Kopol v Wakias [2012] PGNC 90; N4720 (7 July 2012)

N4720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.397 of 2012

BETWEEN:

JOSEPH KOPOL
Plaintiff

AND:

DAVID WAKIAS as the Southern Highlands
Provincial Election Manager
First Defendant

AND:

JOHN HARISOL as the Nipa Kutubu Electorate
Returning Officer
Second Defendant

ANDREW S. TRAWEN in his capacity as the Commissioner
of the Electoral Commission
Third Defendant

AND:

ELECTORAL COMMISSION
Fourth Defendant

Mt. Hagen: David, J
2012: 6 & 7

GENERAL ELECTIONS TO PARLIAMENT – application for interim injunctions to; restrain certain presiding officers involved during polling in parts of Nipa Kutubu electorate under the supervision of the Second Defendant from taking part in the scrutiny for the electorate; and to restrain the defendants, their servants and agents from admitting into the scrutiny, ballot boxes from council wards in Nembi Plateau, Nipa Basin and Lake Kutubu Local-level Government areas – allegations that conduct of presiding officers deprived electors of their right to vote - presiding officers took control of ballot boxes and ballot-papers and marked ballot-papers with their preferences – power of Electoral Commission - jurisdiction of National Court – application refused.

Cases cited:

Thomas Negints v Electoral Commissioner (1992) N1072
SCR No 4 of 2002; Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689
Electoral Commission & 3 Ors v Pila Niningi (2003) SC710
Oscar Pomaleu & 2 Ors v William Skate Jnr and Anor (2006) SC838

Counsel:

Kumoro Sino, for the plaintiff

RULING ON MOTION

7 July, 2012

1. DAVID, J: This is a ruling on a motion arising out of proceedings commenced by the plaintiff by originating summons both filed on 6 July 2012 seeking interim injunctions to; restrain certain presiding officers involved during polling in the Nipa/Kutubu electorate in the Southern Highlands Province on 23 June 2012 under the supervision of the Second Defendant from taking part in the scrutiny for the electorate; and to restrain the defendants, their servants and agents from including in the scrutiny ballot-boxes from specified council wards in Nembi Plateau, Nipa Basin and Lake Kutubu Local-level Government areas.
   
2. In support of the motion, the plaintiff relies on; his affidavit in support sworn on 5 July 2012 and filed on 6 July 2012; his supplementary affidavit sworn and filed on 6 July 2012; and his undertaking as to damages dated 5 July 2012 and filed on 6 July 2012.
   
3. Leave was granted for the plaintiff to move his motion ex parte.
   
4. The circumstances giving rise to these proceedings can be summarised as follows. The plaintiff is a candidate contesting the Southern Highlands Provincial electorate seat in the current general elections to the National Parliament. The date fixed for the one day polling in the Southern Highlands Province was 23 June 2012.
   
5. There are two principal grounds of complaint.
   
6. The first is that presiding officers appointed to preside at polling places within specified council wards in the Nembi Plateau, Nipa Basin and Lake Kutubu Local-level Government areas and other polling officers appointed to assist the presiding officers in the conduct of polls at those polling places whose appointments were sanctioned by the Fourth Defendant, Electoral Commission were replaced by presiding officers and other polling officers appointed by the First Defendant, David Wakias and the Second Defendant, John Harisoal who are suspected of aligning themselves with a certain candidate contesting the Southern Highlands Provincial electorate seat a day before polling was to commence. These appointments were illegal. A number of candidates contesting the Nipa/Kutubu Open electorate brought this matter to the attention of the First Defendant by an undated letter jointly signed by them, but received no response. A copy of that letter is in evidence and is annexed to the affidavit of the plaintiff as annexure "B".
   
7. The second is that the illegally appointed presiding officers took control of the ballot-boxes and ballot-papers and marked the ballot-papers with their preferences. The conduct of these presiding officers denied electors from exercising their constitutional right to vote which will in turn affect the results of these elections.
   
