final result of ballot conducted between Sir Albert Kipalan and Sir Paulias Matane.
The First, Second, Fifth and Sixth Defendants joined the objections and adopted the submissions made by counsel for the Fourth Defendant. Counsel for the Third Defendant did not take any position on the issue of standing. He left the matter entirely up to the decision of the Court.
In response, counsel for the First and Second Plaintiffs submitted that with respect to the question of standing, there is no constitutional provision as to who has standing to bring a cause of action under s.18(1) of the Constitution. He submitted that there is a gap in the law and therefore this Court should develop a principle of the underlying law under Schedule 2.3 and 2.4 of the Constitution. For this proposition, he also relied on Somare Case.
In respect of the First Plaintiff counsel submitted that we should grant the Commission standing by way of formulation of a new principle of underlying law because it is a unique creation of the Constitution with (1) a position in the constitutional structure (Part VIII Div 2 of the Constitution) (2) an obligation to refer questions of interpretation and application of constitutional laws (Part II Division 2 Subdivision C of the Constitution) (3) a role in promoting principles of government (Part III of the Constitution) (4) broad powers given by the Constitution to investigate alleged wrongful conduct and defective administration by governmental bodies, investigate discriminatory practices by any body or person, enforce the Leadership Code and other related complimentary powers to perform all the functions. In summary he submitted that:
"The Ombudsman Commission is one of the most complex institutions established by the Constitution. It has broad functions to perform. When the Ombudsman Commission is viewed as a person in the constitutional context, it is special creature with elevated status compared to other constitutional offices created by the Constitution.
It has a unique place in our Constitution. It should have standing to bring constitutional references under s 18 (1) of the Constitution."
In respect of the Second Plaintiff, counsel submitted that as the head of the Ombudsman Commission all the considerations in respect of the First Plaintiff apply equally to the Chief Ombudsman. He submitted that we should take into account additional considerations such as Mr Geno’s long service in other important institutions of the State (former Policeman, former Police Commissioner, former Chairman of Public Services Commission) over a period of no less than 35 years.
So far as the Chief Ombudsman is a citizen, counsel accepted the proposition in Somare Case, that standing as citizen is entirely within the discretion of the Court. He submitted that having regard to all the necessary steps the Chief Ombudsman has taken as enumerated in his affidavit, we should in the exercise of our discretion grant him standing to bring this cause of action.
Counsel for the Third Plaintiff in response submitted that if anyone who has any interest in the appointment of the Governor-General, it is the Third Plaintiff in that he was a candidate for nomination as Governor-General. He submitted that the originating summons seeks to invalidate the whole process of nominating candidates from filling of the proposal form to final vote by the Parliament. He submitted that there can be no doubt that the Third Plaintiff has standing.
The question of standing under s.18(1) of the Constitution was considered by the Supreme Court in Somare Case. In that case a petition was filed in the National Court in which Mr Somare sought to challenge the constitutionality of two decisions of the National Parliament – one approving the commitment of troops to Vanuatu for peace-keeping purposes and the other for enacting the Defence Force (Presence Abroad) Act 1980 (see [1980] PNGLR 255). This involved the consideration of ss.117(1), 202, 205 and 206 of the Constitution. The National Court referred the question of standing to the Supreme Court under s.18(2) of the Constitution.
The majority (Kidu CJ., Kapi J. (as he then was) and Miles J.) concluded that there is no constitutional law provision which determines the issue of standing in instituting a cause of action under s.18(1) of the Constitution. The question is to be determined in accordance with schedule 2 of the Constitution. They concluded that there was no principle of custom (schedule 2.1 of the Constitution) or common law (schedule 2.2 of the Constitution) that was applicable and therefore formulated a new principle of law under schedule 2.3 of the Constitution. In formulating the rule, Kidu CJ stated at 273-274:
"In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.
The Constitution of this country provides that all power belongs to the people (6). These powers are then given to three bodies – the National Parliament (legislative power), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally. In the case of the legislative power, the Constitution specifically says:
"109. – GENERAL POWER OF LAW-MAKING.
(1) Subject to this Constitution, the Parliament may make laws, . . . etc."
That is to say that when the Parliament makes a law, it shall be constitutional –s.10 of the Constitution also says:
"All written laws (other than this Constitution) shall be read and construed subject to—
(a) in any case---this Constitution; and
(b) . . .
(c) . . ."
The People, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament, is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it.
The Constitution also obliges every person in Papua New Guinea "to respect and to act in the spirit of, this Constitution, . . ." (7). This includes Member of the Parliament. They are required, in this case, to ensure that laws they make are constitutional. They are also required, when taking office to swear that they will uphold the Constitution of Papua New Guinea (8). This obligation must mean something. For people such as Members of the Parliament to make this declaration and ignore it afterwards makes a mockery of the Constitution.
From the foregoing, I hold that the petitioner has the necessary standing to invoke the powers of this Court to determine the constitutionality (or otherwise) of the Defence Force (Present Abroad) Act 1980".
Kapi J. (as he then was) formulated the rule in the following terms at 295 - 296:
Having regard to all the matters I have discussed, I would formulate a rule that would draw a line between those who can and those who cannot have standing. At the same time, the modern view on locus standi is not restrictive as is the common law. It must have a much wider conception as has been found in the Canadian cases dealing with constitutional cases.
A general principle that would suit the above description is the new English rule on locus standi. The English rule on locus standi was a result of much study by the English Law Commission. This rule was recommended by the Law Commission in its report on remedies in administrative law in 1975. The new rule would be that the applicant must have sufficient interest in the matter.
As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning in R.v. Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd. (42). It is not possible to lay down a workable definition for all cases because each case is different. I would leave it to courts to develop the application of the rule in individual cases.
Applying this to the present case I find that Mr. Somare would have standing. As a member of the Parliament he belongs to the governmental body which has been invested with the power of law-making by the Constitution. In relation to the issue in this case, Mr. Somare has raised, amongst other things, that the law-making body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980.
If anyone has interest in the matter it is the members of the legislature who make the laws. It cannot be said that he is a mere busybody meddling in other people’s affairs. He, as a member of the Parliament, has standing and can bring this matter to court. Having come to this conclusion it is not necessary for me to consider his standing as Leader of the Opposition.
Furthermore, Mr. Somare, as a citizen, has standing. A citizen has standing where a question of non-compliance with the Constitution by the Parliament is involved.
This stems from the fact that the legislative power belongs to the people (citizens). This power is vested in the Parliament by the Constitution. The power given to the Parliament is to be exercised in accordance with the Constitution (s.100). If the Parliament has not complied with the Constitution and the members of the Parliament are not willing to bring the matter before the court then, in my view, a citizen can. A citizen, under our Constitution, has not only an interest for the due observance of the law but, more than this, has the legislative power. I do not think that standing ought to be restricted to members of the Parliament or leaders of political parties in the Parliament. They are politicians and may have political reasons for not wanting to come to court. Our Constitution would be at stake if nobody had standing in those circumstances.
It might be said that such a view might open the floodgates and the courts might be swamped with too many cases. I observe that in other countries this policy consideration often restricts the scope of locus standi. With respect, this is no question of policy. Under our Constitution the legislative power belongs to the people. The question is, would the ordinary citizens have any standing in court if the legislative power is not exercised in accordance with the Constitution? A citizen would have standing for the reasons I have already given. I do not think it is proper for this Court to deny a citizen right to locus standi by a policy consideration. After all, the judicial power belongs to the people (s. 158 of the Constitution). It is the people’s court and let them come by the hundreds if they have the right to come.
However, I consider that standing given to any citizen should be at the discretion of the court. In exercising this discretion the court should consider whether the applicant has exhausted other means of achieving the same thing. In this case the Leader of the Opposition opposed the motion and the Act but was unsuccessful in the Parliament. He also exhausted the means of getting this question referred under s. 19 of the Constitution. His request to the Ombudsman Commission to refer the question was unsuccessful. There is no suggestion that other authorities will refer the question. I am not suggesting that a citizen’s right to complain depends on whether or not he has tried other means. Rather, if he does this, this is an indication that he is genuinely concerned with the matter. A person who simply comes straight to the court as a delaying tactic or for reasons other than that he is genuinely concerned with the matter should not be heard."
The decision by Miles J followed very much the reasoning process by Kidu CJ. and Kapi J.(as he then was).
On the question of who has standing on constitutional matters under s.18(1) of the Constitution, we start with the premise that there is underlying law already formulated by the Supreme Court in Somare Case, namely, that as a member of Parliament, Somare, had standing or alternatively as a citizen in the exercise of the Courts discretion he had standing.
