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What Orders Can the Court Make on an Election Petition?

Section 212 lists eleven powers, including declaring that a person returned was not duly elected, declaring another candidate duly elected, declaring the election absolutely void, ordering a re-count, and dismissing or upholding the petition in whole or in part. Section 226 says what each declaration does.

The National Court practice series, no. 200 · Election petitions · 5 min read

Section 212(1) of the Organic Law on National and Local-level Government Elections sets out what the National Court may do.

Section 212(1)

In relation to any matter under this Part the National Court shall sit as an open court and may, amongst other things —
  1. adjourn;
  2. compel the attendance of witnesses and the production of documents;
  3. grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take extracts;
  4. order a re-count of ballot-papers in an electorate;
  5. examine witnesses on oath;
  6. declare that a person who was returned as elected was not duly elected;
  7. declare a candidate duly elected who was not returned as elected;
  8. declare an election absolutely void;
  9. dismiss or uphold a petition in whole or in part;
  10. award costs;
  11. punish contempt of its authority by fine or imprisonment.

And by subsection (3), the Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

“Amongst other things”

The list is not exhaustive. Subsection (4) confirms the point from another angle: without limiting the powers conferred by this section, the power to declare a person not duly elected or an election void may be exercised on the ground that illegal practices were committed in connection with the election.

Section 226

Effect of decision

Effect shall be given to a decision of the National Court as follows —

(a) if a person returned is declared not to have been duly elected, he shall cease to be a member; and

(b) if a person not returned is declared to have been duly elected, he may take his seat accordingly; and

(c) if an election is declared absolutely void a new election shall be held.

Orders on an election petition and their consequences
OrderProvisionConsequence
Petition dismisseds 212(1)(i)The return stands. Costs may follow — s 223
Person returned declared not duly electeds 212(1)(f)He shall cease to be a member — s 226(a)
Another candidate declared duly electeds 212(1)(g)He may take his seat accordingly — s 226(b)
Election declared absolutely voids 212(1)(h)A new election shall be held — s 226(c)
Re-count of ballot-paperss 212(1)(d)An interlocutory step, which may lead to (f), (g) or (h)
Petition upheld in parts 212(1)(i)Relief is shaped to what is proved

Section 215(1)

Bribery or undue influence by the successful candidate

If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

Shall — the Court has no discretion once the finding is made, and no separate question of effect on the result arises. Compare section 215(3), where the Court must be satisfied that the result of the election was likely to be affected and that it is just.

Section 215(2): a finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

Section 212(1)(d) and section 213

Ballot-papers

The Court may order a re-count of ballot-papers in an electorate. Note that leave to inspect under paragraph (c) covers the Rolls and other documents … except ballot-papers — so a re-count is the route by which ballot-papers themselves are examined.

Section 213 supplies a further power: where it is proved that a ballot-paper issued under section 100, 141, 142 or 143 has, in an election, been marked by a person who was not entitled to vote, the Court may require production of the postal vote certificate or other related papers — and the Court may reject a ballot-paper.

Sections 216 and 221

Two things the Registrar must do

Section 216 — where the Court, in the trial of a petition, finds that a person has committed an offence under this Law or any other law, the Registrar shall promptly report the finding to the Speaker, the Electoral Commission, the Public Prosecutor and the Commissioner of Police, and forward all papers relevant to the finding to the Commissioner of Police.

Section 221 — the Registrar shall promptly after the filing of a petition forward to the Clerk of the Parliament a copy of the petition, and after the trial a copy of the order of the Court.

A petition can therefore have consequences beyond the seat

A finding of bribery voids the election under section 215(1), triggers the section 216 report to the Public Prosecutor and the Commissioner of Police, and expressly leaves prosecution open under section 215(2).

Section 220

Decision to be final

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

There is no appeal to the Supreme Court from a decision on an election petition. The only avenue is the Supreme Court’s inherent power to review all judicial acts of the National Court under Constitution section 155(2)(b) — see reviewing an election petition decision.

Costs orders

Section 223the National Court may award costs against an unsuccessful party to a petition.

Section 224 — the K5,000 deposit is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.

Section 225 — other costs, including any balance above the deposit, are recoverable as if the order were a judgment of the National Court. See costs.

Sources

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.