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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO. 44 OF 2018
BETWEEN:
JOHN NONGGORR
Plaintiff
AND:
PATILIAS GAMATO, Electoral Commissioner of PNG
First Defendant
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Defendant
AND:
JOSEPH NEN, Chairman, WHP Election Steering Committee & Acting WHP Provincial Administrator
Third Defendant
AND:
STANLEY MAIP, CHAIRMAN, WHP ELECTION STEERING COMMITTEE
Fourth Defendant
AND:
INDPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Narokobi J
2021 : 23rd September, 22nd December
CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of
Constitutional Laws, Constitution, Section 18 – referral by National Court of constitutional questions to Supreme Court, Constitution.
The Plaintiff has filed proceedings seeking damages for breach of his rights under s 50(1) of the Constitution in the way the elections were conducted by the Defendants in the Western Highland Provincial seat. The Fifth Defendant has filed
an application to dismiss the proceedings under s 289A of the Organic Law on National and Local-level Government Elections. That provision indemnifies the electoral commission from any claim for damages arising from statutory breaches, negligence and the
underlying law, and it states:
“289A. Civil Claims Against the Electoral Commission.
No claim for damages may be maintained against the Electoral Commission, the Electoral Commissioner or an electoral officer for cancelling an election, breach of statutory duty, negligence or other claim under the underlying law for any act or omission with respect to the conduct of elections.”
Held:
(1) Determining the application to dismiss for the proceedings being frivolous, vexatious and disclosing no cause of action will involve
interpreting and application of Constitutional Laws, which include Organic Laws (Constitution, Sch 1.2).
(2) The Supreme Court is possessed of jurisdiction to determine questions in relation to the interpretation and application of Constitution Laws (Constitution, s 18(1)).
(3) The National Court would have jurisdiction to determine Constitutional question only where the law specifically allows it to, such as matters arising from claims under ss 57 and 58 of the Constitution. The questions arising here are not questions the Constitution has conferred jurisdiction upon the National Court to determine and accordingly a reference under s 18(2) of the Constitution is necessary.
(4) The following questions are therefore referred to the Supreme Court under s18(2) of the Constitution to answer:
(4) The present proceedings are stayed pending the resolution of the questions referred to the Supreme Court.
Cases Cited:
Application by Amin [1991] PNGLR 1
Komba v Iamau (2021) N8867
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348
Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057
Statutes Cited:
Constitution
Organic Law on National and Local-level Government Elections
Counsel
D Mel, for the Plaintiff/Respondent
T Mileng, for the Fifth Defendant/Applicant
RULING
22nd December, 2021
“50. Right to vote and stand for public office.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting
age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned,
of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society
that has a proper regard for the rights and dignity of mankind.”
“9. The Defendants conducted and managed the election in the Western Highlands Provincial electorate in the 2017 National General Elections in complete violation of the requirements of the Organic Law on National and Local-level Government Elections (“the Organic Law”) which provisions are intended for and with the prime object of ensuring genuine and free elections as guaranteed to citizens by Section 50 of the Constitution, in that:
(a) Scrutiny of votes conducted between 22 to 28 July 2017 was contrary to and in violation of the provisions of the Organic Law relating to scrutiny;
(b) Polling conducted on the 7th and 8th July 2017 was conducted in breach of the provisions of the Organic Law relating to polling;
(c) The electoral roll deployed and used in voting was seriously flawed and defective as its contents, preparation and use was contrary to and in violation of the requirements of the Organic Law;
(d) The engagement and appointment of personnel to be electoral officials in various statutory positions relating to the conduct and management of elections as Returning Officer, Assistant Returning Officers, poling officers and counting officers were done without regard to their competency, impartiality and integrity to perform the statutory functions that are essential to give effect to the constitutional prescription for ensuring genuine and free elections with the consequences that officials so appointed performed and discharged statutory functions in the said election poorly, unfairly and in breech of the constitutional law provisions;
(e) There was no proper polling and there was a complete absence of free voting throughout the electorate resulting in infringement of the rights to vote throughout the electorate;
All of the above stated resulted in the denial to the Plaintiff of his right to stand for and vote in genuine and free elections.”
“57. Enforcement of guaranteed rights and freedoms.
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National
Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by
any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court,
unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of
Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does
not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for
the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether
or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn,
or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of
this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but
may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in
which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction
and powers under any other provision of this Constitution.
58. Compensation.
(1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).
(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a
derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled
to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
(3) Subject to Subsections (4) and (5), damages may be a awarded against any person who committed, or was responsible for, the infringement.
(4) Where the infringement was committed by a governmental body, damages may be awarded either—
(a) subject to Subsection (5), against a person referred to in Subsection (3); or
(b) against the governmental body to which any such person was responsible,
or against both, in which last case the court may apportion the damages between them.
(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise
to the infringement if—
(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and
(b) the action taken was genuinely believed by that person to be required by law,
but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.”
“289A. Civil Claims Against the Electoral Commission.
No claim for damages may be maintained against the Electoral Commission, the Electoral Commissioner or an electoral officer for cancelling an election, breach of statutory duty, negligence or other claim under the underlying law for any act or omission with respect to the conduct of elections.”
