SC Review No 8 of 1992; Application by Toffamo Simang Mionzing re Finschhafen Open Electorate [1992] PGSC 14; [1992] PNGLR 122 (23 June 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 122 - SC Review No 8 of 1992; Application by Toffamo Simang Mionzing re Finschhafen Open Electorate 

[1992] PNGLR 122

SC429

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REVIEW NO 8 OF 1992

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)

APPLICATION BY TOFFAMO SIMANG MIONZING AND ELEVEN OTHER NOMINATED CANDIDATES FOR FINSCHHAFEN OPEN ELECTORATE

Waigani

Kidu CJ Konilio Sheehan Brown Salika JJ

23 June 1992

CONSTITUTIONAL LAW - Review pursuant to s 155(2)(b) of the Constitution - Cases where there is no statutory right of appeal.

ELECTIONS - Constitutional validity of s 96(2) of Organic Law on National Elections.

CONSTITUTIONAL LAW - Right to Vote under s 50 of the Constitution. Section 96(2) of Organic Law on National Elections does not infringe s 50 of the Constitution.

Facts

This is an appeal against the decision of Kapi Dep CJ in which he held that s 96 of the Organic Law on National Elections was inconsistent with s 50 of the Constitution. Section 96, as amended, does not provide for a supplementary election if a nominated candidate died after the declaration of nomination and before the end of the polling period. The learned Dep CJ held, following the death of the nominated candidate for Finschhafen, that to proceed with the elections without giving his supporters a chance to make a fresh nomination would be to infringe their right to vote (see Application by Imoning [1992] PNGLR 119).

The State, which was not joined in the National Court action, sought to get a review of that decision. On a preliminary point, counsel for the respondent unsuccessfully challenged the jurisdiction of the Supreme Court to review the decision of the National Court.

Held

N1>1.       The applicant, the State, had no other way to come to this Court except by way of the Constitution, s 155(2). In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case, s 155(2) is available.

N1>2.       The right to vote which is guaranteed by s 50 of the Constitution is a right of an eligible voter to freely vote for one of the nominated candidates, i.e. the right to choose a candidate who has been nominated.

N1>3.       Section 96(2) of the Organic Law does not in any way infringe the right to vote. This provision relates to circumstances where an election is to be considered to have failed and a new writ issued so that a supplementary election may be held in the particular electorate.

Cases Cited

Application by Imoning [1992] PNGLR 119.

Jababa v Okuk [1983] PNGLR 69.

SC Review No 5 of 1987; re Central Banking Regulations [1987] PNGLR 433.

SC Review No 5 of 1988; Kasap and Yama [1988-89] PNGLR 197.

State v Painke (No 2) [1977] PNGLR 141.

Counsel

J Yagi, P Yayabu and J Aisa, for the applicants.

D Kombagle, for Electoral Commission.

F Dame, for The State.

23 June 1992

KIDU CJ KONILIO SHEEHAN SALIKA JJ:  In this application, the applicant prays this Court to review the decision of the National Court in [[1992] PNGLR 119]. This decision resulted from an enforcement of human right application under s 57 of the Constitution brought by Waringo Imoning and other [1992] PNGLR 119 in the National Court. The decision was handed down on 12 June.

In that application the applicants asked the National Court:

N2>(a)      to restrain the Electoral Commission from conducting the election for Finschhafen Open Electorate, and

N2>(b)      to direct that the Head of State issue a new writ for supplementary election, acting on advice of the Electoral Commission as soon as practicable.

The application was brought on by the death of one of the candidates for the Finschhafen Open Electorate, the late Mr Henu Hesingut. He died after he was nominated but before the polls, which were to be held in that electorate on 13 June.

Prior to February 1992, the death of Mr Hesingut would have resulted in a failed election, and a new writ would have been issued under the then s 96 of the Organic Law on National Elections, which provided:

N2>"96.    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:

(a)      no candidate is nominated or returned as elected; or

(b)      after the declaration of the nominations and before the end of the polling period a candidate dies.

 (3)     Where an election has failed, the supplementary election shall be held upon the Roll which was prepared for the purpose of the election which failed."

But s 96 was amended by s 13 of the Organic Law on National Elections (Amendment No 1) Law 1991, which came into operation on 12 March 1992. This law replaced s 96(2) with the following:

N2>"(2)     An election shall be deemed to have failed if no candidate is nominated or returned as elected."