No party questioned these principles. Applying this to the present case, the Third Plaintiff has standing on the basis that he was a candidate and has an interest in the outcome of the process of nomination. That is sufficient for purposes of standing. It is not necessary to consider his standing as a citizen.
The Second Plaintiff does not have the same interest as a candidate or as a member of the Parliament who may be involved in the process of nomination. However, he would have sufficient interest as a citizen. In this respect he has particular interest in that as a member of the Ombudsman Commission he has a unique place in the Constitutional form of Government as evidenced in the provisions of Constitutional laws set out in the submissions of counsel for the First and Second Plaintiffs.
We would however put two qualifications to this interest. The first is that the subject matter of the cause of action must have some connection with his functions as set out in the constitutional laws. In the present case, the subject matter of the action relates to the duties and functions of the Clerk which is a constitutional office and a leader over which the Ombudsman Commission has some jurisdiction under the Leadership Code. His conduct therefore could become the subject of investigation by the Ombudsman Commission under the Leadership Code.
Moreover, the cause of action arises from conduct of members of the Parliament who were involved in the process of nomination. In particular compliance with with the provisions of the Organic Law in proposing or supporting a candidate.
The second qualification is that the Chief Ombudsman must demonstrate that he has done enough within his power to cure the defect if possible under the law (Somare Case). In the present case, he has taken all the steps necessary to establish what has happened and he has taken steps by communicating with the Clerk, the Prime Minister’s Office and the National Executive Council. According to his affidavit, the process of appointing the Governor-General has not been presented to the Queen because of the investigations the Ombudsman Commission has undertaken. This is a demonstration of the genuine concern with the issues raised in this action. He made public the steps he took and explained why he took the steps. We are satisfied that he became involved in the interest of ensuring that Constitutional Laws were complied with. Having regard to all these considerations and the nature of the constitutional issues raised, we consider that he should have standing. For these reasons we gave the Second Plaintiff standing in this matter.
Standing of Ombudsman Commission
The Ombudsman Commission is not a natural person and therefore does not have status as a citizen (natural person). The principles in Somare Case so far as it gives standing to citizens do not apply to an authority. In the Somare Case the standing of Somare as Leaders of the Opposition was not decided (see Kapi J (as he then was) at page 295).
The functions of the Ombudsman Commission as outlined in considering the standing of the Chief Ombudsman as member of the Commission apply to the Commission as an authority. Those considerations would justify this Court in formulating a principle of law to give the Commission standing.
However, we are mindful of the provisions of Schedule 2.4 of the Constitution which is in the following terms:
"Sch.2.4. Judicial development of the underlying law.
In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act."
We consider that the Ombudsman Commission is a creature of constitutional laws and its functions and standing should be a matter left to be decided by legislative act in the National Parliament. We believe Schedule 2.4 placed this restraint on the power of the Court from formulating or developing the underlying law in some circumstances if the Court considers that it is not proper to do so by judicial act. In State v Wik Kor [1983] PNGLR 24 Kapi DCJ (as he then was) refused to formulate a principle of law for this very reason. So for this same reason we would decline to formulate a rule of law relating to standing of the Ombudsman Commission. Consequently, as the law stands at this time, the Ombudsman Commission does not have standing as an authority. The First Plaintiff is therefore struck off from the action.
We now turn to consider the merits of the originating summons. The issues raised by this action relate to non-compliance with the provisions of the Organic Law relating to the Proposal Forms for the election of Parliament’s nominee for appointment as Governor-General.
Facts:
The evidence before us is in the form of uncontested affidavits. The deponents were not cross-examined. The evidence relied upon by the Plaintiffs consists of two affidavits of the Chief Ombudsman sworn on 4th and 5th November respectively, the affidavit of Bernard Narokobi sworn on 6th November and Adriat Yauieb sworn on 5 November. The Defendants relied on three affidavits. They were of the Clerk of Parliament Mr. Ano Pala sworn on 5th, 6th and 7th November respectively and the affidavit of Sir Albert Kipalan sworn on 6 November. In addition, Mr. Pala gave brief sworn evidence on which the Court and Mr. Cannings asked questions.
In our view the evidence relevant to the issues before us as contained in the affidavits of the Chief Ombudsman and the Clerk. The evidence of Messrs Narokobi and Yauieb as well as the evidence of Sir Albert Kipalan relate to events that occurred outside of the Parliament and are therefore of little relevance to the issues before us.
All the primary facts, except the date on which the Clerk made additional annotations on copies which he called the "working copies" of the Proposals forms, which we will deal with later, are not in dispute. On 19th November, 2003 His Excellency Sir Silas Atopare’s six (6) year term expired. Pursuant to S.88(3) of the Constitution, the Parliament is required to nominate the next Governor-General within a period of three (3) months before the expiration of his term. So on 7th July 2003 the Acting Speaker of the Parliament announced the expected completion of Sir Silas Atopare’s term and addressed matters that were required to be attended to in order for the Parliament to nominate a new person to be the Governor General. These included the requirements of Schedule 1 of the Organic Law. On 12th September, 2003 the Parliament met and resolved to meet at 2pm on 18th September to nominate the next Governor General.
Between 10th and 18th September, 2003 nine (9) proposals forms were received by the Clerk of the Parliament. The proposed candidates were Sir Silas Atopare, Mr. Bernard Narakobi, Sir Paulus Matane, Mr. Mathew Bendumb, Sir Thomas Koraea, Sir Pato Kakaraya, Sir Albert Kipalan, Sir Thomas Kavali and Sir Arnold Amet.
After receiving the nine (9) Proposal Forms and before the Clerk furnished a list of the candidates to the Speaker for Parliament to vote on, the Clerk checked all the Proposal Forms including the authenticity of the signatures of the Members of the Parliament. The Proposal Forms were then cross-checked by his two deputies, Messrs Kalu and Podi.
In the process of checking the nine (9) proposal forms, the Clerk made annotations on each form. There are two sets of annotations on the same forms. The first annotations were those made on the original forms, copies of which the Clerk provided to the Chief Ombudsman on 24th September, 2003. These annotations are dated the 18th of September There is no dispute on these annotations. The second set of annotations are undated and these appear on what the Clerk described as his "Working Copies" of the Proposal Form. The Plaintiffs contend that these additional annotations were not made on the 18th but after the 24th. The Clerk was required by the Court to clarify the date of the additional notations. He said, these were made on the 18th before the list of candidates was submitted to the Speaker. In the absence of any other evidence to the contrary, we accept the Clerk’s evidence.
After checking the nine (9) forms, the Clerk says he was satisfied that all the proposals were in the prescribed form; that the proposals for nominations were signed by the required number of at least fifteen (15) members of Parliament and accepted by the nominees and that the nominees were all qualified for appointment as the Governor-General. He was also satisfied that all the candidates held public office previously and were still qualified to hold public office. He knew them well, some of them were former members of the Parliament and Sir Arnold Amet and Sir Paulias Matane were former public officers. There was no compelling evidence available for him to check their integrity or credibility and he had no reason to believe that the nominees were not qualified for appointment as Governor-General. Ultimately, he was satisfied that all the requirements under the Constitutional Laws were complied with in respect to the nomination and the subsequent election of the Governor-General.
At the hearing, the Plaintiffs sought to challenge the Clerk’s opinion on the integrity and credibility of one of the candidates by seeking to tender into evidence a Report by the Ombudsman Commission on the aborted purchase of the Cairns Conservatory, which was tabled in Parliament. Mr. Cannings contended that this report implicated one of the candidates and if the Clerk adverted his mind to it, he would have rejected that candidates’ Proposal Form. We refused to admit the Report because it was irrelevant to the issue of the Clerk’s opinion on a candidates’ credibility, which is non-justiciable by virtue of s.87(2) of the Constitution.
When the Parliament convened at 2pm on the 18th of September, 2003, its first business was to decide on Sir Silas’ request for nomination for a second term. A separate ballot was conducted. He failed to muster the two thirds absolute majority required by S.87(5) of the Constitution. The vote was 54 to 27. According to the Clerk he would have considered Sir Silas Atopare’s Proposal Form for inclusion in the list he furnished to the Speaker only if he had secured the two thirds absolute majority. This decision of the Parliament is not in issue in these proceedings. It is the election on the new proposed nominees which is in issue in these proceedings.
After Sir Silas Atopare’s name was eliminated as a possible candidate, the Clerk compiled a list of the eight (8) new candidates from the remaining eight (8) Proposal Forms and submitted it to the Speaker for the election. Because there were eight (8) candidates, an "exhaustive secret ballot" was conducted in the manner described earlier. There were a total seven exhaustive ballots taken before the Parliament’s nominee was known. On each count, the Clerk gave each member present a ballot paper which he filled out and returned to the Clerk. The first ballot on this motion was conducted immediately after the decision on Sir Silas Atopare. It involved 88 members. The second and third ballot recorded that 90 members voted, an increase of two additional members. The fourth, fifth, sixth and seventh ballots, recorded that 91 members voted, an increase of one member. The Speaker did not cast his vote in any of the ballots.
