SC2634
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 OF 2023

SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19

REFERENCE BY THE MOROBE PROVINCIAL EXECUTIVE

RE THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS, SECTIONS 46, 46A(1) & (3) & 52

Waigani: Salika CJ, Cannings J,
David J, Hartshorn J, Makail J
2024: 26th & 30th September

CONSTITUTIONAL LAW  – Elections – Constitution, ss 50 (right to vote and stand for public office) & 126 (elections) – Organic Law on National and Local-level Government Elections Part V (electoral rolls) – whether ss 46, 46A(1), 46A(3) and/or 52 are invalid for being in breach of Constitution, ss 50 and 126 – whether provisions conferring discretion on Electoral Commission as to whether and when to prepare new electoral rolls for electorates are insufficiently prescriptive.

ELECTIONS – whether ss 50 and/or 126 of the Constitution or ss 46, 46A(1), 46A(3) and/or 52 of the Organic Law on National and Local-level Government Elections were breached in the conduct of the 2022 general election – whether the 2022 general election was a “failed election”.

Questions of constitutional interpretation and application were referred by the Morobe Provincial Executive to the Supreme Court under s 19(1) of the Constitution, regarding the constitutionality of four provisions of the Organic Law on National and Local-level Government Elections: Sections 46, 46A(1), 46A(3) and 52. These provisions are in Division V.2, which deals with preparation of new rolls for electorates. At the hearing of the reference, it was clarified that question 1 was confined to only s 46A(3) of the Organic Law. The question was whether s 46A(3) is constitutionally valid. Question 2 asked whether s 46A(3) was breached in respect of the 2022 general election. Question 3 asked whether ss 50 and 126 of the Constitution were breached in respect of the 2022 general election. Question 4 asked what the consequences were for the 2022 general election, if the answers to questions 1, 2 or 3 disclosed constitutional breaches, and specifically whether it was a “failed election”.

Held:

(1)	Question 1 was answered in the affirmative. Section 46A(3) of the Organic Law is constitutionally valid. 

(2)	The Court declined to answer questions 2, 3 and 4 as in the opinion of the Court, the questions were hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea. 

Cases Cited

No cases are cited in the judgment.

Counsel

I Molloy & C Mark, for the Referrer, the Morobe Provincial Executive 
K Kipongi, for the First Intervener, the Attorney-General 

30th September 2024

1.      BY THE COURT: Four questions of constitutional interpretation and application have been referred by the Morobe Provincial Executive to the Supreme Court under s 19(1) of the Constitution, regarding the constitutionality of certain  provisions of the Organic Law on National and Local-level Government Elections: ss 46, 46A(1), 46A(3) and 52. These provisions are in Division V.2, which deals with preparation of new rolls for electorates.

2.     Question 1 is the principal question. At the hearing of the reference, it was clarified that question 1 is confined to only s 46A(3) of the Organic Law, which states:

A new Roll may be prepared where:—

(i)	a new electorate is created; or
(ii)	there has been a major movement of people out of or into an existing electorate; or
(iii)	the Electoral Commission considers that it is necessary for other reasons to create a new Roll.

3.     The question is whether s 46A(3) is constitutionally valid. The referrer argues that it is not valid. The first intervener, the Attorney-General, argues that it is constitutionally valid.

4.     Questions 2, 3 and 4 concern the 2022 general election and are based on alleged facts that none of the rolls for that election were updated from the 2017 general election and contain the names of all persons entitled to vote and that a significant number of citizens were denied the right to vote. 

5.     It is alleged that electoral rolls for the 2022 general election were not updated from the 2017 general election and did not include the names of all persons entitled to vote, that the Electoral Commission failed to distribute new or updated rolls for use in the 2022 general election and failed to give returning officers sufficient directions to allow them to revise existing rolls and that a significant number of citizens who were of full capacity and reached voting age were denied the right to vote. 

6.     The referrer asks whether ss 46, 46A(1), 46A(3) and/or 52 of the Organic Law were breached in respect of the 2022 general election, whether ss 50 and 126 of the Constitution were breached in respect of the 2022 general election and whether the 2022 general election was a “failed election”. 

7.     The referrer suggested that s 46A(3) of the Organic Law was breached and that ss 50 and 126 of the Constitution were breached. The first intervener submitted that there was no evidence that any of those provisions were breached or that the 2022 general election was a failed election.

Question 1: On the true interpretation and application of the following Constitutional Laws, are ss 46, 46A(1), 46A(3) and/or 52 of the Organic Law on National and Local-level Government Elections constitutionally valid notwithstanding inter alia that the Electoral Commission is granted a discretion when and whether to revise, update or prepare a new electoral roll, or are the said provisions or any of them unconstitutional in breach of Constitution s 50 and/or Constitution, s 126? 

8.     The referrer argues that s 46A(3) is not valid as it confers an inappropriately wide discretion on the Electoral Commission to determine when a new roll for an electorate should be prepared. The referrer argues that the discretion is insufficiently prescriptive and that by making the question of preparation of new electoral rolls dependent on the exercise of discretion by the Electoral Commission, the right to vote of electors under ss 50 and 126 of the Constitution is not protected.

9.     Section 50 (right to vote and stand for public office) is one of the human rights provisions contained in Division III.3 (Basic Rights) of the Constitution. It states:

(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; or
(ba)	has dual citizenship of another country,

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.
 