“11. Section 289A is a statutory bar to a claim for damages against the Electoral Commission, the Electoral Commissioner or
an electoral officer for damages arising from negligent conduct of elections. This provision was inserted in the Organic Law in 2006
following many complaints including Court actions against the Electoral Commissioner and his officers in relation to the conduct
of the 2002 General elections.
12. Some examples of the Court actions arising from alleged negligence of the Electoral Commissioner and his officers which ended up being decided by the Court were Application of Daniel Don Kapi (2002) N2259; Kiee Toap v. The State & Electoral Commission (2004) N2731 and Simon Awaria Lumbirindi & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission and The State (2006) N3044. None of the Plaintiffs in these cases were successful. They were dismissed either for lack of pleadings or failing to disclose a reasonable cause of action.”
“126. Elections.
(1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.
(2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.
(3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen
suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting
age is 18 years.
(4) A citizen's right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).
(5) No non-citizen may vote in an election for the Parliament.
(6) The Electoral Commission is not subject to direction or control by any person or authority.
(7) An Organic Law shall make provision for and in respect of—
(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and
(b) the electoral system; and
(c) safeguarding the integrity of elections; and
(d) appeals to the National Court in electoral matters.
(8) An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions,
duties or responsibilities in relation to provincial elections.
“97. It is trite law that whilst it is permissible for a law to regulate the exercise of the right under s50, it should not restrict or prohibit the exercise of that right. In our view, to the extent that Constitution, ss 12 (4), 111, 114, 127 and 130A permit OLIPPAC to impose restrictions and prohibitions on exercise of the right under s 50 (1)(e), those amendments are inconsistent with the existing qualification in s 50 (2) that only provides for the "regulation" of the exercise of that right. This finding renders ineffective the application of the amendments to ss 12, 111, 114, 127 and 130A, to the extent that they authorize OILPPAC to restrict or prohibit the exercise of a s 50 right.
98. In interpreting and applying s 50 (2) of the OLIPPAC, we adopt the approach enunciated by this Court in SCR No. 2 of 1982 (supra) at p. 228, 234, 238, 239-240; and in SCR No. 1 of 1992(supra) at pages, 77 and 82. We quote from the judgment of Kapi J (as he then was) in SCR No. 2 of 1982, which appears at p. 239 – 240:
I consider that the right and the reasonable opportunity to exercise the right given under s 50 (1) are to be read together with s 52 (2). Reading both provisions together in this way, one comes to the conclusion that the reasonable opportunity to exercise the right given by s 50 (1) may be regulated by a law under s 50 (2). In other words the right under s 50 (1) cannot be in isolation as though it is absolute in itself. It is subject to regulation by a law under s 50 (2). Where a law regulates the exercise of this right as in the K1,000 amendment, the only standard which this law must satisfy is that it is a law which is "reasonably justifiable for the purpose in a democratic society that has regard for the rights and dignity of mankind". In addition, the law must not go outside the limitation, namely to regulate and do nothing more.
99. The distinction between regulation, restriction and prohibition have been discussed by this Court in its previous decisions: SCR No. 2 of 1982 (supra), The State v NTN (supra), In particular, the words have been considered in cases involving exercise of the right under s 50: SCR No. 2 of 1982, (supra); SCR No 1 of 1992; Re Constitutional Amendment No 15—Elections and Organic Law on National Elections (Amendment No 1) Law 1991; Special Reference by the Ombudsman Commission under s19 of the Constitution [1992] PNGLR 73. We adopt what this court said in those cases that whilst it is permissible for a law to regulate or restrict the exercise of a qualified right as authorized by the qualification provision in the provision creating that right, the law cannot restrict or prohibit the exercise of a qualified right that only makes provision for regulation. Kearney, Dep. CJ makes this important distinction in SCR NO. 2 of 1982 (supra), in the following terms:
In the ordinary use of language, "regulate" does not include "prohibit"; see e.g. A.-G. for Ontario v. A.-G. for the Dominion [1896] UKLawRpAC 27; [1896] A.C. 348 at p. 363, per Lord Watson. And the Constitution, Sch. 1.20, makes it clear that a law passed under the Constitution, s. 50 (2), cannot, under the guise of regulating, in law or in effect prohibit the exercise of the s. 50 (1) rights. But I think that regulating the exercise of a right will very frequently involve the imposition of some degree of restriction on its exercise. A law passed for the purposes of any of ss. 44-49, 51 and 52 can I think, go further in the way of imposing restrictions than can a regulating law under s. 50 (2). The difference between regulating and restricting is one of degree, not of kind, and I think the distinction is this: that the power to restrict in those provisions can extend to prohibition, while the power to regulate in s. 50 (2) cannot.
100. In our view, the correct approach to interpreting the Constitution is to adopt the approach that the Constitution itself provides. Our Constitution is homegrown or autochthonous and it provides the principles and materials as aids to interpretation which this Court should adopt and apply. Therefore in our opinion there is no constitutional basis for the Court to adopt legal doctrines of constitutional interpretation developed elsewhere.”
Mel & Henry Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Fifth Defendant
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