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Application for Judicial Review on Election Petition in Papua New Guinea

In the matter of the Organic Law on National and Local-Level Elections, Agiwa v. Kaiulo [2003] (Unreported National Court Judgment N2345, 18th February 2003.The applicant was applying for leave of the National Court for a judicial review of a decision by the Electoral Commission to fail the elections for the Koroba/Lake Kopiago Electorate in the recent 2002 National General Elections. Subject to leave being granted, he is asking for a declaration that he was the duly elected member for the electorate in question and for orders to give effect to that relief. The Electoral Commission and Mr. Ben Peri were opposing the application. It was argued for Mr. Agiwa in effect that, the decision to fail his election was ultra vires s.97 and s.175 of the Organic Law on National and Local-level Government Elections (the Organic Law). The basis for this argument falls into two parts. Firstly, the argument was, once a returning officer makes a declaration of a winner of an election under s. 175 of the Organic Law, there is no power in the Electoral Commission to withhold a forwarding of the relevant writ to Parliament or alter the writ. SCR 5 of 1988; Application of Melchior Kasap and SCR No. 6 of 1988; Application of Peter Yama[1988-89] PNGLR 197, is cited in support of this argument. Secondly, the Electoral Commission can fail an election only in terms of subsection (2) of s. 97 of the Organic Law, where no candidate is nominated and not otherwise. The opposing argument was that, the Electoral Commission has a wider power to fail an election in appropriate cases and that the circumstances in which that can be done cannot be circumscribed. The Supreme Court in SCRSupreme Court in SCR 4 of 2002: Reference by Francis Damem, Attorney General for the Independent State of Papua New Guinea by a unanimous decision delivered on 26th July 2002, effectively held that, it was within the power of the Electoral Commission to decide either to return a person as an elected member if that was possible despite the situation or, decide that the elections in those provinces failed. In so doing, the Supreme Court noted that the Electoral Commission had a wider power to make such a decision under s. 97 of the Organic Law.

In dismissing the application the court said:

  1. Based on the fact that there was no proper polling, scrutiny and counting of votes and a proper public declaration of a winner, I find that the Electoral Commission decided to fail the election for the Koroba/Lake Kopiago electorate in the 2002 National General Elections.
  2. In the present case, the courtcannot see how the Electoral Commission could be said to have erred in deciding for a failure of election. Instead, the Court found that, it was the most reasonable and just decision to arrive at. If the Commission decided to uphold the returning officer’s decision to declare Mr. Agiwa, it could have allowed Mr. Agiwa to represent only the people in his stronghold and not the whole electorate. A serious breach of the people in the electorate’s once every fives years, right to elect their representative in Parliament could have occurred.. In the end therefore, I find that the Electoral Commission acted within his powers under s. 97.
  3. The Courtcannot see how the Commission could have acted ultra vires s. 175. For there was no proper public declaration of a winner for the Koroba/Lake Kopiago Open electorate because there was no proper election conducted in due compliance of the requirements under the Organic Law.

Electoral Commissioner of Papua New Guinea v Itanu, [2008] (Unreported Supreme Court Judgment SC915, 21 April 2008). The election petition in this matter (EP 11 of 2007) was tried and decision was handed down. The Electoral Commissioner filed an application for leave for review on 28 February 2008 in accordance with sub-division 1 rule (1) and (2) of the Supreme Court Election Petition Review Rules 2002 (as amended) (Rules). This is Supreme Court Review 5 of 2008.The third respondent in the election petition, filed another application for leave for review of the same decision in accordance with sub-division (1) and (2) of the Rules on 5 March 2008. This is Supreme Court Review 6 of 2008.

Both applications for review raise the same preliminary point; namely, that the requirement for leave for review by the Rules is inconsistent with s 155 (2) (b) of the Constitution and therefore invalid, and consequently, leave is not required. This is the first time the Rules have been applied and it was considered appropriate to deal with the issue on its own. The arguments by the applicants may be briefly summarized as follows. The inherent power of the Supreme Court under s 155(2)(b) of the Constitution is not made subject to any law or regulation as is the case with right of appeal under s. 37 (15) of the Constitution. The right of appeal is regulated in accordance with the law (Supreme Court Act and the Supreme Court Rules).

The Court ruled that:

  1. The law has been changed by the Rules. The question is when a provision of the Rules is inconsistent with a decision of the Court, which one prevails. I am not aware of any principle of law which gives the status of a court decision over the provisions of written law. In fact any written law can vary or change a court decision within the ambit of its powers.
  2. The provision of the Rules is in fact contrary to the decision of the Supreme Court where the Rule (Sub-division 1 r 2) requires that a review lies to the Supreme Court by leave only.
  3. The consequences of the rule are that it has changed the law on the question of leave. The rule prevails and leaves for judicial review is validly required.

Consequently the applicants should list their applications for leave for review to be dealt with on the merits before a single Judge of the Supreme Court.

