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In re Reference by Francis Damem.rtf; Section 19 of Constitution [2002] PNGLR 37 (16 July 2002)

SUPREME COURT OF JUSTICE

SPECIAL REFERENCE PURSUANT TO SECTION 19 of the CONSTITUTION
REFERENCE BY FRANCIS DAMEM, ATTORNEY GENERAL FOR THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani: Amet, CJ.; Kapi, DCJ.; Sheehan, Sakora, Sevua JJ
22, 24, 26 July 2002

Constitutional law – Special Reference pursuant to s 19 of the Constitution – General Elections – Failure of Elections – Who advises the Head of State to declare a failure of elections and under what circumstances – Section 97 Organic Law on National and Local-level Government Elections.

general elections – Failure of Elections – Grounds for declaration of failure of elections – Circumstances giving rise to the grounds for failure of elections - Section 97 Organic Law on national and Local-level Government Elections.

Facts

On the eve of the return of the writs in the 2002 national elections, it became apparent that the Electoral Commissioner was not going to return the writs in some electorates in the Enga Province and the Southern Highlands Province within the previously extended period for the return of writs. Hence, a failure of election in those electorates was looming. Under these circumstances, the Attorney-General filed this reference, asking various questions going to the determination of the issues of what constitutes a failure of elections; who advises the Head of State to declare a failure of elections; and could the Supreme Court find and declare a failure of elections, pursuant to s 97 of the Organic Law on National and Local-Level Government Elections that reads:

"97 Failure of Election

(1) Subject to this Law, whenever an election fails a new writ shall be issued for a supplementary election by the Head of State, acting with, and in accordance, with the advice of the Electoral Commission as soon as practicable after the failure occurs.
(2)
(3) An election shall be deemed to have failed if no candidates is nominated or returned as elected."

Held

1. The authority to organize and conduct elections is given to the Electoral Commission. The Constitution and the Organic Law on National and Local-Level Government Elections sets out how and when elections shall be held, stipulating the time periods and the limitations for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writs of elections.

2. 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 the advice of Electoral Commission to either allow further time for elections or returns to be completed or to issue a writ for supplementary election to be concluded as soon is practicable after it is determined that an election has failed.

(1) 3. 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. Section 97 of the Organic Law.

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.

4. "In Questions 1 and 2 circumstances of violence, intimidation, destruction of ballot boxes, tampering with votes and the like, are cited as grounds for the 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 is 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."

5. The Commission is not confined to those reasons in arriving at such a conclusion. Its conclusions will include those reasons set out in s 97, but may also be for any reason that the Commission determines that an election has failed, whether from impossibility to hold or complete an election, or that in the circumstances a return cannot or should not be made. In our view it is not a matter of determining whether there have been offences or attempting any allocation of blame or allege improprieties or electoral offences, but whether the Electoral Commission is presented with a set of resultant circumstances where it can reasonably say that, however the situation has been created or whoever may be responsible, the only conclusion open to the Commission is that an election has been totally subverted or that it is impossible to make a return.

6. The Electoral Commission may determine that an election has failed and advise the Head of State to issue a writ for a supplementary election under s 97 of the Organic Law prior to, or upon, the date fixed for return of the writ for a particular electorate or electorates. The advice that the Electoral Commission may tender to the Head of State both as to the failure of the election or the time when it shall be practicable for a supplementary election lies solely within the discretion of the Electoral Commission.

7. Apart from supplementary elections resultant on declarations of failure of elections for particular electorates, when there has been an extension as provided by s 177 of the Organic Law there can be no further extension of the time limit prescribed by the return of the writs on 29 July 2002.

8. The Electoral Commission is obliged to advise the Governor General under s 76 of the Organic Law on the Integrity of Political Parties and Candidates, on the date fixed for the return of the writ. By definition in Schedule 1.2 of the Constitution the day fixed for the return of writs specifies that date includes the day by which the majority of the writs are to be returned.

