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National Court of Papua New Guinea |
N6404
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (EP) No. 4 OF 2016
ENFORCEMENT PURSUANT TO CONSTITUTION SECTION 57
BETWEEN
LARRY LABE ANDAGALI
(Plaintiff)
AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(First Defendant)
AND
HON. PETER O’NEIL, MP
AS THE PRIME MINISTER OF PAPUA NEW GUINEA
(Second Defendant)
AND
NATIONAL EXECUTIVE COUNCIL
(Third Defendant)
AND
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
(Fourth Defendant)
Waigani: Makail, J
2016: 25th August & 5th September
CONSTITUTIONAL LAW – Enforcement of constitutional right – Alleged breach of – Right to vote and stand for public office – Special qualified right – Regulated by law – Constitution – Sections 50 & 57
CONSTITUTIONAL LAW – Enforcement proceeding – Enforcement of constitutional right – Standing of applicant – Right sought to be protected and enforced – Right to vote and stand for public office – Matter of public interest and importance – Constitution – Sections 50 & 57
CONSTITUTIONAL LAW – Remedy – Order for election sought – Vacancy in the Office of Provincial Governor – Vacancy existed before 12 months before the fifth anniversary of the date fixed for the return of Writs for previous General Election – Order for by-election sought inside the 12 month period – Whether by-election can be ordered – Constitution – Section 106 (a)
Cases cited:
Powes Parkop v. Wari Vele & Electoral Commission (No 2) (2007) N3321
SCR No. 2 of 1982: Re Organic Law [1982] PNGLR 214
Counsel:
Mr. George Lau, for Plaintiff
Mr. Ray William, for First Defendant
No appearance, for Second, Third and Fourth Defendants
JUDGMENT
5th September, 2016
1. MAKAIL, J: This proceeding appears to be an application to enforce a constitutional right under Section 57 of the Constitution. The right that is sought to be enforced is the right to vote and stand for public office under Section 50 of the Constitution.
2. Section 50 states:
“50. Right to vote and stand for public office.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”
3. An Applicant under Section 57 must establish first an interest in order to be granted standing to bring the application and secondly, the right to protect and enforce.
Standing of Applicant
4. As to standing of the Applicant the evidence in the affidavit in support of the Applicant sworn on 26th July and filed on 27th July 2016 shows that the Applicant possesses both academic and work experience qualifications and these places him above the group
of persons who are generally referred to as mere busy bodies.
5. On the academic side of things, he possesses qualifications in Tropical Agriculture from the University of Technology, Lae and Advanced
Professional Development Training from the Australian Institute of Management, Brisbane.
6. Work experience wise, it is noted that he is a member and leader of the Hiwa Tribe in Hela Province who owns the Hides PDL in the PNG LNG Project. He has been a leader since 1990 when the Hides to Porgera Electricity Project were initiated. He was a signatory to the Gas to Electricity Agreement.
7. He was also a signatory representing his people on the signing of the PNG LNG Umbrella Benefit Sharing Agreement (UBSA) and the PNG LNG Licence Based Benefit Sharing Agreement (LBBSA) for Hides PDL 1. He was active in negotiating these agreements on behalf of his tribe and Hela Province as a whole.
8. He is also the current Managing Director and a Director of Trans Wonderland Limited, a trucking company in PNG owning a fleet of over 15 big trucks and assets over K100 million. The company is owned by landowners from the resource areas of Hela and Southern Highlands Provinces. He is also the current Deputy Chairman of National Petroleum Company known as Kumul Petroleum Holding Limited.
9. From April 2012 to March 2016 he was the Chairman of PNG Power Limited. He was also involved in other leadership role such as Community Affairs Manager, British Petroleum Company Limited in 1992 as noted from his curriculum vitae.
10. In 2012 he contested the Hela Regional Seat and came third when late Hon. Anderson Agiru won the election. He is a registered voter at Pambulumu 1 Council Ward, Koroba, Lake Kopiago Electorate in Hela Province.
11. The Office of the Governor of Hela Province became vacant on 28th April 2016 when late Governor Anderson Agiru died. After his death, the people of Hela have been waiting for the First Defendant
to conduct a by-election. The Applicant publicly expressed his interest to contest the by-election but to date one has yet to be
held.