Yawari v Agiru and Ors [2008] (Unreported Supreme Court Judgment SC939, 15 September 2008). This was an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "PetitionReview Rules) ). It was contested by the respondents. The application relates to a decision made by the National Court sitting at Waigani in which the judge upheld submissions by the respondents to dismiss petition on the ground that the petition was not served on the Second Respondent in accordance with rr 6 & 7 of the National Court Election Petition Rules 2002as amended (Petition Rules). Rule18 of the Petition Rules empowers the National Court to dismiss a Petition where the Petitioner fails to comply with a requirement of the Petition Rules or an order of the Court.

The court in granting the leave for review said:

1. A number of important points of law have been raised. The Court stated them in question form as follows:-

(a) Whether it was open for the judge to dismiss the petition when there was no formal application before him from the respondents. There was no formal application for dismissal by the respondents which would have given him jurisdiction to dismiss the application, particularly when the issue of service was bitterly contested by the parties.

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(b) Whether it was open to the judge to revisit his first decision, correct it and then conduct a fresh hearing involving calling for and consideration of evidence. The Supreme Court decision in Dick Mune v Paul Poto[1997] PNGLR 356 relied upon as authority by the judge needs to be reviewed, in the light of the peculiar circumstances of this case.

(c) Whether the discretion to dismiss the Petition on the basis of lack of service on the Second Respondent was grossly erroneous when service of the First Respondent and

2. Whether a finding of fact that the Second Respondent was not served with the Petition and other documents can safely be made on the tested affidavit and oral evidence of the party claiming the Petition was served as against untested purely affidavit evidence of the party claiming service was not duly effected, shows gross error on the face of the evidence and raises serious issues of fact.

Rawali v Wingti; Olga v Wingti [2009] (Unreported Supreme Court Judgment SC1033, 24 March 2009). These are two related applications for leave to apply for review of the decision of the National Court made under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The applications are made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended). The hearings of the applications were consolidated because the same parties are involved in both applications, the same decision was sought to be challenged in the review and the matters and issues raised in both applications were similar.

Mr Olga won the election and Mr Wingti was the runner-up. Mr Wingti challenged the election result in an election petition filed in the National Court. The Court heard and determined the petition. The Court ordered a recount of votes. At the completion of the recount, Mr Olga still maintained a lead over Mr Wingti. At the recount, some new errors, omissions and irregularities were uncovered. The Court appointed Returning Officer presented a report on the recount to the Court. Based on this new material on errors and omissions, the Court conducted a further hearing in which new evidence was received and submissions were made by counsel. The Court handed down its decision in which the Court voided the election and ordered a by-election. Both Mr Olga and the Electoral Commission were aggrieved by that decision and filed these two applications.

The Court in granting the applicants in SCR No. 4 and No. 5 of 2009 leave to apply for review of the decision of the National Court said:

“The court is satisfied that the two criteria in Jurvie v Oveyara[2008] (Unreported Supreme Court Judgment SC935) have been met by the applicants in both applications. The court was satisfied that the trial Judges whole approach in opening the case for a hearing after the recount and making new findings of fact and inferences and granting new relief raises important points of law which are not without merit. Also on the face of the evidence received and facts determined at the new hearing, serious and gross errors of fact are apparent on the face of the record”.

Waranaka v Dusava and the Electoral Commission [2009] (Unreported Supreme Court Judgment SC980, 8 July 2009). In the 2007 National General Elections, Mr. Peter WararuWaranaka won back his Seat in Parliament for the Yangoru-Saussia Open Seat. Not being satisfied with that result, Mr. Gabriel Dusava, one of the unsuccessful candidates, filed a petition against Mr. Waranaka’s election victory. The National Court heard and determined the petition in favour of Mr. Dusava and ordered a bi-election. That was on the basis of one allegation of Mr. Waranaka bribing one of Mr. Dusava’s strong supporters by giving him K50.00. Being aggrieved by the decision of the National Court, Mr. Waranaka filed an application for review of that decision with leave of this Court. In support of his application, Mr. Waranaka claims essentially that the learned trial judge erred in:(a) not applying the correct and relevant principles governing the assessment of the credibility of witnesses;(b) failing to state and ensure that he was satisfied on the required standard of proof, namely proof beyond any reasonable doubt that the alleged offence of bribery was committed; and(c) failing to allow himself to be satisfied beyond reasonable doubt as to the intention or purpose for Mr. Waranaka giving an elector K50.00.

The Court in upholding and granting the review said that the decision of the National Court sitting as a Court of Disputed Return was quashed and confirm Mr. Waranaka’s election.
Accordingly, in all of the circumstances, the Court was satisfied that Mr. Waranaka made out his case for the grant of his review. The Court therefore uphold and granted the review. Consequently, the Court quashed the decision of the National Court sitting as the Court of Disputed Returns for the Parliamentary Open Seat for Yangoru –Saussia in the 2007 National General Elections, dated the 23rd of April 2008 and confirmed Mr. Waranaka’s election.

By: Mek Hepela Kamongmenan LLB

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