Malapu v Electoral Commission; Sauk and Wasun v Electoral Commission [1987] PNGLR 128 (3 July 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 128 - Kandep Tindiwi Malapu v Electoral Commission; Jimson Sauk and Mark Wasun v Electoral Commission 

[1987] PNGLR 128

N598

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KANDEP TINDIWI MALAPU

V

THE ELECTORAL COMMISSION

AND

JIMSON PAPAKI SAUK MARK WASUM

V

THE ELECTORAL COMMISSION

Waigani

Kapi DCJ

3 July 1987

PARLIAMENT - Elections - Destruction of votes - Protection of right to vote - Jurisdiction of National Court - Summons for declaration as to validity of jurisdiction - Jurisdiction available - Powers discretionary - Onus on applicant - Constitution, ss 50, 57(l).

Section 50(1) of the Constitution provides that “... every citizen ... has the right and shall be given a reasonable opportunity ... (d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections ...”.

Section 57 of the Constitution provides that the right in s 50(1) shall be protected by and is enforceable in the National Court on application of any person who has an interest in its protection and enforcement.

Held

(1)      The National Court has jurisdiction deriving from s 57(1) of the Constitution to entertain an application to enforce or protect a person’s right to vote or his right to be elected, or his right to a free election as guaranteed by s 50.

SCR No 2 of 1985; Re Masive v Okuk [1985] PNGLR 263 at 267, 271 and 276, considered.

(2)      On such an application the National Court may, in an appropriate case, declare an election to be invalid.

(3)      In considering whether the validity of an election has been affected by breach of the rights guaranteed by s 50, the court may consider, inter alia, whether the particular breach would affect the result of the election and the availability of the alternative procedure by way of petition under the Organic Laws on National Elections.

(4)      The wilful destruction of some 7,634 votes prior to their being counted amounted to a breach of the rights of those citizens who cast the votes and such destruction prevented the election in which they were cast from being a free election and so constituted a breach of s 50.

(5)      In the circumstances the onus of satisfying the court that circumstances existed which warranted the exercise of the discretion to declare the election invalid, before the votes were counted and their effect on the result of the election ascertained, had not been discharged.

Cases Cited

Atiyafa, Robert; Application for Judicial Review; Ex parte (unreported, National Court, 4 March 1987).

Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

O’Reilly v Mackman; Millbanks v Secretary of State for the Home Department [1983] UKHL 1; [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124.

SCR No 2 of 1985; Re Masive v Okuk [1985] PNGLR 263.

Summonses

These were applications by way of originating summonses under the Constitution, s 57, seeking declarations, injunctions and consequential relief in relation to provincial elections.

Counsel

P Steele, for the plaintiffs.

A Tadabe, for the Electoral Commission.

S Gollidge, for Mr Torato.

Cur adv vult

3 July 1987

KAPI DCJ: These two proceedings have been commenced by way of originating summons. They relate to the Kandep Open Electorate and the Enga Provincial Electorate. They raise the same facts as well as points of law. They have been heard together by consent.

In each case, a claim is made for a declaration, injunction and an order to conduct fresh elections. At the outset, I raised the question of the proper procedure. Under the National Court Rules, a declaration or an injunction may be commenced by way of originating summons or judicial review. I raised the argument that if the appropriate procedure in this case was by way of judicial review, it was an abuse of process to commence this action by way of originating summons. O’Reilly v Mackman; Millbanks v Secretary of State for the Home Department [1983] UKHL 1; [1982] 3 All ER 1124. A short adjournment was granted for all parties to consider the question. After the adjournment, I was advised that the matters would continue by originating summons and that counsel for Mr Torato and the Electoral Commission indicated that they would not raise the question of abuse of process. I have, therefore, ignored this question.

The applications have been made under s 57 of the Constitution, although this has not been expressed in the summons. The rights sought to be enforced or protected are the right to vote and the right to be elected to elective office under s 50 of the Constitution. I note that where such an application is made to the Supreme Court, it is to be made in the first instance to a judge and the procedure is laid down under O 6 of the Supreme Court Rules.

The circumstances which gave rise to these proceedings are these: that the Kandep Open Electorate is within the Enga Provincial Electorate; the Kandep Open Electorate consists of four (4) constituencies:

(a)      Upper Wahgi;

(b)      Lower Wahgi;

(c)      Lai;

(d)      Marient.