12. This evidence is uncontested. Also, the First Defendant did not submit that the Applicant does not have standing. So really the
First Defendant does not dispute that the Applicant has an interest. That interest is one that cannot be described as personal or
self-interest but rather of public importance. There is a vacancy in the Office of the Governor which must be filled at some point
in time. The Applicant has put up his hands so to speak to question why the First Defendant is not able to conduct the by-election
so that the vacancy can be filled.
13. Given the leadership role the Applicant has played in various capacities over the years as noted from the preceding discussion, his expression of interest to contest the by-election if one were held, and that he has previously contested the same seat in the 2012 General Election and came third, he has demonstrated to my satisfaction that he is not a mere busy body but someone who is genuinely concern about the interest and welfare of the people of Hela. And for that matter, he cannot be accused of serving or promoting his own interest but rather public interest and matters of national importance if he were granted standing to bring the application. And I so find.
Right to Vote and Stand for Public Office
14. As to the merits of the application it should observed that the onus is on the Applicant to establish a prima facie case of the right under the Constitution and the onus shifts to the Defendants to satisfy the Court that the action taken was in
compliance with the constitutional provision: SCR No. 2 of 1982: Re Organic Law [1982] PNGLR 214.
15. As to the qualifications in the case of the right to vote, amongst other things, Section 103 of the Constitution requires that the person (elector) must be 18 years and above to be qualified to vote. In the case of right to stand for public
office, amongst other things, the same age limit requirement under Section 103 of the Constitution applies. The person (candidate) must be 18 years and above to qualify to nominate. In other words, the right cannot be exercised
by a citizen or dual citizen if that person does not meet any or all of these requirements. In this case there is no issue with
these requirements.
16. The essence of the Applicant’s case is that the Electoral Commission failed to afford him that right. It has been four months since the vacancy existed and the First Defendant has yet to conduct a by election. The delay has denied the people of Hela Province the right to vote and stand for public office – contest the election and have a representative in Parliament.
17. A prominent feature of this case which the Applicant says further supports his call for a by-election is the various resource projects which Hela Province plays hosts to and one of them being the PNG LNG Project. The Applicant says this project is located in Hela Province and is a significant investment for the country. It must be managed well by the National, Provincial and Local-level Governments. That can only be achieved when there is a Governor for the province in Parliament who can represent the landowners and province on the on-going negotiations for benefits.
18. However, I do not think too much emphasis should be placed on this consideration. What is relevant and important though is that there must be a representation by the people of Hela in Parliament. A person must be chosen by the people and that person’s role is not only to represent their interest in the PNG LNG project but also on other issues affecting the province and the country as a whole.
19. That said, I am satisfied that the Applicant has discharged the onus of establishing a prima facie right under Section 50 of the Constitution.
20. The right to vote and stand for public office is a qualified special right granted to a person who is a citizen or a dual citizen of Papua New Guinea: see Section 50 (1). It is enforceable if it is breached. Every eligible person must be given a reasonable opportunity or given opportunity meaningfully to exercise that right. In SCR No. 2 of 1982: Re Organic Law (supra) at 225, Kearney DCJ stated:
“So far as concerns the right to stand for public office, I consider that s. 50 (1) does two things: first, it affirms that
any eligible citizen may hold elective public office; second, every eligible citizen must be "given a reasonable opportunity" to secure such office through the electoral ,process. Both of these may be characterized as rights of each eligible citizen; the
first is his primary right; the second is an adjectival right, designed to make effective his primary right.” (Emphasis added)
21. Kapi J (as he then was) stated at 234 of the judgment:
“It is clear from the provisions of s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principle which directs the law making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.” (Emphasis added).
22. The issue is whether the Applicant was given a reasonable opportunity or given opportunity meaningfully to exercise that right.
23. The position of the Electoral Commission is not clear. It does not admit breaching Section 50 even though it concedes a vacancy existed since the death of late Hon. Anderson Agiru on 28th April 2016 and secondly, four months has lapsed. Then it says that there were reasons for the delay. These reasons are set out in the affidavit of the Electoral Commissioner Mr. Patilias Gamato sworn and filed on 11th August 2016. These reasons form the grounds for opposing the application.
24. First, there is no money. The total costs of running the by-election is K9, 466,547.00. Two letters were sent to the Chief Secretary to Government, one on 24th May 2016 and the other on 29th June 2016 requesting funding and no response was received. Undisclosed tentative dates have been set for the by-election but due to no funds, they have been cancelled or extended.