10.     Section 126 (elections) states:

(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.

11.    We consider that there is no good reason for finding s 46A(3) of the Organic Law constitutionally invalid. It is part of an Organic Law that makes provision for an electoral system for Papua New Guinea in accordance with s 126(7) of the Constitution, and which regulates the right to vote in a manner which is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. 

12.     The fact that it confers a wide discretion on the Electoral Commission as to when a new electoral roll for an electorate should be prepared is unremarkable. Though the Electoral Commission is not, by virtue of s 126(6) of the Constitution, subject to direction and control by any person or authority, that does not affect control or direction by a court (ss Constitution, Schedule 1.19). There is no reason to think that any allegedly unreasonable exercise of discretion by the Electoral Commission under s 46A(3) of the Organic Law would not be subject to judicial review. 

13.     With respect, the referrer fails to appreciate the difference between a “new roll” and an “existing roll”. New rolls are prepared under Division V.2 of the Organic Law. Existing rolls are revised and compiled under Division V.3. 

14.     Irrespective of whether a new roll for an electorate is prepared, there is a continuing responsibility imposed on returning officers, who are officers of the Electoral Commission, to revise and update existing rolls to take account of a wide range of changing circumstances. 

15.     The Organic Law has a range of provisions that provide for enforcement of the rights of citizens to vote. These are set out in Parts VI (qualifications and disqualifications for enrolment and for voting), VII (enrolment), VIII (objections) and IX (appeals).

16.     When considered in the context of those provisions, the need for a new roll to be prepared will, we suggest, not be a common occurrence. 

17.     We take judicial notice of major problems in the accuracy of existing rolls used at the 2022 election. However, it was not because of the conferral of wide discretion on the Electoral Commission under s 46A(3) of the Organic Law that those problems arose. We suggest that the problem was more to do with failure on the part of the Electoral Commission to revise existing rolls. The problem was not with the law, but with enforcement of the law.

18.     In any event, the only relevant issue before us is the constitutionality of s 46A(3) of the Organic Law. We agree with the first intervener that s 46A(3) does not have the effect of restricting the exercise of the rights of eligible voters to vote under s 50 of the Constitution. It is not in conflict with any of the provisions of s 126 of the Constitution.

Answer to question 1

19.     Yes, s 46A(3) of the Organic Law is constitutionally valid. 
 
Question 2: In the facts and circumstances referred to above, have ss 46, 46A(1), 46A(3) and/or 52 of the Organic Law on National and Local-level Government Elections (on their true interpretation and application) been breached in respect of the 2022 national election?
20.     The referrer has only one affidavit, by the Governor of Morobe Province, Hon Luther Wenge MP, to support the allegations that electoral rolls for the 2022 general election were not updated from the 2017 general election and did not include the names of all persons entitled to vote, that the Electoral Commission failed to distribute new or updated rolls for use in the 2022 general election and failed to give returning officers sufficient directions to allow them to revise existing rolls and that a significant number of citizens who were of full capacity and reached voting age were denied the right to vote. 
21.     Mr Wenge’s affidavit is based on sweeping allegations and is largely hearsay and has not been tested in court. We consider that there is insufficient evidence before the court on which this question is based. The question is hypothetical. 
22.      We invoke Order 4 rule 18 of the Supreme Court Rules 2012, which states:
The court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

Answer to question 2

23.     Decline to answer this question as it is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

Question 3: In the facts and circumstances referred to above, have Constitution, s 50 and/or Constitution, s 126 (on their true interpretation and application) been breached in respect of the 2022 national election?
24.     We decline to answer this question for the same reasons we declined to answer question 2.
Answer to question 3

25.     Decline to answer this question as it is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

Question 4: If the answers to any of questions 1, 2 or 3 above are that there has been a constitutional breach (or there is constitutional invalidity) what are the consequences in respect of the 2022 national election, and specifically, whether there is a failed election?
26.    None of our answers to questions 1, 2 or 3 have disclosed any constitutional breaches or invalidity. Question 4 is therefore also hypothetical. We decline to answer it for the same reasons we declined to answer questions 2 and 3.
Answer to question 4

27.     Decline to answer this question as it is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

CONCLUSION

28.     At the hearing of this reference it transpired that question 1 was confined to the narrow question of whether s 46A(3) of the Organic Law on National and Local-level Government Elections is constitutionally valid. We answered that it is valid. The three other questions were based only on alleged facts and were hypothetical, so we declined to give an opinion on them.

29.     Before pronouncing the order of the Court we note that the Electoral Commission applied for and was granted leave to be an intervener in this reference. However, the Electoral Commission did not file any response to the questions and did not appear at the hearing of the reference. Given that this was potentially a significant constitutional case involving the conduct of the 2022 general election we find the conduct and attitude of the Electoral Commission unsatisfactory, disappointing and unimpressive. 

ORDER

(1)	The questions the subject of this reference are answered as follows:

Question 1: 	Yes, s 46A(3) of the Organic Law on National and Local-level Government Elections is constitutionally valid. 

Question 2: Decline to give opinion.

Question 3: Decline to give opinion.

Question 4: Decline to give opinion. 

(2)	The parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.

________________________________________________________________
Steeles Lawyers: Lawyers for the Referrer		
Solicitor-General: Lawyers for the First Intervener