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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR 4 OF 2002
SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19
REFERENCE BY FRANCIS DAMEM, ATTORNEY GENERAL FOR THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani : Amet, CJ, Kapi, DCJ,
Sheehan, Sakora &
Sevua, JJ.
Reference by Attorney General under Section 19 of the Constitution – Authority of Electoral Commission and jurisdiction of National Court under the Constitution and the Organic Law on National and Local-Level Government Elections and the conduct and validity of elections – Power of Head of State – To extend time for return of writs and or declare failure of an election and order supplementary election under Sections 97 and 177 of the Organic Law – Application of Schedule 1.16 of the Constitution.
Counsel:
Mr G. Egan QC with Mr K. Kua for Attorney General
Dr. J. Nonggorr for the Electoral Commission
Mr. D. Cannings for Ombudsman Commission
Mr L. Henao for the National Parliament
Mr G. Sheppard with Ms.C. Copeland for certain Candidates
Mr A. Jerewai for a Intervener
BY THE COURT: This Reference is brought by the Attorney General authorised under Section 19 of the Constitution to seek the opinion of the Supreme Court on questions relating to the interpretation or application of the Constitution or Organic Laws. The Attorney General states:
"This reference arises out of the conduct of the general national and local level government elections in the provinces of Enga and Southern Highlands, and in particular, the effect upon the fairness of such elections of actual serious and widespread violence and/or intimidation and/or threats and/or destruction of ballot boxes and ballot papers and/or riots and/or sacking of polling booths and/or the holding of hostages and/or the spoiling of ballot papers and/or the tampering with of ballot papers and/or the forging of signatures and/or the giving of false names and/or the prevention of people from voting. The Referor, acting in the public interest, is thereby concerned that the citizens of Papua New Guinea have not had a full and free opportunity to vote and participate in the 2002 national and local level government elections and also as to the rights of candidates to seek election to public office".
The facts giving rise to the Attorney General’s concerns and his bringing this reference are detailed in the affidavit of Police Commissioner, Joseph Kupo, QPM, and confirmed by the affidavit of the Electoral Commissioner, Mr Reuben Kaiulo filed in an application, under Section 18 of the Constitution (SC Ref 5/2002) and heard concurrently with this Reference.
The essence of this evidence is that upon inquiry into reports from Electoral Officials, Police and others, of disturbances and interference with the Election process detailed in the Reference, the Electoral Commissioner gave advice to the Head of State, pursuant to Section 177 of the Organic Law that resulted in the extension of time for the return of the writs of Election for all electorates from 15th July to 29th July 2002. The Electoral Commissioner also foreshadowed the possibility of failure of elections in some electorates.
The questions posed by the Attorney General are as follows:
(a) Errors or irregularities in the conduct of the election had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the Law as to elections and/or the Constitution; or
(b) A fair election result could not be said to have been
possible in an electorate or electorates by reason of the occurrence, after the issue of the Writ for such election, or during the course of voting in such election, of serious and/or widespread:
(a). Determine, prior to or upon the return of the Writ for such election or elections (but before any declaration of the election), whether any such election has failed or not; and
(b) Declare, prior to or upon the return of the Writ for such election (but before any declaration of the election), that such election has failed; and
(c) Make consequential orders, where appropriate, for the issue of a fresh Writ or fresh Writs for the purpose of holding a supplementary election in respect of the electorate or electorates in question.
We have had the benefit, and are grateful, for the extensive and detailed submissions by Mr Egan QC, counsel for the Attorney General, as well as those from Dr Nonggorr, Messrs Cannings and Henao for the Electoral Commission, the Ombudsman Commission and the National Parliament.
Ms Copeland and Mr Jerewai also made submissions on behalf of candidates in the electorates referred to. Those submissions and questions discussed have been most helpful in clarifying the issues raised.
Questions 1 & 2
Answer: The Court declines to answer these questions as framed.
The intention and direction of the Constitution and purpose of the Organic Law on National and Local-Level Government Elections is that there shall be National Elections for the Parliament and legislative arms of the Local Level Governments of Papua New Guinea each five (5) years. The Constitutional provisions and those in the Organic Law also have the intent and purpose of ensuring that such elections are successfully accomplished within a reasonable and determinable time span.
