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State v Attorney General [2002] PNGLR 16 (5 April 2002)

[NATIONAL COURT OF JUSTICE]

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

v

ATTORNEY GENERAL OF PAPUA NEW GUINEA; and
REUBEN KAIULO, THE CHIEF ELECTORAL COMMISSIONER
Waigani: Sevua J

4-5 April 2002

Facts

This is a second application made by the plaintiff in the same proceedings within 24 hours. Earlier, the Chief Justice had a virtually similar application and dissolved an interim injunction which he previously issued. By a notice of motion the plaintiff in this application is essentially seeking the same orders and in particular, an order to restrain the first defendant (Governor General) from issuing writs for a general election.

Held

1. The issue of writs for a general election in accordance with s 73 of the Organic Law on National and Local Level Government Elections is the prerogative of the Governor General following advice from the Electoral Commission.

2. Under s 73 of the Organic Law, the Electoral Commission, not the Attorney General, advises the Governor General on the issue of writs for a general election. Therefore, the Attorney General's advice to the Governor General not to issue writs for the 2002 General Elections has no basis under the Constitution and the Organic Law.

3. As the interim injunction had been discharged, it is my view that the plaintiff cannot come back to seek the same relief without violating the principle of frivolity and vexation. I consider that this application, being the second one, is tantamount to a frivolous and vexatious suit. While the court appreciates the constitutional issues involved, it is my view that this application is also tantamount to an abuse of the process and the court has a duty to protect its process from being abused by litigants.

Counsel

G Sheppard, for plaintiff.
J Kumura, for first defendant.
J Nonggorr, for second defendant.

5 April 2002

Sevua J. This is the second application made by the plaintiff in these proceedings within the last 24 hours. By a notice of motion, the plaintiff sought four orders, including an order that pending further order, the first defendant be restrained from issuing writs for a general election under s 73 of the Organic Law on National and Local-Level Government Elections (the Organic Law).

The Chief Electoral Commissioner has raised a preliminary objection to the hearing of the plaintiff's notice of motion. However, prior to addressing that objection, it is pertinent to briefly set out the short historical background of this action.

On Wednesday, 3 April 2002, the plaintiff filed an originating summons seeking two principal relief, which were:

1. An order that the first defendant be restrained from issuing his writ for a general election under s 73 of the Organic Law on National and Local-Level Government Elections until the second defendant complies with the order specified in paragraph 2 hereof.

2. An order in the nature of a mandatory injunction requiring the second defendant to produce forthwith to the court the Electoral Rolls for each electorate in the country as required under s 44 of the Organic Law.

The Chief Justice heard the first application on the evening of Wednesday, 3rd April, and granted an interim injunction which was returned before him yesterday morning 4th April. That application, as I understood, was supported by the affidavits of the Prime Minister, Sir Mekere Morauta, Chief Secretary, Robert Igara and Honourable Chris Haiveta, MP. The Chief Electoral Commissioner did file an affidavit as well. It is my understanding that after hearing all the parties yesterday morning, the Chief Justice dissolved the interim restraining order he granted on the evening of 3rd April 2002.

The plaintiff then returned to court yesterday evening to move its second application, which, as adverted to, met with a preliminary objection by the second defendant. That objection is the subject of this judgment.

If I understood Dr Nonggorr correctly yesterday evening, there were two grounds for his objection. The first relates to the hearing of the plaintiff's first application on the evening of 3rd April, resulting in the grant of an interim restraining order, which continued to yesterday when that interim order was discharged. The second relates to the role played by the Attorney General as the Principal Legal Adviser to the National Executive Council, hence the plaintiff on the one hand, and, on the other hand, the nominal defendant representing the Head of State, acting with, and in accordance with, advice or the Governor General.

