N2438

PAPUA NEW GUINEA

[National Court of Justice]

OS 428 of 2002

BETWEEN

NIPA HAMI YAWARI
First Plaintiff

AND

LARRY ANDAGALI
Second Plaintiff

AND

BALUS LIBE
Third Plaintiff

AND

DAVID BASUA
Fourth Plaintiff

AND

REUBEN KAIULO
THE ELECTORAL COMMISSIONER
First Defendant

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Sevua, J
4th & 5th August 2002

Parliament – Elections – Writs of elections – Return of Writs on date fixed for return of Writs – Electoral Commissioner’s determination of failed election and Supplementary election – Declaration of certain candidates after Electoral Commissioner’s determination.

Elections – Writs of election already returned – Declaration of candidates after writs returned – Application for mandamus to compel Electoral Commission to deliver Writs to Head of State – Whether Writs can be returned after date fixed for return of Writs has lapsed – Constitutionality of declarations and return of Writs after 29th July 2002.

Cases cited:
SCR No.4 of 2002, Reference by Attorney General (SCR 4 of 2002) SC697, 26th July 2002.
Application by the Electoral Commission, (OS 420 of 2002) N2298, 30th July 2002.

Counsel:
A. Baniyamai for Plaintiffs
D. Igolena for First Defendant

5th August 2002

SEVUA, J: This is an application for an order in the nature of mandamus to compel the first defendant or its agents to complete and return the writs for the Southern Highlands Provincial Electorate, Tari Pori Open Electorate, Komo Magarima Open Electorate and Kagua Erave Open Electorate to the Head of State in compliance with Section 175 (1) of the Organic Law on National and Local Level Government Elections before 8.00 am today.

The original originating summons filed on 2nd August, was by the first three plaintiffs only and they sought slightly different relief however, the circumstances changed when they were declared duly elected on 3rd August 2002.

The fourth plaintiff’s situation is slightly different. He was joined as a plaintiff by leave of this Court as he claims he is affected in the same way as the other three plaintiffs, although he was declared at a different date and time.

The first plaintiff, Nipa Hami Yawari, was declared the duly elected member for the Southern Highlands Provincial electorate at 10.30 am on 3rd August 2002 by the Returning Officer for that electorate, Nick Nanei. The second plaintiff, Larry Andagali, was declared the duly elected member for the Tari Pori Open electorate at 10.30 am on 3rd August 2002 by the Acting Returning Officer for that electorate, Fidelis Angoea. The third plaintiff, Balus Libe, was declared the duly elected member for the Komo Magarima Open electorate at 10.30 am on 3rd August 2002 by Max Paul, the Acting Returning Officer for that electorate. Except for the fourth plaintiff, the declaration in respect of the first, second and third plaintiffs took place at Crown Plaza Hotel in Port Moresby.

The fourth plaintiff, David Basua, was declared the duly elected member for the Kagua Erave electorate on 28th July 2002 at Kimininga Police Barracks, Mt Hagen, by the Assistant Returning Officer, Ken Kerani, after the fourth plaintiff was leading with 14,535 votes at Count 32 when counting was stopped. However, he says the Electoral Commissioner did not accept that declaration therefore he has come to Court to seek the same relief of mandamus as the other plaintiffs.

At the time these declarations were made, each of the plaintiffs was leading in the counts for his electorate and there were still ballot boxes with ballot papers to be counted.

The first plaintiff says in his affidavit sworn and filed on 2nd August 2002 that he was leading with 117,000 votes when counting was suspended on 29th July 2002. On 1st August, the Electoral Commissioner declared Peter O’Neill, Michael Nali and Robert Kopaol elected for the Ialibu Pangia, Mendi, and Nipa Kutubu Open electorates respectively. The Electoral Commissioner also decided that a supplementary election would be conducted for the Tari Pori, Komo Magarima, Southern Highlands Provincial, Kagua Erave, Imbongu and Koroba Kopiago Open electorates. This plaintiff therefore argues that since the Electoral Commissioner had made declarations in respect of three electorates in the Southern Highlands Province, there was no reason he could not be declared as the duly elected member for the Southern Highlands Provincial electorate at the time counting was suspended.