9. Where there is a failure in an election, and the Head of State issues a writ for supplementary election in a particular electorate under s 97 of the Organic Law, the general election for 2002 has not yet concluded, and 29 July 2002 is no longer the valid date for the return of the writ for the particular electorate. The return date for the purposes of commencement of the Preferential Voting Law in the particular electorate is the return date fixed for the supplementary election. This interpretation is consistent with the primary premise that supplementary election is part of the general elections for 2002 and all elections including the supplementary elections must be conducted under the first past the post voting system..

Papua New Guinea cases cited

Chan v Electoral Commission .

Delba Biri v Bill Ninkama [1982] PNGLR 342.

Counsel
G Egan with K Kua, for Attorney General.
J Nonggorr PhD, for the Electoral Commission.
D Cannings, for Ombudsman Commission.
L Henao, for the National Parliament.
G Sheppard, with C Copeland for certain candidates.
A Jerewai, for an intervener.

26 July 2002

By the court. This reference is brought by the Attorney General pursuant to s 19 of the Constitution to seek the opinion of the Supreme Court on questions relating to the interpretation or application of the Constitution or Organic Laws. The Attorney General states:

"This reference arises out of the conduct of the general national and local level government elections in the provinces of Enga and Southern Highlands, and in particular, the effect upon the fairness of such elections of actual serious and widespread violence and/or intimidation and/or threats and/or destruction of ballot boxes and ballot papers and/or riots and/or sacking of polling booths and/or the holding of hostages and/or the spoiling of ballot papers and/or the tampering with of ballot papers and/or the forging of signatures and/or the giving of false names and/or the prevention of people from voting. The Referor, acting in the public interest, is thereby concerned that the citizens of Papua New Guinea have not had a full and free opportunity to vote and participate in the 2002 national and local level government elections and also as to the rights of candidates to seek election to public office".

The facts giving rise to the Attorney General's concerns and his bringing this reference are detailed in the affidavit of Police Commissioner Joseph Kupo, QPM and confirmed by an affidavit of the Electoral Commissioner, Mr Rueben Kaiulo, filed in an application under s 18 of the Constitution (SC APP 5/2002) and heard concurrently with this reference.

The essence of this evidence is that upon inquiry into reports from electoral officials, Police and others, of disturbances and interference with the election process detailed in the reference, the Electoral Commissioner gave advice to the Head of State, pursuant to s 177 of the Organic Law, that resulted in the extension of time for the return of the writs for all electorates from 15 July to 29 July 2002. The Electoral Commissioner also foreshadowed the possibility of failure of elections in some electorates.

The questions posed by the Attorney General are as follows:

1. Is an election a failure if: ...

(a) Errors or irregularities in the conduct of the election had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the Law as to elections an/or the Constitution; or

(b) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the Writ for such election, or during the course of voting in such election, of serious and/or widespread.

i. Violence; or

ii. Intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names and/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

2. Does the power of the Head of State under s 97 of the Organic Law on National and Local Level Government Elections (hereinafter call "the Organic Law") include the power to declare, prior to or upon the return of the writ for any one electorate, that an election has failed in circumstances where there is prima facie evidence, in respect of that electorate, that either:

(a) Errors or irregulars in the conduct of the election had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the Law as to elections and/or the Constitution; or

(c) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the writ for such election, or during the course of voting in such election, of serious and/or widespread:

i. Violence; or

ii. Intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names and/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

3. If the answer to the question as posed in paragraph thereof is "yes", can the Head of State declare that an election has failed on grounds other than those as specified in s 97 (2) of the Organic Law?

4. If the answer to the question as posed in paragraph 2 hereof is "yes", then does that power include the power to declare that the election in respect of any one electorate is void ad inition?

5. If the answer to the question as posed in paragraph 4 hereof is "yes", does the power impose a duty upon the Head of State to make such declaration prior to either the return of the Writ for the electorate in question or the issue of a new Writ for a supplementary election as stipulated by s 97 of the Organic Law?

