|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 29 OF 2003
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURN OF THE KOROBA/LAKE KOPIAGO OPEN ELECTORATE
AND:
HEROWA AGIWA
AND:
RUEBEN T. KAIULO
First Defendant/Respondent
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
AND:
BENIAS PERI
WAIGANI: KANDAKASI, J.
2003: 12th & 18th February
ELECTIONS – Parliamentary elections - Failure of - proper mode to challenge a decision to fail an election - An election petition is not an appropriate remedy for a person aggrieved by such a decision – Appropriate remedy is judicial review – All the requirements for grant of leave for judicial review, including the need to provide a reasonable explanation for any delay in filing the application must be met before leave for judicial review can be granted – A failure to meet any of these requirements should result in a refusal of leave - Taking an inappropriate action is not a reasonable explanation for any delay – Failing to show a prima facie case of the Electoral Commission having no proper basis to arrive at its decision or that the decision could not have been reasonably arrived at by a fair minded person is fatal to an application for leave for judicial review - Leave for judicial review denied.
JUDICIAL REVIEW - Application for leave for judicial review – Decision by Electoral Commission to fail elections on the basis that there was no proper polling, return, scrutiny and counting of votes except for 2,985 votes out of a possible of 80,000.00 – No real challenge on the reasons for the decision – Relief sought defies logic and common sense and would have the effect of breaching citizens’ right to vote and stand for elective office – No arguable case demonstrated – Leave refused – Ss. 50 of the Constitution – Ss. 19, 73, 75, 97, 113, 115, 118, 127, 130, 138, 147, 148, 150, 151, 175 & 206 of the Organic Law on National and Local-level Government Elections.
Cases Cited:
SCR 5 of 1988; Application of Melchior Kasap and SCR No. 6 of 1988; Application of Peter Yama [1988-89] PNGLR 197.
Reliance is place on the recent judgement of the Supreme Court in SCR 4 of 2002: Reference by Francis Damem, Attorney General for
the Independent State of Papua New Guinea (Unreported and not yet numbered delivered 26.07.02).
MP 389 of 2002; Enforcement Pursuant to s. 50: Application by Daniel Kapi (unreported judgement delivered 03/08/02) N2259.
The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.
Constitutional Reference No 1 of 1977 [1977] PNGLR 362.
Canisius Karingu v. Papua New Guinea Law Society (unreported judgement delivered on 9/11/10) SC674.
Wemas -v- Kepas Tumdual [1978] PNGLR 17.
SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.
Air Niugini v. Joel [1992] PNGLR 132.
Re Moresby North East Election Petition [1977] PNGLR 429.
Leto Darius v The Commissioner of Police (unreported judgement delivered 19/01/01) N2046.
Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145.
Counsel:
Mr. T. M. Rei for the Plaintiff/Applicant.
Dr. J. Nongorr for the First and Second Defendants/Respondents.
Mr. G. T. Yapao for the Third Defendant/Respondent.
14th February 2003
KANDAKASI, J: Mr. Herowa Agiwa is applying for leave of this Court for a judicial review of a decision by the Electoral Commission through Mr. Kaiulo to fail the elections for the Koroba/Lake Kopiago Eletorate in the recent 2002 National General Elections. Subject to leave being granted, he is asking for a declaration that he was the duly elected member for the electorate in question and for orders to give effect to that relief. The Electoral Commission and Mr. Ben Peri are opposing the application.
It is argued for Mr. Agiwa in effect that, the decision to fail his election was ultra vires s.97 and s.175 of the Organic Law on National and Local-level Government Elections (the Organic Law). The basis for this argument falls into two parts. Firstly, the argument is, once a returning officer makes a declaration of a winner of an election under s. 175 of the Organic Law, there is no power in the Electoral Commission to withhold a forwarding of the relevant writ to Parliament or alter the writ. SCR 5 of 1988; Application of Melchior Kasap and SCR No. 6 of 1988; Application of Peter Yama [1988-89] PNGLR 197, is cited in support of this argument. Secondly, the Electoral Commission can fail an election only in terms of subsection (2) of s. 97 of the Organic Law, where no candidate is nominated and not otherwise. In this case, the argument is that, there were nominations, there was a proper polling, counting of votes took place and that Mr. Agiwa was declared winner on 2,985 votes that were counted. The rest of the electors in the electorate were given the opportunity to exercise their rights under s. 50 of the Constitution but they refused or failed to exercise their rights, without providing any evidence demonstrating how the voters refused or failed to exercise their rights.
The opposing argument is that, the Electoral Commission has a wider power to fail an election in appropriate cases and that the circumstances in which that can be done cannot be circumscribed. Reliance is placed on the recent judgement of the Supreme Court in SCR 4 of 2002: Reference by Francis Damem, Attorney General for the Independent State of Papua New Guinea (Unreported and not yet numbered delivered 26.07.02) (the Damen reference) in support of this argument. In furtherance of this argument, the Electoral Commission and Mr. Peri argue that, it defies any logic or common sense to declare a winner on only 2,985 votes out of a possible of 80,000 votes. To do so would amount to a denial of the voters in the electorate’s right to vote under s. 50 of the Constitution.
Background
The background to this application is straightforward. Following, the call for nominations in the 2002 National General Elections, Mr. Agiwa nominated for the Koroba/Lake Kopiago Open electorate and so did Mr. Peri. There were 17 others who also nominated for the seat. It is common knowledge now that, there was much trouble in the Southern Highlands during the elections. This resulted in an extension of the return date for the writs in the Southern Highlands Province being from 15th July 2002 to 29th July 2002. That was followed by the Damen reference. That reference concerned a return of the writs after the 29th of July 2002 and the possibility of an election failure for both the Southern Highlands and Enga Provinces. The reference was prompted by a bad law and order situation, involving amongst others, violence, intimidation, threats, destruction of ballot boxes and papers, holding voters hostage and otherwise preventing voters from properly casting their votes for a candidate of their own choice.
