Punda v Wiyo [2016] PGNC 114; N6276 (18 May 2016)

N6276

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. (JR) NO. 543 OF 2013

BETWEEN

ROBERT DOPO PUNDA

PRESIDENT ELECT OF THE IALIBU BASIN LLG
(Plaintiff)

AND
PETER WIYO
ASSISTANT RETURNING OFFICER FOR THE IALIBU BASIN LLG
(First Defendant)

AND
DAVID WAKIA, SH PROVINCIAL RETURNING OFFICER
(Second Defendant)

AND
ANDREW TRAWEN, ELECTORAL COMMISSIONER
(Third Defendant)

AND
THE ELECTORAL COMMISSION OF PNG
(Fourth Defendant)

&

OS. (JR) NO. 546 OF 2013

BETWEEN

JAMES MALI
PRESIDENT ELECT OF KAGUA ERAVE RURAL LLG
(Plaintiff)

AND
MATHEW POKEA
ASSISTANT RETURNING OFFICER
(First Defendant)

AND
ANDREW TRAWEN, ELECTORAL COMMISSIONER
(Second Defendant)

AND
THE ELECTORAL COMMISSION OF PNG
(Third Defendant)

&

OS. (JR) NO. 587 OF 2013

BETWEEN

VINCENT GOHUSE WARIGI
CANDIDATE FOR GOROKA URBAN LORD MAYOR’S SEAT, GOROKA URBAN LLG
(First Plaintiff)

AND
JEFFERY SASUWO
PRESIDENT FOR GAHUKU RURAL LLG & CANDIDATE FOR
GAHUKU RURAL LLG
(Second Plaintiff)

AND
AILEEN AKUNAI
COUNCILOR ELECT FOR WARD 8, GAHUKU RURAL LLG
(Third Plaintiff)

AND
LAVAX ARINASO, COUNCILLOR ELECT FOR WARD 3, GOROKA URBAN LLG
(Fourth Plaintiff)

AND
GOROKA ADMINISTRATION
(Fifth Plaintiff)

AND

ANDREW TRAWEN, ELECTORAL COMMISSIONER
(First Defendant)

AND
THE ELECTORAL COMMISSION OF PNG
(Second Defendant)

&

OS (JR) NO. 684 OF 2013

BETWEEN

HON. NATHAN WANTEPE
PRESIDENT OF MUL LLG
(First Plaintiff)

AND
HON. JOHN BAGL WAMP
PRESIDENT OF MUGLAMP LLG
(Second Plaintiff)

AND
HON. DICKSON AI
PRESIDENT OF KOTNA LLG
(Third Plaintiff)

AND
HON. LUKE MATHEW
PRESIDENT OF HAGEN RURAL LLG

(Fourth Plaintiff)

AND
WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
(Fifth Plaintiff)

AND
ANDREW TRAWEN
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

(First Defendant)

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(Second Defendant)

AND
WAI RAPA
(Third Defendant)

&

OS (JR) NO. 175 OF 2014

BETWEEN

PETER ANGELLYE
(First Plaintiff)

AND
CHARLIE ANAMP
HIMSELF AND ON BEHALF OF 22 WARD
COUNCILLORS FOR BANZ LLG
(Second Plaintiff)

AND
ANDREW TRAWEN
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
(First Defendant)

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Second Defendant)

Waigani: Makail J
2014: 11^th December
2015: 17^th April, 13^th May & 9^th June

2016: 18^th May

ELECTIONS – Local-level Government Elections – Election of Presidents and ward Members of Local-level Governments – Failed elections – Organic Law on National and Local-level Government Elections, 1997 – Sections 97

JUDICIAL REVIEW – Review of decision by Electoral Commission to declare failed election – Election of Presidents and ward Members of Local-level Governments – Election failed on grounds of widespread corruption and illegal practices at polling and counting – Organic Law on National and Local-level Government Elections, 1997 – Section 97