6. If the answer to the question as posed in paragraph 5 hereof is "yes", is the Electoral Commission under a duty to advise the Head of State to make such declaration in circumstances where there is prima facie evidence that:

(a) Errors or irregularities in the conduct of the election had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the law as to elections and/or the Constitution; or

(b) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the writ for such election, or during the course of voting in such election, of serious and/or widespread:

i. Violence; or

ii. intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names and/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

7. The answer to the question as posed is "no", does the Supreme Court, upon application made to it by the Attorney-General or any other competent authority, have original jurisdiction and/or inherent jurisdiction (stating which), to the exclusion of all other courts, to:

(a). determine, prior to or upon the return of the Writ for such election or elections (but before any declaration of the election), whether any such election has failed or not; and

(b) declare, prior to or upon the return of the Writ for such election (but before any declaration of the election), that such election has failed; and

(c) make consequential orders, where appropriate, for the issue of a fresh Writ or fresh Writs for the purpose of holding a supplementary election in respect of the electorate or electorates in question.

8. Will any supplementary election which is conducted after 29 July 2002 in accordance with the Organic Law (as amended by Act No. 28 of 2002) be constitutionally valid?

9. Is the National Parliament constitutionally required to meet within seven (7) days as and from 29 July 2002, notwithstanding that there may be up to fifteen(15) vacancies in respect of those electorates in the Enga and Southern Highlands Provinces where no candidate was returned as elected?

10. If the answer to the question posed in paragraph 9 hereof is "yes", does the membership of the new National Parliament, pursuant to s 101 of the Constitution, consist only of all those persons who were, on or after 29 July 2002, declared duly elected, in circumstance where such persons stood for single member open electorates or single member provincial electorates, the Writs for which were returned on 29 July 2002, until such time as candidates are returned as elected in respect of any supplementary election?

11. Would it be constitutionally valid for the Electoral Commission to advise the Head of State that the date for the return of some of the Writs issued for the 2002 national and local level government elections ought to be extended for a further period after 29 July 2002?

12. Is an election next held consequent upon the failure of an election (where such failed election was part of a general election), a supplement election within the meaning of that term as used in s. 97 of the Law?"

We have had the benefit and are grateful for the extensive and detailed submissions by Mr. Egan counsel for the Attorney General, as well as those from Dr Nonggorr, Messrs Cannings and Henao for the Electoral Commission, the Ombudsman Commission and the National Parliament respectively.

Ms. Copeland and Mr. Jerewai also made submissions on behalf of candidates in the electorates referred to. Those submissions and questions discussed have been most helpful in clarifying the issues raised.

Questions 1 & 2

Answer: The court declines to answer these questions as framed.

The intention and direction of the Constitution and purpose of the Organic Law on National and Local Level Government Elections is that there be National Elections for the Parliament and legislative arms of the Local Level Governments of Papua New Guinea every five(5) years. The Constitutional provisions and those in the Organic Law also have the intent and purpose of ensuring that such elections are successfully accomplished within a reasonable and determinable time span.

The authority to organise and conduct the 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, giving 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 the advice of Electoral Commission to either allow further time for elections or returns to be completed or to issue a writ for supplementary election to be concluded as soon 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. Section 97 of the Organic Law:

"97 Failure of Election

(1) Subject to this Law, whenever an election fails a new writ shall be issued for a supplementary election by the Head of State, acting with, and in accordance, with the advice of the Electoral Commission as soon as practicable after the failure occurs.

(2) An election shall be deemed to have failed if no candidates is nominated or returned as elected."

This section empowers the Electoral 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.

The Commission is not confined in the reasons that it may come to such a conclusion. Its conclusions will include those reasons set out in s 97, but may also be for any reason that the Commission determines that an election has failed, whether from impossibility to hold or complete an election, or that in the circumstances a return cannot or should not be made. In our view it is not a matter of determining whether there have been offences or attempting any allocation of blame or allege improprieties or electoral offences, but whether the Electoral Commission is presented with a set of resultant circumstances where it can reasonably say that, however the situation has been created or whoever may be responsible, the only conclusion open to the Commission is that an election has been totally subverted or that it is impossible to make a return.

