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Wingti v Rawali [2010] PGNC 172; N3959 (20 January 2010)

N3959

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION
FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL
IN THE 2007 GENERAL ELECTION

PAIAS WINGTI
Petitioner

V

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

TOM OLGA
Third Respondent

Waigani: Cannings J
2010: 20 January

DIRECTIONS – as to further recount of ballot papers for electorate, as ordered by Supreme Court.

The Supreme Court set aside declarations of the National Court that the third respondent was not duly elected and that an election was null and void and ordered that there be a further recount of ballot papers for an electorate. The Supreme Court remitted the matter to the National Court for the trial judge to give directions regarding the further recount. A directions hearing was convened.

Held:

(1) Directions given to the Electoral Commission to notify the National Court within two days of a timetable for the conduct of the further recount and related matters.

(2) Comments made that the National Court will continue dealing with the matters expeditiously.

Cases cited

The following cases are cited in the judgment:

Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82
Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435
Wingti v Rawali, Electoral Commission and Olga (2008) N3285
Wingti v Rawali, Electoral Commission and Olga (2008) N3286
Wingti v Rawali, Electoral Commission and Olga (2008) N3568
Wingti v Rawali, Electoral Commission and Olga (2008) N3569

DIRECTIONS

This is a record of a directions hearing.

Counsel

C Wara, for the petitioner
A Kongri, for the first and second respondents
No appearance for the third respondent

10 January, 2010

1. CANNINGS J: This is the record of a directions hearing that has been convened pursuant to orders of the Supreme Court (constituted by Sakora J, Kirriwom J and Mogish J) made in Supreme Court Reviews Nos 4 and 5 of 2009 on 27 November 2009. The reviews were of my judgment and orders of 21 January 2009 in EP No 55 of 2007, which declared that the third respondent, Mr Tom Olga, was not duly elected and that the 2007 election for the seat of Western Highlands Provincial was absolutely void.

SUPREME COURT ORDERS

2. There are ten orders (furnished to the National Court on 17 December 2009) and I will now read them into the record of the National Court:

1. Both reviews are upheld.
   
2. The National Court order declaring Tom Olga not duly elected as the Member for Western Highlands Provincial Electorate is set aside.
   
3. The National Court order declaring the election result of the Western Highlands Provincial Electorate null and void is set aside.
   
4. There shall be a further recount of the ballot papers in accordance with the order of the National Court of 14 March 2008.
   
5. Such further recount must include the 1,877 votes excluded from the recount on 13 December 2008.
   
6. For the avoidance of any doubt, Tom Olga shall remain as the duly elected Member for the Western Highlands Provincial Electorate until a legally and properly conducted further recount determines the eventual winner of the seat.
   
7. The case is remitted to the National Court for the trial judge to issue directions for the conduct of the further recount, in consultation with the parties.
   
8. In relation to the conduct of the further recount as ordered here, the Electoral Commissioner shall have the sole authority and discretion in respect of the appointment of the Returning Officer and other electoral officers and officials, the appointment of the convenient time and venue for the recount, and all other matters that are properly within the jurisdiction of the Electoral Commissioner.
   
9. Following the conduct of the further recount as ordered in the preceding paragraphs, as the return of the result of such recount as required, the National Court shall declare the candidate with the highest number of votes as the duly elected Member for the Western Highlands Provincial Electorate.
   
10. Costs of these reviews are reserved to a time to be appointed when counsel can be heard.
    

For present purposes the most significant orders are Nos 4, 5, 7 and 8.

3. In short, there shall be a further recount, I, as the trial judge, am to give directions for the conduct of the further recount, but apparently I am restrained from giving directions to the Electoral Commission as to certain matters regarding the further recount.