In essence, Dr Nonggorr's submission was that this matter had adequately been dealt with yesterday by the Chief Justice, consequently culminating in the discharge of the interim restraining order granted by him on the evening of 3rd April. On that basis, the plaintiff cannot return to this Court to make the same application and 'take a second bite at the cherry,' so to speak. It was argued that the Chief Justice had heard full arguments from all the parties on the return date of the interim injunction then discharged that interim order, therefore it was improper for the plaintiff to return and make the same application seeking the same relief.

Counsel further submitted that the issue of the writs for the general election is a matter for the Governor General acting with, and in accordance with, the advice of the Electoral Commission under Section 73 of the Organic Law. The Governor General's obligation under that provision is mandatory and he must issue the writs for a general election after having been advised by the Electoral Commission. As I understood from Dr Nonggorr's contention, it is not for the Attorney General to advise the Governor General to withhold the issue of the writ, but because the Attorney General had done that without a valid court order, he had acted unconstitutionally. It was the conduct of the Attorney General in advising the Governor General that has delayed the issue of the writs for the 2002 general elections, argued Dr Nonggorr.

On the contrary, the plaintiff's counsel, Mr. Sheppard, submitted that the conduct of the Attorney General was not unconstitutional. The Attorney General was merely carrying out his statutory duty under the Attorney General Act and the Claims By and Against the State Act.

Mr. Kumura for the first defendant, the Attorney General, has produced two letters from the Attorney General to the Governor General dated 4th April instant. Counsel was unable to assist the court in any meaningful submission as to the seemingly conflicting role played by the Attorney General. That is, advising the State through the National Executive Council, and also advising the Governor General not to issue the writ and acting as the nominal defendant on behalf of the Governor General.

Mr. Sheppard submitted that both letters were actually harmless and the tone were proper and respectful. Given the time they were written, they respect the cause. The Attorney General was merely discharging his statutory function.

Section 3 of the Claims By and Against the State Act 1996 provides that a claim against the Head of State or Governor General must be made against the Attorney General who is the nominal defendant on behalf of the Governor General. Pursuant to s 4 of that Act, the Attorney General may sue for and on behalf of the State. By virtue of s 3 of the Attorney General Act 1989, the Attorney General is the principal legal adviser to the National Executive and for the purpose of s 156(2) of the Constitution, the Attorney General is the principal legal adviser to the National Executive. In pursuance of s 8 of that Act, the Attorney General, as the principal legal adviser, can offer legal advice and opinion to the National Executive, the National Executive Council or a Minister.

Whilst I agree with Mr. Sheppard's submission that the Attorney General was merely acting his statutory role, I have difficulty in reconciling the impartiality of the Attorney General in these proceedings. On the one hand he has advised the Prime Minister and his Cabinet therefore the State, to institute this action against himself as the nominal defendant on behalf of the Governor General. But more so, I find it quite difficult to accept the Attorney General's impartiality in advising the Governor General not to issue the writs for the 2002 general elections until the State had made its second application. How could the Attorney General be the legal adviser of both the State and the Governor General in the same proceedings? Surely, the constitutional notion of justice and the issue of ethics and professional conduct dictate that he cannot be the legal adviser to both parties in the same litigation. How impartial could he get? Certainly, his advice to the Governor General was to the advantage of the plaintiff and thus detrimental to the Governor General and the Electoral Commission, and the rest of the voters who are ready to cast their votes, so where is justice in this case? Justice, as we all know, must not only be done, but must be seen to be done. I cannot see how there cannot be a conflict of interest in this case.

It is trite law that the conduct of general elections pursuant to s 105 and s 126 of the Constitution is the responsibility of the Electoral Commission. The issue of writs in accordance with s 73 of the Organic Law is the prerogative of the Governor General following advice from the Electoral Commission. Even the fixing of the polling days and the date of the return of the writs are the prerogative of the Governor General acting with, and in accordance with, the advice of the Electoral Commission. It is clear therefore that the constitutional intent has always been that in matters relating to the conduct of general elections, especially the constitutional functions I have adverted to, it is the responsibility of the Electoral Commission to advise the Governor General.

