N9361

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 44 OF 2018

BETWEEN:
JOHN NONGGORR
Plaintiff

AND:
PATILIAS GAMATO, Electoral Commissioner of PNG
First Defendant

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Defendant

AND:
JOSEPH NEN, Chairman, WHP Election Steering Committee & Acting WHP Provincial Administrator
Third Defendant

AND:
STANLEY MAIP, CHAIRMAN, WHP ELECTION STEERING COMMITTEE
Fourth Defendant

AND:
INDPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Narokobi J
2021	: 23rd September, 22nd December
CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws, Constitution, Section 18 – referral by National Court of constitutional questions to Supreme Court, Constitution.

The Plaintiff has filed proceedings seeking damages for breach of his rights under s 50(1) of the Constitution in the way the elections were conducted by the Defendants in the Western Highland Provincial seat. The Fifth Defendant has filed an application to dismiss the proceedings under s 289A of the Organic Law on National and Local-level Government Elections. That provision indemnifies the electoral commission from any claim for damages arising from statutory breaches, negligence and the underlying law, and it states:

“289A. Civil Claims Against the Electoral Commission.

No claim for damages may be maintained against the Electoral Commission, the Electoral Commissioner or an electoral officer for cancelling an election, breach of statutory duty, negligence or other claim under the underlying law for any act or omission with respect to the conduct of elections.”

Held:

(1) Determining the application to dismiss for the proceedings being frivolous, vexatious and disclosing no cause of action will involve interpreting and application of Constitutional Laws, which include Organic Laws (Constitution, Sch 1.2).

(2) The Supreme Court is possessed of jurisdiction to determine questions in relation to the interpretation and application of Constitution Laws (Constitution, s 18(1)).

(3) The National Court would have jurisdiction to determine Constitutional question only where the law specifically allows it to, such as matters arising from claims under ss 57 and 58 of the Constitution. The questions arising here are not questions the Constitution has conferred jurisdiction upon the National Court to determine and accordingly a reference under s 18(2) of the Constitution is necessary.

(4) The following questions are therefore referred to the Supreme Court under s18(2) of the Constitution to answer:

•	Does s 289A of the Organic Law on National and Local Level Government Elections indemnify the Electoral Commission or an electoral officer from claims for damages and or compensation arising from claims of alleged violation(s) of constitutional rights commenced under s 57 of the Constitution and seeking damages under s 58(2) of the Constitution?; and

•	If it does indemnify the Electoral Commission or an electoral officer, then is s 289A of the Organic Law on National and Local Level Government Elections a permissible regulation of a citizen’s right under s50(2) of the Constitution and therefore a Constitutionally valid provision of the said Organic Law? 
(4) The present proceedings are stayed pending the resolution of the questions referred to the Supreme Court.
Cases Cited:
Application by Amin [1991] PNGLR 1
Komba v Iamau (2021) N8867
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348
Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057
Statutes Cited:
Constitution
Organic Law on National and Local-level Government Elections

Counsel
D Mel, for the Plaintiff/Respondent 
T Mileng, for the Fifth Defendant/Applicant

RULING

22nd December, 2021

1.	NAROKOBI J: The Fifth Defendant has filed a motion on 26 July 2019 seeking to dismiss the proceedings on the basis that it is frivolous, vexatious and discloses no reasonable cause of action against the Fifth Defendant, that is the State.

2.	The application is supported by the affidavit of Troy Mileng filed 26 July 2019.

3.	The application is opposed by the Plaintiff.

4.	The Plaintiff’s cause of action is premised on s 50 (Right to Vote and Stand for Public Office) of the Constitution, that is that his rights under this provision were violated in the manner the 2017 National General Elections (NGE) were conducted. He was a candidate in the 2017 NGE. The Plaintiff claims his rights were violated and he should be entitled to compensation and or damages for those breaches.

5.	Section 50 of the Constitution 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,
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.”