25. Secondly, eight months is remaining before the issue of Writs for the next General Election in 2017. The Electoral Commission is focusing on the preparation for this election. Work is required to update the common roll and funding is required. If the by-election for Hela were to proceed many people, especially the younger eligible electors who intend to vote in the by election will miss out due to no name on the common roll.
26. Thirdly, security must not be compromised. Due to no funding there will be no police presence during the by-election if one were to be held.
27. Finally, according to Section 106 (a) of the Constitution holding a by-election is not allowed because would fall within the 12 month period before the next General Election in 2017.
28. The Electoral Commission submits that as it is responsible for conducting election, it did everything it could to conduct the by-election.
The failure is not on its part but the Departments of Finance and Treasury for not releasing funds to meet the costs of the by-election.
Even its requests to the Chief Secretary to Government received no response. Funding is beyond its responsibility and it should
not be held liable for failing to conduct the by-election.
29. As the right is regulated by law, one of the laws is the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”). The Organic Law regulates the conduct of the election and confers on the Electoral Commission the authority to conduct it.
30. First, I consider that the issue of funds is an internal administrative matter for it to resolve. If funding is needed to be sourced from the Departments of Finance and Treasury, then it must be done. It is then the responsibility of the Departments of Finance and Treasury to provide the funds. If funding is not forthcoming then it must be the case that the Electoral Commission has failed in its duty to comply with the constitutional provision under Section 50 of the Constitution. Thus, denying the Applicant and people of Hela right to vote and stand for public office.
31. In my view, the claim of lack of funds is an attempt by the Electoral Commission to shift the blame to the Departments of Finance and Treasury and avoid its responsibility. For these reasons, I reject this ground.
32. It would be incomplete and a mistake not to comment on the Chief Secretary to Government’s lack of response to the Electoral Commissioner’s requests for funds. There is no evidence from the Chief Secretary to indicate when funds will be available. We do not know whether there are funds or no funds or funds are being identified for allocation to the Electoral Commission. Such is the uncertainty that everyone including the Electoral Commission is kept in a limbo. In my view, that is not how he should deal with the issue of funding. I do not think the Applicant and the people of Hela should be treated this way or deserve this.
33. The uncertainty is further evident by the Second, Third and Fourth Defendants’ lack of participation at the trial despite being served the application. I think they need to be informed of the seriousness of the issue and the constitutional implications that may arise with respect to the duty of the Defendants to uphold the right of every eligible citizen or dual citizen under Section 50 of the Constitution. If funding is the problem then all of the Defendants and those responsible for funding must come out clear. Right now they have not convinced me that it is the cause of the problem.
34. Secondly, I am not convinced at all that the updating of the common roll for Hela Province is a valid reason to hold back the by-election. Again, it is an internal administrative matter for the Electoral Commission to sort out. It should not step in the way of the people’s right to vote and stand for public office. I dismiss this ground.
35. Finally, the Electoral Commissioner does not say that holding a by-election is impossible due to security threats. For instance, wide-spread violence and clashes by supporters of intending rival candidates in the province making it practically impossible to conduct a by-election or that a free and fair election will be compromised. All he says is that due to no funding security of the by-election will be compromised. This assertion is not corroborated by any evidence from the Commissioner of Police, or the Provincial Police Commander of Hela Province. I give no consideration to this ground.
36. For all these reasons, I am satisfied that the Electoral Commission failed to accord the Applicant and the people of Hela a reasonable opportunity to exercise their right to vote and stand for public office as guaranteed by Section 50 of the Constitution.
Relief
37. Turning now to the question of relief, the Applicant seeks, amongst other things, an order for by-election and further that the Electoral Commission conduct it within seven days. In my view, the relief sought by the Applicant to remedy the breach remains a discretionary matter. This is where the submission by the Electoral Commission that a by-election is not permitted under Section 106 (a) of the Constitution is relevant.
38. Section 106 of the Constitution provides:
“If the office of an elected member of Parliament become vacant otherwise than by virtue of section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurred –
(a) within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or
(b) after the writ has been issued for an election under section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first returned writ shall be declared to have been revoked.” (Emphasis added).
39. Summarising what this provision means in the context of this case, if the Office of the Governor becomes vacant before the 12 months before the fifth anniversary of the date fixed for the return of the Writs for the previous General Election, an election must be held to fill the vacancy. However, if the vacancy occurs within 12 months before the fifth anniversary of the date fixed for the return of the Writs for the previous General Election, no election will be held.