Insofar as the Enga Provincial Electorate covers the Kandep Open Electorate, the constituencies for both are the same. For the purposes of voting for both electorates, the people had to vote at the following places:

Constituencies	Polling Places	Ballot Boxes
Upper Wahgi	Iumbis	1
	Karekare	1
<<	Petendak	1
	Longap	2
	Para>Kirali	1
<	Taitangis	2
	Porogali	2
<	Mambala	1
Lower Wahgi	Imapiak	1
	Laguni	1
<	lass=NormalormalPara>Kinduli	1
	Bioko	1
	Maru	1
<	Rumbipak	1
	Kanian/Titip	1
<	Kaniak	2
Lai	Sawi	2
<	Rugutengis	1
	Kokas	2
	ass=NormalPrmalPara>Pogeramanda	3
	Murip	2
	Teteres	1
	Walupim	2
<<	Lawe	2
<	Kandep Station	1
Marient	Winja	1
	Lakalap	2
<	class=NormaNormalPara>Kambia	2
	Pura	1
	Para>Wert	2
	Iuripak	1
	Supi	1
	Gin	1
<<	Kalimang	2
	Imali	1

During the course of elections, the following ballot boxes were filled with votes and were sent to Wabag for safe keeping.

(a)      Upper Wahgi

1 box from Mambala

(b)      Lower Wahgi

8 boxes

(c)      Lai

1 from Kokas

1 from Pogeramanda

2 from Murip

1 from Teteres

1 from Walupim

2 from Lawe

(d)      Marient

1 from Winja

1 from Iuripak

1 from Kalimang

The above votes appeared to have been kept safe and they will be included in the counting of votes. It appears from evidence that other votes have been destroyed. The votes in the following ballot boxes have been lost:

(a)      Upper Waghi

1 from Iumbis

1 from Karekare

1 from Petendak

2 from Longap

1 from Kirali

2 from Taitangis

2 from Walupim

(b)      Lai

1 from Kokas

2 from Pogeramanda

1 from Walupim

(c)      Marient

2 from Lakalap

2 from Kambia

1 from Pura

2 from Wert

1 from Supi

1 from Gin

These ballot boxes were safely locked away in the Kandep Court House. On 26 June, there were about 20 security men guarding the court house. A group of men loaded in a truck came to the court house. It is not clear how many men were involved but they outnumbered the security men. It is not necessary for the purposes of this case to identify these men and to determine the manner in which they broke into the court house. It is sufficient to find that they removed the above ballot boxes and destroyed the votes. It has been possible to determine the number of votes that were lost in the ballot boxes that were taken from the court house. These figures have been taken from the presiding officers’ return of voters. This has not been challenged by counsel for Mr Torato and the Electoral Commission. I find that 7,634 votes have been destroyed.

Counsel for the plaintiffs has submitted that the destruction of votes is a denial of fundamental rights under s 50 of the Constitution. These applications are by way of enforcement or protection of those rights under s 57 of the Constitution. The order sought in each case is to declare that the election in each electorate is void and to order fresh elections. The applications have been made before the counting of votes started.

Before I turn to the merits of the case, I need to consider two preliminary matters that have been raised. First, counsel for Mr Torato has submitted that the plaintiffs have no standing to bring the application on the basis that there is no evidence to show that they voted and that the full extent of this right has been denied by the destruction of votes. This is a valid point as there is no evidence to show that they actually voted. Counsel for the plaintiffs however, submitted that the plaintiffs, being candidates in the election, would come within the meaning of persons who are entitled to bring this application under s 57 of the Constitution and especially under the words “... on application by any person who has an interest in its protection and enforcement, ...”. Because of the urgency of this matter, counsel did not fully prepare arguments on this point. For the same reason, I have not had the opportunity to research the point fully. I am not prepared, therefore, to rule on this particular point. For the purposes of this case I will consider the right to vote. I will consider the merits of the case on the question of the right to be elected to elective office. It can be argued that the votes that have been destroyed would affect their chances of election to office.

Secondly, counsel for the Electoral Commission appeared to argue that where questions of the invalidity of an election are raised, there is only one exclusive procedure, and that is by way of a petition under the Organic Law on National Elections. Support for this view may be found in an unreported judgment of the National Court, Robert Atiyafa; Application for Judicial Review, Ex parte (unreported, National Court, Hinchliffe J, 4 March 1987). The ground relied upon for the application was a refusal by the returning officer to order a recount of the votes. The question of fundamental rights and s 57 of the Constitution were not raised in that case. Counsel for the plaintiffs relied on an obiter dictum expressed by the court in SCR No 2 of 1985; Re Masive v Okuk [1985] PNGLR 263. This was a reference to the Supreme Court on the following question (at 268):

“Once nominations have been declared under s 92 of the Organic Law on National Elections, but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualifications of another candidate?”

The court held that the National Court has jurisdiction to consider the matter under s 135(a) of the Constitution. Kidu CJ in considering this matter (at 266) found that there is no procedure for this under the National Court Rules and suggested that lack of procedure should be resolved by way of s 185 of the Constitution. At 267, the Chief Justice considered the jurisdiction of the National Court under what appears to be an alternative argument for jurisdiction under s 50 of the Constitution. The Chief Justice said:

“... This provision guarantees the right to a citizen qualified to stand for election, to stand in a genuine election. Such a person undoubtedly has the right to come to court if this right is under threat by a person who is not qualified to stand. As this right in question is guaranteed by the Constitution, s 50, it is enforceable in the National Court under the Constitution, s 57(1).”

