SO ARORE CLAIMS VOTER RIGHTS ABUSED?

by BRYAN KRAMER

Post Courier ran a front page article, "Voter Rights Abused", which quoted Member for Ijiviatri, David Arore's claims that election petitions infringe on the rights of voters and called for an urgent amendment to the law.

"It is a serious issue that needs to be addressed in the conduct of elections as per the Organic Law on General Elections," he said.

"You talk about the rights of the candidates but what about the rights of the voters. Isn't that abusing and questioning their rights? They should also take the candidates to court for denying their rights to vote a leader of their choice."

"..We need to change the laws and I will take it up before Parliament to have these laws amended so we do not have unnecessary courts of disputes and by-elections. Make them tighter so that laws are not abused for the convenience of a few people who want to disrupt service delivery and infringe on the rights of the people. We need to re-look and make amendments," he said."

I hardly thought the story warranted front-page coverage. His comments were rather absurd and distorted an important issue.

While Mr Arore is certainly correct in saying the law needs to be reviewed and amended, however it should not be amended to address his concerns, but the law should be amended to ensure that those who are found guilty of bribery or illegal election practices (including himself) should automatically be disqualified from ever re-contesting an election, or holding public office. It should also ensure those found guilty of election fraud be automatically criminally prosecuted.

What Mr Arore conveniently ignored to mention is that he was found guilty in a court of law for committing bribery – a criminal offence under Section 103 of the Criminal Code.

On 29 May 2015, the National Court voided his 2012 Election win after finding, beyond reasonable doubt, that he used money and food to entice voters to vote for him during the elections.

Soon after the judgement, Yumi FM reported Arore saying “I’ve decided for myself personally that I will run for the by-election. I'm tired because this is my second term and I’ve been in court for seven years now.”

Two weeks later, he back flipped and filed an appeal in the Supreme Court, however his case was later thrown out for lack of sufficient grounds.

Following the ruling he should have been charged by police and criminally prosecuted. Instead he is allowed to re-contest the election.

Section 216 of the Organic Law on Elections stipulates that: "where the National Court, in the trial of an election petition finds that a person has committed an offence under this Law or any other law (which includes bribery and undue influence) the Registrar of the Court shall promptly report the Court’s findings to Public Prosecutor as well as forward all papers relevant to the finding to the Commissioner of Police.”

Further still, Section 298 of the Organic Law on Elections states that the Electoral Commission may acting on the advice of the Public Prosecutor, to bring legal proceedings against any person found guilty of bribery under the criminal code.

The same provision goes on to state that a person convicted of an offence under Sections 99, 100, 102, 103 (Bribery) 108 and 110 of the Criminal Code Act shall be disqualified from voting, holding elective public office, or being employed in the Public Service in a provincial government or a local-level government.

It is clear the intent of the law is to ensure that candidates who are elected through corrupt means should not only have their election voided, but also be criminally convicted and barred from ever holding elected office.

So the question is, why hasn't Arore been criminally charged after being found guilty of bribery? Has the National Court Registrar forwarded the National Court's ruling to the Public Prosecutor and Commissioner of Police to bring criminal charges against him? This is a mandatory statutory requirement imposed on the Registrar of National Court.

Police also have constitutional responsibility to uphold the law. Section 198 of the Constitution states it is the function of the Police Force to lay, prosecute or withdraw charges in respect of offences, meaning the Police may arrest and charge anyone with probable cause (reasonable evidence) whom they believe has committed an offence. Most officers will be reluctant to make an arrest for lack of evidence. In this case, a "Court of Law" in an election petition proceedings has found David Arore guilty of bribery beyond reasonable doubt. So why hasn't the Public Prosecutor, Police Commissioner, or any other Police Officer in Oro moved in and laid formal charges against him?

A Court of Disputed Returns or Election Petition Court are civil (non-criminal) proceedings. Cases are tried in the National Court where the Court's focus is whether the integrity of the electoral system and its process has been breached in accordance with Organic Law on Elections.

It will consider the allegations raised in the election petition and determine, based on the evidence, if they are true. Where the dispute or allegations relate to illegal voting or improper practices relating to the counting process, the Court may order a recount instead.

In this case the runner-up candidate challenged Arore's 2012 election on the grounds he committed bribery. Section 215 of Organic Law on Elections states that if the Court finds that a winning candidate has committed just one act of bribery his election must be voided.

After finding Arore guilty, the Court did not convict or sentence him on account that those powers lie with the Criminal Court.