The applicants in the National Court argued that this new provision infringed their right to vote under s 50 of the Constitution, which provides, inter alia, as follows:

N2>"(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 purpose of this paragraph,

has the right, and shall be given a reasonable opportunity -

(c)      ....; and

(d)      to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e)      ...." (our emphasis)

Kapi Dep CJ, in entertaining the applications, held that the new s 96(2) infringed the applicant's right to vote:

"The question arises, whether s 96(2) of the Organic Law as amended, prohibits the right to vote. The applicants exercised their right and nominated the deceased. The deceased has died. The effect of s 96(2) is that it has prevented them from choosing another candidate of their choice and has prevented them from exercising their right to vote. I therefore find that s 96(2) of the Organic Law is inconsistent with s 50 of the Constitution and therefore void and of no effect. It follows that there is an imminent danger of the right of the applicants being infringed, if the election is allowed to go ahead on the amended provision."

His Honour then granted the orders sought by the applicants.

A preliminary point that must be dealt with first was raised by the counsel for the applicants in the National Court, Mr J Aisa. The issue relates to when this Court's power to review, conferred by s 155(2)(b), is to be invoked. If counsel had read what this Court said in SC Review No 5 of 1987; Re Central Banking Regulations [1987] PNGLR 433 and SC Review No 5 of 1988: Kasap and Yama [1988-89] PNGLR 197, the point would not have been raised at all.

In the first case, the decision of the Court (Kidu CJ; Kapi Dep CJ and Amet J) was as follows (at p 437):

"In this case the applicant, the State, had no other way to come to this Court except by way of s 155(2) .... .

In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case, s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first established. In this case, there is an important point of law to be determined and it is not without merit."

In the latter case, the Chief Justice said (with Kapi Dep CJ concurring) as follows at p 199:

"The first question to be determined is whether the Court should exercise its discretionary power under s 155(2)(b) of the Constitution and review the National Court's decision in question.

This is, of course, not the type of case in Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44; Danny Sunu v The State [1984] PNGLR 305 and the Independent State of Papua New Guinea v Colbert [1988] PNGLR 138. Those were cases where appeals were allowed but the applicants failed to appeal in time and then applied for review under s 155(2)(b). In election cases s 220 of the Organic Law on National Elections specifically provides:

'A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.'

So the only way these applicants could come to this Court is via s 155(2)(b) of the Constitution. In a similar case ... this Court (Kidu CJ; Kapi Dep CJ and Amet J) said:

'In the case the applicant, the State, had no other way to come to this Court except by way of s 155(2) .... .

In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first established. In this case, there is an important point of law to be determined and it is not without merit.' (SC Review No 5 of 1987.)

It was on this basis that the applicants were allowed to proceed with their applications."

This case is, of course, quite different from all previous s 155(2)(b) applications in that the applicants were not parties in the National Court proceedings (MP 102 of 1992). No right of appeal in a non-criminal case is given by the Constitution (see s 37(14) and (15)) to a person not party to a non-criminal case in the National Court. So, as no such right is conferred by the law, the only way the present applicant could have come to this Court was by invoking its jurisdiction under s 155(2)(b), which they have done.

Simply stated, any person not a party to any proceeding in the National Court who has a legitimate interest in a decision adverse to his interests which affect his public law or constitutional rights may come to this Court by way of review.

Two grounds for review are raised by the applicants. These are:

N2>(1)      that the National Court erred in law in that, in declaring the provisions of s 96(2) (as amended) of the Organic Law on National Elections void and of no effect, the National Court was, in effect, declaring that the provision of a Constitutional Law is unconstitutional and, therefore, acted without jurisdiction.

N2>(2)      that the National Court erred in law and in fact in failing to consider and/or apply the provisions of Order 5 Rule 8(1) of the National Court Rules in that the applicants have a direct interest in the proceedings.

GROUND (1)

Counsel for the applicants and counsel for the State argued that, as the application in the National Court involved the interpretation and application of Constitutional Law (s 96(2) of the Organic Law on National Elections and s 50 of the Constitution), the National Court should not have decided the merits of the application but should have referred the matter to this Court pursuant to s 18(2) of the Constitution.