6.	 An example of the allegation of the violation of his rights under s 50, he says at paragraph 9 of the Statement of Claim:

“9.  The Defendants conducted and  managed the election in the Western Highlands Provincial electorate in the 2017 National General Elections in complete violation of the requirements of the Organic Law on National and Local-level Government Elections (“the Organic Law”) which provisions are intended for and with the prime object of ensuring genuine and free elections as guaranteed to citizens by Section 50 of the Constitution, in that:

(a)	Scrutiny of votes conducted between 22 to 28 July 2017 was contrary to and in violation of the provisions of the Organic Law relating to scrutiny;
(b)	Polling conducted on the 7th and 8th July 2017 was conducted in breach of the provisions of the Organic Law relating to polling;
(c)	The electoral roll deployed and used in voting was seriously flawed and defective as its contents, preparation and use was contrary to and in violation of the requirements of the Organic Law;
(d)	The engagement and appointment of personnel to be electoral officials in various statutory positions relating to the conduct and management of elections as Returning Officer, Assistant Returning Officers, poling officers and counting officers were done without regard to their competency, impartiality and integrity to perform the statutory functions that are essential to give effect to the constitutional prescription for ensuring genuine and free elections with the consequences that officials so appointed performed and discharged statutory functions in the said election poorly, unfairly and in breech of the constitutional law provisions;
(e)	There was no proper polling and there was a complete absence of free voting throughout the electorate resulting in infringement of the rights to vote throughout the electorate;

All of the above stated resulted in the denial to the Plaintiff of his right to stand for and vote in genuine and free elections.” 

7.	The Plaintiff, by virtue of the said alleged breaches of s 50(1) of the Constitution seeks to enforce his claims under s 57 of the Constitution in the National Court and seeks compensation and or damages under s 58(2) of the Constitution. Sections 57 and 58 of the Constitution are in the following terms:

“57. Enforcement of guaranteed rights and freedoms.
 
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.
 
58. Compensation.
 
(1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).
(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
(3) Subject to Subsections (4) and (5), damages may be a awarded against any person who committed, or was responsible for, the infringement.
(4) Where the infringement was committed by a governmental body, damages may be awarded either—
(a) subject to Subsection (5), against a person referred to in Subsection (3); or
(b) against the governmental body to which any such person was responsible,
or against both, in which last case the court may apportion the damages between them.
(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—
(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and
(b) the action taken was genuinely believed by that person to be required by law,
but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.”

8.	The main submission of the Fifth Defendant is that the elections are regulated by the Organic Law on National and Local-level Government Elections (Organic Law). Claims for damages for breach of the Organic Law are barred by Section 289A of the Organic Law. This provision states:

“289A. Civil Claims Against the Electoral Commission.

No claim for damages may be maintained against the Electoral Commission, the Electoral Commissioner or an electoral officer for cancelling an election, breach of statutory duty, negligence or other claim under the underlying law for any act or omission with respect to the conduct of elections.”

9.	The Fifth Defendant further relies on the case of Komba v Iamau (2021) N8867, where the court held that:

“11. Section 289A is a statutory bar to a claim for damages against the Electoral Commission, the Electoral Commissioner or an electoral officer for damages arising from negligent conduct of elections. This provision was inserted in the Organic Law in 2006 following many complaints including Court actions against the Electoral Commissioner and his officers in relation to the conduct of the 2002 General elections.

12. Some examples of the Court actions arising from alleged negligence of the Electoral Commissioner and his officers which ended up being decided by the Court were Application of Daniel Don Kapi (2002) N2259; Kiee Toap v. The State & Electoral Commission (2004) N2731 and Simon Awaria Lumbirindi & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission and The State (2006) N3044. None of the Plaintiffs in these cases were successful. They were dismissed either for lack of pleadings or failing to disclose a reasonable cause of action.”

10.	The Fifth Defendant essentially submits that the avenue for the Plaintiff to secure his rights under s 50(1) of the Constitution is to challenge the outcome of the elections through an election petition. He cannot claim damages as such a claim is barred by s 289A of the Organic Law.

