[1998] PNGLR 579

PAPUA NEW GUINEA

[national court of justice]

THOMAS NEGINTS

V

JACK KARALI - returning officer;
REUBEN KAIULO - electoral commissioner; and
DOUGLAS TINGAWA - returning officer for tambul/nebilyer electorate

mount hagen: injia j
21 June 1997

Election - Parliament - Counting of votes - Application to suspend - Whether National Court has jurisdiction to order - Organic Laws on National and Local-Level Government, Sections 126 (6), 218.

Facts

The applicant, a candidate in the 1997 General Elections made an application by way of originating summons to the National Court seeking order to suspend counting of votes for Tambul/Nebilyer Open electorate and to order Returning Officer to produce election returns for each polling place in the electorate.

Held

1.	This court has no jurisdiction to deal with these matters. These matters must be left to the court of disputed returns, after the elections.

2.	No one, including this court should interfere with the work of the Electoral Commission in running these elections in view of s 126(6) of the Constitution.

Papua New Guinea cases cited

Philip Kapal v Electoral Commission [1998] PNGLR 417.

Counsel

P Dowa, for the applicant.
No appearance for the respondents.

21 June 1997

Injia j. Having heard Mr Dowa on this application, one of the important issues to determine pertains to jurisdiction of this Court to entertain this application. This court is not a Court of Disputed Returns which will deal with the very same issues raised in this application in the event that the loosing candidate or candidates, including the applicant in this case, if the losers of election, wish to file an election petition. If the error is found to be material by the Court of Disputed Returns, then it may have the effect of vitiating the election: Section 218 of Organic Law on National and Provincial and Local Level Government Elections, No. 3 of 1997. As I said recently in the case of Philip Kapal v Electoral Commission [1998] PNGLR 417, it would be pre-mature, superfluous and duplicatory of the process of judicial review of elections by the Court of Disputed Returns, for this Court to entertain this kind of application.

In any case, I am also not persuaded by the Applicant’s counsel that the Returning Officer for this particular electorate is in breach of his statutory duties under the said Organic Law to warrant this Court’s interference in the conduct of scrutiny or counting of votes, which is scheduled to continue at 6 pm today. The applicant’s lawyer produced an extract of some practice manual prepared by the Electoral Commission to guide its officers, to base his application. But I am precluded by s 126(6) of the Constitution from issuing any orders, directions, etc. which has the effect of directing or controlling the Commission in the performance of its administrative functions. Section 126(6) is in mandatory terms: "The Commission is therefore not subject to direction or control by any person or authority".

For these reasons, I dismiss the application.

Lawyer for the applicant: Paulus Dowa Lawyers.
Lawyer for the respondents: No appearance for the respondents.