The Supreme Court constituted by Amet CJ., Kapi DCJ., Sheehan, Sakora, and Sevua JJ., by a unanimous decision delivered on 26th July 2002, effectively held that, it was within the power of the Electoral Commission to decide either to return a person as an elected member if that was possible despite the situation or, decide that the elections in those provinces failed. In so doing, the Supreme Court noted that the Electoral Commission had a wider power to make such a decision under s. 97 of the Organic Law.
Before the Damen reference and the decision on it, Mr. Stanley Kotange, the returning officer for Koroba/Lake Kopiago Open, declared on 11th July 2002, Mr. Aigwa as the duly elected member. That was after counting only three ballot boxes representing only 2,985 votes from Mr. Agiwa’s own area and out of an overall possible of 80,000 votes.
Prior to conduct of polling in the electorate, Mr. Peri took issue with the appointment of Mr. Stanley Kotange as the Returning Officer. That was on the basis that Mr. Kotange is a close political associate of Mr. Agiwa. Following the Electoral Commission’s failure to revoke Mr. Kotange’s appointment as the Returning Officer, Mr. Peri filed O.S. 317 of 2002 out of the National Court in Waigani seeking the relief he was denied by the Electoral Commission. The National Court refused to grant the relief sought on basis that, it could not interfere with the conduct of elections which, fell within the powers of the Electoral Commission.
So the Electoral Commission proceeded with preparations for the conduct of elections. After what appears to be a conduct of elections, ballot boxes and ballot papers for the Kopiago LLG as well as those intended for the South Koroba LLG areas seems to have been held at Hetemari and Auwi Logaiyu LLG areas at Auwi. Proceeding on that premise, Mr. Peri applied to the National Court under O.S. 402 of 2002 for their release for counting at Mendi. The application was declined on the Court learning of the declaration by Mr. Kotange.
Mr. Peri then took out an originating summons seeking amongst others, a declaratory order that, the declaration by Mr. Kotange that Mr. Agiwa was the duly elected member was in valid. My bother, Los J., refused the relief sought. His Honour reasoned that, if the Electoral Commission could over-rule the Returning Officer, that would resolve the issue. Subsequently, on the 1st of August 2002, the Electoral Commission refused to recognise that declaration by the Returning Officer and instead, decided that there was a failure of election.
Being aggrieved by that decision, Mr. Agiwa filed an election petition, EP 29 of 2002, on 21st August 2002. The petition came before me for directions hearing initially on 17th September 2002. I issued a number of directions, including a direction for the Electoral Commission to provide its reasons for failing the election and adjourned the rest of the directions hearing to 25th September 2002. The Electoral Commission provided its reasons as ordered, in a document headed "Statement of reasons for failing elections in Koroba Kopiago Open" filed in Court on the 25th of September 2002. On the 25th September 2002, I directed, with the agreement in effect of the parties that, the petition be converted into an originating summons with the necessary amendments for judicial review of the Electoral Commission’s decision subject to leave for judicial review being sought and obtained. Instead of doing that, Mr. Agiwa filed a Supreme Court Review for a review of my decision directing the conversion of the petition into an origination summons. That process was later withdrawn on the 6th of January 2003, together with EP 29 of 2002.
These proceedings were eventually filed on 22nd January 2003, together with a notice of motion. The motion seeks leave of this Court for a judicial review of the Electoral Commission’s decision to fail the election and in the meantime an injunction restraining the Electoral Commission from issuing new writs for the supplementary elections which has been set for the 20th of this month. The motion was fixed for hearing on 3rd February 2003.
On 3rd February 2003, the matter came before me and I ascertained that, neither any affidavits nor a statement in support of the originating summons was filed. I therefore directed Mr. Agiwa to file all of his affidavits and to take all the steps that need to be taken to enable a hearing of his application for leave and interim injunction on 12th February 2003. At the same time, I granted leave for Mr. Peri to be joined as a party to the proceedings without objection from Mr. Agiwa. Also, I ordered the reasons that were provided under EP 29 of 2002 by the Electoral Commission for failing the elections to be brought into these proceedings and to form part of the materials to be considered before a decision on Mr. Agiwa’s application.
Issues
Both the arguments of the parties and the background to this case raise a number of issues. These are:
The first and the fourth issues are related, while the same goes for the second and the third. An answer to the third would be dependent on the answer to the second. Also an answer to the second issue would have some bearing on the first, the third and the fourth issues. The second issue is a question of mixed fact and law, which can only be answered by reference to the relevant facts and the law. I will therefore, deal firstly with the evidence before me and then, make findings of fact as may be dictated by the evidence and apply them to the relevant law.
Evidence
Two affidavits have been filed for Mr. Agiwa. The first is by Mr. Agiwa himself sworn and filed on 10th February 2003. His second affidavit is from Stanley Kotange also sworn and filed on 10th February 2003.
For the respondents, is the Statement of reason for its decision filed by the Electoral Commission dated 25th September 2002 by virtue of my orders of the 3rd February 2003. Also, before me are two affidavits sworn by Mr. Peri respectively on 31st January 2003 (filed 4th February 2003) and 7th February 2003 and filed on the same day.
