Kal v Siwi [2007] PGNC 124; OS (JR) 344 of 2007 (4 July 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 344 OF 2007 – EP

BETWEEN

HON MICHAEL MAS KAL, MEMBER FOR NORTH WAGHI OPEN ELECTORATE
Plaintiff

AND

JOE SIWI, RETURNING OFFICER FOR NORTH WAGHI OPEN
ELECTORATE
First Defendant

AND

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Second Defendant

ELECTORAL COMMISION OF PAPUA NEW GUINEA
Third Defendant

Waigani /Mt Hagen: Hinchliffe, J
2007: 4 July

Case Cited:
References by Francis Damen, Attorney General of PNG (2002) SC689
The Electoral Commission, Kala Rawali, Abraham Wari and Timothy Tala v. Pila Ninigi (Unreported June 2003 SC710)
Oscar Pomalue, Andrew Trawen and The Electoral Commission of PNG v. William Skate Jr and Dan Kakaraya (2006) SC838

Counsels:
J. Haiara, for the Plaintiff
M. Opur, for the Defendant

4 July, 2007

1. HINCHLIFFE J.: This matter relates to the 2007 General Election. I must say from the outset that I was quite impressed with Counsel’s performance and in particular to that of counsel for the defendants. I was also impressed with counsels’ preparation of the case and it is clear to me that some hard work was put in by both of them.

2. The plaintiff seeks the following substantive orders as set out in the Originating Summons.

(a) An order granting injunction restraining the Defendants from conducting polling in the North Waghi Electorate in reliance upon the Amended polling places for North Waghi Local Level Government.
(b) Leave of Court to review the decision of the second and third Defendants to abolish seven (7) designated polling place in the North Waghi Rural Level Government.
(c) An order quashing the decision of the Second and Third Defendants made after the writs were issued for the 2007 General Elections to abolish the seven (7) designated polling places in the North Waghi RLLG, and
(d) An order to compel and coerce the Defendants to re-instate the seven (7) designated polling places for North Waghi RLLG within Open Electorate before polling for the 2007 General Elections.

Leave to apply for Judicial Review was granted, on the 28 June, 2007.

The Issues

3. The relief sought by the Plaintiff and grounds upon which he relies on to obtain relief can be summarized as raising four distinct but over lapping issues relating to:

1. Whether the Returning Officer is obliged to follow the 2002 Polling Schedule for the 2007 General Election.
2. Whether the Plaintiff followed proper procedures under the Organic Law.
3. Whether the National Court has jurisdiction to intervene in an election process mid-stream.
4. Whether it is appropriate for matters raised in this proceeding to be raised in proceedings commenced under Section 206 of the Organic Law on National and Local Level Government Elections by way of Petition.
   

Each of the above issues is dealt with in the ensuring paragraphs.

Whether the Returning Officer is obliged to follow the 2002 Polling Schedule for the 2007 General Elections.

4. The Plaintiff says that the Polling Schedule which he attaches as annexure "MMK1" was used in the 2002 National Elections and therefore it is this that should be used for the 2007 General Elections.

5. The polling schedules are prepared and used for a particular year of election. Once the election is over, the utility of that polling schedule lapses. It is then up to the Electoral Commission to prepare new polling schedules with new polling places for subsequent elections. It may also decide to use the polling scheduling for previous elections. It has the discretionary powers to do what he considers necessary for purposes of conducting an election.

Section 43 of the Organic Law gives him the discretion to do that. It provides:

"43 Polling Place"

(1) The Election Commission may, by notice published in the National Gazette or in a newspaper circulating in the electorate –

(a) Appoint such number of polling places for each electorate as it thinks necessary and practicable"

6. The Returning Officer is not obliged to follow the 2002 polling schedule and thereby stick with the polling places designated in that schedule. The Plaintiff can not claim that by law the 2002 polling schedule is binding on the Returning Officer.

7. The Plaintiff does not show any evidence of any obligation being placed on the Returning Officer to stick to or use the polling schedule for 2002 as the polling schedule for 2007 General Election.

8. The polling schedule for the 2002 national elections does not apply to the 2007 national elections. These can not be used if the Electoral Commission has decided to use new polling

Mambei Lawyers & Consultants: Lawyer for the Appellant
Nonggorr and Associates Lawyers: Lawyer for the Respondents