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In the Matter of The Moresby North East Open Electorate; Fernandez v Taku and Electoral Commission [1997] PGNC 124; N1616 (30 September 1997)

Unreported National Court Decisions

N1616

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 disputing the validity of the Election for the Moresby North East Open Electorate in the 1997 National Elections. The Respondents have moved the Court to strike out the Petition on the basis that the petition does not comply with the provisions of section 208 of the Organic law on National and Local-level Government Elections.

Generally 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 required 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 under the 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 their dissatisfaction the Court sifts the complaints and reports whether on a balance of probabilities the election can be considered satisfactory or whether a new election should be held. A Court of Disputed Returns 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 see why. An election petition is not an ordinary cause. It is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the 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 beyond argument that if a petition does not comply with all the requirements of S. 208 of the Organic Law then there can be no proceedings on the petition because of S. 210.

All the allegations in this petition are concerned with actions or inaction by officers of the second respondent. There are no allegations specifically 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 objections here.

Part A of the Petition appears to be a combination of a recital of background to the allegations with specific allegations. Paragraphs 1,2 and 3 are recital. Paragraph 4 appears to be an 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 Electoral Commission to update the Common Roll. However the Organic Law in Section 57 puts the 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. This allegation should be 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 out.

Para 7 is not relevant under the Organic Law, it relates to the personal aspirations of the petitioner. It should be struck out.

Para 8 is similar to 7 above and should be struck out.

Part B alleges deliberate violations by the second respondent.

Para 1.1 alleges insufficient polling time. The Petitioner recites some figures for eligible voters, but he does not clarify where he gets those figures from. Are they from the Common Roll. He then assumes that there would be a 100 percent turnout of voters. However the public record speaks for itself that there is never a 100 percent turnout, the average turnout seems to be about 60 to 65 percent. The petitioner appears to be asking the Court to conduct an investigation into the conduct of the election, not an allegation of specific illegalities. The allegation here comes within what the Supreme Court in quoting other recognised 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. Who are these voters who were turned away. The same appears to be with allegation 1.2. I find that these are not appropriate allegations for such a Court to investigate in the manner in which they have been alleged and therefore should be struck out.

Allegation 1.3 is about names not being on the Common Roll. There is insufficient detail to support this allegation. It seems to overlook the fact that under the Organic Law the onus is on the eligible voter to put themself on the roll by the appropriate application and then to ensure that this is done. This must be done as soon as a person turns 18 years of age or changes their address, not left to the last minute just before an election. See Section 57 of the Organic Law which makes enrolment compulsory. Both the Constitution and the Organic Law gives people rights but also places commensurate obligations and responsibilities on citizens. In order to complain about alleged rights you must have complied with the responsibilities required. This allegation should be struck out.

Allegation 1.4 complains about names being out of order. This complaint is too vague and also seems to be an allegation about the correctness of the Common Roll which is not permitted by virtue of Section 214. The ground 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 people not having a reasonable opportunity to vote. There are insufficient details and facts given here to ground this allegation. Who are the people who missed out from voting. This ground must be struck out as being too vague.

Allegation 1.7 does not contain the facts and details required to enable this allegation to be brought to trial. Who are the people alleged to be affected. This ground should be struck out.

Allegations 1.8 and 1.9 are not allegations that present any facts that the result of the poll was affected, there are no figures to ground this allegation. These allegations should be 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 Disputed Returns is not a general inquiry into the conduct of elections, it can only inquire into specific allegations which are based on clear facts. This ground must be struck out.

Allegation 2 gives no particulars of these people allegedly turned away. Had these people taken the proper steps required under the Organic Law to enrol? This ground cannot go to trial as pleaded and must be struck out.

Allegation 3 gives no figures to support it. Where does the petitioner get the figures he is quoting. And it is matter of record that there is never a 100 percent turnout of voters. This ground must be struck out.

Allegation 4 is talking about the handling of keys to ballot boxes. There is no real allegation that the votes were affected. It is really only seeking an explanation of what happened, or a general inquiry into the running of the election which Courts have said many times is not 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 wrong. Again it seems to be merely asking the court to conduct a general investigation into the election. This is not the role of the Court. This ground should be struck out.

As a result of all the above all the grounds of the petition have been struck out. This means that there are no allegations to go to a trial. I repeat 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 the running of the election whereby queries about what happened are investigated and answered. This has been stated by the 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 if proved will result in an election being set aside.

I order that the Petition be dismissed.