With respect, this submission is wrong in law. The Supreme Court's exclusive power to determine questions relating to the interpretation and application of a Constitutional Law is made subject to the Constitution:

N2>"18.    Original interpretative jurisdiction of the Supreme Court

(1)      Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2)      Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate." (Our emphasis)

One of the provisions s 18 is made subject to is s 57 of the Constitution, which provides in subsection (1) as follows:

N2>"(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 an application by any person who has an interest in its protection and enforcement ...."

We agree, with respect, with the view expressed by former Chief Justice Frost as to the nature of the jurisdiction conferred by s 57 of the Constitution in State v Painke (No 2) [1977] PNGLR 141 at 145:

"Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional Law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant Constitutional provision."

So in Application by Imoning [[1992] PNGLR 119], the National Court acted within jurisdiction to determine whether the right to vote guaranteed by the Constitution was infringed by s 96(2) of the Organic Law on National Elections.

Of course, whatever was the outcome of the exercise of jurisdiction conferred on the National Court by s 57(1), it was subject to judicial review by the Supreme Court pursuant to s 155(2)(b) of the Constitution:

N2>"(2)     The Supreme Court:

(a)      is the final court of appeal; and

(b)      has an inherent power to review all judicial acts of the National Court ...."

We dismiss the first ground of review.

GROUND (2)

The National Court rule being relied on, Order 5 Rule 8(1), provides:

N2>"(1)     Where a person who is not a party:

(a)      ought to have joined; or

(b)      is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings."

The judgment in the National Court [[1992] PNGLR 119] makes no reference to the joinder or non-joinder of any other parties. Nevertheless, the rule gives a discretion to the National Court. The fact that it was not considered might well vitiate the proceedings in that Court, but in view of what we say later, it makes little difference to the merits of this review.

MERITS OF THE CASE: THE RIGHT TO VOTE

The first error made by the Deputy Chief Justice is his view that the applicants (there were supposed to be 258 of them) nominated the late Henu Hesingut. That is possible under ss 82-92 of the Organic Law on National Elections:

N2>"84.    Mode of nomination

A nomination shall be in the prescribed form and shall:

(a)      name the candidate, his place of residence and occupation; and

(b)      set out the qualifications by virtue of which he is qualified for nomination; and

(c)      be witnessed by a person to whom the candidate is personally known".

But there was no evidence they all nominated him. The 258 applicants said they were supporters of the late Mr Hesingut. They did not all nominate him.

The learned Deputy Chief Justice said in his judgment:

"This right has been fully discussed in SCR No 2 of 1982 [1982] PNGLR 214. The essence of the right to vote is for an eligible voter to freely choose a person of his choice."

With respect to His Honour, the case he relied upon discussed the right to stand for election - a right guaranteed by s 50 of the Constitution. The right to vote part of s 50 was not the subject of that case. The issue in that case was the requirement for a candidate in the National elections to deposit K1000 as nomination fee. The right to vote was not specifically discussed in that reference. The right to vote guaranteed by s 50 is expressed to be "the right to vote for elective public office". And s 50 also requires that "a reasonable opportunity" be afforded a voter to exercise this right and that the right be exercised "at genuine, periodic, free elections". Nowhere does s 50 says that the right to vote means that the candidate of the voter's choice must be a candidate. It is clear from s 50 that the right to vote and the right to stand for election are separate rights afforded to qualified citizens by s 50.

We consider s 50 to give a voter the right to vote for any candidate of his or her choice. This is supported by the directive words in s 50 itself that an election must be "genuine" and "free". In a genuine free election, voters are not obliged to vote for a candidate put up by the Government or a political party or anyone else. The voter has the right to choose the candidate of his choice who has been nominated. There is no right in any voter to insist that he or she be allowed to vote for a person who has not been nominated for whatever reason.

Section 96(2) of the Organic Law does not in any way impugn the right to vote. This provision relates to circumstances where an election is to be considered to have failed and a new writ issued so that a supplementary election may be held in the particular electorate.

The previous s 96(2) did allow the supporters of a dead candidate to reallocate their votes to a new candidate of their choice. But that provision guaranteed no extra right for enforcement under s 57 of the Constitution. It was a right afforded by an Organic Law and, as such, a right which could be taken away by the legislature. It cannot be considered as an entrenched right in the same class as those guaranteed by the Constitution.

We reiterate that the right to vote under s 50 is the right to vote for a legally nominated candidate. It is not a right to vote for a person of one's choice who has not nominated for election.