The second plaintiff, Larry Andagali, was leading with 5770 votes when counting for the Tari Pori Open Electorate was suspended on 30th July 2002. This electorate was one of six electorates which the Electoral Commissioner had decided, there would be a supplementary election. The third plaintiff, Balus Libe was leading with 8,235 votes when counting for the Komo Magarima Open Electorate was suspended at Count 23 at 12 mid- night on 28th July 2002. Again, the Electoral Commissioner had decided on 1st August 2002 that a supplementary election would be conducted in respect of that electorate. The fourth plaintiff, David Basua, was leading with 14,535 votes at Count 23 in the Komo Magarima Open Electorate when counting was stopped on 28th July 2002. That electorate was one of those, which the Electoral Commissioner had determined on 1st August 2002, that there would be a supplementary election.

Based on the fact that the plaintiffs were leading in their respective electorates, the electoral officials whose names have been adverted to decided to make the declarations notably, after the Electoral Commissioner had already decided on 1st August 2002 that a supplementary election would be conducted in all the electorates other than Mendi, Ialibu Pangia and Nipa Kutubu Open Electorates. And thus the plaintiffs claimed they were duly elected. The question that immediately arises is, how could the plaintiffs claimed to have been duly elected when many ballot papers were not counted and the Electoral Commissioner had already made a decision under s. 97 of the Organic Law on National and Local Level Government Elections that there would be a supplementary election in the electorates, the subject of this application, and other electorates as well.

The electoral officials who made these declarations have also filed affidavits in support of the affidavits deposed to by each of the four plaintiffs. Fidelis Angoea swore two affidavits on 2nd and 4th August 2002 in support of this application. Max Paul also swore two affidavits on 2nd and 4th August 2002 in support of this application. Ken Kerani swore an affidavit on 4th August 2002 also in support of this application. However, it is noted that Nick Nanei, who made the declaration in respect of the first plaintiff, has not swore an affidavit. It is pertinent to say at this juncture that none of these electoral officers had shown that he has an overriding power under the Organic Law, that is, power that overrides that of the Electoral Commissioner. In my view this is crucial because of the decision of the Electoral Commissioner made on 1st August 2002, which has been alluded to.

As I understood, the gist of the plaintiffs’ submissions is that since the National Parliament would meet this morning to elect a new Prime Minister, the plaintiffs claimed they have the constitutional right to participate in this constitutional process, because they have been duly elected by the people of their respective electorates. Therefore, they seek a writ of mandamus that the Electoral Commissioner be compelled to deliver the writs for these four electorates to the Governor General to complete the election process so that they can take their seats in Parliament today to participate in the election of the Prime Minister and the formation of the government in the Seventh Parliament.

Mr. Baniyamai further submitted that as Section 175 of the Organic Law is in mandatory terms, and the electoral officials referred to have already complied with, the Electoral Commissioner must now deliver the writs for these four electorates to the Head of State so that the election process can be completed and the plaintiffs participate in the proceedings in the National Parliament today.

This Court must reiterate that the Supreme Court on 26th July 2002, made a landmark decision in relation to the 2002 National Elections following a Supreme Court Reference by the Attorney General. I was a member of that Court whose decision was unanimous. One of the issues in that reference relates to the date for the return of the writs for the 2002 general election. The date for the return of the writs was extended from 15th July 2002 to 29th July 2002 by virtue of Section 177 of the Organic Law. It is important to take note of what the Supreme Court said. The Court said at page 5:

"Apart from supplementary elections resultant on declarations of failure of elections for particular electorates because there has already been an extension as provided by s. 177 of the Organic Law, there can be no further extension of the time limit prescribed by the return of the writs on 29th July 2002."

With respect, that is a judicial pronouncement of the highest Court of the land, which this Court is bound by. It is the opinion of this Court that what the plaintiffs are asking this Court to do is to order the Electoral Commissioner to act against the decision of the Supreme Court and the Organic Law. This Court must reiterate that the day fixed for the return of the writs was 29th July 2002. By law, the Electoral Commission and its officials have no authority to return any writ after that date, unless a writ relates to a supplementary election conducted pursuant to Section 97 of the Organic Law.

