For nearly forty years an election petition could be thrown out because an attesting witness wrote "self-employed" instead of naming a trade. In 2020 the Supreme Court assembled five judges to decide whether that should continue.
William Hagahuno v Johnson Tuke and Electoral Commission [2020] PGSC 105; SC2018
Supreme Court, Waigani — Kandakasi DCJ, Kirriwom, Mogish, Manuhu and Makail JJ, 2 October 2020. Review under section 155(2)(b) of the Constitution.
What happened
Mr Hagahuno petitioned against Mr Tuke’s election, alleging seven instances of bribery. On 10 December 2019 the National Court upheld objections to competency and dismissed the petition on two grounds: one attesting witness had stated his occupation as “self-employed”, said to be inadequate under section 208(d), and the bribery allegations were said to be confusing and lacking particularity under section 208(a).
Leave to review was granted on both points, and the Court was specially constituted with five judges, at the parties’ request, to resolve the conflict between liberal and strict approaches to petitions in both the National and Supreme Courts.
What was argued
The respondents relied on Biri v Ninkama [1982] PNGLR 342 and the many decisions following it, which held that section 208 demands strict compliance and that section 217 applies only once a petition has survived to trial. Mr Hagahuno argued that Schedule 1.5 of the Constitution requires Constitutional Laws to be read fairly and liberally, and that section 217 governs the whole proceeding.
What the Court decided
1. In deciding whether a petition meets section 208, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their fair and liberal meaning, and in particular to section 217.
2. Section 217 applies to all aspects of the National Court’s dealing with a petition, including objections to competency. The earlier decisions, especially Biri v Ninkama, which confined section 217 to the trial and encouraged a strict, technical and nit-picking approach, had caused petitions raising serious irregularities to be dismissed unnecessarily and were no longer suitable to the circumstances of the country.
3. “Self-employed” is an adequate statement of occupation for section 208(d). The trial judge erred in taking a strict and legalistic approach.
4. A bribery allegation need state only the essential elements: the date, the offender, the person bribed, that the person was an elector, that the bribe was given to induce a vote for the winning candidate, and that the winner was a candidate at the time. The petition did so. The judge erred in demanding that the petitioner plead his evidence.
5. The review was upheld, the dismissal quashed, and the petition reinstated for trial on all its grounds, with costs.
Did it make new law?
Yes, deliberately. The Court reversed the National Court and, more significantly, departed from its own precedent. Kandakasi DCJ set out the principles on which the Supreme Court may depart from earlier decisions, noting that a five-judge bench is not bound by three-judge decisions beginning with Biri v Ninkama, and that departure is justified where the earlier line has produced injustice. Biri itself was not overruled in its holding that section 208 must be complied with; what changed is the standard by which compliance is judged.
Why it matters
Objections to competency are decided on substance. A defect must actually prejudice the respondent’s ability to know and meet the case before it will defeat a petition.
Petitioners plead facts, not evidence. The elements of bribery, dated and named, are enough. Judges who demand more commit reviewable error.
The reasoning travels. The same fair-and-liberal rule has since been applied to the finality clause in section 220 to restrict review of petition decisions, as explained in Pundari v Yakos (2023) SC2345.
What it does not decide
Hagahuno does not abolish the requirements of section 208 or the two-month filing limit. A petition that omits an essential element, is filed late or is not attested at all remains incompetent. Nor does it lower the standard of proof of bribery at trial, which stays at the criminal standard under Waranaka v Dusava (2009) SC980.
Recent cases applying it
- Wararu v Maru [2023] PGSC 75; SC2427 and Potape v Undialu [2023] PGSC 86; SC2440 — Cannings J described Hagahuno as “the leading case” on section 217 and refused leave to review trial judges who had applied it.
- Application by Hon Peter O’Neill MP [2023] PGSC 160; SC2506 — Kandakasi DCJ restated the principles from Hagahuno on when the Supreme Court may depart from its own precedent.
- Dominic v Kaupa [2024] PGSC 100; SC2632 — Hagahuno invoked for the proposition that real justice, not technical interpretation, should guide election-related procedure.
- Wartovo v Narawec [2023] PGSC 29; SC2386 — Hagahuno and Kikala v Electoral Commission (2013) SC1295 applied: section 217 runs from beginning to end of a petition.
Sources
- Hagahuno v Tuke [2020] PGSC 105; SC2018 (Kandakasi DCJ, Kirriwom, Mogish, Manuhu and Makail JJ, 2 October 2020)
- Constitution — s 155(2)(b), Sch 1.5; Organic Law on National and Local-level Government Elections — ss 208, 210, 215, 217
- Biri v Ninkama [1982] PGSC 10; [1982] PNGLR 342; Kikala v Electoral Commission [2013] PGSC 48; SC1295
- Wararu v Maru [2023] PGSC 75; SC2427; Potape v Undialu [2023] PGSC 86; SC2440; Application by Hon Peter O’Neill MP [2023] PGSC 160; SC2506; Dominic v Kaupa [2024] PGSC 100; SC2632; Wartovo v Narawec [2023] PGSC 29; SC2386
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