The evidence for Mr. Agiwa is this. He was a candidate for the Koroba/Lake Kopiago Open Seat in the 2002 National General elections. Polling was conducted between 29th June and 7th July 2002. After receipt of approval on 9th July 2002 from the Electoral Commission to count, votes were counted. A total of 2,895 votes from his strong hold were counted. On 11th July 2002, the Returning Officer, Mr. Kotange declared Mr. Agiwa as the duly elected member for the Koroba/Lake Kopiago Open. On 26th July 2002, the Returning Officer returned the relevant writ for the electorate to the Electoral Commission. Since the return of the writ to the Electoral Commission, the Commission has not explained why it has not forwarded the writ to the National Parliament. As far as Mr. Agiwa, Mr. Kotange and Mr. Agiwa’s legal advice is concerned, there should be an election petition against the declaration that Mr. Agiwa is the elected member for Koroba/Lake Kopiago Open. This case concerns the issue of why did the Electoral Commission not forward the relevant writ to Parliament.
The Statement of reasons for the Electoral Commission deciding that there was an election failure for the Koroba/Lake Kopiago Open, remains unchallenged in anyway. The affidavit of Mr. Peri supports the reasons set out in the Electoral Commission’s statement of reasons for failing the election. The relevant parts of Mr. Peri’s affidavit are paragraphs 8, 10, 11, 12, 13, 15, 16, 20 – 29, 35, 37, 38, 36, 46 – 51, 55 – 57, 61 of his affidavit of the 7th of February 2003 and paragraphs 9 – 11 of his affidavit of the 31st January 2003. The total effect of these paragraphs of the affidavits is that, there was no proper distribution of ballot boxes and ballot papers, there was no proper polling and return of the ballot boxes with the marked ballot papers for counting under scrutiny. Most of the ballot boxes and ballot papers are still in South Koroba, Auwi Logaiyu and Lake Kopiago LLG ares. As a result of this, there has be no proper declaration of a winner, let alone Mr. Agiwa.
The reasons provided for failing elections are these:
"1. Polling did not take place in many parts of the electorate because ballot boxes and ballot papers were hijacked;
Therefore, the Electoral Commission has determined the election as failed as no proper elections took place in the Koroba/Lake Kopiago Open electorate."
Mr. Peri’s affidavit of 7th February 2003, takes direct issue on the claims by Mr. Agiwa and Mr. Kotange that approval was given by the Electoral Commission to count the votes, which was done resulting in the declaration of Mr. Agiwa as the elected member for Koroba/Lake Kopiago Open on 11th July 2002. The challenge is supported by a letter dated 20th July 2002 (annexure "C" to Mr. Peri’s affidavit of 7th February 2003) from the Electoral Commissioner to the Election Manager in the Southern Highlands Province. That letter inter alia, directed the votes be counted for all of the electorates in that province, including the Koroba/Lake Kopiago Open electorate. The point is, if indeed Mr. Kotange was authorised to count votes earlier and that he properly declared a winner for the Koroba/Lake Kopiago Open seat on 11th July 2002, there was no need for that electorate to be included and covered in that direction.
Mr. Peri’s affidavit of 7th February 2003, also annexes an affidavit by the then Electoral Commissioner, Mr. Rueben T. Kaiulo, sworn on 21st July 2002. That affidavit deposes to the disruptions of elections in both the Southern Highlands and Enga Provinces, where actual and threats of violence against voters and election officials did take place. That affidavit annexes a copy of a report done by Electoral Commissions lawyers. Annexure "E" to that affidavit under the heading "Koroba Kopiago Open", states that all communication links were completely out, all roads links were blocked off by tribes man, helicopter companies have refused to fly in because of threats of being shot down. It also states that unconfirmed reports indicated that polling had taken place. However, there was no further information forthcoming and that attempts to airlift the Returning Officer as late as 19th July 2002 were unsuccessful.
Findings of Fact
Based on all the evidence before me, I find the claim by Mr. Agiwa and his witness, Mr. Kotange that the latter received authorisation from the Electoral Commission to count the votes for the Koroba/Lake Kopiago Open is unbelievable. The reason for this is simple, if indeed, he was so authorized, there was no need for a second authorisation per the letter of 20th July 2002 to the Election Manager directing votes in the electorates in the Southern Highlands Province to be counted. Similarly, if indeed a winner was declared on 11th July 2002, there was no need for a direction for votes to be counted. For that would have amounted to nullifying an election result without a proper election petition. This raises in my mind, some serious doubt as to the credibility of Mr. Agiwa and Mr. Kotange’s claims.
There is a further reason to doubt, Mr. Agiwa and Mr. Kotange’s claims. It was common knowledge that there was election-related violence in the Southern Highlands and Enga Provinces. There is the affidavit of Mr. Kaiulo annexing the report of his lawyer's investigations that also confirms this happenings. Neither, Mr. Agiwa nor Mr. Kotange mentions a word about this in their affidavits. Instead, they say there was a proper polling for the electorate and a declaration was made. In the light of what did in fact happen, it was incumbent upon Mr. Agiwa and Mr. Kotange to demonstrate how there was a proper election and that all the ballot boxes with marked ballot papers safely returned to the appointed counting center and were counted under proper scrutiny. They also fail to demonstrate where and how the declaration of Mr. Agiwa as the winner was made. I find this to be a deliberate attempt to cover up the fact that there were serious disruptions to the proper conduct of polling and return of votes, their counting and returning a winner of the election.
For these reasons, I do not find their evidence credible. Instead, I have serious doubts about their claims. This is strengthened by the fact that there is not a single challenge to the statement of reasons for failing the election, provided by the Electoral Commission.
In the circumstances, I find that the Electoral Commission failed the election for the Koroba/Lake Kopiago Open electorate for the reasons stated in the "Statement of Reasons For Failing Election in Koroba Kopiago Open" dated 25th September 2002, and filed on the same day in EP 29 of 2002.