11.	On the other hand, the Plaintiff submits that the right to vote and be elected to public office at a genuine, periodic, and free elections is a Constitutional right under s 50(1). The Electoral Commission is required to give effect to the Plaintiff’s rights under s 50(1) under an Organic Law by virtue of s 126 of the Constitution: 

“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.

12.	That Organic Law (as both parties agree), is the Organic Law on National and Local Level Government Elections.

13.	The Plaintiff contends that the fact that he has contested the elections does not mean that he has exercised his right under s 50(1). This is because an election that is run contrary to the Organic Law is no election at all, and he has not meaningfully and properly exercised his right in law and as a matter of fact.

14.	  In relation to the case of Komba v Iamau (2021) N8867 and the related cases, the Plaintiff submits that they are distinguishable from his case on the following grounds:

a)	They seek to challenge the outcome of an election, which the Plaintiff does not seek to do in his claim.
b)	They are claims for negligence, whereas the claim here is one for breach of human rights.
c)	The claim was instituted under Order 23 of the National Court Rules which was not the same in the other proceedings.

15.	 Importantly, the Plaintiff submits that his case is based on a cause of action founded in the Constitution and cannot be overridden by operation of the provisions of an Organic Law (Application by Amin [1991] PNGLR 1). The Constitution is a superior law to an Organic Law under the hierarchy of laws in s 9 of the Constitution (Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348)

16.	After hearing from parties and reading their submissions, it has come across to me, that I am not able to determine the application without interpreting and applying Constitutional Laws, which includes the Constitution and Organic Laws (Constitution, Schedule 1.2 (Meaning of Certain Expressions)). This function is properly left with the Supreme Court under s 18(1) and (2) of the Constitution. 

17.	In my view the Fifth Defendant’s application has raised two constitutional questions. The first question is whether s 289A of the Organic Law should only be read as indemnifying the Electoral Commission from claims for damages arising from “breach of statutory duty, negligence or other claims under the underlying law…” and not claims under the Constitution. Do the words “statutory duty” extend to duties created by the Constitution? Does it then preclude a claimant seeking damages for breach of human rights from coming to court? This can only be resolved by interpreting s 289A of the Organic Law.

18.	Secondly, if it does extend to claims for breach of provisions of the Constitution such as s 50, then is s 289A of the Organic Law a permissible regulation of the Plaintiff’s rights? If it is instead a prohibition of his rights, which on the authority of cases such as Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057, it would be unconstitutional.

19.	It is to be remembered that s 50(2) of the Constitution allows for this right to be regulated by a law that is reasonably justifiable in a democratic society. The considerations as to whether a statutory regulation is reasonably justifiable are set out in ss 38 and 39 of the Constitution. It is not for me to determine this question. 

20.	In Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates the Supreme Court explained the difference between regulation and prohibition:

“97. It is trite law that whilst it is permissible for a law to regulate the exercise of the right under s50, it should not restrict or prohibit the exercise of that right. In our view, to the extent that Constitution, ss 12 (4), 111, 114, 127 and 130A permit OLIPPAC to impose restrictions and prohibitions on exercise of the right under s 50 (1)(e), those amendments are inconsistent with the existing qualification in s 50 (2) that only provides for the "regulation" of the exercise of that right. This finding renders ineffective the application of the amendments to ss 12, 111, 114, 127 and 130A, to the extent that they authorize OILPPAC to restrict or prohibit the exercise of a s 50 right.

98. In interpreting and applying s 50 (2) of the OLIPPAC, we adopt the approach enunciated by this Court in SCR No. 2 of 1982 (supra) at p. 228, 234, 238, 239-240; and in SCR No. 1 of 1992(supra) at pages, 77 and 82. We quote from the judgment of Kapi J (as he then was) in SCR No. 2 of 1982, which appears at p. 239 – 240:

I consider that the right and the reasonable opportunity to exercise the right given under s 50 (1) are to be read together with s 52 (2). Reading both provisions together in this way, one comes to the conclusion that the reasonable opportunity to exercise the right given by s 50 (1) may be regulated by a law under s 50 (2). In other words the right under s 50 (1) cannot be in isolation as though it is absolute in itself. It is subject to regulation by a law under s 50 (2). Where a law regulates the exercise of this right as in the K1,000 amendment, the only standard which this law must satisfy is that it is a law which is "reasonably justifiable for the purpose in a democratic society that has regard for the rights and dignity of mankind". In addition, the law must not go outside the limitation, namely to regulate and do nothing more.