Section 96(2) of the Organic Law on National Elections in no way infringes the right to vote guaranteed by s 50 of the Constitution.

We order as follows:

N2>1.       The orders of the National Court made on 12 June 1992 are quashed.

N2>2.       The new writ for supplementary elections for the Finschhafen Open Electorate is null and void.

N2>3.       The elections for the Finschhafen Open Electorate shall be held under the original writ issued by the Head of State on the advice of the Electoral Commissioner.

N2>4.       Mr Waringo Imoning and the 257 other voters to pay the costs of the applicants.

BROWN J:  I have read the reasons by the majority and express my agreement. I wish to elucidate my view of "the right to vote" afforded by s 50 of the Constitution. It is important to contrast the right to vote with election procedures. The franchise, or right of voting at parliamentary elections, is afforded the population under a system of universal, adult, citizen suffrage s 126(3) of the Constitution. "Suffrage" is the vote, approval or consent expressed by voting as understood in common parlance. Supporters of the late Mr Hesingut are apparently of age and able to vote. They have the right to vote but say that s 50 affords them, in addition, the candidate of their choice even after nominations have closed. This right, they say, is expressed in s 50. Now s 50 does not say that but rather gives a right to vote coupled with the constitutional guarantee of reasonable opportunity, which is regulated by the Organic Law on National Elections. The question, then, is whether this particular s 96(2) of the Organic law impugns that reasonable opportunity. I agree with the majority's view that the right to vote is not qualified and consequently the provisions of ss 38 and 39 of the Constitution need not be considered.

This Court has found reasonable and mandatory the requirement to nominate within the prescribed period. [Jababa v Okuk [1983] PNGLR 69] Why then should that period be extended when a candidate dies in these circumstances.

It may be argued that the earlier provision which provided for a failure of election on death impliedly recognised a connotation in meaning of the phrase "the right to vote" as encompassing the right to nominate a fresh candidate. By revoking the previous subsection which included the death of a candidate as reason for an elections failure, it may be contended that this "encompassed right" has been adversely affected.

In my view, this argument fails. There is no extension of the right to vote. The provisions of the previous s 96(2)(b) relate to the manner of elections and declaration of the polls, part of the election process. The rationale for the provision cannot be said to be associated with a right to vote.

Both the previous and present provisions in s 96(2) deal with failure of election. Where there is, for instance, no candidate, it is obvious that the election must fail. But where there is more than one candidate, the previous s 96(2)(b) could be said to have encompassed a right in a voter or party of voters to a second choice on death of a nominated candidate. It may be seen, then, as a facility for political parties, but it is within the province of the legislature to alter the rules relating to a failure of election, balancing, as it were, the competing interest of a "party" to nominate their candidate and the need to complete the election process within a time frame. But that competing interest cannot be equated with a right to vote. It is an interest which may be legitimately affected by the legislature as has occurred here, on repeal and replacement of s 96(2) of the Organic Law. I particularly mention the interest of a political party in a renomination, for that was the basis, in fact, of the applicants claim before the National Court. It was an argument not explored before us. We were left to a great extent, bereft of argument. Such political activity does not affect "suffrage".

Some part of the parliamentary debates were read by the National Court. Those reasons in the debate, apparently alluded to by counsel before the National Court Judge, related to the wish to avoid delay in parliamentary sittings and formation of the government after the declaration of the polls. The debate related to the third reading of the Constitutional Amendment No 15 - Elections and is unrelated to the Organic law amendment which took effect previously and repealed and substituted the present s. 96(2). Section 96(2) principally deals with election procedures. It incidentally affects voters who seek to nominate a fresh candidate, but the right to vote, attend the poll, is unaffected.

The right to vote is personal to the individual. The amendment to s 96(2) springs from a perceived need to vary the time frame of the election process, and that process encompasses a definite date for nominations. Section 96(2) does not inhibit nominations within the time frame, nor the class of voters enfranchised.

Consequently, I am not satisfied the amendment, going as it does to failure of election, affects the franchise or right to vote. It does not impugn that reasonable opportunity to attend the poll and vote.

Lawyers for the applicants: Kirriwom & Co. J F Aisa & Associates.

Lawyer for the Electoral Commission: Steeles Lawyers.

Lawyer for the State: Principal Legal Adviser.