SC710

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA 45 of 2003

BETWEEN:

THE ELECTORAL COMMISSION
First Appellant

AND:

KALA RAWALI – Imbongu Open Electorate Returning Officer
Second Appellant

AND:

ABRAHAM WARI - Provincial Election Manager
Third Appellant

AND:

TIMOTHY TALA
Fourth Appellant

AND:

PILA NININGI
Respondent

Waigani:	Kapi DCJ., Salika J., Gavara-Nanu J.
11th & 20th June 2003

Parliament – Supplementary Elections – Extension of the polling schedule – The power of the Electoral Commission – Whether the National Court has any power to intervene during process of an election – Organic Law on National and Local Level Government Elections, ss 115, 117, 177, 206 considered.

Constitution - Whether s 155(4) of the Constitution is applicable to extend polling schedules considered.

Cases cited:
Application by Imoning [1992] PNGLR 119
Negints v. The Electoral Commission (supra)
Avia Aihi v. The State [1981] PNGLR 81
Thomas Negints v. The Electoral Commission (Unreported Judgement of the National Court dated 24th June 1992, N1072).
Reference by Attorney-General for the Independent State of Papua New Guinea (Unreported and unnumbered Judgement of the Supreme Court dated 26th July 2002)
Malapu v. The Electoral Commission [1987] PNGLR 128

Legislation cited:
Constitution
Supreme Court Act
Organic Law on National and Local Level Government Elections 

Counsel:
J. Nonggor for the First, Second & Third Appellants
J Kwimb for the Fourth Appellant
Respondent in Person

20th June 2003

By The Court:	This is an appeal against a decision of the National Court (Los J) dated 15th May 2003 sitting in Mt Hagen in which the Court directed the extension of polling for one day in Nangop 1 Village, Nangop 2 Village, Nangop 3 Village, Piambil 1 Village, Piambil 2 Village, and Tukupungi Village in the Supplementary Elections for the Imbongu Open Electorate.

The background to this appeal may be summarized as follows. After the General Elections in July 2002, the Head of State upon advice of the Electoral Commission declared the elections in six Southern Highlands Electorates including the Imbongu Open Electorate have failed under s 97 of the Constitution.

As a consequence, new writs were issued for Supplementary Elections for the six Electorates on 4th April 2003 with nominations to commence on 11th April 2003 and polling to commence on 3rd May 2003. The return of the writs was scheduled for 27th May 2003.

Pila Niningi (Respondent) nominated as a candidate for the Imbongu Open Electorate. The polling for the Electorate was originally scheduled for 7th May 2003. Due to weather conditions, the polling was rescheduled to 8th May 2003 and the polling took place on that date.

The scrutiny for Imbongu Open Electorate commenced on 10th May 2003.

On 11th May 2003, the Respondent filed an originating summons (OS 233 of 2003) in the National Court in Mt Hagen seeking orders for polling to continue for one day in the six polling places referred to above. The Respondent obtained an interim order on the same day stopping the scrutiny of votes for the Electorate pending the determination of issues raised in the originating summons.

The originating summons was heard on 15th May and the National Court ordered that polling should continue for one day in the six polling places referred to above. It was directed that this voting should take place within seven days of the order.

On 16th May 2003, Peter Peipul, another candidate contesting the Imbongu Open Electorate, filed an appeal to the Supreme Court against the decision of the National Court (SCA 41 of 2003). It is not necessary to set out the details of this appeal for the present purposes. On the same day, Peter Peipul obtained an order before a single judge of the Supreme Court (Kandakasi J) staying the order for further polling made by the National Court in Mt Hagen pending the determination of the appeal.

Consequently, the scrutiny of votes which was previously stayed resumed and it was concluded on 17th May 2003. However, the Returning Officer did not make a declaration at the end of the scrutiny upon advice of the Acting Electoral Commissioner pending the determination of the appeal.