In these proceedings, the Clerk’s discharge of his duties under the Organic Law, in conducting or supervising the election is challenged. The allegations of breach of duties relate to the Clerk’s scrutiny of the Proposal Forms to ensure that they complied with the Constitution and the Organic Law, and his duty to reconcile the ballot papers distributed and returned with votes endorsed, with the members who were present in the Chamber of Parliament at the time.
1. The Clerk’s Scrutiny of Proposal Forms
(a) Sir Silas Atopare’s Proposal Form
We accept the Clerk’s evidence that he scrutinized and decided to accept the nine (9) Proposal Forms which included Sir Silas Atopare’s Proposal Form. Therefore, insofar as the Clerk’s scrutiny of the Proposal Form is concerned, Sir Silas Atopare’s Proposal Form is also relevant here because it affected all the other proposals when it came to distribution of members’ support for the nine (9) candidates, either as proposers or supporters. For this reason, we address the validity of all nine (9) Proposal Forms.
The Plaintiffs assert that all nine (9) Proposal Forms contained certain defects, either on form, in substance or both. Most of these factual assertions are not disputed by the Defendants. Therefore, we accept them and make findings of fact which we set out below. We also deal with the disputed facts and make our findings.
(b) Defects in Form
In relation to formal defects, we find that only Proposal Forms for Sir Paulias Matane and Sir Tom Koraea did not contain formal defects whereas the rest did. Those defects include the forms failing to state the names of Electorates of Supporters of Proposal; incorrectly naming the Electorate; alterations which were not initialed; undated Proposal Forms; multiple Proposal Forms in respect of one candidate, multiple Proposal Forms not connected to an earlier Proposal Form; Proposal Form with no name of person proposed or no signature next to the name of the electorate; written names instead of signature or mark of supporters, etc.
The Plaintiffs submit that all the six (6) forms are void by reason of those formal defects. The Defendants submit that the forms substantively complied with the formal requirements of the Proposal Form set out in Schedule 1 and were therefore valid. We will address these submissions later.
(c) Defects in Substance
In relation to the substantive defects, there are several important ones which we deal with below.
(i) Member Supporting Multiple Candidates
Our first finding is that all nine (9) Proposal Forms contained the names of supporters who also supported other candidates. Because this is the most common defect, we set out the details of those members involved and the candidates they supported and the effect on each Proposal Form.
For instance, Sir Albert Kipalan’s Proposal Form was signed by sixteen (16) supporters, namely, Mr. Peter Ipatas, Mr. Don Polye, Mr. Alphonse Moroi, Mr. Hami Yawari, Mr. Guao Zurenuoc, Mr. Kappa Yarka, Mr. Anderson Vele, Mr. Dickson Maki, Mr. Balus Libe, Mr. Peter Yama, Mr. Fabian Inne, Mr. Alois Kinglsey, Mr. Carlos Yuni, Mr. Andrew Baing and Mr. Byron Chan.
Sir Albert Kipalan’s Proposal Form had six (6) members who also signed as supporters of other candidates. For instance, Mr. Fabian Inne also signed as a supporter of two other candidates, namely Sir Thomas Kavali and Sir Pato Kakaraya. Mr Anderson Vele also signed as supporter of two other candidates namely Sir Pato Kakaraya and Mr. Bernard Narokobi. Mr. Alois Golu Kingsley also supported another candidate namely Sir Silas Atopare. Mr. Guao Zurenuoc also signed as supporter of three (3) other candidates namely, Sir Pato Kakaraya, Sir Thomas Koraea and Mr. Mathew Bendumb. Mr. Byron Chan also signed as supporter of two (2) other candidates namely Sir Paulias Matane and Sir Silas Atopare. Mr. Hami Yawari also signed as supporter of another candidate, namely Sir Paulias Matane. If these six (6) multiple supporters were excluded, then Sir Albert Kipalan would have been left with the signature of only nine (9) members out of fifteen (15) members.
Sir Arnold Amet’s Proposal Form was signed by fifteen (15) members namely Sir Michael Somare, Mr. Don Polye, Mr. Bart Philemon, Sir Rabbie Namaliu, Mr. Peter O’Neill, Mr. Patrick Pruaitch, Mr. Tetac Geoka, Sir Peter Barter, Mr. Michael Laimo, Mr. Atimeng Buhupe, Mr. Tony Aimo, Mr. Bani Hoivo, Mr. Wesley Zurenuc, Mr. Bire Kimisopa and Mr. Ben Kiagi.
His Proposal Form also had the signatures of six (6) members who supported other candidates. Mr. Michael Laimo also supported Mr. Narokobi and Sir Thomas Koraea. Mr. Tony Aimo also supported Mr. Narokobi. Mr. Polye also supported Sir Thomas Kavali, Sir Albert Kipalan and Sir Pato Kakaraya. Mr. Tetac Geoka also supported Sir Pato Kakaraya and Mr. Mathew Bendumb. Mr. Wesley Zurenuc also supported Mr. Mathew Bendumb. If these six (6) members support were excluded, then Sir Arnold’s Proposal Form would have been left with nine (9) members out of fifteen (15) members.
Mr. Bernard Narokobi’s Proposal Form contained the signatures of eighteen (18) supporters. They were Mr. Clement Nakmai, Mr. Tom Tomiape, Sir Moi Avei, Mr. Kimson Kare, Mr. Tony Aimo, Mr. Andrew Kumbakor, Mr. Alphonse Willie, Mr. Anderson Vele, Lady Carol Kidu, Mr. Patrick Pruaitch, Mr. Gabriel Kapris, Mr. John Hickey, Mr. James Yali, Mr. Gallus Yumbui, Mr. Michael Laimo, Mr. John Momis, Mr. Mathew Gubag and Mr. John Muingnepe.
Mr. Narokobi’s Proposal Form also had the signatures of seven (7) members who also supported other candidates. For instance, Mr. Michael Laimo also supported Sir Tom Koraea and Sir Arnold Amet. Mr. Anderson Vele also supported Sir Pato Kakaraya and Sir Albert Kipalan. Mr. Tony Amio also supported Sir Arnold Amet. Mr. John Hickey also supported Mr. Mathew Bendumb. Mr. James Yali also supported Mr. Mathew Bendumb. Lady Carol Kidu also supported Sir Tom Koraea and Mr. Tom Tomiape also supported Sir Silas Atopare and Sir Tom Koraea. If the support of these seven (7) members were excluded, then Mr. Narokobi would have been left with only eight (8) out of fifteen (15) members.
Mr. Mathew Bendumb’s Proposal Form had the signatures of sixteen (16) members who supported his proposal. They were Mr. Posi Menai, Mr. James Togel, Mr. John Hickey, Mr. James Yali, Mr. Wesley Zurenuc, Mr. Alphonse Moroi, Mr. Luther Wenge, Mr. John Muingnepe, Mr. Tetac Geoka, Mr. Conrad Haoda, Mr. Guao Zurenuoc, Mr. Peter Yama, Mr. Sasa Zibe and Dr. Banare Bun.
Mr Bendumb’s Proposal Form had also the signatures of nine (9) members who also supported other candidates. They were Mr. James Togel who also supported Sir Thomas Koraea and Sir Thomas Kavali. Mr. Alphonse Willie also supported Sir Paulias Matane and Sir Thomas Kavali. Dr. Banare Bun also supported Sir Thomas Kavali. Mr. John Hickey also supported Mr. Bernard Narokobi. Mr. James Yali also supported Mr. Bernard Narokobi. Mr. Luther Wenge also supported Sir Pato Kakaraya and Sir Thomas Koraea. Mr. John Muingnepe also supported Sir Pato Kakaraya and Mr. Bernard Narokobi. Mr. Guao Zurenuoc also supported Sir Pato Kakaraya, Sir Albert Kipalan and Sir Thomas Koraea; Mr. Tetac Geoka also supported Sir Pato Kakaraya and Sir Arnold Amet. Mr. Atimeng Buhupe also supported Sir Arnold Amet. Mr. Wesley Zurenuc also supported Sir Thomas Koraea. Mr. Bob Danaya also supported Sir Thomas Koraea and Mr. Conrad Haoda who also supported Sir Pato Kakaraya. If these nine (9) supporters of multiple candidates were excluded, Mr. Bendumb would only have had the support of six (6) members out of fifteen (15) members.