JUDICIAL REVIEW – Review of decision by Electoral Commission to declare failed election – “Blanket” decision – Election of Presidents and ward Members of Local-level Governments – “Blanket” decision subject of Special Constitutional Reference – Supreme Court found “Blanket” decision constituted unreasonable exercise of power – Organic Law on National and Local-level Government Elections, 1997 – Section 97

Cases cited:

SCR No. 3 of 2013: Special Reference pursuant to Constitution section 19 by the Western Highlands Provincial Executive

Counsel:

Mr. D. Korowa, for Plaintiff in OS (JR) No. 543 of 2013
Mr. R. William & Ms. C. Lari, for Defendants in OS (JR) No. 543 of 2013
Mr. D. Korowa, for Plaintiff in OS (JR) No. 546 of 2013
Mr. R. William & Ms. C. Lari, for Defendants in OS (JR) No. 546 of 2013
Ms. D. Mewerimbe, for Plaintiffs in OS (JR) No. 587 of 2013
Ms. C. Lari, for Defendants in OS (JR) No. 587 of 2013
Mr. P. Mawa & Mr. D. Levi, for Plaintiffs in OS (JR) No. 684 of 2013
Ms. C. Lari, for First and Second Defendants in OS (JR) No. 684 of 2013
Mr. A. Asang, for Third Defendant in OS (JR) No. 684 of 2013
Mr. E. Isaac, for Plaintiffs in OS (JR) No. 175 of 2014
Ms. S. Kapi, for Defendants in OS (JR) No. 175 of 2014

JUDGMENT

18^th May, 2016

1. MAKAIL, J: These applications for judicial review are separate but I propose to deal with them together because they concerned the same matter. The Plaintiffs question a decision by the Head of State, acting with, and in accordance with, the advice of the Electoral Commission to declare elections of Presidents and Members in various Local-level Governments (“LLGs”) as having failed during the Local-level Governments election in 2013.

2. The decision was based on section 97 of the Organic Law on National and Local-level Government Elections, 1997 (“Organic Law on Elections”). This provision states:

“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.”

3. It was also a “blanket” decision because fifteen days before the date fixed for the return of the writs of 30^th August 2013, the Electoral Commissioner published in a Papua New Guinea Electoral Commission Bulletin No. 29-2013 dated 15^th August 2013 a notice failing the 2013 LLG Elections. The notice was gazetted in the National Gazette No. G431 on 7^th October 2013 and it did not specify which wards were subject of the decision.

4. Amongst others, the following elections of Presidents and ward Members of the LLGs were declared as failed and are subject of these proceedings:

• Southern Highlands Province
  

Ialibu Basin LLG
Kagua Rural LLG

• Eastern Highlands Province
  

Goroka Urban LLG

Gahuku Rural LLG

• Western Highlands Province
  

Hagen Urban LLG

Hagen Rural LLG

Mul LLG

Muglamp LLG

Kotna LLG

• Jiwaka Province
  

North Waghi LLG

5. The reason the Electoral Commission gave was that there was widespread corruption and illegal practices at polling and counting. This “blanket” decision resulted in the Plaintiffs commencing these judicial review proceedings to question its propriety and reasonableness. They assert that while the Head of State, acting with, and in accordance with, the advice of the Electoral Commission has the requisite power to fail the elections, it was not properly exercised and further, unreasonable.

6. The “blanket” decision also became the subject of a Special Constitutional Reference under section 19 of the Constitution. That Reference was brought by the Western Highlands Provincial Executive. That case was registered as SCR No. 3 of 2013: Special Reference pursuant to Constitution section 19 by the Western Highlands Provincial Executive. On 29^th August 2014 the Supreme Court delivered its decision.

7. Initially there were eight questions referred to the Supreme Court to give an opinion but at the hearing, they were reduced to five after three were abandoned. One of the questions was:

“Question 2

Can the Electoral Commission fail a General Election to Local Level Government when Writs are issued in specific wards when there was no legal basis to declare the elections for the wards having been failed?”

