NGE 2017 Article (II): THE LEGAL QUALIFICATIONS TO STAND FOR PUBLIC OFFICE

by SAM KOIM
As I have introduced, in this article, we will be exploring the legal qualifications on the right to stand for public office. Bear in mind that subject to these limited qualifications, the right to stand for public office is a constitutional right. Deduced from the Constitution, there are number of limitations/qualifications on the right to stand for public office. In order to stand for public office, the candidate must:
1. Be a PNG citizen (including naturalized citizen): ss. 50 and 103(3)(a).
2. Be aged 25 years or above: s 103 (1)
3. Have his/her name on the common roll: s 103(3)(a)
4. have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time: s 103(2)
5. pay a nomination fee of K1,000.00: s 103(2)
6. Of Full Capacity (not of unsound mind): s 103(3)(b)
7. Not under sentence of death or imprisonment for more than nine months: s 103(3)(c)
 8. Not convicted on election related offence 3 years before polling: s 50(1)(b) and s 103(3)(e)
9. Not be Insolvent (bankrupt): s103
10. Not be otherwise disqualified under the Constitution such as being dismissed from Public Office (3) for breach of leadership code and the term of penalty runs into election year: s 103(3)(f)
These limited qualifications are framed around a presumption that the people who have won elections are where they are because of their talents, maturity, energy, personal character and impeccable reputation within the community of electors. These same talents and personal characteristics that the leader possesses are, as it were, instruments fitting him for his office. Those who have given the leader his high position can properly expect that these talents will be put to the best service of the people and their improvement, and will not be used to further the leader's own personal advantage.
The candidate must be a citizen, not only to be entitled to the right to stand for public office, but more importantly, be patriotic in serving the people through the office he/she holds. There is no express restrictions on those who hold dual citizen. However, there is a well-founded fear that people who have a second country to live may give half-hearted attention to the affairs of this country.
A candidate should be mature enough to represent the constituency of mature people. The challenge though is in ascertaining the age of a candidate given that not all births in PNG are formally registered with the Civil Registry’s office. Even so, many people are registering and obtaining birth certificates recently when the Government encouraged them to do so. So how does the Electoral Commission verify the age of a candidate? The National Court in Aimo v Anisi [2012] PGNC 182; N4870 (28 November 2012), which decision was upheld by the Supreme Court, invalidated the election as Member for Ambunti-Drekikir Electorate (Electorate) in East Sepik Province in the last election because the evidence showed that the member-elect was below the age of 25. If the Electoral Commission had verified the age of the candidate, a costly election petition litigation and by-election could have been avoided.
The age limit of 25 years is the age where most people would have completed their first degree at university, although there is no such requirement for the candidate to have had some form of education. Implicitly, the decision to elect an educated person is left to the voters. The Second Select Committee on Constitutional Development expressed the view in its Final Report (pp. 4-5, para. 29) that if regional electorates were later to be abolished, "an examination should be carried out to determine whether there should be a minimum (educational) qualification for open members e.g. to read and write". From its experience in overseas countries it visited, the Select Committee concluded that "this ability is very necessary if the legislature is to function efficiently and competently". This particular discussion was abandoned in order to allow all people from PNG to participate in the electoral process of PNG. Whilst that may have been relevant at that time, it is now necessary to introduce a further restriction on the candidates concerning their literacy. Our Parliament desperately needs some intellectual rigor in the debates.
A person who wishes to nominate for a particular electorate must ensure that his/her name is on the common roll of that electorate. Section 64 (2) of the Organic Law on National and Local-level Government Elections (Organic Law) provides: "(2) Where a person who is entitled to do so nominates for an electorate and his name is not already on a Roll for the electorate he nominates, on the acceptance of his nomination for the electorate, the person shall be deemed to be on the Roll and he shall so nominate and vote in the electorate." He or she must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time. Does the Electoral Commission verify these facts before allowing someone to nominate?
I have not found any constitutional provision barring a public servant who failed to resign to stand for public office at a given time. Section 55 of the Public Services (Management) Act 1995 however makes provision on how to deal with a public servant who had resigned from the public service to stand for public office. We can infer that by that provision, a public servant is expected to resign prior to contesting the elections.
How do we determine that someone is financially capable of contesting the elections? Many people were complaining when the Government was proposing to increase the now abandoned nomination fees to K10,000. Whilst that argument holds water insofar as it is an unfair restriction on the constitutional right to stand for public office, elections is an expensive exercise in PNG. Linking it to the restrictions on bankrupt people contesting elections, how does one determine that one should be financially sound to contest the elections. Under the Insolvency Act 1951, the National Court is the only authority to adjudge someone as insolvent after a petition has been filed. Does the Electoral Commission verify to ensure the nominee was not adjudged insolvent or simply accept K1,000 nomination fee as a demonstration of one’s financial net worth?
To determine one’s sanity to contest the elections, the authority to make such a finding is again vested in the National Court by the Public Health Act. The process of determining whether someone is of unsound mind is tedious and seems unachievable within the period of nomination.
The conviction and sentenced based approach to disqualify candidates for improper behavior is a controversial one. Many people wonder why people with questionable background are allowed to contest the elections. The law is clear that unless someone was sentenced to death or is currently serving a prison term of more than 9 months or was convicted on election related offence, he/she is eligible to contest. A person who is dismissed from office by a leadership tribunal will be serving a three-year term out of office and is not eligible to nominate during that period. The law provides a bare minimum standard. Above that should be dictated by a leader’s ethical and moral values which are not always codified. It does mean that a person who has been charged for a criminal offence, a person who has been accused of a criminal offence, etc are eligible to stand for public office if the person decides to do so. In circumstances where a candidate is yet to be convicted or sentenced, it is left to the people to judge.
In summary, the qualifications on candidates are limited but it is the Electoral Commission that needs to proactively ensure that those qualifications are met prior to nomination. In the last election, about 103 out of 111 seats were challenged in the Court of Disputed Returns. I believe some of these expensive litigations would have been avoided if the Electoral Commission was vigilant and undertaken the appropriate level of due diligence in accordance with the above qualifications. Ultimately, it is the electors who would have to accord the appropriate weight to the preferences they have.
Next Article (III): The Concept of Leadership

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