Sir Pato Kakaraya’s Proposal Form also contained the signatures of eighteen (18) members. They were Sir Mekere Morauta, Mr. David Basua, Mr. Jeffrey Nape, Mr. John Muingnepe, Mr. Fabian Inne, Mr. Michael Nali, Mr. Don Polye, Mr. Anderson Vele, Mr. Brian Pulayasi, Mr. Conrad Hoada, Mr. Luther Wenge, Mr. Tetac Geoka, Mr. Guao Zurenuoc, Mr. Timothy Tala, Mr. Andrew Kumbakor, Mr. Mathew Gubag and Mr. Issac Taitibe.
Sir Pato Kakaraya’s Proposal Form also contained signatures of six (6) members who also supported other candidates. They were Mr. Don Polye who also supported Sir Thomas Kavali, Sir Arnold Amet and Sir Albert Kipalan. Mr. Mathew Gubag also supported Sir Paulias Matane, Sir Thomas Koraea and Mr. Bernard Narokobi. Mr. Luther Wenge also supported Mr. Mathew Bendumb and Sir Thomas Koraea. Mr. John Muingnepe also supported Mr. Bernard Narokobi and Mr. Mathew Bendumb. Mr. Guao Zurenuoc also supported of Mr. Mathew Bendumb, Sir Albert Kipalan and Sir Pato Kakaraya; Mr. Tetac Geoka also supported Mr. Mathew Bendumb and Sir Arnold Amet. If the six (6) supporters were excluded, Sir Pato’s proposal would only have had nine (9) supporters out of fifteen (15) members.
Sir Paulias Matane’s Proposal Form was signed by sixteen (16) members. They were Mr. Paul Tiensten, Mr. Martin Aini, Mr. Sinai Brown, Mr. Hami Yawari, Mr. Leo Dion, Mr. Mathew Siune, Mr. Phillip Inou, Mr. Byron Chan, Mr. Jeffrey Nape, Mr. John Vulupindi, Mr. David Basua, Mr. Mathew Gubag, Mr. Timothy Tala, Mr. Petrus Thomas and Mr. Alphonse Willie.
Sir Paulias Matane’s Proposal Form contained signatures of nine (9) members who also supported other candidates. They were Mr. Alphonse Willie who also supported Sir Thomas Kavali and Mr. Mathew Bendumb. Mr. Mathew Siune also supported Sir Thomas Kavali. Mr. Jeffrey Nape also supported Sir Thomas Kavali and Sir Pato Kakaraya. Mr. Paul Tiensten also supported Sir Silas Atopare. Mr. Mathew Gubag also supported Sir Pato Kakaraya and Sir Thomas Koraea. Mr. Byron also supported Sir Silas Atopare and Sir Albert Kipalan. Mr. Hami Yawari also supported Sir Albert Kipalan. Mr. Timothy Tala also supported Sir Pato Kakaraya and Sir Silas Atopare. David Basua also supported Sir Pato Kakaraya and Sir Thomas Koraea. If these nine (9) supporters were excluded, Sir Paulias Matane’s proposal would have had six (6) supporters out of fifteen (15) members.
Sir Thomas Kavali’s Proposal Form was signed by eighteen (18) members. They were Mr. Melchoir Pep, Mr. Francis Kunai, Mr. Kuri Kingal, Mr. Jeffrey Nape, Mr. Don Polye, Mr. Alphonse Moroi, Mr. Fabian Inne, Mr. Mark Anis, Mr. Michael Mas Kal, Dr. Banare Bun, Mr. William Duma, Mr. Tom Amukele, Mr. Andrew Kumbakor, Mr. James Togel, Mr. Robert Kapaol, Mr. Peter Oresi, Mr. Mathew Siune and Mr. Alphonse Willie.
Sir Thomas Kavali’s Proposal Form had the signatures of eight (8) members who also supported other candidates. They were Mr. James Togel who also supported Sir Silas Atopare, Sir Thomas Koraea and Mr. Mathew Bendumb; Mr. Alphonse Moroi also supported Sir Sials Atopare. Mr. Fabian Inne also supported Sir Pato Kakaraya and Sir Albert Kipalan. Mr. Alphonse Willie also supported Sir Paulias Matane and Mr. Mathew Bendumb. Mr. Mathew Siune also supported Sir Paulias Matane. Mr. Jeffrey Nape also supported Sir Paulias Matane and Sir Pato Kakaraya. Dr. Banare Bun also supported Sir Silas Atopare. Mr. Tom Amukele also supported Sir Silas Atopare. Mr. William Duma also supported Sir Thomas Koraea. If these eight (8) supporters were excluded, that would have left Sir Thomas Kavali with seven (7) supporters out of fifteen (15) members.
Sir Thomas Koraea’s Proposal Form contained signatures of fifteen (15) members. They were Mr. Mathew Gubag, Mr. James Togel, Mr. Roy Biyama, Mr. Guao Zurenuoc, Mr. Tom Tomiape, Mr. David Basua, Dr. Bob Danaya, Sir Mekere Morauta, Mr. Chris Haiveta, Mr. Luther Wenge, Mr. William Duma, Mr. Martin Aini, Mr. Michael Laimo, Mr. Martin Tabi and Lady Carol Kidu.
Sir Thomas Koraea’s Proposal Form contained the signatures of twelve (12) members who also supported other candidates. They are Mr. James Togel who also supported Sir Thomas Kavali, Sir Silas Atopare and Mr. Mathew Bendumb. Mr. Michael Laimo also supported Sir Arnold Amet and Mr. Bernard Narokobi. Mr. Mathew Gubag also supported Sir Paulias Matane and Sir Pato Kakaraya. Mr. Luther Wenge also supported Sir Pato Kakaraya and Mr. Mathew Bendumb. Mr. Guao Zurenuoc also supported Sir Pato Kakaraya, Sir Albert Kipalan and Mr. Mathew Bendumb. Sir Mekere Morauta also supported Sir Pato Kakaraya. Lady Carol Kidu also supported Mr. Bernard Narokobi. Mr. Martin Aini also supported Sir Paulias Matane. Mr. David Basua also supported Sir Paulias Matane and Sir Pato Kakaraya. Mr. Tom Tomiape also supported Sir Silas Atopare and Mr. Bernard Narokobi. Mr. Bob Danaya also supported Mr. Mathew Bendumb and Sir Silas Atopare. Mr. William Duma also supported Sir Thomas Kavali. If the twelve (12) supporters were excluded, that would have left Sir Thomas Koraea with only three (3) supporters out of fifteen (15) members.
Sir Silas Atopare’s Proposal Form contained the signatures of fifteen (15) members who supported him. They were Mr. Charlie Benjamin, Mr. Byron Chan, Mr. Alphonse Moroi, Mr. Yawa Silupa, Mr. CecilKing Doruba, Mr. Brian Pulayasi, Mr. Tom Amukele, Mr. Timothy Tala, Mr. James Togel, Mr. Tom Tomiape, Mr. Paul Tiensten, Mr. Yuntuvi Bao, Dr. Bob Danaya, Mr. Alois Kingsley and Mr. David Sui.
Sir Silas Atopare’s Proposal Form also contained the signatures of nine (9) members who also supported other candidates. They were Mr. James Togel who also supported Sir Thomas Kavali, Sir Thomas Koraea and Mr. Mathew Bendumb. Mr. Alphonse Moroi also supported Sir Thomas Kavali, Mr. Paul Tiensten also supported Sir Paulia Matane. Mr. Tom Amukele supported Sir Thomas Kavali. Mr. Alois Kingsley also supported Sir Albert Kipalan. Mr. Brian Pulayasi supported Sir Pato Kakaraya. Mr. Byron Chan also supported Sir Paulias Matane and Sir Albert Kipalan. Mr Timothy Tala also supported Sir Paulias Matane and Sir Pato Kakaraya. Mr. Tom Tomiape also supported Mr. Bernard Narokobi and Sir Thomas Koraea. If these nine (9) supporters were excluded, that would have left Sir Silas Atopare with six (6) supporters out of fifteen (15) members.
The Clerk says that in the past, he allowed a member to support more than one candidate. If as a matter of law, we decide that a member who signs as a supporter of a candidate is not permitted to also sign as a supporter of another candidate, then his or her support for all candidates is invalid. In the present case, if one excludes the multiple supporters for this reason, each of the nine (9) Proposal Forms would fall short of fifteen (15) members.