Second Issue:
Was there a proper election?
It follows therefore that, there was no proper conduct of elections in terms of polling, counting and scrutiny of votes and a declaration of a winner. This is just on the facts. So what is the position at law? In other words, can the law sanction the Returning Officer’s actions and still return Mr. Agiwa as the duly elected member for Koroba/Lake Kopiago Open electorate? This question requires an examination of the whole process of a proper election in so far as is relevant for the case at hand.
Section 50 of the Constitution grants every citizen in the country the right to vote and stand for elective offices, the main one of which is for a seat in the National Parliament. The Organic Law on elections is the main law governing the conduct of elections and related purposes all aimed at giving effect to the right under s. 50 of the Constitution. To this end, the Organic Law creates and empowers the Electoral Commission to have the ultimate control over the conduct of elections and related matters.
Detail provisions are made for every aspect of an election starting with an issue and ending with a return of writs. Similar provisions are made for the process in between for calling for nominations, publication of polling schedules, polling according to the published schedule as much as possible and counting of votes. Detail provisions are also made as to the security of ballot boxes and ballot papers, their making, scrutiny both at polling and the counting of the marked ballot papers. Thus, in order for their to be a proper conduct of elections and a proper return of an elected member, all of the requirements under the Organic Law must be met.
So the question here is, have all the requirements under the Organic Law been met in the 2002 National Elections for the Koroba/Lake Kopiago Open electorate? In so far as is relevant, the Commission is empowered by s. 19 of the Organic Law to appoint returning officers for each electorate in the country. The returning officers "are charged with the duty to give effect to" the Organic Law, "within or for his electorate, subject to any directions of the Electoral Commission." So it seems that the returning officers are ultimately in control over the conduct of an election in an electorate. But this is subject to the direction or control of the Electoral Commission.
This means, a returning officer, subject to the direction and control of the Electoral Commission, is the person responsible in each electorate to ensure that the requirements of the Organic Law for a proper conduct of elections are met. This is necessary to ensure that every citizen is given the opportunity to have their say in deciding who should represent them in Parliament, an event which, occurs once every five years (s.105 of the Constitution). This is a basic and very fundamental right given to them by the Constitution and it must be allowed to be freely and properly exercised without any fear or favour.
Hence, when there is a query in relation to the conduct of an election in a particular electorate, the relevant returning officer should be the first on behalf of the Electoral Commission to give a detail account of how the election in question has been conducted in the electorate he or she was responsible for. In this case, there are serious questions raised in relation to the proper conduct of elections in the relevant electorate. In particular, serious questions are raised as to the proper conduct of polling, return of the votes for counting, proper scrutiny both at the polling and at the counting and a proper declaration of a winner.
As already noted, a returning officer for an electorate is "charged with the duty of giving effect to" the Organic Law "within or for his electorate, subject to any directions of the Electoral Commission." (emphasis mine). The important words used by the Organic Law in s. 19 are that the returning officers are subject to the directions of the Electoral Commission. As such, they are not at total freedom to do as they please but are subject to the directions or control of the Electoral Commission when it comes to a discharge of their duties and responsibilities. The Electoral Commission is thus, the ultimate and or supreme in the conduct of elections and their returns. Accordingly, there can not be inconsistencies in the conduct of elections and their returns as between a returning officer and the Electoral Commission. In the event of any such inconsistency, the directions and or the determination of the Electoral Commission should prevail.
Indeed, this was already judicially stated in MP 389 of 2002; Enforcement Pursuant to s. 50: Application by Daniel Kapi (unreported judgement delivered 03/08/02) N2259 (the Daniel Kapi application). This was in relation to the Wabag Open Seat in the Enga Province also, out of the 2002 National General Elections.
In that case, Mr. Daniel Kapi was declared winner of the relevant seat by the relevant returning officer, without a completion of counting of the marked ballot papers. The declaration was made without any consultation between the returning officer and the Electoral Commission. The Electoral Commission had another person, Mr. Sam Abal, declared as the duly elected member. So Mr. Kapi brought an application seeking to enforce his rights under s. 50 of the Constitution.
In dismissing that application, my brother, Justice Gavara-Nanu held that, the declaration by the Electoral Commission took precedent over the returning officer’s declaration. His Honour was of the view that the returning officer:
"... may have acted outside of his powers, when he made the declaration; because in my opinion, in such controversial circumstance, he should have consulted the Electoral Commissioner before making the declaration."
His Honour was also of the view that, the returning officer was appointed to exercise the powers of the Electoral Commission. As such, a returning officer does not have any power independent of the Electoral Commission.
In this case, there are inconsistencies as to the actual conduct of elections and its return for the Koroba/Lake Kopiago Open electorate. The Electoral Commission determined, for the reasons it has given that, the election for the electorate has failed and has refused to recognise the purported declaration of Mr Agiwa as the duly elected member for that electorate on 2,985 votes out of a possible of 80,000 votes. On the other hand, Mr. Kotange, the relevant returning officer, claims that there was a proper election and a proper declaration made. Consequently, he supports Mr. Agiwa’s claim for his purported election victory to be recognised. A key to determining this issue in my view therefore is to ascertain, whether the purported declaration was properly arrived at.
A proper declaration could be made only after a proper conduct of polling with proper scrutiny at both the polling and counting of the marked votes through which a true winner as been identified. Section 175 of the Organic Law obliges a returning officer to make the declaration of a winner of an election publicly. This is usually done at the end of the counting of votes at the appropriate "counting centre" appointed by the returning officer for that purpose (s. 148).
