Electoral Commission of Papua New Guinea v Marat [2023] PGSC 130; SC2486 (6 July 2023)

SC2486

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

APPLICATIONS UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

SCREV (EP) 20 OF 2023

BETWEEN:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant

AND:
DR ALLAN MARAT
First Respondent

AND:
GRAHAM PINIAU RUMET
Second Respondent

SCREV (EP) 21 OF 2023

BETWEEN:
GRAHAM PINIAU RUMET
Applicant

AND:
DR ALLAN MARAT
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 24^th May, 6^th July

SUPREME COURT REVIEW - Applications for leave to review final decision in an Election Petition

Cases Cited:
Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:
Mr. M. Nale and Mr. D. Kints, for Graham P. Rumet
Mr. G. Purvey and Ms. V. Yala, for Dr. Allan Marat
Mr. R. William, for the Electoral Commission of Papua New Guinea

6^th July 2023

1. HARTSHORN J: This is a decision on two contested applications for leave to review a final decision of the National Court which upheld an election petition (Decision). The applications are brought by the Electoral Commission of Papua New Guinea and Mr. Graham Piniau Rumet.

Background

2. Mr. Rumet was declared the elected Member of Parliament for the Rabaul Open Electorate in the East New Britain Province in the 2022 General Elections. Dr. Allan Marat was also a candidate in the election for the Electorate and petitioned Mr. Rumet’s election in the National Court. On 31^st March 2023 after a trial in the National Court at Kokopo, the National Court upheld Dr. Marat’s election petition and declared Dr. Marat as the elected Member of Parliament for the Rabaul Open Electorate.

Application for Leave - Law

3. In Sir John Pundari v. Peter Yakos (2023) SC2345, I considered the law on an application for leave to review an election petition at [3] to [13]. At [3], [4], [11] and [13] I stated the following:

“3. The criteria for the exercise of this court’s discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 (Injia DCJ as he then was).

4. Notwithstanding that an application for leave is provided for under Order 5 Rule 9 Supreme Court Rules 2012, it is the case that s. 220 Organic Law on National and Local-level Government Elections (Organic Law) is in the following terms:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

........

11. For this Court to give a fair and liberal meaning to and to follow the clear wording of s.220 Organic Law, to give due recognition to the intention of Parliament as enunciated in s.220 whilst recognising the paramountcy of s.155(2)(b) Constitution and the overall interests of justice, an applicant must establish that exceptional circumstances exist before leave to review under s.155(2)(b) Constitution is granted. In my view, to permit a case where exceptional circumstances have not been established to be granted leave, renders the latter part of the wording of s.220 Organic Law otiose and is to ignore the fair, liberal and clear meaning of section 220 and is to ignore the intention of Parliament as expressed in section 220.

........

13. Consequently, given the decision in Hagahuno v. Tuke (supra) and the other matters referred to, in my view the criteria for the exercise of this Court’s discretion on an application for leave to review an election petition or decision made therein, are whether there is an important point of law to be determined which is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court and in any event, whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.”

4. In this instance, the parties did not take issue with the consideration of the law in Pundari v. Yakos (supra) or the statement of the criteria for the exercise of this court’s discretion in [13] thereof.

These applications

5. The Electoral Commission and Mr. Rumet submit that the primary judge fell into error in the exercise of the Court’s discretion in upholding the election petition, on numerous grounds. In essence, these grounds are amongst others, that the primary judge fell into error in his consideration and application of sections 208(d), 209, 210, 153, 170 and 218 Organic Law and in constantly rebutting and interjecting against the submissions of the now applicants, contrary to s. 59(2) Constitution. Further, the primary judge fell into error in his consideration of the process of recounting and rechecking votes; in relation to his application of s. 70(1) and s. 168(1) Organic Law and s. 89 Electoral Law (National Elections) Regulation 2007; in his treatment of certain 30 ballot papers; in the relief granted; in findings of fact; in relying upon hearsay evidence and in not giving full reasons for his decision.

Consideration

6. As to the grounds raised by Mr. Rumet concerning “recount” and “recheck”, from a perusal of the judgment of the primary judge, the primary judge proceeded on the fact that the returning officer’s evidence was that the reason a recheck or recount was undertaken was because of pressure, threats and intimidation by scrutineers and candidates, despite the returning officer twice refusing a recheck or recount. As a result of the said pressure, threats and intimidation, without which the returning officer would not have undertaken a recount or recheck, the primary judge found that the recount or recheck was unlawful.

7. In my view, upon the evidence before the primary judge, he was entitled to make the decision which he did. It has not been shown to my mind that the primary judge fell into error in this regard.

8. As to the grounds raised by the Electoral Commission concerning the primary judge not viewing the subject 21 ballot papers before ordering the declaration of the first respondent, as referred to, the evidence was that the recount or recheck was undertaken because of pressure, threats and intimidation by scrutineers and candidates. It may be argued that a physical inspection was not warranted in such circumstances and the primary judge did not fall into error in this regard.

9. In considering the remainder of the grounds of both applications, I am not satisfied that the applicants have established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.

10. If, contrary to the above, the applicants have established that there is an important point of law to be determined or a gross error as to fact clearly apparent, the next question is whether it has been established that there are exceptional circumstances showing a manifestation of substantial injustice and also that a review is warranted in the interests of justice. It is submitted by the applicants that these factors exist in this instance.

11. In my view however, no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.

12. As to the submission that it is in the interests of justice that the Decision be reviewed, I am not satisfied that it is in the interests of justice, which is justice according to law, for the applicants to be permitted to review the Decision. This is particularly so when the relevant law, s. 220 Organic Law, prohibits an appeal and states that a decision shall not be questioned in any way. Given this it is not necessary to consider the other submissions of counsel.

Orders

13. The Court orders that:

a) The applications for leave to review filed on 11^th April 2023 in SCRev EP 20 of 2023 and filed on 12^th April 2023 in SCRev EP 21 of 2023 are refused.

b) The applicants shall pay the costs of the first respondent of and incidental to the said applications for leave to review.

c) The applicants’ security deposit of K5,000.00 each shall be paid to the first respondent forthwith.

_____________________________________________________________
Jema Lawyers: Lawyers for Graham P. Rumet
Niugini Legal Practice: Lawyers for the Electoral Commission
Young & Williams: Lawyers for Dr Allan Marat