(ii) Proposer Signing as Supporter of Same Candidate
Our second finding is that in four (4) instances, a proposer of a candidate also signed as a supporter of the same candidate. For instance, Mr. Alphonse Moroi proposed Sir Albert Kipalan and also signed as a supporter. Mr. Brian Pulayasi proposed Sir Pato Kakaraya and also signed as his supporter. Mr. Melchior Pep proposed Sir Thomas Kavali and signed as his supporter. Dr. Bob Danaya proposed Sir Silas Atopare and signed as his supporter as well.
The Clerk also says that in the past he has allowed this practice. If upon a proper construction of the Organic Law s.4(1)(b) it is concluded that a proposer of a particular candidate cannot also support the same candidate, then the Proposal Form for Sir Albert Kipalan, Sir Thomas Kavali, Sir Pato Kakaraya and Sir Silas Atopare are void for this reason.
(iii) Proposer Signing as Supporter of Other Candidates
Our third finding is that in three instances, a proposer of one candidate also supported other candidates. For instance, Mr. Brian Pulayasi who proposed Sir Pato Kakaraya also supported Sir Silas Atopare. Dr. Bob Danaya who proposed Sir Silas Atopare also supported Sir Thomas Koraea and Mr. Mathew Bendumb. Mr. Alphonse Moroi who proposed Sir Albert Kipalan also supported Sir Silas Atopare and Sir Thomas Kavali.
The Clerk again says that in the past, he has allowed this practice. If upon a proper construction of S.4(1)(b) of the Organic Law, it is concluded that a proposer cannot also support other candidates, then the Proposal Forms of Sir Silas Atopare and Sir Thomas Koraea would be invalid for this reason as well.
(iv) Withdrawal of Support for Candidates
The fourth defect is that nine (9) supporters who supported multiple candidates and one (1) supporter who supported one candidate, withdrew their support and chose to support only one candidate. The withdrawal was communicated to the Clerk in writing by letter addressed to the Clerk or by submitting to him a form entitled "Notice of Disqualification." We set out the details below:-
If the Clerk accepted these withdrawals, the effect on each Proposal Form is as follows:-
In summary, the Proposal Forms for Mr. Bendumb, Sir Thomas Koraea and Sir Silas Atopare did not have the support of at least fifteen (15) members. The other six (6) candidates had the support of at least fifteen (15) members.
The Clerk says in his affidavit sworn on 6th November 2003 that he rejected the withdrawals of Messrs Tetac Geoka, Michael Laimo, Atimeng Buhupe and Don Polye, but does not give any reasons for doing so. In relation to the other six (6) members’ withdrawal he is silent. Yet in his affidavit sworn on 5th November the Clerk contradicts himself at paragraph 16 when he says that in the past, he has not accepted withdrawal of support for a candidate.
If as a matter of law, it is decided that a member is not authorized to withdraw his earlier support of a candidate(s), then the original figures of supporters for each candidate still stands. But if it is decided otherwise, then the Proposal Forms for Sir Silas Atopare and Sir Thomas Koraea and Mr. Mathew Bendumb fall short of fifteen (15) members.
(v) Supporter Not a Member of Parliament
The fifth alleged defect relates to a member signing as supporter but ceasing as a member of Parliament prior to election. Sir Thomas Kavali’s nomination contained the signature of Robert Kapaol, who ceased to be a member on the 18th of September because the National Court invalidated his election on that day. The Clerk says he was aware of Mr. Kapaol’s disqualification by the National Court on the 19th which was after the election. In the absence of any other evidence to the contrary, we accept his evidence. We find that when he signed the Proposal Form, he was still a Member of Parliament.
(d) Summary of Findings on Defects
From the foregoing general findings of fact, we set out a number of specific findings of fact on the Clerk’s duties in relation to the scrutiny of the Proposal Forms. First, he permitted a total of twenty-six (26) members to support multiple candidates. If as a matter of law, the multiple supporters are disallowed, none of the eight (8) or nine (9) candidates would have received the required support of at least fifteen (15) members. Secondly, he rejected four (4) members who withdrew their support for multiple candidates whilst at the same time permitting five (5) members who supported multiple candidates to withdraw their support. Thirdly, in the past he allowed a proposer of one candidate to support another candidate. It is questionable if this is allowed by law. Fourth, he allowed one proposer to also support the same candidate. It is also questionable if this is permitted by law. Fifth, in respect of nomination of Mathew Bendumb, the Clerk allowed this nomination to go through even though as he says in para. 10 of his affidavit, "Mr. Yali’s signature appeared to have been crossed out." Mr. John Hickey’s signature was not so clear. The Clerk says he gave Mr. Bendumb the benefit of the doubt and determined that Mr. Bendumb had the required number of fifteen (15) members. When we examined the original nomination form produced to us, we noticed a substantial part of the names and signatures of Messrs Yali and Hickey were obliterated with what appeared to be correction fluid, leaving us to conclude that the names were almost completely removed. If these two names were removed, as they appear to have been, that left Mr. Bendumb with only fourteen (14) members supporting him. Sixth, he allowed two candidates to submit multiple nomination forms one of which was not connected with the earlier form, and one of which did not have the name of the candidate. Seventh, he allowed Sir Silas Atopare to submit a Proposal Form together with the new candidates. This coloured the other eight (8) Proposal Forms in that it had the effect of either reducing or increasing the number of proposers or supporters for the other eight (8) candidates.
2. Clerk’s Conduct/Supervision of Actual Election
In relation to the supervision of the actual election, it is clear from the evidence that the number of members who took part in the first ballot in relation to the extension of Sir Silas Atopare’s term and subsequent ballots increased. Some eighty-one (81) members were present in the Chamber and participated in the election in relation to the motion for Sir Silas Atopare’s extension.
The number of members increased to eighty-eight (88) on the first ballot on the eight (8) new proposals for nominations. The Clerk lists the names of the 88 members in his affidavit. On the second ballot, the number increased to ninety (90). The two (2) new members were Mr. Gallus Yumbui and Mr. David Sui. The third ballot also involved ninety (90) members. The number once again increased to ninety-one (91) on the third count and remained static to the last and 7th ballot. The Clerk says the new member was Mr. James Togel. In other words, the Clerk after the first count, allowed the three (3) new members who were not present in the Chamber and participated in the previous ballot(s) to enter the Chamber and vote in the election of subsequent six (6) ballots. In the final count, Sir Albert Kipalan won the election by only one (1) vote. And so the presence in the Parliament chambers, and participation in the election by these three (3) additional members since the first count, was of significance to the outcome of the election. The Plaintiffs contend that the Clerk failed to allow only those members who voted in the first ballot to vote in the subsequent six (6) ballots.
If as a matter of law, we decide that members of Parliament who were not present in the Chamber and did not vote in the first ballot were not entitled to vote in the subsequent ballots, then the Clerk erred in allowing those three (3) members to vote and the election may also be declared void, on this ground as well. We address this issue later in our judgment.
The Plaintiffs also contend that the Clerk failed to reconcile the votes cast with the members present. According to their own reconciliation, they submit the total number of members present when the first ballot was conducted, less the Speaker, was ninety-two (92). However, the total number of votes cast in all seven (7) ballots was less by three (3) votes in the first count, and less by one (1) in the second and third counts. They say the Clerk seriously failed in his duty to issue ballot papers only to those members who participated in the preceding ballot and reconcile the votes received with those members.
In our view, the Plaintiffs’ reconciliation of votes with those members present in Parliament is of no consequence because the voting figures is equal to or below the 92 members expected to be in Parliament through the election. Therefore this fact is of no significance to the election.
The Law
The result of this action will be decided principally on whether the candidates proposed for nomination complied with the requirements prescribed by the provisions of the Constitution and the Organic Law. This involves the consideration of the duties and responsibilities of the Clerk under s.2; requirements of s.4; the discretion of the Clerk under s.5; functions of the Clerk under s.6 and the manner of election of the Governor-General under ss.7, 8 and 9 of the Organic Law.
Before we consider these provisions, we should first set out the Constitutional provisions which prescribe the appointment of the Governor-General. The Constitution establishes the Office of the Head of State and prescribes qualifications for appointment. The Organic Law prescribes the procedure for appointment of the Governor General. The relevant provisions of the Constitution are ss.87 and 88. Section 87 of the Constitution states:
"87. Qualifications for appointment
(1) The Governor-General must be a citizen who:-
- (a) is qualified to be a member of the Parliament (except for the reason that he occupies the office of Governor-General); and
- (b) is a mature person of good standing who enjoys the general respect of the community.
(2) The question, whether for the purposes of Subsection (1) a person is a person to whom Subsection (1)(b) applies, is non-justifiable.
(3) The Governor-General must not hold any office or position or engage in any calling other than that of, or an office or position associated with, his office as Governor-General, except with the consent of the Head of State, acting with, and in accordance with, the joint advice of the National Executive Council and the Ombudsman Commission.
