PNG Law Reports 1996
[1996] PNGLR 178
N1424
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
KURA LIPU, THE PRESIDENT OF LUMUSA LOCAL GOVERNMENT COUNCIL, ON BEHALF OF THE PEOPLE OF LUMUSA; 
AND LUMUSA LOCAL GOVERNMENT COUNCIL, ON BEHALF OF THE PEOPLE OF LUMUSA; 
V
ELECTORAL BOUNDARIES COMMISSION;
AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Mount Hagen
Injia J
23-24 April 1996
8 May 1996
ELECTIONS - National elections - Provincial and open electorates - Whether the people of an area which falls within one provincial boundary may be required to participate in a national election in another province - Organic Law on National Elections sections 25(1)(a), 33(1) and (2), 35(2)(b) - Organic Law on Provincial Boundaries.
CONSTITUTION - Constitution s 125(1)(3) and (4) – Right of particular group of people to vote in national election.
Facts
The plaintiffs sought declarations that a decision of the defendants to allow the Lumusa people to vote in the Wapendamanda electorate of Enga Province during a national electin was unconstitutional and that Lumusa was part of the Baiyer/Mul electorate of Western Highlands Province.
Held
1.       Section 125(4) of the Constitution does not prevent the Court enquiring into the issue of whether a particular group of people may exercise their right to vote in a national election in a particular electorate.
2.       The boundaries of Enga and Western Highlands Provinces had been changed as a result of an amendment to the Organic Law in 1979 but in receiving the recommendations of the Boundaries Commission in 1981 and 1992 the Parliament had no been advised of the change of boundaries. Had it been so advised the Parliament would no doubt have accepted the recommendations of the Boundaries Commission in relation to the Lumusa area. Since this had not happened the Lumusa people had been erroneously required by the Electoral Commission to participate in elections in a province different to that within which they are located. 
3.       The decisions of the Parliament in 1981 and 1992 which rejected the recommendations of the Boundaries Commission in respect of the Lumusa area were therefore null and void. The people of Lumusa of the Western Highlands Province were entitled to vote in the Western Highlands Provincial electorate and the Baiyer-Mul open electorate in the 1997 national elections and thereafter.
Counsel
P Mamando, for the plaintiffs.
J Alu, for the defendants.
8 May 1996
INJIA J: By originating summons, the plaintiffs are seeking the following principal relief:
1.       For a declaration that the decision made by the defendants to allow the Lumusa people to vote in the Wapenamanda electorate of Enga Province during National Elections has been and is unconstitutional.
2.       For a declaration that Lumusa is part and partial of the Baiyer/Mul electorate of the Western Highlands Province of PNG, and not part of the Wapenamanda electorate of Enga Province.
On 21 March 1996, Counsel for the defendants, Mr Alu, raised a preliminary objection to the competency of the proceedings on jurisdictional grounds based on the Constitution, s 125(1)(3) and (4). On 22nd March 1996, I ruled that this Court had jurisdiction to hear the matter. I said:
“The Organic Law on Provincial Boundaries defines the boundaries of each of the 19 Provinces (excluding National Capital District). By virtue of Schedule 4, the Lumusa area falls within the Western Highlands Provincial boundary. This is not disputed in this case. Pursuant to s 33 of the Organic Law on National Elections, there is a provincial electorate for the province. Pursuant to s 34, there are open electorates within the province as determined by the Parliament after considering a report by the Boundaries Commission. Pursuant to s 35, the re-distribution of the country into open electorates is the business of the Parliament, after considering a report by the Boundaries Commission.
Upon reading the provisions referred to in the two Organic Laws, the boundary of a province is defined by an Organic Law and the provincial electorate for the province is also defined by Organic Law. Whereas the boundary of open electorates is the exclusive business of the Parliament upon receiving a report from the boundaries Commission. The question of whether the people of a particular area whose area is within a particular provincial boundary may be required by the Parliament to form part of another provincial electorate or open electorate for purposes of voting or standing for public office, for whatever reason, is a legal or constitutional matter which this Court has jurisdiction to entertain. Section 125(4) cannot be read so as to oust the jurisdiction of this Court to entertain constitutional or legal matters where an aggrieved person comes to this Court alleging breach of the constitution, Organic Laws or statutes by a governmental body including the Parliament.”
On 23rd April 1996, I heard the substantive matter. The plaintiff is the incumbent President of Lumusa Local Government Council. I heard evidence from the plaintiff supported by three (3) other witnesses. They were cross examined by Mr Alu on their affidavits. Mr Alu also required for cross-examination Mr Lucas Roika who had filed an affidavit in support of the plaintiff but the plaintiff did not call him because he was out of town. Hence, the plaintiff did not seek to rely on his affidavit. The defendants also called evidence. Both defendants were represented by Mr Morea Konio Veri who is the Assistant Commissioner of the Electoral Commission. He represented the National Boundaries Commission, the first defendant, by virtue of s 25(1)(a) of the Organic Law on National Elections (hereinafter abbreviated OLNE) which provides for the Electoral Commissioner to be the Chairman of the Boundaries Commission. Therefore, Mr Veri represents both the Boundaries Commission and the Electoral Commission which, albeit not named as a defendant in these proceedings has some interest in these proceedings. Mr Veri filed two affidavits on which he was cross-examined.
