Section 208 of the Organic Law on National and Local-level Government Elections is short, and every word of it is a condition of the petition being heard.
The five requisites
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
Each is joined by “and”. Section 210 then provides that proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
A petition that satisfies four of the five is not a petition the Court may hear. This is why objections to competency are so common and so often successful.
Paragraph (a)
Facts — not conclusions, not evidence, and not argument. Form 1 Part B says: the facts relied on to invalidate the return of the first respondent are set out as follows, set out the facts in numbered paragraphs.
Each allegation should identify what happened, where — the polling place or counting venue — when, who did it, and how it bears on the result.
Assertions such as “there were widespread irregularities” or “the count was not conducted lawfully” are conclusions, not facts. A petition built on them invites an objection to competency.
Where the ground is an illegal practice by someone other than the candidate, or an illegal practice other than bribery or undue influence, section 215(3) requires the Court to be satisfied that the result of the election was likely to be affected. Facts going to that must be pleaded, including the relevant numbers.
Form 1 Part C calls for the grounds upon which the petitioner relies, in numbered paragraphs. So the form distinguishes the facts (Part B, matching section 208(a)) from the grounds (Part C) — the legal characterisation of those facts.
Plead both, and make sure each ground is supported by facts actually pleaded in Part B.
Paragraph (b)
Form 1 Part D: specify the relief sought in numbered paragraphs.
The relief available is governed by the Court’s powers in section 212(1) — in particular to declare that a person who was returned as elected was not duly elected; declare a candidate duly elected who was not returned as elected; declare an election absolutely void; order a re-count of ballot-papers in an electorate; and dismiss or uphold a petition in whole or in part.
See what orders the Court can make. Ask for relief the Court has power to grant, and relate it to the facts pleaded.
Paragraph (c)
A candidate at the election in dispute; or a person who was qualified to vote at the election.
Form 1 records this in the signature block, describing the petitioner as being a candidate at the election in dispute or by a person who was qualified to vote at the election, in accordance with Section 208(c).
Form 1 says petitioner to sign his or her signature, and requires the date on which the petitioner signs and the place at which the petition is signed.
A signature by a lawyer on the petitioner’s behalf does not meet paragraph (c). Note also section 222(1): a party shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor — see representation.
Paragraph (d)
Form 1 requires each attesting witness to state their name, occupation, and address — and it is specific about the address:
state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town.
Each then attests: I have witnessed the signing of the petition by the petitioner, and signs.
Two witnesses, not one. Both occupations stated. Both addresses stated, and stated with the precision Form 1 requires. “Businessman, Port Moresby” is not an address in the terms the form contemplates.
The witnesses must actually have witnessed the signing — so they must be present when the petitioner signs, and the date and place recorded in the signature block should match.
Because the requirement is in the Organic Law, Rule 22 relief is not available for it: subrule (4) provides that nothing in this rule excuses a failure to comply with a requirement of the Organic Law. And it cannot be cured after the 40 days.
Real justice to be observed
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
Rule 22(4) directs the Court, when determining an allegation of failure to comply with the Organic Law, to pay close regard to the requirements of s 217. And Rule 22(2): substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.
Section 217 tempers formalism about how things are expressed. It does not supply a missing witness, a missing signature, or a petition filed on day 41.
Sources
- Organic Law on National and Local-level Government Elections — ss 175(1)(a), 208–212, 215, 217, 222
- Election Petition Rules 2017 — rr 3–5, 22; Sch 2 Form 1
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.