Legal Index: E
Election petitions — the requirement of strict compliance with the Organic Law, what “facts” a petition must set out, and the standard of proof where bribery is alleged.
Election petitions — strict compliance
Section 208 of the Organic Law on National and Local-level Government Elections sets out what a petition must contain. Whether those requirements are directory or mandatory was settled early.
Biri v Ninkama [1982] PGSC 10; [1982] PNGLR 342 (Supreme Court)
A petition disputing the validity of an election, filed under section 206, must comply strictly with each and every requirement of section 208. There is no substantial-compliance doctrine.
On amendment, the Court drew a hard line by reference to the two-month period in section 176(1)(a): the National Court may allow an amendment of a non-compliant petition provided the application is made within two months of the declaration of the result; and after that period the Court shall not allow, and has no power to allow, an amendment.
The practical effect is severe. A defect in a petition that is not cured inside the two months cannot be cured at all, and the petition fails without the merits being reached.
Holloway v Ivarato [1988] PGSC 16; [1988-89] PNGLR 99 (Supreme Court) — on what section 208(a) requires. The “facts” that must be set out are the material or relevant facts which would constitute a ground for invalidating the election — not the evidence by which those facts might be proved. The purpose is to define the issues clearly so the opposing party can prepare and the court can see what is in dispute. The Court approved and followed Siaguru v Unagi [1987] PGNC 63; [1987] PNGLR 372.
Agonia v Karo [1992] PGNC 65; [1992] PNGLR 463 (National Court) — applied the strict approach to the attestation requirement in section 208(d) and to pleading bribery. On the attesting witness’s address, the Court held the purpose is that the witness be readily identified and located, so what is required is the witness’s normal residential address, given as the best succinct description available: in a city, a street address or section, lot and suburb; for a villager, simply the village. The addresses in that petition were held sufficient.
Agonia v Karo also settled two points that arise whenever bribery is alleged.
Pleading: a charge of bribery is a serious allegation challenging the electoral process, so the base facts constituting the crime of bribery must be pleaded with clarity and definition. A general assertion will not do.
Proof: the standard of proof required to establish bribery in an election petition is the same as in a criminal court, and the ground must be proved as the offence is constituted in the Criminal Code. The Court restated the position taken in Bourne v Voeto [1977] PGNC 31; [1977] PNGLR 298.
A petitioner alleging bribery therefore carries a criminal standard in a civil proceeding — a demanding combination, and a frequent reason such grounds fail.
The strictness is deliberate. An election petition seeks to undo a result the electorate has produced, and the Organic Law treats that as something to be done only on clear grounds, clearly pleaded, within a short time.
The consequence for practitioners is that the petition is drafted once and effectively cannot be repaired. Time spent on section 208 before filing is the single most valuable investment in an election case.
On the procedure, see filing an election petition, what a petition must contain, and the Election Petition Rules 2017.