8. A petition constituted by a letter addressed to the Electoral Commissioner dated 1 July 2012 signed by the plaintiff and some other candidates contesting the Southern Highlands Provincial electorate seat was presented to the Fourth Defendant expressing their concerns raised in the grounds of complaint mentioned above and the general conduct of polling in the Southern Highlands Province alleging commission of serious and widespread illegal practices following a meeting with the First Defendant, David Wakias, the Provincial Returning Officer, Joseph Timothy, the Deputy Electoral Commissioner, Operations, Boge Raga and Legal Counsel for the Electoral Commission, Ray Williams on 30 June 2012 at Mendi. In the petition, it is suggested that; all disputed ballot-boxes from the specified council wards within the Local-level Government areas in all Open electorates in the Southern Highlands Province more particularly those in Nipa/Kutubu, Mendi/Munihu and Ialibu/Pangia be excluded by the Fourth Defendant from scrutiny; and if the Fourth Defendant decides to exclude such ballot-boxes from scrutiny and more than 50% of ballot-papers are affected by the decision, then the Third Defendant, Electoral Commissioner should consider declaring that elections have failed in the affected electorates. A copy of the petition is in evidence and is annexed to the affidavit of the plaintiff as annexure "A".
   
9. The Fourth Defendant has responded to the petition by directing the Second Defendant through its letter to him dated 3 July 2012 to exclude from scrutiny ballot-boxes from the Local-level Government areas of Nipa, Nembi Plateau and Poroma subject to further directions from it. A copy of the letter is in evidence and is annexed to the supplementary affidavit of the plaintiff as annexure "A". However, the First and Second Defendants have defied lawful instructions and have admitted or intend to admit ballot-boxes from the concerned Local-level Government areas to scrutiny.
   
10. Mr. Sino of counsel for the plaintiff has submitted that since the position of the Fourth Defendant is clear in relation to the exclusion of ballot-boxes for the concerned Local-level Government areas in the Nipa/Kutubu electorate, the Court has power to give effect to the Fourth Defendant's directions to the First and Second Defendants by granting the reliefs sought.
    
11. The plaintiff's motion can be determined in its entirety by my determining the question whether or not I have jurisdiction to interfere in the election process? I will have regard to the Constitution, the Organic Law on National and Local-Level Government Elections (the Organic Law), the Electoral Law (National Elections) Regulation 2007 (the Regulation) and case law in dealing with the issue.
    

12. Section 126 (1) of the Constitution states that elections to Parliament must be conducted in accordance with an Organic Law, by the Electoral Commission. Section 126 (2) of the Constitution states that general elections must be held in accordance with Sections 105 (general elections) and 106 (by-elections) of the Constitution. Section 126 (7) of the Constitution states that an Organic Law shall make provision for and in respect of; the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; the electoral system; safeguarding the integrity of elections; and appeals to the National Court in electoral matters. It is instructive to set out Section 126 below.

"126. Elections

(1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.

(2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.

(3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting age is 18 years.

(4) A citizen's right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).

(5) No non-citizen may vote in an election for the Parliament.

(6) The Electoral Commission is not subject to direction or control by any person or authority.

(7) An Organic Law shall make provision for and in respect of—

(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and

(b) the electoral system; and

(c) safeguarding the integrity of elections; and

(d) appeals to the National Court in electoral matters.

(8) An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions, duties or responsibilities in relation to provincial elections."

13. The Organic Law is the law enacted to implement Section 126 of the Constitution.

14. According to Section 15 of the Organic Law, the primary responsibility for organising and conducting all elections to the National Parliament in the country is given to the Electoral Commission. The Electoral Commission is constituted by the Electoral Commissioner: Section 5 of the Organic Law.

15. Section 3 of the Electoral Law (National Elections) Regulation 2007 (the Regulation) provides that the Electoral Commissioner has the overall charge of elections unless otherwise stated by the Organic Law and all other electoral officers and officers including Election Managers, Returning Officers, Assistant Returning Officers, Poll Clerks and other polling and scrutiny officials are subject to the direction and control of the Electoral Commissioner on all matters relating to or connected with elections.
    
16. Section 126 (6) of the Constitution provides that the Electoral Commission is not subject to direction or control by any person or authority.
    
17. However, the Electoral Commission in its discretion can delegate to an officer all or any of its powers and functions pursuant to Section 18 of the Organic Law: see also Section 19 of the Organic Law. The delegation is made by an instrument in writing and can be revoked in writing at will. Moreover, notwithstanding the making of a delegation, it is my respectful view that the Electoral Commission is not prohibited from exercising the powers and functions it has delegated. Schedule 1.10 (3) of the Constitution supports that view.
    
18. Section 18 of the Organic Law states:
    

"18. Delegation.

(1) The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2) Every delegation under Subsection (1) is revocable, in writing, at will.

(3) No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission."

19. Schedule 1.10 (3) of the Constitution states:
    

"(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a Court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision."