It is conceded by the defendants that by virtue the Organic Law on Provincial Boundaries as amended by the Organic Law on Provincial Boundaries (Amended No. 1) of 1979, (hereinafter abbreviated OLPB), the Lumusa area (which is situated on the border of the Enga and Western Highlands Provinces) falls within the provincial boundary of the Western Highlands Province (WHP). The defendants however claim that prior to that amendment, the Lumusa area was situated within the Enga provincial boundary but this is contended by the plaintiff who maintains that Lumusa has always been part of the Western Highlands Province and the 1979 amendment never changed that position because that amendment, which defined the boundary of the Enga and Western Highlands Province is word-for-word identical to the previous definition. In my view, however, it is not necessary to decide this issue in view of the earlier concession made by the Defendants.
It is not disputed that the Lumusa people have always been required to participate in the Enga Province in all the National elections since independence even after the said 1979 amendment to the OLPB. It is also not disputed that the Lumusa people have always participated in the WHP for purposes of the Organic Law on Provincial Elections under the previous provincial government system and also now under the reformed provincial and local level government system. There is some dispute as to whether the Lumusa people have been required to participate in the National Elections in the Enga Province against their wishes for one reason or another, in breach of Constitution, s 50 or otherwise, but this issue is really not a determinative one. There is also some dispute as to why the Lumusa people have preferred to be part of the Western Highlands Province and not the Enga Province. But those issues are not really important because the main threshold legal issue is: Whether the people of Lumusa whose area is situated within the Western Highlands Provincial boundary and who have been and are being required to participate in the National Elections in the Enga Province of which they are not part of, is permitted by the OLNE and the OLPB.
The evidence of Mr Veri is relevant on this issue. His evidence is that after independence in 1975, and for purpose of the first post independence National Elections in 1977, the Boundaries Commission prepared and presented a report to the Parliament in which the Lumusa area was recommended to remain part of Enga because to recommend Lumusa to be part of Western Highlands Province was not allowed by the Organic Law which militated against “recommending an electorate straddling the provincial boundary” of Enga Province. This recommendation was approved by the Parliament. Under Constitution s 125, the Parliament may accept or reject, but may not amend, any recommendation of the Boundaries Commission. Consequently, the Lumusa people participated in the Enga Province in the 1977 National Elections. Then in 1981, the Boundaries Commission prepared and presented another report for purpose of the 1982 National Elections in which the Commission recommended that Lumusa be part of Western Highlands Province, more particularly, to be part of the Mul-Baiyer electorate. This recommendation was rejected by the Parliament. Again the Lumusa people participated in the Enga Province in the 1982 National Elections. In 1992, the Boundaries Commission prepared and presented a recommendation to the Parliament again repeating its earlier recommendation that Lumusa be part of Western Highlands Province. Again, the Parliament rejected this recommendation. As a result the Lumusa people participated in the Enga Province in the 1992 National Elections.
It is not clear whether the Boundaries Commission’s recommendation in its 1981 and 1992 reports in respect of the Lumusa area was necessitated by the 1979 amendment to the OLPB. Whilst in the 1977 reports, the Commission made reference to “the Organic Law” without specifying which one it was, the 1981 and 1992 reports contained no reference to any Organic Law. I would think that the Commission’s recommendations in 1981 and 1992 were not influenced by the 1979 amendment but rather because of pressure mounted on the Commission by the Lumusa people to vote in the Western Highlands Province. My conclusion is supported by Mr Veri’s affidavit where he says:
“8.      However, despite its wider powers to recommend open electorates in each of the 20 provinces throughout Papua New Guinea, Section 35, Sub-Section (2)(b) of the Organic Law on National Elections debars the Boundaries Commission from further extending and exercising its powers beyond the precincts of any given province. As a result, Lumusa people had always remained within Enga Province and will remain to do so for the 1997 National Elections, until such time the Minister responsible make appropriate changes to the boundaries between Enga and Western Highlands provinces, accordingly.
9.       The 1981/82 and 1991/92 boundaries Commissions, though consciously aware of the provisions of Section 35, subsection (2)(b) of the Organic Law on National Elections tried to resolve the on-going Lumusa problem by including Lumusa people in Baiyer-Mul Open electorate of the Western Highlands Province in their respective reports and recommendations but such recommendations had been consecutively rejected by Parliament. The appropriate maps are hereto annexed and marked “C” and “D”, consecutively.