8. The Supreme Court declined to answer the question however, it said that the Electoral Commission has a duty to exercise the power to fail an election responsibly and to make separate decision to fail an election for each ward. This is because a separate writ is issued for each ward and it requires a separate decision to be made to fail the election for each ward. Emphasising the point that there must be separate decision made for each ward, the Supreme Court said at [29] of its decision this:

“It follows that the Commission is required to make separate decisions to fail an election under s 97 in respect of each ward on grounds connected with the specific ward in question. Lump decisions to fail elections for an entire LLG area or part thereof comprising a number of wards coming under a LLG area is beyond the intention of s 97. It constitutes an unreasonable exercise of power.”

9. In my view the Supreme Court has spoken. The “blanket” decision or “Lump decisions” as the Supreme Court eloquently described it constitutes an unreasonable exercise of power. This is the advisory opinion of the Supreme Court and the Electoral Commission must take heed of. It must make separate decision for each ward. The onus is now on the Electoral Commission to take that step. It must, without further delay, make separate decision to fail the election for each ward. This will require it to reconsider the “blanket” decision of 15^th August 2013 and decide whether the election of each ward Member within the LLG including that of the President should be failed.

10. In making that decision, it should also take heed of the advice of the Supreme Court at [31] in its decision where it said:

“With regard to the circumstances under which an election may be failed by the Commission set out in s 97 (2), the Constitutional power that is vested in the Commission to fail an election along discretionary considerations associated with circumstances prevailing in the electorate or ward during the election period is indeed wide and over-arching. That power, as with all other Constitutional powers vested in government authorities, comes with responsibility. The power vested in the Commission must be exercised with care and responsibility, on reasonable grounds having regard to the specific purpose for which the power is given to the Commission. In practical matters calling for the assessment of information and material that forms the grounds upon which a judgment is to be made for the exercise of power in a certain way, the Commission must draw reasonable conclusions from reliable evidence or information to reach its decision. For instance, it would be reasonable to fail an election on the ground that a return of a candidate cannot be made for a LLG ward because the election has been totally subverted. Similarly, it would be reasonable to fail an election if it is impossible to make a declaration or return because a substantial number of ballot papers for a particular ward cannot be found or despite reasonable steps taken to find those missing ballot papers, such that a full and proper scrutiny of the votes for the ward in question is impossible. Another example is in a situation where there is widespread violence in a council ward or in a large number of wards which prevents an overwhelming majority of voters from voting for their Councillors or Council Presidents respectively. It would require an overwhelming body of reliable evidence and information obtained from reliable sources to swing the pendulum in favour of failing the election.”

11. This is the advice of the Supreme Court and while it was given in respect to the elections of Presidents and ward Members of the five LLGs in Western Highlands Province, I am of the view that it equally applies to the other wards in the LLGs that are subject of these proceedings.

12. I am of the further view that the Supreme Court decision is unequivocally clear. It is now for the Electoral Commission to ensure that any decision it makes in respect of each ward in the LLGs subject of these proceedings must be in line with the advice of the Supreme Court.

13. For these reasons I am of the view that the Supreme Court decision obviates the need in these proceedings to determine whether the exercise of discretion resulting in the subject decision was improperly exercised or that it was unreasonable.

14. I decline to grant the orders sought by the Plaintiffs in these proceedings. However, as the Electoral Commission has yet to comply with the Supreme Court decision, I direct that it make separate decision for each ward without further delay.

15. Costs of these proceedings shall be paid by the Electoral Commission, on a party/party basis, to be taxed, if not agreed. It is so ordered because it failed to take heed of the Supreme Court’s decision following its delivery on 29^th August 2014. This has caused the Plaintiffs to pursue these proceedings.

Judgment and Orders accordingly.
_______________________________________________________

Stevens Lawyers: Lawyers for the Plaintiffs in OS (JR) No. 543 of 2013

& OS (JR) No. 546 of 2013

Mawa Lawyers: Lawyers for the Plaintiffs in OS (JR) No. 587 of 2013

& OS (JR) No. 684 of 2013
Wantok Legal Group: Lawyers for the Plaintiffs in OS (JR) No. 175 of 2014
Niugini Legal Practice: Lawyers for the Defendants

Raurela Lawyers: Lawyers for the Third Defendant in OS (JR) No. 684 of 2013