On 21st May 2003, Peter Peipul filed a Notice of Discontinuance in his appeal.

Consequently, on the same day (21st May) at about 11.30 am, the Returning Officer declared Timothy Tala as duly elected in Mendi. However, the writ has not been returned to the Head of State. 

Following the withdrawal of the appeal by Peter Peipul, the Electoral Commission filed this appeal on 23rd May 2003. The appeal was filed well within time. It is this appeal which has come before us for determination.

Timothy Tala was joined as Fourth Appellant to this appeal by consent of the parties and his counsel was directed to file a notice of appeal on the same grounds as the grounds relied upon by the other three Appellants by 1.30 pm on 12th June 2003. He has done so as directed and the grounds of appeal are couched in exactly the same terms as the appeal by the other three Appellants.

Objection to Competency

The Respondent who appears in person filed Notice of Objection to Competency on 2nd June 2003. We can deal with this issue very briefly. The objection is against the First, Second and Third Appellants on the basis that the Electoral Commission complied with the National Court Order in that it organized security forces to come into the six polling places for the extra day of polling as directed by the National Court. He argues that by doing this, it has waived the right to appeal and therefore it does not have any standing to appeal under the Supreme Court Act.

We consider that there is no merit in this submission. The Electoral Commission has a right to appeal and has exercised this right. We do not accept the proposition that the Electoral Commission has waived its right to appeal in the circumstances. The Electoral Commission is charged with the responsibility of running the Supplementary Elections under the Organic Law on National and Loca-Level Government Elections (Organic Law) and has sufficient interest to appeal.

The Fourth Appellant has been declared by the Returning Officer as duly elected member but yet to be returned to the Head of State, and is a person who has sufficient interest to appeal the decision of the National Court.

We would dismiss the Notice of Objection to Competency of the Appeal.

Appeal

It is convenient to set out the grounds of appeal:

"(a)	the proceedings brought by the Respondent in OS 233 of 2003 was in breach of Section 206 of the Organic Law on National and Local Level Government Elections "the Organic Law" and an abuse of process. Section 206 of the Organic Law provides that the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise; and

(b)	the Learned Trial Judge erred in law in finding that Section 117 of the Organic Law was irrelevant when that Section provides that an election shall not be challenged on ground of a failure to observe a polling schedule or comply with the provisions of Section 114 (regarding notice of polling schedules) or of a variation or departure from a polling schedules."

(c)	the Learned Trial Judge erred in law and acted without jurisdiction in finding that he polling schedule and variations to it were inadequate, insufficient and ordering further polling when Section 115 of the Organic Law imposes the duty, authority and discretion for the conduct of polling and the preparation and variation of polling schedule solely upon the Appellants;

(d)	the Learned Trial Judge failed to find that the provisions for extensions of time for polling and or variations in polling schedules are accorded to the Head of State acting with and in accordance with the advice of the Appellants pursuant to Section 177 of the Organic Law and that accordingly the National Court had no jurisdiction to make the orders made; and

(e)	the Learned Trial Judge erred in law in failing to find that there was insufficient evidence of fact upon which to make such orders.

In the National Court, the Respondent sought to extend the polling by one day to give registered and eligible voters opportunity to vote in the six polling places referred to earlier. The grounds of appeal raise important questions of law.

Questions of Law

Both counsel for the Appellants submit that the Trial Judge exceeded its jurisdiction by interfering with the election process contrary to the provisions of the Organic Law. In particular s 115, s 117, s 177 and s 206.

A supplementary election may be held in accordance with s 97 of the Organic Law. The supplementary election in respect of Imbongu Open Electorate has been conducted in accordance with this provision.

Section 126 (1) of the Constitution provides:

"Elections to the Parliament shall be conducted, in accordance with an Organic Law, by the Electoral Commission."

The Organic Law is a law enacted in accordance with s 126 of the Constitution. The primary responsibility for conducting elections is given to the Electoral Commission.