Before a proper declaration in terms of the above could be made, a returning officer is required by s. 113 – 115 to ensure soon after the close of nominations that, a polling schedule is produced and published in the National Gazette and a newspaper circulating in the electorate he is responsible for. Thereafter, he is required to ensure that the actual polling does take place as near as possible according to the schedule. For that purpose, a returning officer is empowered by s. 118 to appoint residing officers for each polling team, subject to the direction of the Electoral Commission. For the actual conduct of the polling, he is required to see that the polling takes place in accordance with s. 130 and 138. This is a process that is to be in private particularly, as to the marking of a ballot paper but the process is otherwise to be witnessed by one scrutineer for each of the candidates’ (s.127).
After a polling for an electorate is conducted in terms of the above, a returning officer is then obliged to ensure that the marked ballot papers are conveyed to the appointed counting centre. There, he is required to scrutinize the marked ballot papers to ascertain the result (s.147). This involves the counting of the marked votes at the appointed counting centre (s.148). At the counting, each of the candidates is entitled to have one scrutineer (s. 150) on his or her behalf. Such a person is to witness the process and is entitled to inspect or to see each of the ballots that are being scrutinized (s. 151) to ensure that only properly marked ballot papers are counted.
In this case, if indeed there was a proper conduct of polling, scrutiny of the votes resulting in the proper declaration of a winner, in accordance with the law as summarised above, then the onus is on Mr. Agiwa as the plaintiff to show it by appropriate evidence. The onus is also upon Mr. Kotange both as the relevant returning officer and giving evidence for Mr. Agiwa thereby adopting an inconsistent view to that of the Electoral Commission to demonstrate by appropriate evidence that all the requirements of the Organic Law, have been met. The focus has to be on the establishment of polling places, polling schedules, conducting the elections according to the polling schedules, a save return of the marked ballot papers for their proper scrutiny at the appointed counting centre, scrutiny of the votes, their counting and an eventual public declaration of the ultimate winner of the election.
Apart from a mere statement that there was polling and counting followed by the purported declaration of Mr. Agiwa on 11th July 2002, there is no evidence on any of these aspects. Mr. Kotange was the returning officer in charge of the election in the Koroba/Lake Kopiago electorate. It was therefore, incumbent on him to give evidence showing a compliance of the relevant provisions of the Organic Law as summarised above. His evidence and that of Mr. Agiwa lacks in the areas of appointment of presiding officers and their reports on the conduct of polling in their respective locations. Similarly, there is a total lack of evidence as to the production of the polling schedule and conducting the polling in accordance with or close to that as much as possible. There is also a total lack of evidence as to scrutiny at the polling and the counting. Not only that, there is also a total lack in evidence as to appointment of a counting centre and a save conveyance of the marked ballot papers for scrutiny and counting. Further, there is a total lack of evidence in relation to where and how Mr. Agiwa was declared winner of the election.
This lack of evidence coupled with the unchallenged evidence supporting the reasons for calling a failure of election dictates a conclusion that, there was no proper polling, scrutiny and counting of votes resulting in a proper public declaration of Mr. Agiwa as the winner. This ultimately means, there was no proper election and return for the Koroba/Lake Kopiago electorate. So the simple answer to the second issue is no.
Third Issue:
Whether the Electoral Commission Acted Ultra Vires ss. 97 and 175?
Based on the fact that there was no proper polling, scrutiny and counting of votes and a proper public declaration of a winner, I find that the Electoral Commission decided to fail the election for the Koroba/Lake Kopiago electorate in the 2002 National General Elections. Mr. Agiwa argues however that, the Electoral Commission’s decision to fail the election was ultra vires the provisions of s.97 and s.175 of the Organic Law.
Counsel for Mr. Agiwa cites from the head note of the Supreme Court decision in SCR N0. 5 of 1988; Application of Melchior Kasap and SC N0. 6 of 1988; Application of Peter Yama (supra), this phrase in support of that argument:
"After a candidate for an election has been declared duly elected under the Organic Law, the results of that election may only be altered by the National Court: the Electoral Commission has no such power."
This is from an observation of the then Chief Justice Sir Buri Kidu, at page 204 of the judgement. That was in relation to errors and apparent corrections to errors in tally sheets. The corrections were made after the declaration of Mr. Kasap as winner. Hence the observations of the then Chief Justice. There was no issue as in this case, as to the proper conduct of the whole election and its proper return in the relevant electorate to a level similar to the present. I am therefore, of the view that the observation has to be distinguished from the facts of this case.
Even if the facts were similar, I am of the view that, observations of the then Chief Justice could be right in a case were a declaration has been otherwise correctly made given the powers of the Electoral Commission under s. 97 to fail an election. This is important because, as the Supreme Court recently held in the Damem, reference, the Electoral Commission has a wider power to fail an election (p. 8).
Section 97 reads:
"97. Failure of Election.
(1) Subject to this Law, whenever an election fails a new writ shall be issued for a supplementary election by the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, as soon as practicable after the failure occurs.
(2) An election shall be deemed to have failed if no candidate is nominated or returned as elected."
The Supreme Court in the Damem reference, noted at page 9 of its judgement that s. 97:
"... empowers the Commission to determine that an election has failed if satisfied on grounds reasonable and sufficient to the Commission a return cannot be made for an electorate.
...
The Commission is not confined in the reasons that may come to such a conclusion. Its conclusions will include those reasons in s.97, but may also be for any reason that the Commission determines that an election has failed, whether from impossibility to hold or complete an election, or that in the circumstances a return cannot or should not be made. In our view it is not a matter of determining whether there have been offences or attempting any allocation of blame or allege improprieties or electoral offences, but whether the Electoral Commission is presented with a set of resultant circumstances where it can reasonably say that, however the situation has been created or whoever may be responsible, the only conclusion open to the Commission is that an election has been totally subverted or that it is impossible to make a return."
