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Electoral Commissioner v Maniho, Kawedo, Hasu, Itup, and Yanepa; Electoral Commissioner v Kokorime [1987] PNGLR 449 (31 October 1986)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 449 - Electoral Commissioner v Whiskey Maniho, Mark Kawedo, David Hasu, Simon Itup, and James Yanepa; Electoral Commissioner v Samson Kokorime 

[1987] PNGLR 449

SC336

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

V

WHISKEY MANIHO,

MARK KAWEDA,

DAVID HASU

AND SIMON ITUP

AND JAMES YANEPA

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

V

SAMSON KOKORIME

Waigani

Kidu CJ Kapi DCJ Woods Los Barnett JJ

30-31 October 1986

PARLIAMENT - Provincial government - Elections - Electoral Commissioner - Powers of - Power to defer provincial elections - Validity of power - Principles on which power to be exercised - Organic Law on Provincial Government (Ch No 1), s 113.

Under s 113 of the Organic Law on Provincial Government (Ch No 1), the Electoral Commission of Papua New Guinea, may defer a provincial election, if that election “will or may interfere or hinder the proper and efficient performance of a function in relation to ... a National Election ...”; and to hold the two elections together would interfere with each other or that one would make the conduct of the other less effective, the National election is to take precedence.

Held

(1)      That where the Electoral Commission makes a decision to defer a provincial election, under s 113 of the Organic Law on Provincial Government, although neither the Supreme Court nor the National Court has power to substitute its decision for that of the Electorial Commission, the Courts, nevertheless have power to determine whether the discretionary power was properly exercised, according to law.

(2)      A decision under s 113 based on irrelevant or extraneous considerations is improper and therefore an invalid exercise of power.

(3)      As the primary function of the Electoral Commissioner under the Organic Law on Provincial Government is to conduct elections and perform matters ancillary thereto, matters relevant to the exercise of the power under s 113 must relate to that function.

(4)      Accordingly, in deferring a provincial election because it was intended to hold a series of educational seminars and discussions with political leaders, schools, colleges, local governments etc, on the voting systems and electoral laws, the Electoral Commissioner had taken into account irrelevant or extraneous considerations and his exercise of power under s 113 was invalid.

Appeal

This was an appeal from the National Court declaring unlawful a decision of the Electoral Commissioner made pursuant to the Organic Law on Provincial Government (Ch No 1), s 113, to defer elections for the Eastern Highlands Province and directing fresh elections.

Counsel

In the first appeal:

P Steeles, for the appellant.

B M Narokobi, for the first respondents (Maniho & Ors).

B Sakora, for the second respondent (Yanepa).

In the second appeal:

P Steeles, for the appellant.

B Sakora, for the respondent (Kokorime).

Cur adv vult

31 October 1986

KIDU CJ KAPI DCJ WOODS LOS BARNETT JJ: In these two appeals the following are the grounds of appeal:

(a)      His Honour erred in fact and in law in finding that the appellant by considering the provisions of s 105 (1) of the Constitution had in forming his opinion to defer the provincial election taken into account a wholly irrelevant or extraneous consideration and that the appellant’s decision to defer was therefore unlawful.

(b)      His Honour erred in fact and in law by not taking into consideration the evidence that the National elections are to be held in 1987.

(c)      His Honour erred in fact and in law in not taking into consideration the evidence that the appellant’s office had advanced preparations for the 1987 National elections.

(d)      His Honour erred in fact and in law in not taking into consideration that all the appellant’s resources (staff and money) was at the date of the deferment directed towards the 1987 National elections.

(e)      His Honour erred in fact and in law by finding that the letter dated 17 September 1986 from the appellant to the second respondent (the letter) shows that the appellant would seem to be embarking on a venture of his own.

(f)

(i)       His Honour erred in fact and in law in finding that there is no legislative requirement that the appellant hold a series of educational seminars and discussions with political party leaders, schools, colleges, local government councils etc on the voting system and election law; or

(ii)      Alternatively, his Honour failed to consider the aforesaid educational seminars and discussions against the provisions of the Constitution and in particular s 224 thereof.

(g)      His Honour erred in fact and in law in finding that the appellant by engaging in the aforesaid educational activities and taking into account when deciding to defer the provincial elections had taken into consideration irrelevant and extraneous considerations and that the appellant’s decision was therefore bad in law.