In this instance Mr. Arore will need to be formally charged and prosecuted through a criminal process. This involves a slightly difference process to election petition proceedings, however the trial where the Court will consider the evidence is the same. Instead of the Organic Law on Elections, the Criminal Code will be applied. If found guilty he will be sentenced to prison for up to one year for each offence. An important distinction is that unlike someone who is being charged for the first time and presumed innocent until proven guilty, in this case Arore has been found guilty and under the Evidence Act, the National Court's ruling can be submitted as evidence against him in criminal proceedings.

It's my view it would just be a matter of course to run the same evidence again and have the Criminal Court arrive at the same judgement but this time confirming a conviction (found guilty in criminal court) and imposing a prison sentence. A conviction would automatically disqualify Mr. Arore from ever re-contesting or holding public office.

While Mr. Arore's view that election petitions are an abuse of the voter’s rights, the Judiciary have expressed a rather different view which includes:

"An election petition by its very nature challenges and questions the integrity of the electoral system and its process,.. Thus, an election petition is not, and ought never to be considered, such a light matter.

“It is in the public interest that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

“No democratic society which has a proper regard for the rights and dignity of mankind could accept a person into public office who has been found to have committed even one act of bribery or undue influence in order to gain that office. Just one such act must taint his suitability.”

So while Mr. Arore claims election petitions are an abuse of the voter’s rights, the very law which provides for that right also legislates to protect it from corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions.

Section 215 of the Organic Law on Elections states that if the National Court finds that a winning candidate has committed or has attempted to commit bribery or undue influence, his election shall be declared void.

It also states that any finding of guilt by the National Court shall not bar or prejudice a prosecution for an illegal practice. In other words just because their election is voided it does not mean they cannot still be criminally prosecuted, as bribery and undue influence are criminal offences.

Undue influence is covered under Section 102 of the Criminal Code. The Supreme Court upheld the view that to constitute undue influence under s. 102 of the Criminal Code it must be proven that a person, by fraud, prevented or obstructed the free exercise of will or choice by a voter. Fraud includes a false statement made by a person to a voter, known to be false with the intention that the voter should act upon it or be mislead by it.

So a person who threatens or prevents a voter from exercising his/her free choice to vote or by fraud knowingly makes a false statement with the intent to influence a person's vote is guilty of undue influence, a criminal offence.

In this case, it’s my view ,Peter O'Neill on three separate occasions is guilty of committing such an offence while campaigning for his PNC candidates during three separate by-elections.

On 14th November 2013, during 2013 Madang Open By-Election, he attended a campaign rally at Bates Oval announcing to a public, that should the people of Madang vote for any other person other than Mr. N Duban, Madang people would miss out on a having an elected Member appointed to a Ministry in the Government. He stated he had reserved the Ministry of Police for Nixon Duban. Three other PNC Ministers who accompanied O'Neill also made statements that Madang People would lose out on vital services if they voted for anyone other than the PNC candidate. This constitutes a threat to the voting public with the intent to interfere with their free choice. Evidence of which is well documented on audio recordings.

On 11th January 2013, during the Kairuku-Hiri Open By-Election, O'Neill attended a campaign rally staged by the PNC candidate Paru Aihi at Tubusereia Village. O'Neill gave a campaign speech uttering a threatening statement that if the people voted for anyone else other than Paru Aihi they were not going to be in Cabinet and that he had held the Ministry of Education exclusively for Paru Aihi. Evidence of which is well documented on video recordings.

More recently, on 4th November 2015, Peter O'Neill attended a campaign rally staged by David Arore, threatening the voters to vote for the People’s National Congress Party candidate David Arore so that they can access development funds.
 
The report stated O’Neill told the crowd at the Independence Oval in Popondetta last Saturday that a province needs a leader who was with the Government. “You need to vote for Arore if you want development in the electorate,” O’Neill said. “Nothing can be done if you are not in the Government. You must be inside the Government to benefit from electorate development funds.”

It's not wonder Arore was returned following the By-election on account of sitting Prime Minister shamefully threatening rural people of Ijivitari Open.

In a democratic society which has a proper regard for the rights and dignity of mankind and the rule of law the likes of Mr Arore and Mr. O'Neill would be convicted and serving prison sentences.

Sadly when those who abuse their high office to comprise the system that is supposed to uphold the law, the people will continue to suffer.

NB, if Peter O'Neill or Mr. Arore feel they have been unlawfully defamed by my article then please feel free to bring defamation proceedings against me as I am only too happy to sustain my allegations in a court of law and have the ruling used as evidence to convict them in criminal proceedings.