This statement of the law by the Supreme Court puts beyond any argument that, the Electoral Commission has a much wider power to decide a failure of an election in appropriate cases. The Electoral Commission is not restricted in that power. Given that, nothing much can be made out of the provisions of subsection (2). It merely in my view, makes it clear that, the lack of any nomination for an electorate should automatically result in an election failure, without any further or do. It does not operate as a restriction on the Electoral Commission’s powers to fail an election if it is reasonable in all of the circumstance so to do.
In this case a number of things happen:
This evidence is not rebutted in any way. The man in charge of the election in the electorate, Mr. Kotange has not given any specific evidence about the actual conduct of polling, conveying of ballot boxes and ballot papers to polling teams and from there the marked ballot papers to the appointed counting centre for counting. Also he does not give any specific and detail account as to how the counting was conducted. Further there is no argument that the facts relied on by the Commission did not exist and that the Commission erred in taking this factors into account.
In my view, these factors provided the necessary and a reasonable basis to fail the elections. In any case, it defies any logic and or common sense to return Mr. Agiwa as duly elected only on 2,985 votes from his own strong hold without accounting for a vast majority of the votes for the electorate which had a possible of 80,000 votes to be considered and or accounted for. Without the need for any other evidence, it appears clear to me that the majority of the people of Koroba/Lake Kopiago were either denied their once every fives right to vote or, if they exercised their rights, their votes were not properly counted. They are therefore, left without having fully exercised their right to vote or if they voted their votes not being counted.
Our system of government allows for majority rule. Candidates in a National Election or any other election in the country who secure a majority of the votes properly marked at a properly organised and conducted election, get to represent their people in Parliament or whatever the organization might be. Then decisions on the floor of Parliament or else where are made on the voices of the majority. The 2,985 votes from Mr. Agiwa’s own stronghold did not and could not by any measure, be taken to be the majority of the votes for the electorate. There was no consultation between the returning officer Mr. Kotange and the Commission before declaring Mr. Agiwa as the winner in the purported election.
I have already expressed the view that a decision or direction of the Electoral Commission prevails over that of a returning officer. The judgement in the Daniel Kapi application (supra) supports this view.
In the present case, I can not see how the Electoral Commission could be said to have erred in deciding for a failure of election. Instead, I find that, it was the most reasonable and just decision to arrive at. If the Commission decided to uphold the returning officer’s decision to declare Mr. Agiwa, it could have allowed Mr. Agiwa to represent only the people in his stronghold and not the whole electorate. A serious breach of the people in the electorate’s once every fives years, right to elect their representative in Parliament could have occurred. That would have resulted in a contradiction of our well-established system of majority rule by allowing the opposite to rule. The precedent this could have set would have been a major contradiction of the system of government we have adopted and the long practice of it up to now. There is already much corruption affecting the proper conduct of elections. What has happened in this case is the most extreme. No reasonable minded person in his or her right mind wound have sanctioned such conducts and in so doing allow one seeking to benefit from such conducts to do so. In the end therefore, I find that the Electoral Commission acted within his powers under s. 97.
Also based on the above, I can not see how the Electoral Commission could have acted ultra vires the provisions of s. 175. This provision empowers a returning officer to publicly declare a winner of an election at the end of properly scrutinizing the votes and ascertaining the winner after a proper polling and return of the marked ballot papers to the appointed counting centre. In this case, there is no evidence of a proper conduct of polling, return of the marked ballot papers to an appointed counting centre, scrutiny of the polling and counting by each of the candidates through their scrutineers. There is no contest that only 2,985 ballot papers from Mr. Agiwa’s strong hold were counted. There is no accounting for the vast majority of the votes either by Mr. Kotange the man response for the election in the electorate or Mr. Agiwa, claiming to be the winner. Further, there is no evidence confirming that the declaration of Mr. Agiwa was made publicly after a proper polling, return of marked votes, scrutiny of the votes and accounting of all of the ballot papers issued. The evidence instead, speaks of hijacking of ballot boxes and ballot papers, no proper polling, and most of the ballot boxes and votes are being still held in Kopiago and Hetemari.
A declaration under s. 175 can have meaning and effect if it is publicly made and arrived at after a proper polling leading to a proper ascertainment of the winner. A declaration of a winner is the ultimate in an election. If the conditions precedent to that, such as a proper polling and counting, are not properly conducted in accordance with the dictates of the Organic Law and other laws for the orderly and proper conduct of elections, there can not be a proper declaration. No law and no reasonable tribunal should ever contemplate perfecting that which is imperfect from the outset merely because one having the authority to do the act has performed it notwithstanding the events leading to it. The Courts are there to do substantial justice. If substantially, there has been no proper conduct of an election, then there can not be a declaration and if a declaration has been secured, it should not be allowed to stand.
In the present case, the evidence clearly speaks of no proper polling and the matters consequential on that being properly attended to. A returning officer is charged under s. 19 of the Organic Law to conduct an election in the electorate he is responsible for. But that is subject to the direction and control of the Electoral Commission. There was widespread violence and threats of violence making a proper election impossible in the Koroba/Lake Kopiago electorate. There was therefore, a greater need for consultation between the Electoral Commission and the returning officer in this case and the other electorates faced with a similar situation for appropriate directions from the Electoral Commission. Mr. Agiwa and Mr. Kotange claim that clearance was given by the Electoral Commission for Mr. Kotange to proceed with counting of votes by letter dated 9th July 2002. But there is much doubt about that because there is the letter of 20th July 2002 addressed to the then Election Manager in the Southern Highlands to proceed with counting of votes.