(h)      His Honour erred in finding against the weight of the evidence that the appellant had given no reason or justification as to why the holding of the provincial election may interfere with or make less effective the performance of the appellant’s functions in relation to the National election.

(i)       His Honour erred in fact and in law in finding that the appellant had failed to give the aforesaid reasons in that his Honour considered the appellant’s affidavit evidence in isolation without considering in conjunction therewith the contents of the letter.

(j)      His Honour erred against the weight of the evidence in finding that the appellant had given no reason why the provincial election might interfere with the National election.

(k)      His Honour erred in fact and in law in concluding that the appellant had no good reason for deferring the provincial election and that the appellant’s decision was therefore unlawful.

(l)       His Honour erred in law in finding that s 37(11) of the Constitution had any application in the circumstances of this case.

(m)     His Honour erred in fact and in law in holding that the appellant’s determination was made “within a reasonable time” was unreasonable in the circumstances and to that extent unlawful in that his Honour failed to consider that the appellant had come to office on 3 September 1986 and had given notice of the deferment on 17 September 1986 by the letter.

(n)      His Honour erred in law in declaring that the decision of the appellant to defer the provincial election until after completion of the National election be unlawful.

(o)      His Honour erred in law in making the order that the second respondent direct the Electoral Commission to issue a writ for a general provincial election in that all those provisions of the Eastern Highlands Provincial Government Electoral Act 1978 which purport to direct or control the Electoral Commission are ultra vires the provisions of the Constitution.

(p)      His Honour erred in law in making the order that the Electoral Commission upon receiving the abovementioned direction from the Provincial Premier cause the issue of a writ for a general provincial election because such order follows upon his Honour’s preceding order and for the reason that the aforesaid provisions of the said electoral Act are ultra vires the Constitution.

(q)      His Honour erred in law in making the order restraining the Electoral Commission from delaying the provincial elections until after the National elections.

(r)      His Honour erred in ordering the Electoral Commission to pay the costs of the first and second plaintiff.

(s)      Fresh evidence not presented to his Honour and in the interests of justice presented in affidavit form setting out in detail the appellant’s reasons for deferment of the provincial election.

(t)      Such other grounds as may become apparent when his Honour’s notes are available.

The urgency of the matter when it came up for hearing required a prompt decision and the Court therefore announced its decision on 30 October 1986. The appeals were disallowed but two of the orders made by the learned trial judge were quashed. The orders made by the trial judge were as follows:

“(1)    The Decision of the Electoral Commissioner dated 17 September 1986 and published in the National Gazette on 2 October 1986 to defer the Eastern Highlands Provincial Elections due to be held in October 1986 until after the completion of the 1987 National elections is declared to be unlawful.

(2)      The Premier of the Eastern Highlands Province is ordered to direct the Electoral Commission, pursuant to s 37 of the Eastern Highlands Provincial Electoral Act 1978, to issue a writ for a general election of members in accordance with the provisions of s 43 of the Provincial Constitution.

(3)      The Electoral Commission upon receiving the above-mentioned direction from the Premier of the Eastern Highlands province, shall cause the issue of a writ for and organise and conduct a general election for the Eastern Highlands Provincial Government as soon as possible according to law.

(4)      An order restraining the Electoral Commission from deferring The Eastern Highlands Provincial Elections due to be held in October 1986 until after the completion of the 1987 National elections.

(5)      Order the electoral Commission to pay the costs of the first plaintiffs and the second plaintiff Samson Kokorime such costs to be assessed and failing assessment to be taxed.”

Orders (2) and (3) were the ones quashed and the reason was that there was no evidence that the Premier had either refused or failed to advise the Electoral Commission to issue writs for the provincial general elections for the Eastern Highlands Province as required by s 37 of the Province’s Constitution. Such a situation meant that there was no cause of action against the Premier and that the orders were not justifiable at all.

Elections were scheduled for the Eastern Highlands Provincial Assembly during October to December of 1986 and National elections were to be held during the first half of 1987. The programmes for the two elections were contained in a circular issued by the Electoral Commission’s Office in Goroka.