The authority to organise and conduct the elections is given to the Electoral Commission. The National Court is given jurisdiction to enquire into and determine the validity of such elections.
The Constitution and the Organic Law set out how and when elections shall be held, giving time periods and the limits for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writs of election. These start with the prescription that National Elections shall be held within 3 months of the anniversary of the 5th year of the current Parliament.
But the Constitution and the Organic Law also provide for the possibility of failure of the elections to be completed in time or at all. Consequently, power is given to the Head of State acting on the advice of the Electoral Commission to either allow further time for elections or returns to be completed or to issue a writ for a supplementary election to be concluded as soon as is practicable thereafter.
The power to determine that an election has failed, and the exercise of the discretion to make such a determination lies solely with the Electoral Commission. Section 97 of the Organic Law
Section 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."
This section empowers the Commission to determine that an election has failed if satisfied on grounds reasonable and sufficient to the Commission that a return cannot be made for an electorate.
In Questions 1 and 2, circumstances of violence, intimidation, destruction of ballot boxes, tampering with votes and the like, are cited as grounds for determination of failure. It is our opinion that the questions as framed do not so much focus on the power and discretion that s. 97 provides to declare failure of election, as asking the Court to prescribe and even circumscribe the circumstances in which that power may be exercised. We do not consider that an appropriate course for the Court to take. Although such a determination could and may in future be the subject of a National Court petition or review, it is not for this Court to set the circumstances in which the Electoral Commission can or cannot determine that an election has failed. Such would be to intrude on a power given solely to the Electoral Commission. It would also turn to put limits on the openness of the section.
The Commission is not confined in the reasons that it may come to such a conclusion. It’s conclusion will include those reasons set out in s. 97, but may also be for any reason that the Commission determines that an election has failed, whether from impossibility to hold or complete an election, or that in the circumstances a return cannot or should not be made. In our view it is not a matter of determining whether there have been offences or attempting any allocation of blame for allege improprieties or electoral offences, but whether the Electoral Commission is presented with a set of resultant circumstances where it can reasonably say that however the situation has been created or whoever may be responsible, the only conclusion open to the Commission is that an election has been totally subverted or that it is impossible to make a return.
For these reasons we decline to answer Questions 1 and 2 as posed. Instead we give our opinion as follows.
The Electoral Commission may determine that an election has failed and advise the Head of State to issue a writ for a supplementary election under s. 97 of the Organic Law prior to, or upon, the date fixed for the return of the writ for a particular electorate or electorates. The advice that the Electoral Commission may tender to the Head of State both as to the failure of the election or the time when it shall be practicable for a supplementary election lies solely within the discretion of the Electoral Commission.
Question 3
With the answer supplied to Questions 1 and 2 there is no need to answer this question.
Question 4
Similarly, because this question depends on an affirmative answer to Question 2, there is no need to answer this question.
It can be said however that s. 97 gives power to determine that an election has failed, but no power to determine issues of validity. That is reserved to the National Court.
Questions 5 and 6
There is no need to answer these questions in view of the answers to the previous questions.
Question 7
As the answer to Question 3 is declined, this question needs no answer.
Question 8
Answer: No.
The Electoral Commission has raised the same issue in a differently worded question:
"If a supplementary election is held, is such a supplementary election to be held under the first past the post voting or under preferential voting?"
Counsel for the Attorney General submits that a supplementary election should be held in accordance with the first past the post voting system and not under the preferential system of voting as established by the Organic Law on National and Local-level Government Elections (Amendment No. 1) Law (No. 28 of 2002) (Preferential Voting Law). Counsel for the Electoral Commission and the Ombudsman Commission support this contention.
On the other hand, counsel for the National Parliament submits that the Preferential Voting Law by operation of law comes into operation on the day after the writs are returned on 29th July 2002. He submits that any supplementary election conducted after this date is governed by the Preferential Voting Law.
We start with the premise that it was intended that the general elections for 2002 should be conducted under the first past the post voting system. If at the close of the period for nomination, no person has nominated for an electorate, the Electoral Commission would determine that the election in the electorate has failed and advise the Head of State to issue a writ for a supplementary election under s. 97 of the Organic Law. If the supplementary election was held before the 29th July 2002, there can be no doubt that the first past the post voting system would apply.