The question which arose for determination by the National Court relates to the extension of the polling schedule. The undisputed facts in this regard may be summarized briefly. When bad weather affected polling on the scheduled date (7th May 2002), the Electoral Commission rescheduled the polling to 8th May 2003. There is some dispute as to when the polling actually commenced and when the polling closed on the day of polling. 

It is convenient to set out the relevant provisions of the Organic Law on polling schedules. They may be found in Part XIII, Division 1 of the Organic Law:

"PART XIII – THE POLLING

Division 1 – Polling Schedule

113 Polling Schedule

(1) Subject to any directions given by the Electoral Commission, the Returning Officer shall, as soon as practicable after the close of nominations, prepare a polling Schedule showing the anticipated dates and times, within the polling period for the electorate, during which the polling booths will open at the polling places in the electorate, in such manner as he considers will give all electors in the electorate a reasonable and sufficient opportunity to vote at the election.

(2) Nothing in Subsection (1) or in this Law shall be construed to mean that polling shall be conducted on each day throughout the polling period or on any particular day in the polling period.

114 Publication of Polling Schedule

(1) The polling schedule shall be published in the National Gazette and in a newspaper circulating in the electorate, and the Returning Officer shall take such other action as he considers necessary or desirable, or as is directed by the Electoral Commission, to ensure adequate publicity for the polling schedule.

(2) A copy of the polling Schedule shall be forwarded to each Provincial Government and Local-level Government in the electorate and shall be exhibited at such other places in the electorate as the Returning Officer appoints.

(3) A copy of the polling Schedule for an electorate shall be forwarded to each candidate in the electorate.

115 Adherence to Polling Schedule

(1) As far as possible, polling booths shall be open in accordance with the polling schedule, and the Returning Officer and presiding officers shall take all such action as is necessary or desirable for that purpose, whether expressly authorized by this Law or not.

(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case the provisions of Section 114 shall, as far as practicable, be observed in relation to the variation.

(3) Subject to any directions given by the Returning Officer, a presiding officer may where in his opinion it is necessary or desirable in order to meet an unforeseen contingency of emergency and it is impracticable for the Returning Officer to vary the polling Schedule under Subjection (2), depart from the polling Schedule in relation to a polling place, and shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.

(4) Where the presiding officer departs from the polling Schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at the polling place and amongst the electors likely to vote at it.

116	Appeal

(1) An elector may, not less that 14 days before the commencement of the polling period for an electorate, appeal to the Electoral Commission for an order varying a polling Schedule on the ground that it does not five to all electors in the electorate or in a part of the electorate a reasonable opportunity for voting in the election.

(2) Notwithstanding an appeal under Subsection (1), but subject to Section 115, a polling Schedule remains valid and in force until varied by order of the Electoral Commission under Subjection (1).

(3) In making an order under Subjection (1) the Electoral Commission shall give such directions s it considers desirable and practicable to ensure adequate publicity for the order.

117	Election not open to challenge

An election shall not be challenged on the ground of failure to observe a polling Schedule or to comply with the provisions of Section 114, or of a variation or a departure from a polling schedule."

Section 177 is also relevant and provides:

"177 Extension of time

(1)	Subject to Subsection (2) and (3), within one month before or at any time during the polling period for an election, the Head of State, acting with, and in accordance with, the advice of the Electoral Commission may, where he is of the opinion that it is necessary to do so, provide for –

(a)	extending the time –

(i)	for holding the election; or
(ii)	for returning the writ; or

(b)	meeting any difficulty which might otherwise interfere with the due course or the election,

and provision so made shall be valid and sufficient.

(2)	Where an extension of time granted under Subsection (1) does not apply to all electorates in which elections are being conducted at the same time –

(a)	the last day of the polling period shall not be more than two weeks after the date originally fixed as the last day; and

(b)	the date fixed for the return of the writ shall not be ore than two weeks after the date originally fixed for its return.

