N384
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR A DECLARATION UNDER THE PROVISIONS OF THE CONSTITUTION AND THE ORGANIC LAW ON NATIONAL ELECTIONS.

Waigani
Kapi DCJ

1 June 1982

PARLIAMENT - Elections - Nomination of candidate - Time for - Prescribed period expired - No power to extend period of nomination - Constitution s. 50(1)(d), s. 57(3), s. 155(4) - Organic Law on National Elections.

The National Court has no power to extend the period prescribed pursuant to the Organic Law on National Elections, in which a candidate for election to Parliament may so nominate, once the prescribed period has expired.

Avia Aihi v. The State, [1981] P.N.G.L.R. 81; and
S.C.R. No. 2 of 1981; Re s. 19, [1981] P.N.G.L.R. 518 applied.

Notice of Motion

This was a notice of motion seeking orders that the applicant be allowed to nominate as a candidate for parliamentary elections.

Counsel:

K. Kara, for the applicant.
O. Emos and W. A. J. Tadabe, for the respondent.
Cur. adv. vult.

1 June 1982

KAPI DCJ: This is a notice of motion by the applicant seeking declarations:

(a) that the applicant be allowed to nominate as a candidate in Kundiawa for the forthcoming elections; and

(b) that he be declared as nominated pursuant to s. 92 of the Organic Law on National Elections.

At the outset of the hearing, I raised the question whether this Court has power to order that the hour of nomination which has lapsed be opened or extended in order to allow the applicant to make his nomination. All parties have agreed that I should decide this point first before proceeding to hear the evidence.

I should set out the facts for the purposes of deciding this point of law. It appears from the applicant’s version of events that on the morning of the last day of nomination, he paid a nomination fee of K100 at the Bureau of Management Services Office as directed by Electoral Commission officials and was on his way to nominate at the Electoral Office when he was arrested by the police on a warrant of arrest in connection with a traffic offence. According to him, he pleaded with the policemen to allow him to nominate before being taken away to the court hearing. However, he was informed that he should attend the court hearing and that he would have enough time to nominate afterwards. However, by the time he returned to nominate, the hour of nomination had lapsed. He alleges that the police have acted wrongfully in not allowing him to nominate in these circumstances and therefore his right to stand for elective office under s. 50(1)(d) of the Constitution was infringed. For the purposes of deciding the preliminary point before me, I will assume that the police have infringed the right of the applicant to stand for public office. The question of law is:

Do I have the power to direct that the nomination period which closed on 15th April, 1982 be extended and the Electoral Commissioner accept the nomination of the applicant during any extension which I may order?

Mr. Kara has submitted that I have the power or jurisdiction to make this order under s. 57(3) and under s. 155(4) of the Constitution. Mr. Emos and Mr. Tadabe have both submitted that these provisions do not give the court power to make orders sought by the applicant in the notice of motion.

This issue involves both the interpretation and the application of the provisions of the Constitution. Upon reading the provisions of s. 18 of the Constitution, it would appear that I am obliged to refer the question to the Supreme Court. However, s. 18 is subject to the other provisions of the Constitution. The issue before me is raised in the context of protection and enforcement of fundamental rights under Pt. 3, Div. 3, Sub-div. (D). These provisions confer on the National Court jurisdiction to interpret and apply Constitutional provisions and I will therefore proceed to interpret and apply these provisions without having to refer the questions to the Supreme Court.

It is clear that under s. 57(1) of the Constitution, the National Court has power to protect or enforce a right or freedom given under this division. In this case, we are concerned with the right to stand for public elective office under s. 50(1)(d) of the Constitution. However, such a right to public elective office may be regulated or restricted by a law under s. 50(2) of the Constitution. The Organic Law on National Elections, pursuant to this Constitutional provision, has restricted or regulated this right to the extent that ss. 82 to 96 (inclusive) of the Organic Law on National Elections require that nominations be made in order to be eligible to be elected to public elective office. One of the requirements by the Organic Law is that nominations must be given after the writ is issued and before the hour of nomination (s. 86(d) of the Organic Law). It would appear from this that a person’s right to elective office may only be exercised during this period. A person has no right to nominate outside this period. The validity of the provisions of the Organic Law have not been questioned.

It is not disputed that in the instant case, nominations were opened on 18th March, 1982, and closed on 15th April, 1982. During this period all citizens had the right to nominate according to the Organic Law. If this right was denied by any person or authority during that period the court would enforce that right during the nomination period under s. 57 of the Constitution. However, it would appear that such an application was not made during the nomination period in the instant case.

When the nomination period closed on 15th April, 1982, no citizen had the right to nominate for public elective office. That is the effect of the Organic Law. Citizens have no right to exercise this right after the period expires. Having lost the right to nominate at the expiration of time, a citizen cannot use the provisions of s. 155(4) of the Constitution to restore the right. See Avia Aihi v. The State [1981] P.N.G.L.R. 81. See also S.C.R. No. 2 of 1981 Re s. 19, [1981] P.N.G.L.R. 518.

Furthermore, there is no power in the court under the circumstances to order the nomination period to be extended to allow the applicant to nominate. Section 57(3) of the Constitution in my view does not deal with the power to extend the nomination period. It deals with the orders ancillary to that right. There is nothing in the Organic Law which deals with the power of the court to extend the nomination period. Had the Legislature intended the period to be extended by the court it would have said so in clear terms. It is clear from the provisions of the Organic Law that the Legislature intended there should be a clear cut off point with no power to extend the nomination period.

The only way a citizen can protect the breach of his right is under sub-division (D), s. 58 of the Constitution.

Orders accordingly.

________________________

Solicitor for applicant: K. Kara.
Solicitor for Electoral Commission: O. Emos, State Solicitor.