(4) A request for the consent of the Head of State under Subsection (3) shall not be made unless agreement on the matter in relation to which the consent is sought has been reached between the National Executive Council and the Ombudsman Commission.
(5) No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term."
Section 88 of the Constitution states:
"(1) Except in the case of the first Governor-General appointment before Independence Day the Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.
(1) A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.
(2) Subject to Subsection (5), the Speaker shall, within the period of three months before the completion of the normal term of office of the Governor-General, call a meeting of the Parliament to nominate the next Governor-General.
(3) Subject to Subsection (5), in the event of a casual vacancy in the office of Governor-General, the Speaker shall, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General.
(4) If-
- (a) at a time when a meeting of the Parliament should otherwise be called under Subsection (3) or (4) a general election to the Parliament has been ordered; or
- (b) between the time when a meeting of the Parliament should otherwise be called under Subsection (3) and the date of the completion of the normal term of office of the outgoing Governor-General a general election to the Parliament is due to be held in accordance with this Constitution, the Speaker shall not call a meeting of the Parliament in accordance with Subsection (3) or (4), as the case may be, and a nomination shall be made at the first meeting of the new Parliament as its first item of business after any formal business and the election of a Speaker."
So far as it is relevant in this case, s.88(2) provides that the National Parliament shall nominate a person for appointment as Governor-General by a simple majority vote in an exhaustive secret ballot conducted in accordance with an Organic Law. We should point out that s.87(5) provides that a Governor-General may be approved for "appointment for a second term by a two-thirds absolute majority vote". It is not necessary for us to consider this provision as the facts do not raise this issue.
The nomination of the Fourth Defendant was done under s.88(2) of the Constitution which provides that appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.
The Organic Law was enacted in accordance with s.88(2) of the Constitution (see Preamble to the Organic Law). We set out the relevant provisions.
"2. The Clerk to conduct elections.
An election under this Law shall be conducted by, or under the supervision of, the Clerk.
(1) A proposal for nomination shall be –
(a) in the form in Schedule 1; and
(b) contain the signature or other mark of –
(i) the prosper; and
(ii) the person proposed as accepting the nomination; and
(iii) not less than 15 other members of the Parliament; and
(c) handed to the Clerk at any time before the commencement of voting.
(2) A member of the Parliament shall not propose more than one person as a candidate for election as the Parliament’s nominee.
(1) The Clerk may reject a proposal for nomination where –
- (a) the proposal is not in the prescribed form; or
- (b) the proposal is not signed by at least 15 members of the Parliament; or
- (c) he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General.
(2) Where the Clerk rejects a proposal for nomination he shall immediately inform the Speaker, the proposer and the person proposed of his reasons for so doing.
(3) A person aggrieved by a decision of the Clerk may, with five days after the decision, appeal against the decision to the National Court.
(4) An election under this Law shall not be held until all appeals under this section have been dealt with.
6. Functions of Clerk prior to ballot.
The Clerk shall, immediately before the commencement of voting –
(a) furnish the Speaker with a list of all candidates for election and the Speaker shall declare the names to the Parliament; and
(b) distribute, or cause to be distributed, to each member present in the Parliament at that time a ballot paper in a form approved by the Clerk.
7. Voting where one person only proposed.
(1) Where only one person has been proposed as the Parliament’s nominee, each member present shall –
- (a) indicate on his ballot-paper whether or not he agrees with the proposal; and
- (b) deliver the ballot-paper to the Clerk.
(2) The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes and furnish the result to the Speaker.
(3) The Speaker shall –
- (a) where the person proposed has received a majority of votes, declare that person elected as the Parliament’s nominee; or
- (b) where the person proposed has received less than a majority, declare that the election has failed, and that person shall not again be proposed as a candidate for election at that election.
We set out Schedule 1 to the Organic Law:-
"SCHEDULE 1.
Proposal for nomination.
THE INDEPENDENT STATE OF PAPUA NEW GUINEA.
Organic Law on the Nomination of the Governor-General.
Sec. 4.
FORM OF PROPOSAL FOR NOMINATION OF PERSON FOR APPOINTMENT AS GOVERNOR-GENERAL
I, the undersigned member of the National Parliament, propose ...................... who is qualified to be a member of the National Parliament and is a citizen of Papua New Guinea for nomination by the Parliament as Governor-General.
Dated the day of , 20 .
(Signature of Proposer.)
(Name of Electorate of Proposer)
I, being the person referred to in the above proposal, accept the proposal.
(Signature of Person Proposed.)
We, the undersigned members of the Parliament, support the above proposal.
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(Electorates of Supporters (Signatures of
of Proposal.) Supporters Proposal)".
1. The Duties and Responsibilities of the Clerk Generally.
This case is all about compliance. Did the Clerk of the Parliament comply with the requirements of the Constitution and the Organic Law? It is necessary to first understand the nature of the office of the Clerk and his duties under the law.
The office of the Clerk of the Parliament is provided for in the Constitution. He is the administrative head of the Parliamentary Service. The Parliamentary Service is one of the four State Services established by the Constitution under s 188 (sub-s (1) (d)). Section 132 Constitution makes provisions in respect of the Parliamentary Service in the following terms:
"132. The Parliamentary Service.
(1) An Act of Parliament shall make provisions for and in respect of a Parliamentary Service, separate from the other State Services.
(2) Within the Service, there shall be an office of the Clerk of the National Parliament who shall, subject to Subsection (3), be the Head of the Service.
(3) The Service shall be subject to the direction and control of the Speaker and shall perform its functions impartially."
The functions of the Service are both administrative/support and advisory under s 3 of the Parliamentary Service Act 1997 (envisaged by s 132 (1) Constitution) (the Act). Section 132 (3) is repeated or reproduced in s 2 (2) of the Act. The Service consists of: (a) the Clerk; and (b) the officers and employees of the Service (s 3 Act). Section 3 (d) of the Act says that the Service is to provide advisory services for –
(i) the Speaker; and
(ii) the Committees of the Parliament; and
(iii) the Members of the Parliament, other than Ministers.
The Clerk is the head of the Service and is responsible to the Speaker for general "working" and "efficient conduct" of the business of the Service (s 5 Act). In the performance of his statutory administrative functions, the Clerk reports to the Speaker whenever the necessity arises (s 6 Act). These functions are purely administrative and financial.
Pursuant to s 221 (f) of the Constitution the Clerk of the Parliament is a "constitutional office-holder"; he is also such pursuant to s 1 (Definitions) of the Organic Law on Certain Constitutional Office-holders. Under this law, the Clerk of the National Parliament is appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council after receiving reports from the Speaker and the appropriate Permanent Parliamentary Committee (s 7).
Division 2 of Part III Constitution is on the Leadership Code, where s 26 lists the "constitutional office-holders" and other public office-holders who are subjected to the provisions of the Code. The provisions apply to the Clerk of the Parliament by virtue of sub-s (1) (e). As such the Clerk has responsibilities as a "leader" specified under Part II – Responsibilities of Leadership (ss 4 – 16) Organic Law on Duties and Responsibilities of Leadership. He is thus subject to the jurisdiction of the Ombudsman Commission pursuant to Part III – Investigations (ss 17 – 23), and Part V – Tribunals (ss 27 – 30) of this Organic Law.
In its recommendations on the "constitutional office-holders", the Constitutional Planning Committee (CPC) wanted:
"The persons appointed to all of these offices must be of undoubted integrity if they are to fulfil the trust that we believe should be placed in them. They, in turn should be protected from external pressures, although not in such a way that they become remote from the society in which they work. A balance must be struck between the need for them to be able to perform their duties fearlessly and without hindrance, and the need to ensure that they carry out their work honestly and with due regard for the people of Papua New Guinea" (CPC Report, Ch 14, p. 1, para. 5).
Section 224 Constitution makes special provision for constitutional institutions. Sub-s (1) and (2) are in the following terms:
"(1) Subject to this Constitution, Organic Laws and Acts of the Parliament shall provide, or shall make provision for, the powers and procedures of constitutional institutions, and generally for facilitating the performance of their functions, duties and responsibilities.
(2) Subject to this Constitution, if no provision is made under Subsection (1) a constitutional institution –
(a) may provide to the extent of the deficiency, for its own procedures; and
(b) has all reasonable powers that are necessary or convenient for the exercise and performance of its powers, functions, duties and responsibilities."
The exercise of his powers and the due discharge of his duties and responsibilities under this Organic Law must, of necessity, be in consonance with all his other powers, duties and responsibilities as a "constitutional office-holder" and a "leader" under the various provisions noted already.