“1986 - 1987 NATIONAL/PROVINCIAL GOVERNMENT ELECTION PROGRAMME

But in a letter dated 17 September 1986 the Electoral Commissioner wrote to the Premier and informed him as follows:

“My Dear Premier

DEFERMENT OF PROVINCIAL ELECTIONS

The Organic Law on Provincial Government sec 113, confers power in the Electoral Commission to alter or cancel a. provincial election if the performance of Provincial elections is to interfere or hinder the proper and effective conduct of national elections.

My office has had preparations advanced for 1987 National elections.

Recently a nationwide enumeration exercise has been completed and all Commission resources (staff and money) is presently directed towards 1987 National Elections. In the weeks ahead I will be holding a series of educational seminars and discussions with political party leaders; schools, colleges, Local Government councils etc, on the voting system and election law. There is a continuous need to train the general public so that they are convinced of the need to exercise their constitutional rights during the elections.

The Commission is also preparing instruction Manuals for its election officials. Similar instructions will be produced for Candidates and parties by the end of the year.

As can be seen, my role is primarily to ensure that a machinery exists so that every citizen is able to vote and to do so without minimum fuss, harassment or manipulation.

Your provincial elections were scheduled for October 1986. However, since the elections interfere and thus make it ineffective for my office to conduct the national elections effectively, I have decided to defer the elections to October 1987.

Your provincial elections are now deferred to the new programme as follows:

I suggest you publicise this deferment as widely as possible in the province.”

So one of the reasons for the deferment of the provincial election stated in the letter was that the appellant was going to hold a series of educational seminars an discussions with political party leaders, schools, colleges, local government councils, etc, on the voting system and election laws.

In this affidavit, filed in the National Court, dated 9 October 1986 the appellant added further reason for his decision to defer the provincial elections:

“6.      In forming my opinion, I noted that under the Constitution Section 105 I, an Electoral Commissioner may be required to hold an election at any time. If such an occasion should occur I need to be able to hold an election within a period of three months as set out in the Constitution in particular Section 105(1)(a).”

Under the Eastern Highlands Provincial Constitution there must be general elections held in the Province under the following circumstances set out in s 43 thereof:

“43(1) Subsection (2), a general provincial election shall be held:

(A)     on a date set by the Premier within six months before the fourth anniversary of the return of the writs for the previous general provincial election; or

(B)      if after the third anniversary of the return of the writs of the previous general provincial election a vote of no confidence in the premier is passed in accordance with Section 55; or

(C)     if the Assembly by a two-thirds majority so decides.”

It is s 43(1)(A) which is the pertinent provision in this case. (And the decision by the appellant extended the life of the Eastern Highlands Provincial Assembly by one year.)

Section 105 of the National Constitution relates to the holding of National General Elections and subs (1) states as follows:

“(1)    A general election to the Parliament shall be held:

(a)      within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election

(b)      if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election:

(i)       a vote of no confidence in the Prime Minister or the Ministery is passed in accordance with Section 145 (motions of no confidence); or

(ii)      the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or

(c)      if the Parliament, by an absolute majority vote, so decides.”

It should be noted that at the time the appellant deferred the provincial elections there was no motion before Parliament to dissolve itself nor was there a motion of no-confidence in the Prime Minister or his Ministry nor was there before Parliament a question which the Prime Minister had declared to be a question of confidence. It should also be noted that there was no challenge to the finding by the learned trial judge that at the time of the appellant’s decision to defer the provincial elections his office in Goroka was fully prepared for both the provincial elections and the National elections in the Province.

The importance of all these matters so far set out herein is whether they were matters which should have been considered or which were relevant to the exercise of the appellant’s discretionary power under s 113 of the Organic Law on Provincial Government (Ch No 1) which is in the following terms:

“(1)    If at any time:

(a)      the Electoral Commission has a function in relation to a provincial government election; and

(b)      the performance of that function will or may interfere or hinder the proper and efficient performance of a function in relation to:

(i)       a National election; or

(ii)      another provincial election, the succeeding provisions of this section apply.

(2)      In a case to which Subsection (1)(b)(i) applies:

(a)      the performance of the function in relation to the National election has priority, to the necessary extent, over the performance of the function in relation to the provincial election, and if in the opinion of the Electoral Commission it is necessary to do so to ensure that the elections are conducted without one interfering with, or making less effective, the other, The Electoral Commission may, by notice in the National Gazette:

(i)       defer; or

(ii)      cancel,

the provincial election or any step in it, and

(b)      to that extent the performance of the latter function shall be deemed to be impracticable; and

(c)      Section Sch.1.16 (effect of time limits) of the National Constitution applies in relation to the latter election accordingly.” (My emphasis.)