(3)	In the case of an extension of time under Subsection (1), public notice of the extension shall be immediately given in the electorate or the portion of the electorate for which the election is to be held."

It is clear from s 115 of the Organic Law that a Returning Officer subject to any direction by the Electoral Commission, has power to vary a polling schedule. In the present case, the Returning Officer has already exercised this discretion by rescheduling the polling to 8th May. The originating summons has not questioned this. If there was any further problem on the 8th May, the Returning Officer has power and could have further extended the polling schedule.

In addition, the Head of State on advice of the Electoral Commission under s 177 of the Organic Law may extend the polling period or for returning of the writ.

Where power is expressly given to the Electoral Commission and its officials, the courts should not interfere in the election process. This point was considered by Woods J in Thomas Negints v The Electoral Commission (Unreported Judgment of the National Court dated 24th June 1992, N1072). In an originating summons, a candidate sought fresh polling in certain villages. The application to the Court was based on the alleged destruction of ballot boxes before they could be counted. The Court held at page 2:

"The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commission with fairly wide powers and discretion to act in s 147 to adjourn the polling for any cause or in s 178 to extend the time for polling where he considers it necessary.

The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make orders as are deemed necessary see s 155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner. He must realize that if something goes wrong during an election there may be grounds for the voiding of the election afterwards and that may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards…."

At page 3 Woods J concluded:

"I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Law and by the procedure to challenge an election in s 206."

This conclusion is consistent with the recent decision of the Supreme Court in Special Reference Pursuant to Section 19; Reference by Attorney-General for the Independent State of Papua New Guinea (Unreported and Unnumbered Judgment of the Supreme Court dated 26th July 2002) in which the Court (Amet CJ, Kapi DCJ, Sheehan J, Sakora J, Sevua J) considered the powers of the Electoral Commission under s 97 of the Organic Law. Several questions were referred for consideration by the Court including the questions relating to the extent of the power and the circumstances under which the Head of State on advice may exercise the discretion under s 97. At page 8 the Court held:

"The authority to organize and conduct elections is given to the Electoral Commission. The National Court is given jurisdiction to enquire into and determine the validity of such elections.

The Constitution and the Organic Law set out how and when elections shall be held, given time periods and the limits for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writs of election. These start with the prescription that National Election shall be held within 3 months of the anniversary of the 5th year of the current Parliament and return.

But the Constitution and the Organic Law also provide for the possibility of failure of the elections to be completed in time or at all. Consequently, power is given to the Head of State acting on advice of Electoral Commission to either allow further time for election or returns to be completed or to issue a writ for supplementary election to be concluded as soon as is practicable after it is determined that an election has failed.

The power to determine that an election has failed, and the exercise of the discretion to make such a determination lies solely with the Electoral Commission."

The Court then set out s 97 of the Organic Law and continued:

"This section empowers the Commission to determine that an election has failed if satisfied on grounds reasonable and sufficient to the Commission that a return cannot be made for an electorate.

In Questions 1 and 2 circumstances of violence, intimidation, destruction of ballot boxes, tampering with votes and the like, are cited as grounds for determination of failure. It is our opinion that the questions as framed do not so much focus on the power and discretion that s 97 provides to declare failure of election, as asking the Court to prescribe and even circumscribe the circumstances in which that power may be exercised. We do not consider that an appropriate course for the Court to take. Although such a determination could and may in future be the subject of a National Court petition or review, it is not for this Court to set the circumstances in which the Electoral Commission can or cannot determine that an election has failed. Such would be to intrude upon a power given solely to the Electoral Commission. It would also tend to put limits on the openness of the section." (Our Emphasis)

For these reasons the Court declined to answer the relevant questions.

We consider that these two cases accurately set out the proper approach in law in respect of the jurisdiction of the National Court in election mattes. In respect of polling schedules, the relevant provisions we have set out earlier gives the discretion to extend polling schedules to the Electoral Commission. These provisions do not give any jurisdiction to the National Court.