2. The Duties and Responsibilities of the Clerk under the Organic Law.
Under the Organic Law, the Clerk of the Parliament plays an important role in the election of the Governor-General. The Office of the Clerk is established by Constitutional law and he is a Constitutional office-holder: see Constitution s.26(1)(a), s.221(f), s.224. It can be appreciated that the constitutional office of the Clerk of the National Parliament is a very serious, important and onerous one. And in respect, specifically to his duties and responsibilities pertaining to the nomination by the Parliament of its candidate for appointment as Governor-General, the Organic Law is of crucial importance. He is the official vested with the power and responsibility to conduct and supervise the election for which procedures and processes are specifically enacted (s 2 Organic Law). He must take his duties and functions under the Constitution and the Organic Law seriously and discharge his duties, responsibly and independently, in accordance with Constitutional Law.
Under the Organic Law the Clerk has the primary responsibility for the conduct or supervision of election of the Parliament’s nominee for appointment of the Governor-General (s.2). The words "conducted" and "supervision" entails all steps necessary for the process of election from the beginning to the final result of the election. Section 7 of the Organic Law expressly enumerates some of these responsibilities. This responsibility includes the duty to ensure that the integrity of the process of the election is safeguarded. This means without that where the Clerk fails to discharge his duties under the Organic Law, no valid nomination as Governor-General can be made. This also means that he has a duty to ensure that there is reconciliation of the ballot papers with number of members present at the time the ballot is conducted. For instance, if the number of ballot papers exceeds the number of members on the floor of the Parliament, the integrity of the election would be called into question.
The Organic Law, s.5 gives the Clerk discretion to reject any proposal for nomination where (a) the proposal is not in the prescribed form or (b) the proposal is not signed by at least 15 member of the Parliament or (c) he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General. The third consideration is not relevant in the case before us. The first two considerations arise for consideration. We turn now to consider them under s.4 of the Organic Law.
Counsel for the Defendants submitted that the requirements under this provision are directory only and breach of them does not result in the invalidity of the proposal for nomination. In the alternative, they submitted that the only mandatory requirements are those set out in s.4(1)(b), and the other requirements provided for in the Proposal Form are directory only and it is a question of whether there is sufficient compliance with these requirements.
On the other hand, counsel for the Plaintiffs submitted that the section is expressed in mandatory terms and any non-compliance would result in the invalidity of the proposal.
We conclude that the provision is expressed in mandatory terms. The provisions relates to two matters. First, that the proposal form for nomination should be in accordance with Schedule 1.
3. Proposal Form – Schedule 1: S.4(1)(a).
The importance of the Proposal Form prescribed in Schedule 1 cannot be understated. This Form is not like other forms prescribed by statutes and regulations. The form contains the matters contained in s.4(1)(b) and additional relevant matters to be filled in. The Proposal Form is prescribed by the Organic Law and all the requirements of this form must be complied with strictly. Indeed this form plays a vital role in the election procedure. The information in the form provides the evidence or material upon which the Clerk discharges his duties under S.5(1) and S.6. The form makes provision for some of the key players in the election process to complete including the proposer, acceptance of the proposal by the proposed candidate and the support of the proposed candidates by a fixed number of members in the Parliament. From this form, the Clerk compiles a list of candidates and submits to the Speaker for voting by the Parliament. The rejection of this Proposal Form by the Clerk gives an aggrieved person the right of appeal to the National Court, pending the determination of which the whole election process is put on hold. Without this form, no list of candidates is placed before the Speaker and no election of the Governor-General takes place. It is therefore the duty of the Clerk to ensure that the Proposal Form handed to him under s.4(1)(a) strictly conforms to Schedule 1. In our opinion, whatever the Schedule provides it is mandatory and shall be complied with.
This interpretation comes from s.4(1)(a) of the Organic Law. We do not accept the alternative proposition that s.(4)(1)(a) is directory only and that s.4(1) (b) is mandatory. This view is supported by s.5(1)(a) and (b). That is that if these requirements are not complied with, a Proposal Form may be rejected by the Clerk. This confirms that the requirements in s.4(1)(a) and (b) are expressed in mandatory terms.
4. Requirements under S.4(1)(b).
The second is the contents of the Proposal Form and these are specified in s.4(1)(b). The relevant consideration in the present case is whether the Proposal Forms have the required 15 members for supporting the candidates. In determining this question, we need to consider the meaning of the requirement under s.4(1)(b). The most obvious requirement is the prohibition on a member proposing more than one person (s.4(2). The question which has arisen here is whether a member who has proposed a person as a candidate may (1) also sign as one of the 15 members under s.(4)(b) (iii) (2) whether he may sign in support of another candidate or candidates. The issue necessarily involve the consideration of whether any member who signs as a supporter may sign in support of another candidate or candidates. We consider these issues together with other related issues under S.4.
(a) One Proposer – One Proposal Form: S.4(1)(b)(i) & S.4(2)
The intent of S.4(1)(b)(i) is that one Proposer must propose one candidate in one Proposal Form. Subsection (2) expressly prohibits a proposer from proposing multiple candidates. Hence, one member of Parliament can only propose one candidate for this one job – a person whom he believes is best qualified for the job. If he were to be allowed to propose multiple candidates, it can be said that all the proposals are not real, genuine and meaningful.
(b) Proposer Signing as a Supporter of Another Candidate: s.4(1)(b)(i) & (iii)
The facts in this case raise the issue of a proposer signing his own proposal as a supporter. The issue is whether a member who proposes a candidate may sign his own proposal as a supporter. There was contest by the parties in this regard. We note that there is no express prohibition for a proposer from signing his own proposal in support. It is clear to us that the legislature intended that he should not do this. This intention can be seen in the words "not less than 15 other members" under s.4(1)(b)(iii). This means that the 15 members must be other than the proposer. The principle upheld here is one person one proposal, one person one support.
(c) Proposer Signing as a Supporter of Another Candidate: s.4(1)(b)(i) & (iii)
The facts in this case raise the issue of whether the proposer may sign in support of another candidate or candidates. Counsel for the Defendants submitted that there is no such prohibition as in proposing more than one candidate (s.4(2)). They submitted that by necessary implication, there is no such prohibition in supporting another candidate or candidates. We acknowledge the force of this argument. However, it is important to have regard to the intention of the legislature in the overall scheme for the election of the Parliament’s nominee for appointment as Governor-General. In considering this we bear in mind that the office of the Governor-General is the second highest office after the Head of State, the Queen. We consider that the process of electing the Governor-General must be conducted in such a way so as to maintain the integrity of the office. Having regard to this, we consider the interpretation urged upon us by counsel for the Defendants may result in an absurd situation. If members are allowed to support as many as they wish, we could end up with so many candidates for the nomination of the Parliament’s nominee. This is open to abuse and it would demean the integrity of the office. We do not consider that this is what the legislature intended. We find the proposition put forward by counsel for the Plaintiffs is basic common sense and it would maintain the integrity of the office.
There is no express prohibition under the Organic Law that prohibits a proposer signing as a supporter of another candidate. However by necessary implication and inference from the general scheme under the Organic Law, a person who proposes a candidate for appointment as the Governor-General should not be allowed to support other candidates proposed by other persons, other than the candidate he himself has proposed. If proposers were allowed to support other candidates, it is our view that this would make a mockery of the scheme of the Organic Law. The requirement that there be a proposer and not less than fifteen (15) other members of Parliament in support of the proposal is clearly intended to restrict the number of candidates and to ensure that only persons with a genuine support base among the existing members of Parliament are permitted to be considered by Parliament for nomination as Governor-General.
Moreover, common sense dictates that where a person proposes a particular person for nomination as Governor-General, that proposal must be meaningful, genuine and real. The same can be said of a particular proposal. The support must be meaningful, genuine and real. The office of Governor-General is a high office. The Governor-General takes precedence in rank immediately after the Head of State (Section 84 of Constitution). Therefore the proposal and support for nomination for the position of Governor-General in our view are very serious and important businesses of members of Parliament. The proposer should not be permitted to propose a candidate and lend support to other candidates. Where a proposer signs as a supporter of another candidate, this could be taken to mean that his proposal of a candidate was not genuine and real.
For those reasons we are of the view that a person who proposes a candidate is prohibited from supporting any other candidate.
(d) Member Supporting Multiple Candidates: S.4(1)(ii).
The facts give rise to this issue. We consider that requirement for support of 15 members of the Parliament must be given some meaning. We consider that the support must be meaningful, genuine and real. To support another candidate or candidates calls into question the proposer’s proposal and is rendered meaningless. This reasoning process is equally applicable to where the member is supporting more than one candidate. In our view this interpretation in no way affects the right of members from meaningfully participating in electing the nominee for appointment as the Governor-General.