10.     However, after further research on Lumusa issue, I found out that there had been amendments to the Organic Law On Provincial Boundaries; the Organic Law On Provincial Boundaries (Amendment No. 1) Law which precludes the entire Lumusa Census Division from Wapenamanda Open electorate and Enga Province, respectively to which I attach hereto a map annexed and marked as “E” as true evidence of the finding.
11.     The anticlimax to the new finding and to which the neither Electoral Commission nor the boundaries Commission equally could not find a better answer to is whether or not the electoral Commission and the Boundaries Commission respectively have the mandatory powers to alter the boundaries of the province as this matter raises.”
Under cross-examination and following further questions by myself, Mr Veri was quite sure that for purposes of distribution or re-distribution of open electorates, the Boundaries Commission only operates within the precincts of a given provincial boundary as defined by the OLPB. He was adamant that the Commission cannot and has no authority to make recommendations in respect of open electorates which “straddle” or transcend the boundary of a given province. But he was not sure and could not provide any explanation as to how and why the people of Lumusa whose area falls within the W.H.P. provincial boundary have been required to vote in the Enga Province.
Pursuant to s 33(1) and (2) of the OLNE, there is one provincial electorate for each province and the boundaries of each provincial electorate are the boundaries of the Province as defined by OLPB (as amended). Pursuant to OLNE s 34, the Parliament determines the number of open electorates after considering a report of the Boundaries Commission. Pursuant to s 35(2)(b) of OLNE, there are open electorates within a given provincial electorate of a province, which open electorate must not cut across the boundary of a given province for which there is a provincial electorate. Section. 35(2)(b) of the OLNE provides that “in drawing the boundaries of open electorates, the Boundaries Commission shall not draw them in such a way that -.....(b) the boundaries of an open electorate cut across the boundary of a provincial electorate”.
It is clear to me that the Boundaries Commission, rather subconsciously, made the correct recommendations to the Parliament in 1981 and 1992 in respect of the Lumusa people in accordance with the changes to the OLPB as at 1979. Had the Commission in its 1981 and 1992 reports informed the Parliament of the changes to the boundary of Western Highlands and Enga Province occasioned by the 1979 amendment, the Parliament could have no doubt accepted the Commission’s recommendation in respect of the Lumusa area. Therefore, the Parliament made an erroneous decision in respect of the 1981 and 1992 reports in respect to the recommendations of the Boundaries Commission regarding the Lumusa area. Consequently, the Lumusa people have been erroneously required by the Electoral Commission to participate in the National elections since 1979 in a province of which they are not a part of by law. The decision of the Parliament under Constitution, s 125(3) is subject to review by this Court insofar as the Parliament’s compliance with the OLNE and OLPB is concerned.
For the foregoing reasons, I declare null and void the two decisions of the Parliament made in 1981 and 1992 in relation to the recommendations of the Boundaries Commission in respect to the Lumusa area. I declare that the people of Lumusa in the Western Highlands Province are entitled to vote in the Western Highlands Province and more particularly in the Western Highlands Provincial electorate and the Baiyer-Mul Open electorate in the 1997 National elections and thereafter.
My decision today is based on two premises: (1) That the Parliament did in fact reject the Commission’s two recommendations made in its 1981 and 1992 reports. I note however that there is no independent proof that the Parliament did in fact make those two decisions such as Hansards of the Parliament. Mr Alu has asked me to accept Mr Veri’s words and also the reference made in at least one of the reports as to the rejection by the Parliament. Mr Mamando sees no need to further prove this point. I note that the Boundaries Commission as represented by Mr Veri has already demonstrated its inaccuracy in keeping adequate records and reporting to the Parliament on some of these important developments in the OLPB. (2) That the 1979 Constitutional amendment in respect of the OLPB was in fact made by the Parliament. Mr Alu and Mr Veri are adamant of this amendment being passed by the Parliament in 1979. But Mr Veri’s affidavit on this point leaves me in some doubt.
Despite these uncertainties however, the Boundaries Commission which Mr Veri represents is an independent Constitutional office and I take his word on these two areas on their face value.
A final point on the two relief being sought in the originating summons. The first relief seeks an order to declare unconstitutional the three decisions of the Parliament in respect of the three reports of the Boundaries Commission. I have interpreted the word “unconstitutional” to mean unconstitutional in the sense that the decisions are contrary to the OLNE or OLPB both of which are Constitutional Laws. The interpretation and application of these two laws are matters in the jurisdiction of this Court. I am also of the view that, no Constitutional question arise as in this case which this Court can refer to the Supreme Court under Constitution, s 18. I believe the orders I have made are within the terms of the relief sought by the plaintiffs in the originating summons.
Costs of this application is awarded to the plaintiffs.
Lawyer for the plaintiffs: Mamando Lawyers.
Lawyer for the defendants: Attorney-General.