Nowhere in the Constitution, the Organic Law or the Attorney General Act do I find that the Attorney General has responsibility to advise the Head of State or Governor General on matters relating to the conduct of general elections, and in particular, the issue of the writs for a general election. However, I do not dispute that generally, the Attorney General could give legal advice to the Governor General.

Section 73 of the Organic Law is specific, and in my opinion, cannot be any more unambiguous and clearer than what is. The Electoral Commission, not the Attorney General, advises the Governor General on the issue of writs for a general election. The conduct of the Attorney General in this case, particularly, in advising the Governor General yesterday not to issue the writs for the 2002 general elections, not only has no constitutional basis, but also has no basis under the Organic Law. I accept Dr. Nonggorr's submission that the conduct of the Attorney General yesterday was the cause of delay in the issuing of the writs for this year's general elections.

In respect of the plaintiff's notice of motion, it is my opinion that, it is, in essence, the same application which the Chief Justice had dealt with yesterday and the evening before. The relief sought in this application is in similar terms to the first relief claimed in the plaintiff's originating summons, the only difference, in my view, is that, in the originating summons, the injunction claimed by the plaintiff was subject to the production of the Electoral Roll for each electorate in the country.

I am satisfied that the Chief Justice had adequately canvassed the issue of the restraining order. I am also satisfied that in discharging the original interim restraining order, the Chief Justice had considered arguments advanced by all the parties involved in this action, although I have not had the benefit of perusing the transcript of proceedings in the Chief Justice's court.

As the interim injunction had been discharged, it is my view that the plaintiff cannot come back to seek the same relief without violating the principle of frivolity and vexation. I consider that this application, being the second one, is tantamount to a frivolous and vexatious suit. While the court appreciates the constitutional issues involved, it is my view that this application is also tantamount to an abuse of the process and the court has a duty to protect its process from being abused by litigants.

In passing, while I am not determining the substantive issues, I wish to make this observation. The evidence in support of the plaintiff's application, especially the plaintiff's complaint about the common roll being fundamentally flawed with abnormalities and irregularities, is inconclusive. That aspect of the evidence was merely general statements made by Messrs Morauta, Haiveta and Igara. There is no real evidence to substantiate those general statements.

I advert to that issue at this juncture because in an application for injunction, the applicant needs to convince the court that it has an arguable case. It may be that the plaintiff has an arguable case, however, I am not convinced that the balance of convenience favours the granting of the injunction it is seeking.

If the court were to accept the concerns expressed in the affidavits in support of the plaintiff's claim, the court should equally ask, where was the Prime Minister and his Cabinet or the Parliament for that matter towards the end of last year? What did they do in December 2001 or in January 2002? If the court were to accept these concerns expressed in Parliament as serious, why didn't the Prime Minister and his Cabinet act in December 2001 or January 2002? Why wait until the eve of the issue of the writs before the Prime Minister, or the State for that matter, run to court and on the eleventh hour, seeks an injunction to prevent the Governor General from issuing the writs for the 2002 general elections?

These questions and many more need to be answered, however, they cannot be answered from the evidence of the plaintiff. I trust that this is not a calculated political maneuvering tactic to defer the general elections. I would think that the voters and the whole country for that matter, are ready to exercise their constitutional and democratic rights to cast their ballots. They cannot be held at ransom. In my view, the State cannot complain about the state of the Common Roll when, on the evidence of the Chief Electoral Commissioner, it (State) failed to allocate sufficient funding to update the Common Roll.

For these reasons, the court is inclined to uphold the objection by the Chief Electoral Commissioner, the effect of which is that the plaintiff's notice of motion is incompetent, and is accordingly dismissed with costs.

Lawyer for plaintiff: Maladinas Lawyers.
Lawyer for first defendant: Attorney General.
Lawyer for second defendant: Nonggorr Lawyers.