Unreported National Court Decisions
N1290
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 12 OF 1995 (H)
PATRICK NEMA - APPLICANT
V
THOMAS PARAKA - FIRST RESPONDENT
RUBEN KAIULO, ELECTORAL COMMISSIONER OF PNG - SECOND RESPONDENT
JACK KARALI, RETURNING OFFICER - THIRD RESPONDENT
Mount Hagen
Akuram AJ
17 January 1995
PROVINCIAL GOVERNMENT - elections - executive and administrative problems arising during election - Electoral Commissioner's discretion - National Court not to interfere and overule discretion and powers of Commissioner.
Cases Cited
Thomas Negints v The Electoral
Commissioner (1992) (Unreported judgement) N1072
Malapu & Wasum v Electoral Commissioner (1987) PNGLR s. 28
SCR No 4 of 1980 The petition of MT Somare (1981) PNGLR 265
Counsel
M Tamutai for Plaintiff
P Dowa for First Respondent
No Appearance for Second and Third Respondents
17 January 1995
AKURAM AJ:  This is an Application by way of Motion filed on 16th January 1995 in response to another Motion filed on the 12th January 1995 whereby I granted orders that:
1.       The Defendants provide and supply to Kindeng Block No 1 and No 2 sufficient ballot papers and boxes to conduct its polling.
2.       The Defendants be restrained from counting of votes taken in the Anglimp Constituency until the polling at Kindeng No 1 and No 2 are completed.
The present application seeks following orders:
1.       That the applicant be joined as a party to this proceedings;
2.       That orders made on the 12th January 1995 be set aside;
3.       That injunction orders of 12th January 1995 be dissolved;
4.       That counting of all votes for Anglimp Constituency be made fortwith.
I am now satisfied on the affidavit evidence of Mathew Tamutai with annexure of John Kilip - the Returning Officer - and that of the applicant, Patrick Nema, that:
1.       The orders made on the 12th of January 1995 were absolute as there were no return dates mentioned in the orders for parties to come back and argue any substantive matters raised;
2.       There was no service effected on the Respondents in the original application so that they could appear and respond or reply to the application;
3.       The voting again in that area, Anglimp Constituency, is not warranted as the issue is going into the real question of the Election Dispute itself and need much more evidence then what is before the Court now or was then, for the Court to have made such an order.
The above findings are based on the fact that had the Court been fully informed of the facts of the case, such orders would not have been made.  Both in the original application and in the present one, I have not been referred to a provision in the Organic Law on Elections that allow the National Court to stop an election or to make orders for carrying out of elections.  However, there is ample authority given to the Electoral Commissioner to exercise his discretion where he finds that there were problems being faced during the voting and that he can either stop the election or stop the counting.  This was pointed out by His Honour Woods J in Thomas Negints v The Electoral Commissioner, (1992) (unreported judgement) N1072, that:
“The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commissioner with fairly wide powers and discretions to act in s. 147 to adjourn the polling for any cause or in s. 178 to extend the time for polling where he considers it necessary.”
So the Electoral Commissioner has very wide powers and discretion to exercise in relation to Elections.  His Honour in the above case continued and said:
“The Electoral Commissioner therefore has fairly wide powers for dealing with problems.  This is an area of Executive Government and Administration.  The National Court of course has wide powers to make such orders as are deemed necessary see s. 155 (4) of the Constitution but that does not mean that it should exercise such powers too freely.  The Electoral Commissioner is the expert in the running of elections, he is the person with the responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner.  He must realise that if something goes wrong during an election afterwards and they may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards.”
His Honour referred to the case of Malapu & Wasum v Electoral Commissioner (1987) PNGLR 128 and said that:
“In the Malapu case referred to above on the facts it appeared that the damage may have already been so great, namely the numbers of votes destroyed but nevertheless the Judge in the case refused the application and said that the onus of proving that there had not been a free election had not been discharged because certain information had not been presented.  But by saying that all the information so needed would be available after the counting of votes suggested therefore that is not till after the counting that you can present all the evidence required.  And of course at that stage you are in the area of the Petition under s. 206.”
I would adopt those views in the present case as I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Laws and by these proceedings to challenge an election in Section 206.  Having said that, I now return to the four orders sought in this application.
As to the first order sought, that the applicant, Patrick Nema, be joined as a party to this proceedings, I am satisfied that he is an interested party in this proceeding and in the previous proceedings and the orders that were granted.  He therefore has Locus Standi to be included and joined as a party.  I refer to the decision in SCR No 4 of 1980; The petition of MT Somare (1981) PNGLR 265, where the Supreme Court had formulated a Locus Standi Rule under Schedule 2.3 that an applicant must have sufficient interest in that to which the application relies and that the test of 'sufficient interest' is an objective one based on the facts of each case.
I therefore grant and order that the applicant be joined as a party to the proceedings for the purpose of this application.
In relation to the rest of the orders sought, and for the reasons I have given above on the Commissioner's discretion and powers in handling this type of Election related problems, I set aside the orders I made on the 12th January 1995.  Further that, because there was no return date on previous orders granted on 12th January 1995, I order that those orders be revoked.
Finally, that the Electoral Commissioner should now go ahead and count the votes taken on election held on 9th January 1995 and there-after fortwith.
Lawyer for Applicant:  M Tamutai Lawyers
Lawyer for 1st Respondent:  P Dowa Lawyers
Lawyer for 2nd Respondent:  No appearance
Lawyer for 3rd Respondent:  No appearance