Mr Steele, for the appellant, submitted that the exercise of the discretionary power vested in his client (the appellant) could not be interfered with by any court (including the Supreme Court).

I see no problem in disposing of this submission. The first answer to the submission is that s 113 is a constitutional law and s 18(1) of the Constitution provides, inter alia, that this Court has the power to determine “... any questions relating to the interpretation or application of any provision of a Constitutional Law”. Secondly, it is provided in s 57 of the Constitution that both this Court and the National Court have the power and the duty to enforce rights and freedoms entrenched in the Constitution and one of these is the right of citizens of voting age, subject to certain conditions, to stand for elective office. And if the right is affected or jeopardised by any person or authority, including the appellant, this Court and the National Court will intervene.

It was decided by the trial judge that the appellant in exercising his discretion under s 113 took into account wholly irrelevant or extraneous matters and therefore his decision was bad in law. These matters are contained in the letter the appellant wrote to the Premier and in his affidavit dated 9 October 1986.

I accept Mr Steele’s submission that courts cannot decide for the appellant — ie neither this Court nor the National Court can substitute its decision in place of that made by the appellant. But this is not to say that the courts cannot determine whether the discretionary power was properly exercised by the appellant and upon proper principles.

There cannot be any quarrel with the view (and it is the view we hold) that a decision based on irrelevant or extraneous considerations is improper and therefore an invalid exercise of a power. Commonsense would dictate that this must be so. Otherwise authorities such as the appellant would be left to their own devices and could deprive people of their rights both under the Constitution and other laws; and injustices done would be left unredressed.

The power given to the appellant is for a particular purpose which is clearly set out in s 113. Close examination of the provision quite clearly shows that, first the Electoral Commission must determine whether a provincial election will in fact interfere with or may interfere with or hinder the proper and efficient performance of a National election. If this determination is in the affirmative the Commission is then required to consider whether to hold the two elections together will interfere with each other or that one will make the conduct of the other less effective. If the answer is in the affirmative then the National election takes precedence and the provincial election must either be deferred or cancelled.

We consider that in order properly to exercise the powers given to him the Commissioner must ensure that only relevant matters are considered by him bearing in mind that his primary function is to conduct elections and the performance of matters relevant to the conduct of elections such as the preparation of common rolls. In this regard the learned trial judge was absolutely correct when he said that the appellant was “embarking on a venture of his own” by deferring the provincial elections because he intended to hold a series of educational seminars and discussions with political leaders, school, colleges, local governments etc on the voting system and electoral laws. It is not the function nor is it the responsibility of the Electoral Commission or the Electoral Commission to conduct educational seminars with political party leaders or anyone else. Its primary function is to organise elections. So if funds are limited extra-curricular activities cannot take precedence over this primary responsibility.

If the appellant was having financial problems with respect to the conduct of elections he had a constitutional avenue open to him to secure funds. He is a constitutional officer-holder (and his organisation (the Electoral Office) is a constitutional institution) and s 225 of the Constitution says:

“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 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.”

This provision imposes a duty on the Government and its various bodies to ensure constitutional institutions and office-holders are properly provided for by way of funds, man-power and other facilities. If this duty is breached, for instance, by the Government or any of its bodies failing properly to fund constitutional institutions so as to enable them to perform functions entrusted to them by the Constitution, the National Court, in the absence of laws to enforce s 225, may be petitioned to enforce the provision by the invocation of s 23 of the Constitution. This provision states as follows:

“23.    Sanctions

(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)      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.

(3)      Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).”

It is to be noted that since Independence no constitutional office-holder or institution has utilised s 225 and s 23 of the Constitution.

Appeals dismissed Orders (2) and (3) at 5 quashed

In the first appeal:

Lawyer for the appellant: Steeles.

Lawyer for the first respondents (Maniho & Ors): Narakobi & Company.

Lawyer for the second respondent (Yanepa): B Sakora.

In the second appeal:

Lawyer for the appellant: Steeles.

Lawyer for the respondent (Kokorime): B Sakora.