BACKGROUND

4. I have not been provided with a copy of the judgment of the Supreme Court and I understand that no judgment giving the reasons for the decision and orders of the Supreme Court has yet been published; despite the indication being given that the judgment would be ready within three days after 27 November 2009. It is now more than seven weeks and the trial judge has not been provided with a copy of the Supreme Court judgment. This is an unfortunate and regrettable situation but I do not want to see any of the parties use it as an excuse to delay the further recount.

5. This case commenced in Mt Hagen on 19 January 2008 – two years ago yesterday. After a hearing and judgment on four preliminary applications (Wingti v Rawali, Electoral Commission and Olga (2008) N3285) the substantive hearing was completed on 3 March 2008 (after a delay of one month requested by all parties to prepare submissions, despite the wishes of the trial judge to the contrary). I handed down the judgment – a full written judgment of 60 pages – in Mt Hagen on 14 March 2008: 11 days later. That is when the first recount was ordered (Wingti v Rawali, Electoral Commission and Olga (2008) N3286).

6. The timetable set for the first recount was interrupted by the respondents' unsuccessful application for leave to seek review in the Supreme Court. The recount did not start until 3 November 2008 and it was concluded on 13 December 2008. In the meantime there were various motions which were heard and determined expeditiously; and on one occasion the parties came to Kimbe so that the matter could be dealt with expeditiously; and it was dealt with expeditiously (Wingti v Rawali, Electoral Commission and Olga (2008) N3568).

7. The first recount saw Mr Olga win by 1,004 votes and I conducted a hearing in Mt Hagen over five days from 12 to 16 January 2009, dealing with two motions (one by the petitioner, seeking declarations amongst other things that Mr Olga was not duly elected; and the other by Mr Olga seeking an order confirming that he was duly elected). I handed down the decision of the National Court – a full written judgment of 27 pages, published on the day of the judgment – on 21 January 2009: five days after the hearing (Wingti v Rawali, Electoral Commission and Olga (2008) N3569).

NATIONAL COURT WILL CONTINUE DEALING WITH THE CASE EXPEDITIOUSLY

8. I trust that the parties will appreciate that since this case started two years and one day ago I have been acutely aware of the need to deal with all matters expeditiously. And I have dealt with all matters expeditiously. I expect that trend to continue, now that this matter is again back in the National Court.

9. The second recount must be conducted in a timely manner and expeditiously. Both the petitioner and the third respondent have through their lawyers requested that today's directions hearing be adjourned until next month. I have refused both requests.

10. Mr Kongri, for the Electoral Commission, has indicated that 'funding' may be a problem in getting the further recount conducted quickly. This should not be used as an excuse. The Electoral Commission is a constitutional institution and has the right to approach the National Court under Section 23 (sanctions etc) for enforcement of the duty of the National Government to provide it with adequate funding for its operations under Section 225 (provision of facilities etc) of the Constitution, which states:

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.

11. Section 23(2) of the Constitution states:

Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

12. Examples of how the National Court may order that funding be provided to enforce the National Government's duties under Section 225 are provided by the landmark decisions of Brunton AJ in Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435 and Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82.

TODAY'S DIRECTIONS

13. Having heard from the parties, in particular from the Electoral Commission, which has indicated its preparedness to conduct an expeditious further recount, I will issue the following directions:

14. The Electoral Commission shall at a further directions hearing on 22 January 2010 at 1.30 pm at Waigani notify the Court of the following matters regarding the further recount ordered by the Supreme Court on 27 November 2009:

(1) The appointment of the person responsible for conducting the further recount and other electoral officers and officials.

(2) The venue for the further recount.

(3) The date on which it is proposed to commence the further recount.

(4) The date by which it is proposed to complete the further recount.

(5) The date by which it is proposed that the result of the further recount will be presented to the National Court for ratification at a hearing of the Court.

Directions accordingly.
___________________________

Steeles Lawyers: Lawyers for the Petitioner
Nonggorr & Williams Lawyers: Lawyers for the First & Second Respondents
Kelly Naru Lawyers: Lawyers for the Third Respondent