Sections 4 and 206 of the Organic Law are relevant in considering the jurisdiction of the National Court:

"4.	Reference of certain questions to National Court

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court."

"206	Method of disputing returns

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."

Clearly, where a question of the validity of an election arises, the Organic Law gives the National Court power to determine this. Such a matter can come before the National Court by petition and not otherwise.

Section 215 of the Organic Law sets out the grounds upon which an election may be invalidated. It is not necessary for the present purposes to exhaustively list all the grounds. Under this provision, tampering of ballot boxes is an illegal practice and an election may be invalidated on this ground. 

Where this is alleged, the appropriate way to invalidate such an election is by way of petition under s 206 of the Organic Law. That is what happened in Thomas Negints v The Electoral Commissioner (supra). In that case, Woods J made reference to an earlier case Malapu v The Electoral Commissioner [1987] PNGLR 128 (Kapi DCJ). That case also involved destruction of ballot boxes before the counting of votes. Woods J in making reference to this case held:

"In the Malapu Case referred to above on the facts it appeared that the damage may have already been so great, namely the numbers of votes destroyed but nevertheless the Judge in the case refused the application and said that the onus of proving that there had not been a free election had not been discharged because certain information had not been presented. But by saying that all the information so needed would be available after the counting of votes suggested therefore that that it is not till after the counting that you can present all the evidence required. And of course at that stage you are in the area of the Petition under s 206."

As we have indicated before, this is the correct conclusion of law where legitimate grounds for invalidating an election are raised during the election process.

However, in respect of polling schedules, s 117 is significant. It clearly states that whether or not there is a failure to observe a polling schedule or non compliance with s 114 of the Organic Law or variation or departure from a polling schedule, any such failure can never be a ground for invalidating an election. Whilst we agree that this provision is to be read within the context of an election petition, this provision does not give the National Court any jurisdiction to extend polling period before the result of an election is returned. This power as we have already pointed out is given to the Electoral Commission under the Organic Law. 

The question is whether, any other provision of the law gives the National Court power to extend a polling period? The Respondent relies on s 155 (4) of the Constitution. He submits that his application seeks to enforce constitutional rights of people to vote as guaranteed by s 50 (1) of the Constitution and they may enforce them under s 155 (4) of the Constitution. We understand that the Respondent relies on the last part of the provision which provides:

"…and such other orders as are necessary to do justice in the circumstances of a particular case"

For this proposition he relies on Application by Imoning [1992] PNGLR 119 and Supreme Court decision in the same matter see [1992] PNGLR 122. We find that this case does not deal with s 155 (4). This was an application made under s 57 (1) of the Constitution. The case was not related to extension of polling period. The case involved the effect of the death of a candidate on the right to vote. The issue was whether the amendment to s 96 (2) of the then Organic Law on the National Elections was inconsistent with the right to vote under s 50 of the Constitution? 

The matter went on review to the Supreme Court under s 155 (2) (b) of the Constitution. The case has nothing to do with s 155 (4) or with extension of polling schedule. It does not support the proposition relied upon by the Respondent.

Woods J made reference to s 155 (4) in Negints v The Electoral Commission (supra). We referred to this passage earlier. We set it out again in the present context:

"The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make such orders as a re deemed necessary see s. 155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretion and powers of the Commissioner."

He later concluded:

"I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Law and by the procedure to challenge an election in s 206."

We adopt this reasoning process so far as the Constitutional right under s 50 and the discretion given to the Electoral Commission to deal with polling schedules are concerned. The s 50 rights are adequately protected by the discretion given to the Electoral Commission. The Respondent could have applied to the Electoral Commission to extend the polling schedule under s 115 or to the Head of State on advice under s 177 of the Organic Law.