The difficulty arises when a supplementary election is conducted after the writs are returned on 29th July 2002. If the commencement provision of the Preferential Voting Law is interpreted in the manner advocated by counsel for the National Parliament, this would result in applying a different system of voting in the general election for 2002, to voters and candidates in supplementary elections. We should not interpret or apply the law in this way as it would result in apparent unfairness.
This requires close examination of the commencement provisions of the Preferential Voting Law. It states:
"MADE by the National Parliament to come into operation –
(a)...
(b) in respect of sections 14, 15, 16, 17,
18, 20, 21, 22, 23, 24, 25, 26 and 27 – on the day after the date fixed for the return of the writs in the general elections for 2002; and"
The event which triggers the operation of the Preferential Voting Law is the return of the writs in the general elections for 2002. Where all writs are in fact returned by 29th July 2002, the Preferential Voting Law will come into operation the day after this date.
Where there is a failure in an election, and the Head of State issues a writ for a supplementary election in a particular electorate under s 97 of the Organic Law, the general election for 2002 has not yet concluded, and 29th July 2002 is no longer the valid date for the return of the writ for the particular electorate. The return date for the purposes of commencement of the Preferential Voting Law in the particular electorate is the return date fixed for the supplementary election. This interpretation is consistent with the primary premise that supplementary election is part of the general elections for 2002 and all elections including the supplementary elections must be conducted under the first past the post voting system.
This process of reasoning enables a fair and a just process for all voters and candidates, whether they contest the supplementary elections before or after the 29th July 2002.
We would answer this question as follows:
Any supplementary election conducted after 29th July 2002, shall be conducted in accordance with the first past the post system of voting.
Question 9
Answer: Yes
The Constitution provides in Schedule 1.2 that the day fixed for the return of the writs is the date "by which the majority of the writs are returned". That day is now 29th July 2002.
Question 10
Answer: Yes
Apart from supplementary elections resultant on determinations that elections have failed in particular electorates because there has already been an extension as provided by s. 177 of the Organic Law, there can be no further extension of the time limit prescribed by the return of the writs on 29th July 2002.
Section 176 in our opinion provides essentially for delays in physical transmission of documents or writs. It does not permit an extension of time to complete an election process such as scrutiny or count.
Notwithstanding the decision in Delba Biri v Bill Ninkama [1982] PNGLR 342, the decision in the Application by Sir Julius Chan, (SCR 71 of 1997, unnumbered), 3rd April 1998, in our view, may enable the Electoral Commission to rely on Schedule 1.16 to deem an appropriate extension of a period of time necessary to enable practical compliance with the requirement to return the writs by the date fixed for the return of the writs by 29 July 2002.
Question 11
The power to extend has been exercised and since the polling period has expired no further extension is possible under s. 177 of the Organic Law.
Question 12
Answer: Yes
Questions from the Electoral Commission’s Reference (SC Ref 5/2002)
(a) If a supplementary election is held, is such a supplementary election to be held under first past the post voting or under preferential voting.
This question has already been answered in Question 8 above.
(b) If the writs for some electorates are not returned by the return date of 29th July 2002 or other dates, can the Electoral Commissioner give his advice to the Head of State under Section 76 of the Organic Law on Integrity of Political Parties and Candidates to invite the political party with the highest number of endorsed candidates returned from those writes that are returned on 29th July 2002, to be invited to form government".
Answer: Yes.
The Electoral Commission is obliged to advise the Governor General under s. 76 of the Organic Law on the Integrity of Political Parties and Candidates, on the date fixed for the return of the writ. By definition in Schedule 1.2 of the Constitution the day fixed for the return of writs specifies that date includes the day by which the majority of the writs are to be returned.
Lawyer for the Attorney General : Posman, Kua & Aisi
Lawyer for the Electoral Commission: Nonggorr & Associates
Lawyer for the Ombudsman Commission: D.Cannings
Lawyer for Certain Candidates: Maladinas
Lawyer for the Intervener: Jerewai Lawyers
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URL: http://www.paclii.org/pg/cases/PGSC/2002/7.html