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Ivarato v Lafanama [1998] PNGLR 297 (16 January 1998)

[1998] PNGLR 297

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ELECTION FOR THE EASTERN HIGHLANDS REGIONAL ELECTORATE

AITA IVARATO

V

PETI LAFANAMA; AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

GOROKA: WOODS J

15, 16 January 1998

Facts

By an election petition, the petitioner disputed the validity of the election of the first respondent to the Eastern Highlands Provincial seat in the 1997 National Parliament Elections on the ground of undue influence under s 215(1) of the Organic Law on National and Local-Level Government Elections.

The first respondent during election campaign made certain statements regarding the government of Sir Julius Chan at that time. These statements related to the Government’s involvement with the Sandline affair and the World Bank and the International Monetary Fund’s structural adjustment programme.

Held

1. That the statements made by the first respondent during the election campaign were not false statements or threats and that the petitioner failed to bring evidence to suggest any undue influence with the meaning and application of s 215(1) of the Organic Law. Re Koroba-Lake Kopiago Parliamentary Election [1977] PNGLR 328 and In Re Menyamya Open Parliamentary Election [197] PNGLR 298, distinguished on facts.

Papua New Guinea cases cited

In Re Koroba-Lake Kopiago Parliamentary Election [1977] PNGLR 328.

In Re Menyamya Open Parliamentary Election [1977] PNGLR 298.

Counsel

M Kuwimb, for the petitioner.
N Tenige, for the first respondent.
W Neill, for the second respondent.

16 January 1998

WOODS J. This is a petition disputing the validity of the Election for the Eastern Highlands Regional seat in the Eastern Highlands Province in the 1997 National Elections. Following a preliminary hearing on objections to the petition heard in October when most of the allegations in the petition were struck out the matter was ordered to go to trial on paragraph 7 of the petition.

This allegation is that: "On 7th May 1997 at Joite village in the Daulo Open Electorate in the Eastern Highlands Province at a political campaign rally held for Benny Wally, a candidate for the Daulo Open Electorate, the first respondent was allowed to campaign for himself. The first respondent in his campaign speech issued and made false statements to electors. Either the first respondent:-

(a) knew the statements to be false; or

(b) did not have any belief in the statements; or

(c) made the statements carelessly whether the statements were true or false,

with the intention that the electors should vote for him and not other candidates.

The effect of the false statements were:-

(a) Sir Julius Chan and his Cabinet had sold our customary land to the World Bank and International Monetary Fund. The very land where we make our gardens, our bushes where we collect firewood and timber for houses and fences, and the jungles and river and the like.

(b) The Government of Sir Julius Chan had hired a company (who he referred to as Sandline International) which was a private army to kill and destroy. The hiring of Sandline International was not only to solve the Bougainville crisis but also contracted to come in, kill and destroy Papua New Guinea citizens to pave way for the land mobilisation policy to be effected.

(c) The Government of Sir Julius Chan was trying to get rid of landowners through the barrel of a gun to get the said landowners’ land.

This allegation is an allegation of undue influence. Under the Organic Law on National and Local-Level Government Elections Section 215(1) if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election if he is the successful candidate shall be declared void. Under this provision there is no requirement that the Court should be satisfied that the result of the election was likely to be affected. A single incident of undue influence by the candidate is sufficient.

Realising the seriousness of such a single incident of bribery or undue influence in an election situation, what should be the onus of proof? As was noted by Frost CJ in In Re Menyamya Open Parliamentary Election [1977] PNGLR 298, an election is a serious and expensive matter and is not lightly to be set aside. As His Honour in that case found, ‘the ground of it must be proved to my entire satisfaction’. And this is the standard of proof that has been applied in election cases.

The allegation here is undue influence, and the allegation is that what the first respondent said was untrue and of a threatening nature. For an understanding of undue influence the Court has looked to s 102 of the Criminal Code and again I refer to the principles outlined in the Menyamya case above. Thus what becomes relevant is whether a person by force or fraud is prevented or obstructed in the free exercise of the franchise of an elector.

So is there evidence to support the allegations and should this court find that electors have been prevented from the exercise of a free choice in the 1997 National Election.

The petitioner himself was not present at Joite village on the 7th May so cannot say anything from his own knowledge.