Amet J came to the same view at 276. In their joint judgment Pratt and Bredmeyer JJ agreed (at 271) with the Chief Justice and Amet J. I find that this was a finding of an alternative ground for jurisdiction to s 135(a) of the Constitution. With respect, I find that the law is correctly stated in the judgments referred to above. Insofar as these are applications under s 57 of the Constitution, I have jurisdiction to deal with the matters.

In order for the plaintiffs to succeed, they must show:

1.       There is a breach of or an interference with a right.

2.       That the appropriate remedy by way of enforcement or protection of the breach is to declare the elections void and order fresh elections.

RIGHT TO VOTE

The right to vote is exercised when a person casts his vote. The manner in which that vote is cast and how it is counted towards the election of a member is regulated by the Organic Law on National Elections (Ch No 1), a law which is authorized by s 50(2) of the Constitution. A person who does anything, or anything that is done which prevents the vote cast by a person from being counted contrary to the law, ultimately affects the right to vote. In the present case, I have found that 7,634 votes have been destroyed and thus have been prevented from being counted towards the election of members of the respective electorates. The destruction of ballot papers is an offence under s 191 of Organic Law on National Elections. This Act denies the vote being counted towards the election. I find that rights of citizens who cast the 7,634 votes have been breached.

RIGHT TO BE ELECTED

There is no question that the plaintiffs have exercised their right to be elected. It has been argued that their rights have been interfered with in that, by destroying 7,634 votes, their chances of being elected have been affected. This argument is based on the fact that they may have votes amongst the votes that have been destroyed. This is a question of fact and it is difficult to determine without any proper factual basis. The plaintiffs in their respective affidavits deposed to the number of votes they received and claim that these were amongst the votes that were destroyed. I cannot accept this evidence and it was rightly objected to by counsel for Mr Torato. It is impossible to tell how the votes would have been distributed to each of the candidates. This may be possible if all candidates were able to call everyone who voted to say how they voted. There is also another difficulty and it is this; it is difficult to say, of all the 7,634 votes, whether they relate to both electorates and if so, how they are distributed. Even if we knew this, it would be necessary to know how the other votes will be distributed. For all we know, any of the plaintiffs may poll the highest amongst the votes that are secured. I could not be satisfied that there was a breach in this sense.

However, s 50 of the Constitution requires that the right is to be exercised at free elections. Can it be said that given the circumstances of this case, there were free elections? I am inclined to the view that having regard to the number of votes that have been destroyed and the intention of those who destroyed the votes, that I could not conclude that this was a free election. I find that there was interference with the right to be elected on this ground.

VALIDITY OF ELECTIONS

Under s 57(1) of the Constitution, where right of a person is denied, such as, for example, which a person who is qualified to vote is not allowed to vote, he may come to the court and get an order to enforce the right. Such a person would exercise the right to vote if voting is still continuing. The situation is different when the breach has occurred and there is no way of enforcing the right in the manner described above. Insofar as the rights under s 50 are concerned, there is no specific provision as to the validity of elections on account of a breach of a right. However, s 57(3) gives a general discretion to “make all such orders and declarations as are necessary or appropriate for purposes of this section”. Insofar as this is discretionary, it is analogous to a breach of right under s 42(2) of the Constitution. Constitutional Reference No 1 of 1977 [1977] PNGLR 362. This is a wide discretion and in considering the validity of elections on account of breach of rights under s 50, it would be relevant to consider whether the breach would affect the result of election. If, for example, only a limited number (say five votes) were destroyed, that would have very little effect on a result of an election where the winning candidate wins by a big margin. Can it be said that a loss of 7,634 votes would affect the results of these elections? In order to determine this, it is necessary to know the total number of people who voted, the distribution of votes amongst all the candidates, the winning margin of the elected member and the number of votes that have been lost. If the winning candidate wins by more than 7,634 votes, the result of the elections would not be affected. In the present case, we do not know how many people have voted in each of these electorates. The number of eligible votes in the Enga Provincial Electorate is greater than Kandep Open Electorate. It is impossible to know how these votes will be distributed. Of course, all this information will be available after the counting of votes and the winner is declared. The onus is on the plaintiffs to satisfy the court that circumstances exist for the exercise of discretion to declare the elections at this stage invalid and to order fresh elections. This, they have failed to do and, therefore, I will not make the orders sought. It is also relevant to consider the alternative procedure by way of petition under the Organic Law on National Elections. It may be appropriate in some cases to deal with disputes by way of petition under s 212(2). I would dismiss the applications.

Applications dismissed

Lawyers for the plaintiffs: Steele & Lawyers.

Lawyer for the Electoral Commission: Principal Legal Advisor.

Lawyers for Mr Torato: Kirkes.

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