N6705
	PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 408 OF 2017

BETWEEN
JAMES YOKA EKIP 
First Plaintiff

AND
SIMON SANANGKE 
Second Plaintiff

AND
PATILIAS GAMATO, ML, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Second Defendant

AND
PAUL GOEMBA 
Third Defendant

AND
ANDREW KEROWA 
Fourth Defendant

Waigani: Makail, J
2017: 3rd & 4th May
JUDICIAL REVIEW – Application for leave for judicial review – Leave sought to review appointment of Returning Officer and Assistant Returning Officer – Decision of Electoral Commissioner to appoint Returning Officer and Assistant Returning Officer – Power to appoint – Plaintiffs are candidates in coming National General election – Whether Plaintiffs have sufficient interests – Locus standi – Whether arguable case established – Organic Law on National and Local-level Government Elections – Sections 19 & 20

Cases cited:
Petition of Michael T Somare [1981] PNGLR 265 
Kenn Mondiai v. Wawoi Guavi Timber Co Limited & Ors (2007) SC889
Lawrence Itali & Paulus Kaa Konts v. Patilias Gamato & Electoral Commission: OS (JR) No. 790 of 2016 (Unnumbered & Unreported Judgment of 21st April 2017) Makail J

Counsel:

Mr. D. Mel, for Plaintiffs
No appearance, for Defendants

RULING
4th May, 2017

1.	MAKAIL, J:    This is an application for leave for judicial review of the decision of the First Defendant to appoint the Third Defendant as Returning Officer (“RO”) and Fourth Defendant as Assistant Returning Officer (“ARO”) for Hagen Open electorate in Western Highlands Province for 2017 National General Election.  The decision was made on 21st September 2016 but superseded by a more recent one made on 31st January 2017 and published in the National Gazette on 21st February 2017.
2.	The preconditions for leave are:
	(a)	Sufficient interest or locus standi.
(b)	Promptness of the application, and if there is delay, a reasonable explanation for it.
	(c)	Arguable case.
	(d)	Exhaustion of alternative remedies.
3.	Based on their respective affidavits, the Plaintiffs submitted that they have met all these preconditions and that they be granted leave to review the decision.  
4.	As to sufficient interest or locus standi, they submitted that they are candidates for Hagen Open electorate in the coming National General election, that they were candidates for the same electorate in the previous National General Election in 2012 and are being aggrieved by the decision of the First Defendant.  
5.	They said that they are not mere busy bodies but genuinely concerned citizens and qualify within the definition given by the Supreme Court in Re Petition of Michael T Somare [1981] PNGLR 265 and adopted in Kenn Mondiai v. Wawoi Guavi Timber Co Limited & Ors (2007) SC889 to have locus standi to bring this application.
6.	They challenge the decision because they said that the Electoral Commission is a public body and the First Defendant as the Electoral Commissioner has duties to perform at law, one of them is to appoint ROs and AROs.
7.	That duty was not lawfully performed or carried out by the First Defendant in that whilst Sections 19 and 20 of the Organic Law on National and Local-level Government Elections (“Organic Law”) do not prescribe a procedure for appointment of ROs and AROs, the power conferred on the First Defendant represented the end of the appointment process.
8.	The decision-making process, they submitted, is as follows:
•	The Provincial Election Steering Committee (“PESC”) liaises with the respective districts and the districts provide a list of names of recommended ROs and AROs to it.

•	PESC deliberates and decides on who from the list should be recommended to the Electoral Commission to appoint as ROs and AROs.

•	The Provincial Administrator who is the Chairman of the PESC arranges for the secondment of public servants recommended for appointment as ROs and AROs to the Electoral Commission under Section 68 of the Public Services (Management) Act.