20. An Election Manager is the administrative and management representative of the Electoral Commissioner in a province. He is given such powers as are delegated to him by the Electoral Commissioner: see 18 of the Organic Law and Section 4 of the Regulation.
    
21. A Returning Officer for each electorate is appointed by the Electoral Commission pursuant to Section 19 of the Organic Law by publication in the National Gazette. The requirement is mandatory. His primary function is to ensure that the provisions of the Organic Law are complied with when conducting elections within the electorate he is responsible for, subject to any direction of the Electoral Commission. The tasks a Returning Officer is responsible for are set out in Section 118 of the Organic Law and Section 5 (1) of the Regulation. Some of the tasks, to name a few, are; maintaining the Electoral Roll for the electorate; supervising officers and electoral officers junior to him including Assistant Returning Officers, presiding officers, poll clerks and other polling and counting officers; and conducting elections in the electorate including appointing presiding officers, assistant presiding officers, poll clerks and door-keepers.
    
22. As I have mentioned above, a Presiding Officer is appointed by the Returning Officer: see also Sections 19 and 118 of the Organic Law; and Sections 5 of the Regulation. His responsibilities are set out in Section 7 (1) of the Regulation. He is responsible for the conduct of polling at a polling station including doing the following:
    
    1. arranging polling booth or booths in the scheduled polling place that he is responsible for;
       
    2. supervising the assistant residing officer, poll clerk, door-keeper and other electoral officers and officers at the polling place;
       
    3. ensuring that polling is conducted in accordance with law;
       
    4. properly completing all electoral returns;
       
    5. properly and safely keeping all electoral documents and other equipment used in the polling; and
       
    6. ensuring that ballot-boxes with marked ballot-papers and unused ballot-papers, marked Rolls, returns and other equipment supplied for polling are returned to the Returning Officer.
       
23. What this all boils down to is that, the ultimate authority for organising and conducting all elections to the National Parliament in the country is the Electoral Commission. The electoral officers and officers delegated with powers and functions of the Electoral Commission can exercise or perform them, subject to the directions of the Electoral Commission.
    
24. Is this a situation where the Court should intervene in the electoral process? This issue was considered in Thomas Negints v Electoral Commissioner (1992) N1072 where Woods, J at page 2 held:
    

"The Organic Law is amongst other matters to provide for the holding of National Elections. It sets out the method and procedures for the holding of elections. And it provides in s.206 for a method of challenging an election where the circumstances may warrant it and in s.212 the National Court may amongst other things declare an election void where it considers it just to do so...

The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commissioner with fairly wide powers and discretions to act in s.147 to adjourn the polling for any cause or in s.178 to extend the time for polling where he considers it necessary.

The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make such orders as are deemed necessary see s.155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with the responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner. He must realise that if something goes wrong during an election there may be grounds for the voiding of the election afterwards and that may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards. ....

I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretions granted to the Electoral Commissioner in the Organic Law and by the procedure to challenge an election in s.206."

25. The view expressed in Thomas Negints has been endorsed by subsequent decisions of the Supreme Court: see for example SCR No 4 of 2002; Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689; Electoral Commission & 3 Ors v Pila Niningi (2003) SC710; Oscar Pomaleu & 2 Ors v William Skate Jnr and Anor (2006) SC838. That is settled law now. I will adopt and apply the law here.

26. The Third and Fourth Defendants are parties to these proceedings. They however have not sought the reliefs sought by the plaintiff despite evidence before me showing that the Fourth Defendant has already directed the Second Defendant in writing to exclude the disputed ballot-boxes from scrutiny until further directions are given which direction appears to have been defied by the First and Second Defendants.
    
27. The matters of complaint indicate that the conduct of the First and Second Defendants and presiding officers at relevant polling places in the Nipa/Kutubu Electorate may have deprived the electors of their fundamental right to vote which is entrenched in the Constitution by Section 50.
    
28. However, whilst the Court has jurisdiction vested in it by Section 155 (4) of the Constitution to deal with matters raised by the motion, I do not propose to interfere with the wide powers and discretions specifically vested in the Fourth Defendant by law to deal with election–related matters such as the matters of complaint raised by the plaintiff. The plaintiff's remedy, if aggrieved by the result of the scrutiny, lies in the exercise of his right under Section 206 of the Organic Law.
    

29. For these reasons, I will refuse the reliefs sought by the plaintiff and dismiss the motion.

Ruling accordingly.

_______________________________________
Sino & Company Lawyers: Lawyers for the plaintiff