N1071

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF ENFORCEMENT OF HUMAN RIGHTS PURSUANT TO SECTION 57 OF THE CONSTITUTION 
AND IN THE MATTER OF THE APPLICATION BY WARINGO IMONING AND OTHERS OF FINSCHHAFEN OPEN ELECTORATE

Waigani
Kapi DCJ

10 June 1992
12 June 1992

CONSTITUTIONAL LAW - Parliamentary elections - Nomination of candidate - Candidate dies after declaration of nominations and before the end of polling period.

ORGANIC LAW ON NATIONAL ELECTIONS - s 96(2) as amended - Death of candidate is not a ground for supplementary elections.

CONSTITUTIONALITY - Right to vote s 50 - Whether s 96(2) as amended is inconsistent with s 50 of the Constitution.

WORDS AND PHRASES - Meaning of "restrict" and "regulate".

Facts

The sitting member of Finschhafen Open Electorate who was nominated to contest the 1992 national elections died before it was held. An application was made on behalf of a substantial number of registered voters for an order to restrain the Electoral Commission from going ahead with elections in that constituency, until they were given time to nominate another candidate of their choice. This application was made pursuant to s 57 of the Constitution to enforce their Constitutional rights to vote under s 50 ibid.

Issues

Whether s 96(2) of the Organic Law on National Elections (as amended), which by implication excludes the death of a candidate as a ground for a supplementary election, was inconsistent with the "right to vote" provision.

Held

1. Section 96(2) of the Organic Law (as amended) prohibits the exercise of right to vote guaranteed by s 50 of the Constitution and is therefore void and of no effect.

2. The matter is to be governed by the original s 96 of the Organic Law.

Cases Cited

SCR No 2 of 1982 [1982] PNGLR 214.
State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1.

Editor's Note

This decision is reversed supra p 122.

Counsel

J Aisa, for the applicants.
P Ame, for the respondents.

12 June 1992

KAPI DCJ: This is an application pursuant to s 57 of the Constitution by Waringo Imoning and on behalf of 257 others who are entitled to vote in the coming national elections for the Finschhafen Open Electorate. They claim that if I do not make the orders they seek, their right to vote under s 50 of the Constitution will be infringed. The national elections are scheduled to commence on the 13 June 1992.

The facts in this application are not in dispute. The applicants are all of voting age and are entitled to vote in the Finschhafen Open Electorate. They all support the sitting member, the Hon Henu Hesingut. They supported him in the past and he had won the last two elections for this seat. They are satisfied with his performance and would like to vote for him again in the forthcoming general elections. Mr Hesingut was nominated in accordance with the Organic Law on National Elections. At the close of nomination, twelve other candidates were also nominated.

Mr Hesingut suddenly died on 14th May 1992 at Finschhafen, Morobe Province. The applicants do not wish to vote for any of the other candidates. They wish to nominate another person of their choice. They signed and delivered a petition to the Returning Officer for Finschhafen Open Electorate, in which they requested that the election for this electorate be delayed and that they make a new nomination and would nominate the younger brother of the deceased - Mr Heddy Hesingut. The applicants also sent a letter to the Electoral Commission raising the same issues. The Electoral Commission made a decision that the elections would go ahead without the name of the deceased on the ballot paper. The applicants claim that as they do not wish to vote for any of the other candidates, in effect they would be derived their right to vote under s 50 of the Constitution. They, therefore, ask that I enforce their right by:

(1) restraining the Electoral Commission from conducting the election for Finschhafen Open Electorate; and

(2) direct that the Head of State issue a new writ for a supplementary election, acting with and in accordance with the advice of the Electoral Commission as soon as practicable.

First let me set out the right to vote under s 50 of the Constitution.

"50. Right to vote and stand for public office

(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 Parliament for the purpose of this paragraph,

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

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

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

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."

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. The provisions of the Organic Law safeguards this important principle in regulating the manner of voting to be secret and free.

In order for an eligible voter to exercise his right to vote, the Organic Law provides for nomination of a person he wishes to vote for. Only people who are nominated may be elected. If a person does not nominate a person of his choice, he cannot complain that he cannot vote for any other candidate on the day of voting. Of course, a voter does not have to make the nomination. His choice of a candidate may be nominated by anyone else.

If a person is nominated and, after the declaration of nominations and before the end of the polling period, he dies as in this case, how is the right to vote affected by this death?

This brings me to consider the relevant provision in the Organic Law. Section 96 is the relevant provision and it has recently been amended by s 13 of the Organic Law on National Election (Amendment No 1) Law 1991. Section 96 reads as amended.

"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 no candidate is nominated or returned as elected.

(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."

It is clear from this provision, as amended, that a death of a candidate is not a ground for failure of an election. It follows, therefore, that a supplementary election cannot be held.

The applicants complain that s 96 as amended is inconsistent with the exercise of the right to vote in that they do not have a candidate of their choice on the ballot paper. They nominated their choice but events beyond their control have taken away their choice and they cannot nominate anyone else because s 96(2) has taken away the right to do this.

Section 50 rights can be regulated (s 50(2)). It is important to note that rights may be qualified by laws at varying degrees. The right to vote may be "regulated" only. There are others which may be "regulated" or "restricted". See ss 43, 44, 45, 46, 47, 48 and 49 of the Constitution. The distinction between the two terms was discussed by Kearney Dep. CJ in SCR No 2 of 1982 [1982] PNGLR 214 at 225. I adopted his Honours reasoning in The State v NTN Pty Ltd and NBN Ltd (unreported judgement of the Supreme Court, dated 7 April 1987, SC 323) at p 13. Where a law may "restrict" a right, such a law can prohibit, but where it may "regulate", it cannot prohibit either in law or in effect. See Sch 1:20 of the Constitution, SCR 2 of 1982 [1982] PNGLR 214.

The question then 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 they are prevented from exercising their right to vote. I therefore find s 96(2) of the Organic Law 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.

I make the following orders.

"(1) Section 96(2) as amended, is inconsistent with the s 50 of the Constitution and therefore void and of no effect. This matter will be governed by the original s 96 of the Organic Law.

(2) The Electoral Commission is restrained from going ahead with the elections on 13 June 1992 in respect of Finschhafen Open electorate.

(3) That the Head of State issue a new writ for a supplementary elections, acting with and in accordance with the advice of the Electoral Commission as soon as practicable."

_____________________

Lawyer for the applicants: J F Aisa and Associates.
Lawyer for the respondents: Principal Legal Adviser.