Furthermore, the Commission cannot invoke the application of Schedule 1.16 of the Constitution to have the writs for these four electorates returned by 8 am today as sought by the plaintiffs. There are two principal reasons for that. Firstly, as I have alluded to, the return date for the writs was 29th July 2002, and that date expired on the stroke of midnight on 29th July. Secondly, the Electoral Commissioner, in accordance with his powers and functions under the Organic Law, and in particular, Section 15, which gives him the prime function to organize and conduct all elections, has already decided that there would be a supplementary election in the Southern Highlands Provincial electorate, Tari Pori, Komo Magarima and Kagua Erave Open electorates. Having so determined, the normal election process must be allowed to run its course. To compel the Electoral Commissioner by a writ of mandamus to return the writs for the four electorates, the subject of these proceedings, is a direct interference with the powers and functions of the Electoral Commissioner. Both the Supreme Court in SCR 4 of 2002, SC697and this Court in OS 420 of 2002, N2298 declined to exercise the powers and functions of the Electoral Commission.

This Court is of the view that the plaintiff’s application is not only misconceived, but is spurious, unmeritorious and has no basis in law. It is the opinion of this Court that the declarations made by electoral officials, Nick Nanei, Fidelis Angoea, Max Paul and Ken Kerani that these four plaintiffs were duly elected subsequent to the Electoral Commissioner’s decision that a supplementary election be conducted in those four electorates and other electorates in the Southern Highlands Province is unconstitutional therefore must affect the final outcome of this application. 

While this application is for a writ of mandamus and the Court acknowledges that it is not dealing with the validity or constitutionality of these declarations, it is my view that the issue of validity or constitutionality of these declarations is necessary to determine whether mandamus should or should not be issued. In other words, there must be a constitutional basis for this Court to issue mandamus in this application. Because I find no basis for this relief both under the Constitution and the Organic Law in the particular circumstances of this case, it is my view that the Court is entitled to rule that there is no constitutional basis for this application however, this does not in any way, remove the inherent powers of the Court in s. 155 (4) of the Constitution.

The plaintiffs submitted that it is their constitutional right to take their seats in Parliament today because they are duly elected members of Parliament. In my view, the plaintiffs cannot be selective in preferring their own interest to that of the vast majority of the voters in the Southern Highlands Province. I say this because from the evidence before me, and I know from the two previous cases (SCR 4 of 2002 and OS 420 of 2002) many ballot boxes have been hijacked by certain candidates and their supporters. But more so, many ballot boxes are available, but have not been counted. It may be that if all the ballot papers cast in this election are counted, or at least, all the ballot papers that are available, these four plaintiffs may not be declared duly elected. The point that needs to be emphasized here is that the constitutional rights of many people of the Southern Highlands have been affected as well. Their rights expressed in the ballot papers have been affected too so what about their constitutional rights? It appears that this application is based on political expediency rather than a genuine concern for the constitutional rights of the vast majority of the people in the Southern Highlands Province. 

By Constitutional definition (Schedule 1.2), the day fixed for the return of writs specifies that date includes the day by which the majority of the writs are to be returned. That date was 29th July 2002, which has already lapsed. Under what provision of the Constitution or the Organic Law is the Electoral Commissioner required to return the writs for the Southern Highlands Provincial Electorate, Tari Pori, Komo Magarima and Kagua Erave Open Electorates to the Head of State after the expiry of the date fixed for the return of the writs? In my view, there is no constitutional law provision that permits this, not even Schedule 1.16.

For these reasons, it is the judgment of this Court that, in the circumstances, the Electoral Commissioner is not obliged by law to return the writs for the Southern Highlands Provincial Electorate, Tari Pori, Komo Magarima and Kagua Erave Open Electorates to the Head of State by eight o’clock this morning. The plaintiffs therefore cannot take part in the proceedings of the National Parliament today to elect the Prime Minister.

Accordingly, it is the judgment of this Court that the application has no basis in law and is unmeritorious. The Court therefore orders that it be dismissed with costs to the Electoral Commissioner.
____________________________________________________________________
Lawyer for Plaintiffs : Stevens Lawyers
Lawyer for Electoral Commission : Parua Lawyers