Further, Mr. Kotange counted only, 2,985 votes out of a possible of 80,000 votes. Those votes came only from Mr. Agiwa’s own stronghold. It was incumbent upon him in my view, to consult the Electoral Commission on the question of whether or not to declare a winner in those circumstances. There is no evidence of any such consultation. Besides, it is not clear when was the Electoral Commissioner made aware of the declaration. It seems clear to me from the evidence that, the declaration was made even before authority was given to Mr. Kotange to count any votes, per the Electoral Commission’s letter of 20th July 2002. There is no explanation from Mr. Kotange and Mr. Agiwa on this apparent inconsistency in instructions given by the Electoral Commission to Mr. Kotange.
In these circumstances, I can not see how the Commission could have acted ultra vires s. 175. For there was no proper public declaration of a winner for the Koroba/Lake Kopiago Open electorate because there was no proper election conducted in due compliance of the requirements under the Organic Law.
First Issue:
Proper Mode of Challenging a Decision to Fail an Election
This issue is given rise to by the background to these proceedings as already outlined. It is a legal question.
Section 206 of the Organic Law is the relevant provision. That provision reads:
"206. METHOD OF DISPUTING RETURNS
The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."
It is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. The aim here is to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that. Examples of these are the cases of The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491 at 506, 507, per Kearney J; Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 373, 374, per Prentice DCJ (as he then was) and Canisius Karingu v. Papua New Guinea Law Society (unreported judgement delivered on 9/11/10) SC674 for a recent reference to this principle.
Also it is trite law that, if "the words of a statute are themselves precise and unambiguous, then no more is necessary to expound those words in their ordinary and natural sense": Wemas -v- Kepas Tumdual [1978] PNGLR 173 at 176 per Wilson J. adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.
In the present case, I am of the view that, the words employed by Parliament in s.206 are so precise and unambiguous, so much so that there is no need to expound on the words used. This provision makes it abundantly clear that, a petition to the National Court is the only way to challenge an "election" or a "return". It is commonly known and understood that an election or a return means an election of a person and or return of a writ issued by the Head of State acting with and in accordance with the advice of the Electoral Commission under s. 73 in the form prescribed by s. 75 of the Organic Law. This is usually for cases in which an election has in fact been conduct commencing with the issue of a writ, to a calling for nominations, polling in the scheduled polling places, counting of marked ballots or votes and making a public declaration of a winner at the end of the counting of votes and a winner has been ascertained and the relevant writ is appropriately endorsed and returned.
Where there is no "election" and or "return" in accordance with the above, it means the election has failed. Section 97 would then come into play. That will pave the way for a supplementary election with the issuance of a new writ. No provision is hence made in my view in the Organic Law for a challenge of a decision to fail an election. To the extent that no person is properly declared or returned by the Electoral Commission as the duly elected member of an electorate, an election petition is not the proper mode in my view to challenge a decision to fail an election because there is no "election" or a "return".
This does not mean that a person aggrieved by such a decision is without remedy. Section 155 (3) and (4) of the Constitution empowers the National Court to review all judicial and administrative decisions of tribunals other than itself or that of the Supreme Court. It is settled law that, the lack of any right of appeal or review been provided for does not operate to preclude the inherent supervisory power of the National Court to review all judicial acts of lower tribunals and other administrative decisions of public or statutory bodies: see Air Niugini v. Joel [1992] PNGLR 132 and also Re Moresby North East Election Petition [1977] PNGLR 429 as to the availability of the relief even where it is ousted. It should follow therefore that, a person who is aggrieved by a decision to fail an election could still apply to the National Court at the first instance to apply for a review of such a decision.
So the short answer to the first issue is that, the correct and proper mode to challenge a decision of the Electoral Commission to fail an election under s. 97 of the Organic Law is judicial review and not an election petition.
In the present case, I note that, Mr. Agiwa has now accepted the suggestion that, judicial review is the only remedy available to him. This is demonstrated by his withdrawal of his application to the Supreme Court for a review of my earlier decision directing that his petition be converted to an originating summons seeking a review of the Electoral Commission’s decision subject to leave been first sought and obtained. He has also withdrawn his election petition and has now filed these proceedings seeking a review of the Electoral Commission’s decision to fail his purported election subject to him being granted leave for that purpose.
The application before me seeks leave of this Court to review the decision of the Electoral Commission to fail the election for the Koroba/Lake Kopiago Open electorate. This now leads to the final and remaining issue of, has Mr. Agiwa made out a case for a grant of leave for judicial review?
Final Issue:
Whether a Case has been made out for leave?
Most of the requirements for leave are not in issue. The only points of argument between the parties is in relation to the timing of this application (delay issue) and demonstrating an arguable case for review. I will deal with each of those points separately starting with the issue of delay.
(i) Delay
Speaking in the context of the requirements that must be met before an application for leave for judicial review can be granted, I said this on the issue of delay in the case of Leto Darius v The Commissioner of Police (unreported judgement delivered 19/01/01) N2046:
"I venture to add that the Court must also be satisfied of the requirements under r.4. This is because any delay in bringing an application is a very important factor for consideration. That can be appreciated from the perspective of changes in administration including changes in personnel that may take place once a decision has been made. Thus any delay in bringing an application for judicial review may prove detrimental to good administration and that may form the basis for a denial of leave. See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70 at 76; The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 and An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (1990) N856."
