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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP 10 OF 1997
IN THE MATTER OF THE MORESBY NORTH EAST OPEN ELECTORATE
NORMAN WALTER FERNANDEZ - PETITIONER
PHILIP TAKU - FIRST RESPONDENT
ELECTORAL COMMISSION - SECOND RESPONDENT
Waigani
Woods J
26 September 1997
30 September 1997
ELECTION PETITION - application to strike out petition - compliance with Organic Law on National and Local-level Government Elections, section 208 - facts on which petition grounded - insufficiency of facts.
Counsel
M Wilson for the Petitioner
J Nonggorr for the First Respondent
D Dotaona for the Second Respondent
30 September 1997
WOODS J: This is a petition ting thng the validity of the Election for the Moresby North East Open Electorate in the 1997 Nal Elections.ions. Thpondents hoved the CourtCourt to strike out the Petition on the basis that the petition doen does not comply with the provisions of sn 208he Organic law on National and Local-level Governovernment Elections.
Generally the the submissions raised by the respondents have been that the various clauses in the petition fail to sufficiently specify
the facts relied upon to invalidate the election. As to what facts are red hred has been determined by the National and Supreme
Court in various cases, the main statements being in the case Holloway v Ivarato [1988] PNGLR 99 and the case Agonia v Karo & Electoral Commission [1992] PNGLR 463. And the principles outlined and highlighted in these cases are guided by the fundamental principles outlined by the Supreme Court
in the case Biri v Ninkama [1982] PNGLR 342 which I will repeat here. The Court in acting unhe Othe Organic Law as what is often called a Court of Disputed Returns is not an
open forum for unspecified complaints where after all parties have aired theiratisfaction the Court sifts the complaints and reports
whet whether on a balance of probabilities the election can be considered satisfactory or whether a new election should be held.
A Courtisputed Returns hass has the duty of hearing and determining only those petitions which challenge an election by specific
charges that, if proved, will result in an election being set aside.&#As the Supreme Court said: The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with section 208. It
is not difficult to se. why. An election petition is n t an ordinary cause. It is a serious thing.. It is basicfundamental
thal that elections are decided by the voters who have a free and faiortunf ele the cahe candidate that the majority prefer..
This is a sacred and the the lege legislature has accordingly laid down very strict provisions before there can be any challenge
to the expressing of the will of the majority. In our opinion it is beyogument that if a petition dion does not comply with all
the requirements of S. 208 of the Organic Law then there can be no proceedingthe petition because of S. 210. All the allegations in this petition are concerned wned with actions or inaction by officers of the second respondent. Tare no allegations
specifpecifically against the first respondent. So in effect the petitioner is seeking to void the election because of errors and
omissions by officers of the Electoral Commission. So what are the tions here. Part A of the Petition appears to be a combination of a recital of backgbackground to the allegations with specific allegations.
Paragraphs nd 3 are recitaecital. Paragrapppears to be an alan allegation. If so it is too general and does not really allege any
facts so should be struck out. Para 5 appears to put the sole responsibility onto the ElectCommi to update the Cohe Common Roll. However the Organic Law in Section
57 puts the onus onus on eligible voters to properly register and makes it an offence for a person of eligible age not to have enrolled
within a reasonable time of becoming eligible. s allegation should be stru struck out. Para 6 is a vague allegation without any specific facts and is not an appropriate allegation to go to a trial in this Court. It should
be struck Para 7 is not relevant under the Organic Law, it relates to the personal aspirations of the petitioner. It should ruck out. Para 8 is similar to 7 above and shou struck out. Part B rt B alleges deliberate violations by the second respondent. Para 1.1 alleges insufficient polling The Petitioner recitrecites some figures for eligible voters, but he does not clarify where
he gets those figures from. Are trom the Common Roll.&oll. He thsumes that there woul would be a 100 percent turnout of voters.
However the public respeaks for itself that there is never a 100 percent turnout, the average turnout seems to b to be about 60
to 65 percent. The petitiappea be asking king the Court to conduct an investigation into the conduct of the electionction, not an
allegation of specific illeges. The allegation here comes within what the Supreme Court in quoting other recognisognised authorities
as not to be the role of a Court of Disputed Returns namely a type of open forum for unspecified complaints for a court to sift and
determine whether on the balance of probabilities an election was satisfactory. We these voters who were tere turned away. The
same appears to bh allh allegation 1.2. I find these are not approappropriate allegations for such a Court to investigate in the
mannewhich have been allegelleged and therefore should be struck out. Allegation 1.3 is about bout names not being on the Common Roll. is insufficient detail toil to support this allegation. It see
overlook the fact tact that under the Organic Law the onusn the eligible voter to put themself on the roll by the appropriate application
and then toen to ensure that this is done. This be ds soon as a persopersoperson turns 18 years of age or changes their address,
not left to the last minute just before an election0; See Section 57 of the Organic Law which makes enrolment compulsory. Both the
ConstConstitutid and the Organic Law gives people rights but also places commensurate obligations and responsibilities on citizens.
In order mplain about alle alleged r you must have complied with the responsibilities required.ired. Thiegation should be strucstruck
out. Allegation 1.4 cons about names being out of order. Tomplaint is t is too vagu vague and also seems to be an allegation about the
correctness ofCommon Roll which is not peot permitted by virtue of Section 214. Thund must be struck out. Allegation 1.5 refers to enrolment of voters and must be struck out for the same reasons as given in 1.3 above. Allegation 1.6 complains about peoplehaving a reasonable opportuportunity to vote. There are insuffi details ails and facts given
here to ground this allegation. We the people who missed osed out from voting. This ground must ruck out out as being too vague. Allegation 1.s notain the facts ands and details required to enable this allegation to be brought to trial.&#al. Who ae people alleged
to b to bected. This ground shod should be struck out. Allegations 1.8 and 1.9 are not allegations that present any facts that thelt of the poll was affected, there are no figures to groundround
this allegation. These allegations d be stre struck out. Allegation D 1 does not present any facts and figures to show that people were deprived of their right to vote. A Court of Did Retis
not anot a general inquiry into the conduct of elec elections, it can only inquire into specific allegations which are based ear
facts. This ground must be k out. out. Allegation 2 gives no particulars oars of these people allegedly turned away. Had these people taken the proper steps required under
the Organic Law to enrol? This ground t go to trial rial as pleaded and must be struck out. Allegation 3 gives no figures to support it. Where does the petitiget tget the figures he is ng. t is matter of record that that
there is never a er a 100 percent turnout of voters. This grount be struck out. out. Allon 4 is talking about the handling of keys to balo ballot boxes. The no real alll allegatiogation that the votes were affected.;
It is really only seeking an explanation of what happenedpened, or a general inquiry into the running of the election which Courts
said many times is not the the role of a Court of Disputed Returns. This ground must be struck out. Allegation 5 makes allegations about procedures during the counting but there are no facts presented to suggest that the actual vote
count was wron60; Again it seems to be merely asking the court to conductnduct a general investigation into the election. This is
not the rolthe Coue Court. This ground shoe struck ouck out. As a result of all the above all the grounds of the petition have struck out. This means that there a alno allegations to go to a
trial. I repearepeat what I have said above when reciting the general principles that the role of the Court under Part XVIII of
the Act is not to conduct a general inquiry or open forum into theing of the election whereby queries about what happened ared are
investigated and answered. Thi been stated by the Supe Supreme Court in the Biri v Ninkama Case. The role of the Court is only
to hear a Petition where specific charges are made that ived will result in an election being set aside. I or>I order that the Petition be dismissed.
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