Okuk v Electoral Commissioner [1983] PGLawRp 486; [1983] PNGLR 80 (24 March 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 80 - Iambakey Okuk v The Electoral Commissioner 

[1983] PNGLR 80

SC248

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND

IN THE MATTER OF THE UNGGAI-BENA ELECTORATE

IAMBAKEY OKUK

V

ELECTORAL COMMISSIONER

Waigani

Kidu CJ Kapi DCJ Kaputin J

24 March 1983

PARLIAMENT - Elections - Writ for election - Validity of - Non-compliance with Organic Law - Effect of non-compliance - Organic Law on National Elections, ss 77[xiv]¹, 78[xv]².

Held

The requirements of s. 77 and s. 78 of the Organic Law on National Elections in relation to writs for election as to the period to be fixed for nomination and as to the date to be fixed for commencement of polling are mandatory and failure to comply therewith renders the writ invalid and of no effect.

Case Cited

Billy Jababa v. Iambakey Okuk [1983] P.N.G.L.R. 69.

Reference

This was a reference to the Court under the Supreme Court Act 1975, s. 18, seeking an order declaring a writ of election invalid.

Counsel

J Everingham, for the appellant.

K Kara, for the respondent (Electoral Commissioner).

24 March 1983

KIDU CJ KAPI DCJ KAPUTIN J: In this reference we proceed on the basis that we have the jurisdiction to entertain the application for a declaratory order. We note that the defects may have been grounds for challenging the results of the by-election by way of petition under Ch. 18 of the Organic Law on National Elections. Also in this reference it could have been argued that the matter ought to have been left and dealt with by way of petition. The writ for the Unggai-Bena by-election was issued on 21 February 1983. It reads:

“To: Billy Izomufa Jababa

Returning Officer for

Unggai-Bena Electorates

Greetings:

This is to command you to cause election to be made according to law of one Member of the National Parliament to fill the vacant office of Member for Unggai-Bena Electorate, and I appoint the following dates for the purposes of the said election:

1.       For nomination 11 March 1983.

2.       For the first day of the polling period in the Electorate if the election is contested 9 April 1983.

3.       For the last day of the polling period in the Electorate if the election is contested 30 April 1983.

4.       For the return of the writ, on or before 2 May 1983.

Given under my hand at Port Moresby the 21st day of February, 1983.

(Signed)

Sir Tore Lokoloko

Governor-General

Section 77 of the Organic Law on National Elections provides as follows:

“The date fixed for the nomination of the candidates shall be not less than 28 days nor more than 42 days after the date of the writ.”

The date of the writ is 21 February 1983, and the nomination date is 11 March 1983. The minimum of twenty-eight days stipulated by s. 77 of the Organic Law on National Elections was not observed. There is no doubt that s. 77 must be strictly complied with by the Electoral Commission. This Court has said so in other judgments that these requirements in the election law must be complied with very strictly. See Billy Jababa v. Iambakey Okuk [1983] P.N.G.L.R. 69. One reason for the twenty-eight days given is to afford those eligible to nominate ample time to do so. We have searched in vain in both the Constitution and the Organic Law on National Elections for a provision which empowers the relevant authorities to reduce this twenty-eight days minimum period. It is, therefore, abundantly clear that the writ issued on 21 February 1983, was defective in that it failed to comply with s. 77 of the Organic Law on National Elections.

The contravention of s. 77 is not the only reason the writ is defective. Section 78 of the Organic Law says:

“The dated fixed for the commencement of the polling period shall be a Saturday and shall be not less than 10 weeks nor more than 12 weeks after the date of the writ.”

April 9 1983, is a Saturday, and is the day designated for polling to commence and it is at once clear that it is only six weeks and two days after the date of the writ. This is three weeks five days short of the ten weeks stipulated by s. 78.

It is obvious why a ten weeks minimum period is stipulated. This period would afford ample time for candidates to campaign to persuade voters to vote for them.

Counsel both agree that the result of non-compliance with these requirements renders the writ invalid and of no effect. We agree that that is so.

Declare the writ dated 21 February 1983, invalid and of no effect.

Lawyer for the appellant: The State Solicitor.

Lawyer for the respondent: K. Kara.

[xiv]Infra p. 81.

[xv]Infra p. 81.