Joshua Onio who was a candidate himself in the provincial seat stated that he was present at the rally and mumu on the 7th May at Joite and talks of the first respondent saying to people that ‘Sir Julius Chan had sold our land to the World Bank and that he had stood up against the sale of land with the assistance of the army personnel’. What the witness said was in general terms. He did not give the exact words used by the first respondent. He suggests that what the first respondent said could have influenced voters and may have influenced some of his supporters although he states that it did not influence he himself as he did not vote for the first respondent. The witness seems to make no reference to any Joite villagers being influenced, but rather he and some of his supporters who came from a long way away in another Open Electorate in the Province. The sum total of his evidence is of general criticism of the government and that he thought voters may have been influenced.

A witness Daniel Kasa gave evidence in general terms of the statements being made by the first respondent as outlined in the petition. He said that the first respondent said that ‘if they voted for the petitioner then he would sell their customary land’. The witness suggests that some of his relatives were influenced to vote for the first respondent although none of them came to the court to say why. He himself did not, he voted for the petitioner.

A witness Steven Sekepi, a villager from near Henganofi, a long way from Joite gave similar evidence as Joshua Onio in general terms of what the first respondent said. He said that after the first respondent spoke the people appeared very angry at the then present Government and that they would vote for him. The witness however agreed that he did not vote for the first respondent so he was not influenced or worried.

The first respondent admits that he spoke in general terms at a small gathering of about a couple of hundred people at a rally at Joite village and that he was very critical of the then Government’s economic policies and their involvement with the Sandline Company. He said that he was a leader of an NGO criticizing Government’s economic policies and was a leader in a protest against the Government in the Sandline issue. He admitted that he had trouble translating into Pidgin the economic problems the government was in and the meaning of the structural adjustment programme and how the Government had had to deal with the International Monetary Fund and the World Bank. His explanation in Pidgin would of course suggest that the Government had to give those bodies some kind of control over the running of the country to overcome the economic problems. He denied that anything he said was by way of threats to the voters. He did admit that he suggested to the people that a government that could employ mercenaries for one particular problem could then use the same for other problems, which could affect more people.

Other witnesses for the first respondent were people from Joite village and none of them suggested that what the first respondent said to them was in any way a threat to force them to vote for him, and actually they noted that they and their relatives voted for different candidates and not necessarily for the first respondent. Yet in some instances they expressed disillusionment with the petitioner. These witnesses seem to suggest that there were only about 200 to 300 people at that gathering at Joite village, however the petitioner’s witnesses suggest there were over 2,000 people.

So what is the evidence? The onus in such a case is on the petitioner. Has the petitioner proved a case of undue influence? Is what the first respondent said completely false statements calculated to mislead and did they create fear in the minds of the eligible voters? In the Menyamya case referred to the court found that eligible voters in the circumstances of that part of the Morobe Province at that time could honestly believe that if they did not vote for the winning candidate they would be fined. And in another case In Re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328 the court found that in the circumstances of that case the eligible voters honestly believed that they would be fined or sent to gaol if they did not vote for the winning candidate. And in those cases the words used were quite clearly repeated in court and what was said was clearly false. However in this case before me now, there is no exact rendering from the petitioner of what was said, only what the first respondent himself admitted he said. I cannot find any false statements or threats. I find that in the circumstances of Papua New Guinea at the time the first respondent was being no more critical of the government in power than could have been expected. Criticism of the implications both financial and otherwise of the Sandline affair was only to be expected on the campaign trail last year. And also criticism of the Government’s economic policy and the way the country was involved with the IMF and the World Bank to help and the implications to the people and country generally of the structural adjustment programme was also to be expected. And every sitting Member of Parliament had to face this criticism whether they were part of the Government or not and note that the petitioner was then the Regional Member in that Parliament. I find that this was no more than tough political campaigning in a country, which had many economic and social problems. Of course the difference between genuine political campaigning and promises and bribery and undue influence may be very narrow at times depending on the circumstances. However what had happened in PNG over the past year was bound to lead to tough criticism and campaigning. And there have been no witnesses from Joite village who have said that they felt threatened in any way similar to those 1977 cases referred to. Instead the only witnesses called from Joite village were called by the first respondent himself and not by the petitioner and they gave evidence of separate disillusionment with the sitting member and of in the end exercising their right to give their votes to different candidates and not necessarily to the first respondent.

I find that the petitioner has not brought evidence to suggest any undue influence within the meaning and application of undue influence in s 215(1) of the Organic Law and s 102 of the Criminal Code. Therefore the ground in the petition is not substantiated.

I dismiss the petition.

Lawyer for the petitioner: Warner Shand.
Lawyer for the first respondent: N. Tenige.
Lawyer for the second respondent: Blake Dawson.