40. There is no dispute that the Office of the Governor for Hela Province became vacant on 28th April 2016. The date fixed for the return of the Writs for the 2017 General Election is 27th July 2017. 12 months before this date is 27th July 2016. The Applicant submits that the vacancy occurred on 28th April 2016 and this was before 27th July 2016 and the 12 month period does not apply. For this reason the Electoral Commission was by law obliged to conduct a by-election. As it has failed, he is entitled to an order for a by-election. He seeks this order as a primary relief.
41. The Electoral Commission holds a contrary view submitting that whilst the Office of the Governor became vacant before the 12 month
period, by virtue of Section 106 (a) holding a by-election is not permitted. This is because the by-election, if ordered, will be
after 27th July 2016 and fall inside the 12 months before the fifth anniversary of the date fixed for the return of the Writs for the previous
General Election.
42. I have not received submissions from either party as to the reasons for having a 12 month period in Section 106 (a). However, I
consider that the purpose for that is to maintain the status quo until the next General Election. Secondly, and importantly it is to save costs of funding a by-election. After all, what is the
point in holding a by-election when the next General Election is only 12 months away!
43. In its consideration the Court briefly touched on the question of holding a by-election in the 12 month period before the next General Election. That was in Powes Parkop v. Wari Vele & Electoral Commission (No 2) (2007) N3321. And we can draw some valuable experience from that case to assist us determine this question.
44. In that case on 3rd January 2006 the National Capital District Regional Seat became vacant upon the sudden death of Hon. Bill Skate, MP who held that seat following a heart-attack. A by-election was held in accordance with Section 106 of the Constitution. On 1 August 2006 Mr. Vele was declared as the winner.
45. On 7th September 2006 Mr. Parkop filed a petition. He disputed Mr. Vele’s election alleging that Mr. Vele bribed voters. Mr. Parkop came third and sought orders to first declare the election of Mr. Vele void, secondly declare Mr. Vele not duly elected and thirdly, declare him (Mr. Parkop) duly elected. On 6th February 2007 the Court commenced hearing the petition.
46. Mr. Parkop submitted that if the Court were to uphold the bribery allegations, it was open to the Court to grant the orders sought. The Electoral Commission contended otherwise. It further pointed out that if a by-election were to be ordered, the office of the Governor became vacant within the twelve months before the fifth anniversary of the date fixed for the return of the Writs for the previous General Election under Section 106 (a) of the Constitution. In that case, it was about three months away from the issue of Writs for the 2007 General Election.
47. The Court held, amongst other things, that a by-election can be ordered if the election is void and the successful candidate is declared not duly elected but could not order by-election given that it was inside the 12 month period and prohibited by Section 106 (a) of the Constitution.
48. From the facts of that case, I note that the Office of the Governor became vacant before the 12 month period that Section 106 (a) of the Constitution speaks of. Mr. Vele was declared Governor before the 12 month period. The hearing of the election petition fell within the 12 month period.
49. In this case the Office of the Governor became vacant before the 12 month period. No by-election was held before the 12 month period. The proceeding was filed on 27th July 2016. The hearing took place after 27th July 2016 or fell inside the 12 month period.
50. Going by the Court’s reasoning in Parkop v. Vele case this Court cannot order a by-election because it is and will be held inside the 12 month period and prohibited by Section 106 (a) of the Constitution. I uphold the submission by the Electoral Commission. A by-election is prohibited in this instance. It may be an unsatisfactory and disappointing outcome for the Applicant and the people of Hela but that is what the law says.
51. As I observed earlier at [42], the purpose of this law is to maintain the status quo until the next General Election. It is also to save costs. The Applicant and everyone will have to wait patiently for the next couple of months until the Writs are issued for the next General Election in 2017. Then they can exercise their right under Section 50 of the Constitution.
Conclusion
52. As there are no other reasons other than the reasons given by the First Defendant above or other intervening factors which delayed the First Defendant to conduct a by-election, I conclude that the Defendants failed to uphold Section 50 of the Constitution after the Office of the Governor became vacant on 28th April 2016. That breach occurred on that date and continued until 26th July 2016. However, no breaches can be claimed after 27th July. While the Applicant can have an order in his favour for breaches of his right under Section 50 of the Constitution, an order for by-election is beyond the Court’s discretion. He shall have the costs of the proceeding.
Order
53. The formal orders of the Court are:
4. An order for by-election is refused.
__________________________________________________________
Niuage Lawyers : Lawyers for the Plaintiff
Niugini Legal Practice: Lawyers for the First Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2016/215.html