99. The distinction between regulation, restriction and prohibition have been discussed by this Court in its previous decisions: SCR No. 2 of 1982 (supra), The State v NTN (supra), In particular, the words have been considered in cases involving exercise of the right under s 50: SCR No. 2 of 1982, (supra); SCR No 1 of 1992; Re Constitutional Amendment No 15—Elections and Organic Law on National Elections (Amendment No 1) Law 1991; Special Reference by the Ombudsman Commission under s19 of the Constitution [1992] PNGLR 73. We adopt what this court said in those cases that whilst it is permissible for a law to regulate or restrict the exercise of a qualified right as authorized by the qualification provision in the provision creating that right, the law cannot restrict or prohibit the exercise of a qualified right that only makes provision for regulation. Kearney, Dep. CJ makes this important distinction in SCR NO. 2 of 1982 (supra), in the following terms:

In the ordinary use of language, "regulate" does not include "prohibit"; see e.g. A.-G. for Ontario v. A.-G. for the Dominion [1896] A.C. 348 at p. 363, per Lord Watson. And the Constitution, Sch. 1.20, makes it clear that a law passed under the Constitution, s. 50 (2), cannot, under the guise of regulating, in law or in effect prohibit the exercise of the s. 50 (1) rights. But I think that regulating the exercise of a right will very frequently involve the imposition of some degree of restriction on its exercise. A law passed for the purposes of any of ss. 44-49, 51 and 52 can I think, go further in the way of imposing restrictions than can a regulating law under s. 50 (2). The difference between regulating and restricting is one of degree, not of kind, and I think the distinction is this: that the power to restrict in those provisions can extend to prohibition, while the power to regulate in s. 50 (2) cannot.

100. In our view, the correct approach to interpreting the Constitution is to adopt the approach that the Constitution itself provides. Our Constitution is homegrown or autochthonous and it provides the principles and materials as aids to interpretation which this Court should adopt and apply. Therefore in our opinion there is no constitutional basis for the Court to adopt legal doctrines of constitutional interpretation developed elsewhere.”

21.	So, the question that comes to my mind, is whether s 289A of the Organic Law is a permissible regulation of the Plaintiff’s rights to s 50(1) of the Constitution, or is it prohibiting the Plaintiff from enforcing this right? This is a constitutional question, which must be resolved by the Supreme Court, as it is possessed of jurisdiction to resolve questions of this nature under s 18(2) of the Constitution.

22.	The National Court would have jurisdiction to determine Constitutional question only where the law specifically allows it to, such as matters arising from claims under ss 57 and 58 of the Constitution. The questions arising here are not questions the Constitution has conferred jurisdiction upon the National Court to determine and accordingly a reference under s 18(2) of the Constitution is necessary.

23.	I will therefore refer the following questions to the Supreme Court for its interpretation under s 18(2) of the Constitution:

•	Does s 289A of the Organic Law on National and Local-level Government Elections indemnify the Electoral Commission or an electoral officer from claims for damages and or compensation arising from claims of alleged violation(s) of constitutional rights commenced under s 57 of the Constitution and seeking damages under s 58(2) of the Constitution?; and
•	If it does indemnify the Electoral Commission or an electoral officer, then is s 289A of the Organic Law on National and Local-level Government Elections a permissible regulation of a citizen’s right under s 50(2) of the Constitution and therefore a Constitutionally valid provision of the said Organic Law? 

24.	In light of my reference to the Supreme Court, I will order that these proceedings be stayed until the Supreme Court has answered the questions I have referred.

25.	I will further order that the matter is adjourned to the first directions hearing of the Supreme Court in February 2022 to have the matter prepared for hearing before an appropriately constituted bench.

Mel & Henry Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Fifth Defendant