This problem arises where you get fifteen (15) members supporting a candidate or supporting the proposal by signing the form. Some of those 15 members then support not only this candidate but also sign or mark another form in support for another candidate. Is that allowed under Section 4(1)(b)(iii)? One school of thought is that this practice is allowed under Section 4(1)(b)(iii) because the Organic Law does not prohibit this practice. Moreover, it is argued that since Section 4(2) says that a member of the Parliament shall not propose more than one person as a candidate for election as the Parliament’s nominee, if the law makers had intended that a member of Parliament only support one candidate then they would have made plain their intentions by saying so in the law itself. In this case, it is argued that as a member is not specifically prohibited from doing this, a member can support more than one candidate.
The counter argument by the Plaintiffs is that one member of Parliament is to support only one candidate. The submissions advanced by the Plaintiffs are that:
One needs to look at what the intention of Parliament was in drafting this law in this way. It makes sense that one supporter support only one proposal. We agree with the arguments advanced by Counsel for the Plaintiffs for the same reasons they have advanced. They make sense in our view.
For those reasons we hold that a Proposal Form that shows a member of Parliament supports more than one candidate is invalid. We hold that under the scheme of the Organic Law for the appointment of a Governor-General, the Organic Law prohibits members from supporting more than one candidate.
(e) Consent of the Person Proposed: S.4(1)(b)(ii)
The person proposed must consent to have his name put before the Parliament for voting. He does this by affixing his signature or mark on the Proposal Form in the designated space. If he does not do this, there can be no valid proposal.
(f) Supporter Withdrawing Support: s. 4(1)(b)(iii)
The facts also raise the issue whether a member who has signed as a supporter of a candidate can withdraw his support for that candidate. The procedural requirements of the proposer, the proposed nominee and the supporter and the Clerk’s duties in relation to the Proposal Forms is prescribed by the Organic Law. There is no provision in the Organic Law allowing a supporter having put his/her signature or mark on a proposal form to withdraw his/her support of a candidate and or switching his/her support to another candidate of his/her choice. In our view, once a supporter has put his signature or mark on a Proposal Form, he/she is bound to that Proposal Form. That person’s signature or mark on the Proposal Form must be clear, fully legible, real and genuine.
Members of Parliament or potential candidates for the position of Governor–General, who contemplate putting their mark or signature on the Proposal Form must first seriously consider their own positions and personal preferences and balance those against the national interest in upholding the integrity of Parliament, their personal integrity as leaders and the integrity of the high office of the Governor-General. And so when these persons put their signature or mark, on the Proposal Form, they are bound by them.
The Clerk has no power under the Organic Law to accept or reject a member’s withdrawal of a support of a candidate. There is good reason for this. It would be a complete mockery of the integrity of the Parliamentary process in the election of the Governor-General to allow members of Parliament to switch support for candidate either as a proposer or supporter at any time up to the time of the election, their previous support rendered meaningless, insignificant or not genuine for reasons of their own convenience or choosing.
The same principles apply to a proposer or the proposed nominee who has signed the Proposal Form and seek to withdraw their signature or mark.
(g) Time Limit for Handing Proposal Forms to Clerk: s.4(1)(c).
Section 4 does not prescribe any time limit within which a Proposal Form should be handed to the Clerk, other than to say it must be handed up "at any time before the commencement of voting." However, there is a duty on the Clerk to ensure that Proposal Forms are submitted in sufficient time to enable him to properly scrutinize the forms and exercise his duties under S.5(1) and S.6. Proposal Forms submitted on the eleventh hour or one to three days before the voting is scheduled to take place will not allow for this to happen. For instance several Proposal Forms in this case were received by the Clerk on the very day the election was scheduled to take place. In the case of Sir Arnold Amet’s Proposal Form, it was received by the Clerk one (1) hour before the voting.
Section 5(2) to (5) inclusive can be used as a guide. As a matter of good practice, the Clerk should require Proposal Forms to be submitted to him in sufficient time to allow him to scrutinize the forms and make an informed decision under S.5(1) and S.6(1). In considering this, he should allow sufficient time to inform the Speaker of his decision under S.5(2) as well as inform interested persons. Such time frame would also give aggrieved persons sufficient time to appeal against the decision.
4. The Clerk’s duty under S.5(1)
In summary, the Clerk’s power to reject a Proposal Form under sub-s (1) can be exercised whenever any one of the factors enumerated under (a), (b) or (c) exist. In relation to factors under (a) and (b), it is our judgment that non-compliance evident on the face of the Proposal Form is sufficient for the exercise of power of rejection. He must reject a proposal when there is non-compliance. In relation to the factor under (c), the Clerk is required to inquire and inform himself on matters that could determine a candidate’s qualification or disqualification before he can exercise a discretion whether or not to reject the proposal.
(a) The Clerk’s duty under S.5(1)(a)
Under S.5(1)(a), the Clerk must reject a Proposal Form which on the face of it fails to conform to the prescribed Schedule 1. The Form must be strictly complied with. The question of substantial compliance does not arise. Key features of this form are the name of the proposed candidate and the signatures or mark of the proposer, proposed candidate and at least fifteen (15) members. The Proposer and the fifteen (15) signatories must be members of Parliament. The signatures or mark must be clear, legible and verifiable. The Clerk must reject any Proposal Form which does not comply with these mandatory requirements of S.4(1)(a).
(b) The Clerk’s duty under S.5(1)(b)
The Clerk must reject a Proposal Form which does not have the support of at least fifteen (15) members of the Parliament supporting the Proposal. The Proposal Form must be "signed" by at least fifteen (15) members. The signatures must be clearly legible, not obliterated and real. One member must support one candidate.
(c) The Clerk’s duties under S.5(1) implied by S.4(1)(b)
Although not expressly provided in S.5(1), by necessary implications, the Clerk must reject any Proposal Form in which –
(i) A proposer also signs as a supporter of the same candidate;
(ii) A proposer who also signs as supporter of another candidate;
(iii) A member who signs as supporter of multiple candidates.
(d) The Clerk’s duty under S.4(2)
The Clerk must reject multiple Proposal Forms proposed by one proposer. There is express prohibition against this practice in S.4(2).
(e) The Clerk’s duty under S.4(1)(c)
The Clerk may reject any Proposal Form under s. 4 (1)(c) if it is not handed to him in sufficient time.
5. The Clerk’s Duties under S.6.
The Clerk’s next important duty is as provided for under s 6 Organic Law. The duties and functions provided for here relating to, firstly, scrutiny of the proposal and compiling of a list of candidates to furnish to the Speaker for his formal declaration (of candidates), and, secondly, the distribution of ballot papers. In relation to the first, we would suggest that this is a continuation of what he has to do in relation to his determination whether to reject a proposal or not. As regards the second, his responsibility is, in our opinion, no less serious nor onerous. He must determine the number of members actually present in the Chamber before distributing the ballot papers. This duty, we would suggest also, extends to the reconciling after each balloting, the number of ballot papers "returned" (after voting) with the number of members actually present (and voting) in the Chamber.
Application of Law to Facts and Conclusion.
We have made extensive findings of relevant facts and discussed the law at some length. In our view, it is not necessary to decide this case on all the findings of fact and principles. Our decision is principally based on the most common defect in substance which is that all the nine (9) Proposal Forms are defective insofar as they contain the signatures or marks of members who supported more than one candidate.
In applying the interpretation we have given to S.4(1)(b)(iii) and S.5(1)(b), when all these multiple supporters are excluded, none of the Proposal Forms have the support of at least fifteen (15) members other than the proposer. Therefore, all nine (9) proposals are invalid. In the exercise of his discretion under S.5(1)(a) and (b) and his general powers under S.2 and S.4, the Clerk should have rejected all nine (9) Proposal Forms. Consequently, he should not have submitted a list of the eight (8) candidates to the Speaker under S.6(1) and Parliament should not have voted on these eight (8) candidates.
Having reached this conclusion though, it is helpful to summarise what the Clerk should have done in relation to some of the other specific findings on substantive defects in relation to the individual Proposal Forms. These are:-
Orders
For the foregoing reasons, we make orders as follows:-
________________________________________________________________________
Lawyer for the First and Second plaintiff : David Cannings
Lawyer for the Third plaintiff : Narokobi Lawyers
Lawyer for the First Defendant : Nonggorr & Associates
Lawyer for the Second Defendant : Sao Gabi
Lawyer for the Third Defendant : Alois Jerewai
Lawyer for the Fourth Defendant : Henao Lawyers
Lawyer for the Fifth & Sixth Defendant : Solicitor General
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