I further said in that case that:
"... in relation to the time limit, an applicant for judicial review must come within the time limit stipulated by the rules. If however, an applicant comes outside that time limit, he must offer a reasonable explanation and show his case is not one of a case of undue delay and that, the delay is not detrimental to good administration before leave can be granted:"
A quick review of the other cases on point, clearly show that delay in itself is not fatal provide a reasonable explanation is provided and that no prejudice has or will be occasioned to good administration of the affairs of the office concerned. The cases show a reluctance to grant leave for judicial review where changes have already taken place.
In this case, the decision to fail elections was taken on 1st August 2002. This application for leave was filed on 22nd January 2003. Before that, a petition, EP 29 of 2002 was filed on 21st August 2002. On the 25th of September I directed that the EP be converted into an originating summons under which, Mr. Agiwa should seek leave of the Court for a review of the decision to fail elections for the reasons I set out in the context of the last issue covered. Instead of doing that, he filed an application to the Supreme Court for a review of my direction. That process was eventually withdrawn along with EP 29 of 2002 on 6th January 2003. This saw a passage of 5 months since the date of the decision to fail election and almost 6 months when the matter has come before me for hearing. This is well passed the four months stipulation under O.16 of the National Court Rules (NCR) by about two months.
The delay has given the Electoral Commission the opportunity to organize and set a date for the issue of writs for a supplementary election for the Koroba/Lake Kopiago Open electorate and the other electorates in the Southern Highlands, where the Electoral Commission decided that the elections failed. The writs will be issued on the 20th of this month, which is only a few days away.
I am sure there has been much preparation on the part of the Commission. At the same time, and more importantly, there has been much anxiety by the people in the electorates concerned to have someone represent them in Parliament and participate in the decision making process in the highest decision making body in the land. They have been without a representation for almost six months now. This leaves only 4 years 6 months of the life of the current Parliament. Any further delay in electing their representative to Parliament will be an unjust deprivation of the rights of the people in the affected electorates to have their representative in Parliament. I consider this is a very important consideration in this case.
The only explanation provided for the delay by Mr. Agiwa, is that, he has been pursuing EP 29 of 2002 and only decided very early this year to file for a review of the decision to fail the election. He was told of the need to go by way of a judicial review with leave as early as 25th September 2002. He chose not to do that. Instead, he and his lawyer chose to pursue EP 29 0f 2002 only to withdraw early this year. At best, this is reflective of poor legal advice.
It is settled law that the negligence of lawyers resulting in delays or failures to take appropriate steps to protect their client's interest is not a good excuse. This was made clear by the Supreme Court in the case of Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145, at page 148. That was in the context of a lawyer failing to take appropriate steps to protect his clients interest and going ahead to file an affidavit on behalf of his client attempting to disclose a defence on the merits in an application seeking to set aside a default judgement. I consider this applies with appropriate modification in all other cases of lawyer negligence.
I do not find the reasons provided by Mr. Agwia and his lawyer for the delay reasonable. Mr. Agiwa through his counsel has made a deliberate choice to challenge the Electoral Commissions decision by way of a petition. They therefore did not pay any serious attention until belatedly that the way to mount the challenge is by way of a review application and not a petition. Delay on account of a cause of action that was not clearly open to him is not in my view, a reasonable explanation. The delay was forced upon himself by his own unnecessary conduct. In the circumstances I find that Mr. Agiwa has no reasonable explanation for the delay of over almost 6 months.
I find that the delay is detrimental to the application because, the delay has resulted in the Electoral Commission taking steps to have a supplementary election conducted. As I already said, any delay in that will result in an unjust deprivation of the people of the electorate from being represented by a duly elected member in Parliament without further unnecessary delay. Nothing can be done to compensate them for that except to call early proper election. On the other hand, Mr. Agiwa still has his right under s. 50 of the Constitution to vote for and stand for an elective office. If it were the true will of the people that he should represent them in Parliament, he will have no difficulty in been re-elected for another term in Parliament. That right is still intact. It has not been extinguished in any way.
Further, I accept, Mr. Peri’s argument that, Mr. Agiwa has not fully met the requirements under O.16 of the NCR in terms of not serving these proceedings on the Secretary of State (now Attorney General) as is required by O.16 r. 3 (3). Also, I find that Mr. Agiwa has not filed a statement in accordance with the requirements of O.16 r. 3 (2) (a). The effect of these defects is that the application is not properly on foot.
(ii) Arguable Case
That is not all, a quick perusal of the merits of the case, does not disclose an arguable case for judicial review. The findings I have made in relation to the question of whether on no there was a proper election confirms this. Based on those findings, there is one inevitable conclusion. Mr. Agiwa has not made out an arguable case, warranting a grant of leave for judicial review. In particular, there is no real challenge to the reasons for the Electoral Commissions decision to fail the election. On the evidence there is no argument that a reasonable minded person would have come to the same decision as that of the Electoral Commission. It would defy any logic and any common sense to declare Mr. Agiwa has duly elected on 2,985 votes from only his strong hold out of a possible 80,000. If that were to happen, the rights of the majority of the people in the electorate to freely elect their representative to represent them in Parliament would be breached.
For these reasons, I say in answer to the last issue, Mr. Agiwa has failed to make out a case for leave for judicial review to be granted.
Ultimately, therefore, I find that Mr. Agiwa has not made out a case for grant of leave for judicial review. Accordingly, I order
a dismissal of his application with costs against him.
________________________________________________________________________
Lawyers for the Plaintiff/Applicant: T. M. Rei Lawyers
Lawyers for the First and Second Defendants: Nongorr & Associates Lawyers
Lawyers for the Third Defendants: Yapao and Peri Lawyers
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2003/142.html