•	The Electoral Commission makes the appointment by publishing the names of ROs and AROs in the National Gazette under Sections 19 and 20 of the Organic Law.
9.	They submitted that the First Defendant did not follow this process and breached a Memorandum entered between himself on behalf of the Electoral Commission and the Provincial Administrator of Western Highlands Provincial Administration where candidates for appointment for ROs and AROs positions in the province would be sourced through this process.
10.	In the end, the Third and Fourth Defendants’ appointments did not follow this process.  They were appointed outside this process and the decision was ultra vires the powers of the First Defendant.  
11.	In addition, it was unreasonable and further, biased because in the case of the Third Defendant, he is the District Administrator of Hagen District and not eligible for appointment.  He was not one of the candidates recommended for appointment by the PESC and approved for secondment by the Provincial Administrator.  The decision was also in direct contradiction to the position taken by the First Defendant earlier that no District Administrators will be appointed as ROs or AROs because they have a conflict of interest in that they work closely with sitting Members of Parliament during the term of Parliament and would not be impartial in the discharge of their duties and functions during the election.  
12.	In the case of the Fourth Defendant, he also did not go through the appointment process and is a cousin and clansman of the sitting member, Hon. William Duma.  
13.	Both men have serious “allegations” against them in relation to the 2007 National General election where they as RO and ARO at that time, unlawfully set aside five ballot-boxes at counting which resulted in the declaration of Hon. William Duma as successful candidate.   In the last one, I refer to para. 9 of the Plaintiffs’ lawyers’ written submissions where they submitted that the Fourth Defendant was “instrumental in the setting aside of 22 ballot boxes containing approximately 30,000 votes or one third of total votes for Hagen Open.  Hon. Duma was then declared winner.”  (Emphasis added).
14.	They submitted that they have appealed to the First Defendant by letter dated 27th September 2016 to rescind his decision when they first learnt of the first decision made on 21st September 2016.  It was followed by a letter from their lawyers in January 2017. Their appeal and complaint received strong support from leaders and community members of the electorate in a petition to the First Defendant on 9th February this year.  Despite all this, the First Defendant did not change his decision.   
15.	Finally, they said they have promptly filed the application and delay is not against them.
16.	As to the question of sufficient interest on locus standi, the onus is on the Plaintiffs to establish an interest that must directly affect their rights.  In this case, the Plaintiffs are not applicants for appointment as ROs and AROs and were unsuccessful such that the decision has denied them their application for these positions and can assert a direct interest in the decision. 
17.	They are candidates for the electorate concerned.  In my view, that is as far as their interest is and can go beyond that, they would be described as mere “busy bodies” interfering with the functions of the First Defendant in the conduct of an electoral process.
18.	The case of 	Re Petition of Michael T Somare (supra) which decision on standing was adopted in Kenn Mondiai case (supra) is distinguishable.  That was a constitutional reference.  This case is an application for leave for judicial review.  In my view, the question of sufficient interest or locus standi should not be equated with one expressed by the Supreme Court in those two cited cases.

19.	That said, a more important question though is whether the Plaintiffs have established an arguable case.  The process described by the Plaintiff to appoint ROs and AROs was adequately covered and settled in the decision in Lawrence Itali & Paulus Kaa Konts v. Patilias Gamato & Electoral Commission (2017) N6698, a case which is factually identical to this case except that it was for Jimi Open Electorate in Jiwaka Province.

20.	The Court noted that Sections 19 and 20 of the Organic Law which are set out below did not prescribe a procedure for appointment of ROs and AROs but held that the procedure described by the Plaintiffs was outside of these provisions of the Organic Law and further, would amount to re-writing the law if the procedure proposed by the Plaintiffs was accepted.

21.	In the case of a RO, the appointment is by publication in the National Gazette under Section 19.  It states:

	“19.	Returning Officers.
(1)	The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.
(2)	A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.
(3)	A Returning Officer may, following consultations with the Electoral Commission, seek the assistance of such persons, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or in accordance with this Law remain the functions and powers of the Electoral Commission.
(4)	Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under Subsection (3).
(5)	The Electoral Commission may, on the nomination of a Returning Officer, appoint authorized enrolment agents in a Ward under the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.
(6)	Regulations may make further provisions for the duties and responsibilities of authorized enrolment agents appointed under Subsection (5).
(7)	A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.” (Emphasis added).
22.	In the case of an ARO, it is also by publication of in the National Gazette under Section 20.  It states:
“20.	Assistant Returning Officer.
(1)	Subject to this section, the Electoral Commission may, by notice published in the National Gazette, appoint a person to be an Assistant Returning Officer for a portion of an electorate.
(2)	A person appointed to be an Assistant Returning Officer for a portion of an electorate may, subject to this Law and to the Regulations and to the control of the Returning Officer, perform the functions and exercise the powers of the returning Officer, in, or in relation to, that portion of the electorate.
(3)	An Assistant Returning Officer shall not be appointed for a portion of an electorate for which less than 100 electors are enrolled.
(4)	Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may be made by the Returning Officer by instrument in writing, and in that case the appointment terminates upon the completion of the election.
(5)	The failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election.” (Emphasis added).
23.	Though I am not bound to follow that decision, the Plaintiffs have not shown any convincing reasons for me to depart from that decision.	  On the other hand, I am of the view that, that decision recognises the independence of the Electoral Commission in appointing ROs and AROs as its delegates to supervise an election on the ground and at the same time reinforces the confidence in the Electoral Commission to conduct an election. 

24.	Unless proven, the allegations of illegal practices at counting particularly the setting aside of 5 ballot-boxes in 2007 and 22 ballot-boxes in 2012 National General Elections by the Third and Fourth Defendants respectively remained allegations. 

25.	Further, that the allegations that the Third Defendant is a District Administrator and the Fourth Defendant is a cousin of the sitting member of the Parliament and have a conflict of interest is speculative.

26.	As was further observed by the Court in Lawrence Itali any unsuccessful candidate may challenge the conduct and result of the election under the supervision of the RO and ARO by way of an election petition pursuant to Sections 206 and 211 of the Organic Law. That is the remedy for the Plaintiffs in the event that they are unsuccessful in the election.

27.	For these reasons, I am not satisfied that the Plaintiffs have established an arguable case.

28.	Leave is refused.  Since there is no appearance by the Second Defendant even though it was served and informed of the hearing date, each party shall bear its own costs of the application.

Ruling and orders accordingly.
________________________________________________________________
Mel & Henry Lawyers:		Lawyers for Plaintiffs