If s 155 (4) has any application, it may be applicable to a review of the exercise of discretion by the Electoral Commission under the Organic Law. This is not such an application. We do not suggest that this may be done in a case where the Electoral Commission has exercised discretion in respect of polling schedules. The point we make is that this provision does not give the National Court power to extend polling schedules. This is a general power to do justice within the context of inherent powers of the National and the Supreme Courts in making orders in the nature of prerogative writs.

The nature of s 155 (4) was considered in Avia Aihi v The State [1981] PNGLR 81. In that case, the provision was considered within the context of s 27 of the Supreme Court Act which limits right to appeal within 40 days of conviction. Avia Aihi failed to appeal within the 40 days and the question was whether she could file her appeal outside the 40 days in the interest of "justice" under s 155 (4)? Chief Justice Kidu addressed this issue at page 87:

"However as I understand Mr Wilson’s argument if it is held that s 37 (15) is regulated by s 27 of the Supreme Court Act and therefore the applicant cannot effectively bring her appeal against the sentence before the court, the court nevertheless has an overriding power under s 155 (4) of the Constitution to order that she be allowed to appeal out of time.

What the Court has been asked to do is to make an order contrary to s 37 (15) and s 27 of the Supreme Court Act 1975. The terms of s 37 (15) and s 27 of the Act are quite clear and in my view this Court has no power under s 155 (4) of the Constitution to make an order contrary to specific dictates of the Constitution. If the contention is correct that this court can make an order under s 155 (4) of the Constitution then we would have the situation where the Supreme Court can override an Act of Parliament specifically allowed to be made by the Constitution. I would not think that the Founding Fathers of the Constitution intended this to be the case."

Deputy Chief Justice Kearney at page 91 agreed with Chief Justice:

"Accordingly, I respectfully agree with the Chief Justice that the Constitution, s 155 (4), does not vest in this Court power to waive a failure to comply with s 27 of the Act, I would reject the submission."

Kapi J (as he then was) at page 107 stated:

"In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s 155 (4). The order that can be sought under such general provision are too numerous, it is difficult to see how this provision can cover all of them.

In this case one still has to ask the question, has the applicant got the right to apply for an extension of time? Under the Supreme Court Act she has lost the right.

Can it be argued that under s 155 (4) it would do justice to extend time because it was not her fault that she did not apply within forty days? In my view this cannot be so. "Justice" under this provision means justice according to law. This section is to be interpreted in the light of the doctrine of separation powers under s 99 of the Constitution. The law making powers of the National Parliament have to be kept separate the functions of the judiciary.

If this Court ruled that it can give a right to apply to the applicant under s 155 (4) of the Constitution contrary to s 27 of the Supreme Court Act then this would have the peculiar affect in that this Court would have power to disregard or override clear provisions of the statutes. This, in effect, would amount to amendment or repeal of legislation by judicial power. Such an interpretation would put this Court above the legislature and it could make orders against the clear provisions of legislation if it thought the legislation was unfair or did not do justice." 

We conclude from this authority that the power to extend polling schedules is specifically granted to the Electoral Commission by the Organic Law (enacted in accordance with s 126 of the Constitution) and the general provision under s 155 (4) has no application.

The Trial Judge relied on the Middle Ramu Case where the Chief Justice ordered extension of voting by one day. Counsel informed us that the Chief Justice did not publish any reasons for decision. We do not find this of any assistance in that we are not aware of the arguments put before the Chief Justice and the basis of the ruling.

We find that the Trial Judge erred in law in extending the polling for the reasons we have set out in our judgment.

We do not find it necessary to deal with ground (e).

In the result we allow the appeal, quash the decision of the National Court and direct that the Electoral Commission should complete the election process under the Organic Law. We further order that the Respondent pays the Appellant’s costs of the Appeal.
____________________________________________________________________
Lawyers for the First, Second & Third Appellants	:	Nonggor & Associates
Lawyers for the Fourth Appellant			:	Kwimb Lawyers
Respondent in Person.