For these reasons we decline to answer questions 1 and 2 as posed. Instead we give our opinion as follows.

The Electoral Commission may determine that an election has failed and advise the Head of State to issue a writ for a supplementary election under s 97 of the Organic Law prior to, or upon, the date fixed for return of the writ for a particular electorate or electorates. The advice that the Electoral Commission may tender to the Head of State both as to the failure of the election or the time when it shall be practicable for a supplementary election lies solely within the discretion of the Electoral Commission.

Question 3

With the answer supplied to Questions 1 and 2 there is no need to answer this question.

Question 4

Similarly, because this question depends on an affirmative answer to Question 2, there is no need to answer this question.

It can be said however that s 97 gives power to determine that an election has failed, but no power to determine issues of validity. That is reserved to the National Court.

Questions 5 and 6

There is no need to answer these questions in view of the answers to the previous questions.

Question 7

As the answer to Question 2 is declined, this question needs no answer.

Question 8

Answer: No.

The Electoral Commission has raised the same issue in a differently worded question:

"If a supplementary election is held, is such a supplementary election to be held under the first past the post voting or under preferential voting?"

Counsel for the Attorney-General submits that a supplementary election should be held in accordance with the first past the post voting system and not under the preferential system of voting as established by the Organic Law on National and Local-level Governments Elections (Amendment No. 1) Law (Preferential Voting Law), (No. 28 of 2002. Counsel for the Electoral Commission and the Ombudsman Commission support this contention.

On the other hand, counsel for the National Parliament submits that the Preferential Voting Law by operation of law comes into operation on the day after the writs are returned on 29 July 2002. He submits that any supplementary election conducted after this date is governed by the Preferential Voting Law.

We start with the premise that it was intended that the general elections for 2002 should be conducted under the first past the post voting system. If at the close of the period for nomination, no person has nominated for an electorate, the Electoral Commission would determine that the election in the electorate has failed and advise the Head of State to issue a writ for supplementary elections under s 97 of the Organic Law. If the supplementary was held before the 29 July 2002, there can be no doubt that the first past the post voting system would apply.

The difficulty arises when a supplementary election is conducted after the writs are returned on 29 July 2002. If the commencement provision of the Preferential Voting Law is interpreted in the manner advocated by counsel for the National Parliament, this would result in applying a different system of voting in the general election for 2002 to voters and candidates in supplementary elections. We should not interpret or apply the law in this way, that would result in apparent unfairness.

This requires close examination of the commencement provisions of the Preferential Voting Law. It states:

"MADE by the National Parliament to come into operation –

(a)...

(b) in respect of sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26 and 27 – on the day after the date fixed for the return of the writs in the general elections for 2002; and"

The event which triggers the operation of the Preferential Voting Law is the return of the writs in the general elections for 2002. Where all writs are, in fact, returned by 29 July, the Preferential Voting Law will come into operation the day after this date.

Where there is a failure in an election and the Head of State issues a writ for supplementary election in a particular electorate under s 97 of the Organic Law, the general election for 2002 has not yet concluded and 29 July 2002 is no longer the valid date for the return of the writ for the particular electorate. The return date for the purposes of commencement of the Preferential Voting Law in the particular electorate is the return date fixed for the supplementary election. This interpretation is consistent with the primary premise that supplementary election is part of the general elections for 2002 and all elections, including the supplementary elections, must be conducted under the first past the post voting system.

This process of reasoning enables a fair and just process for all voters and candidates, whether they contest the supplementary elections before or after 29 July 2002.

We would answer this question as follows:

Any supplementary election conducted after 29 July 2002, shall be conducted in accordance with the first past the post system of voting.

Question 9

Answer: Yes

The Constitution provides (Schedule 1.2) that the day fixed for the return of the writs is the date "by which the majority of the writs are returned". That day is now 29 July 2002.

Question 10.

Answer: Yes

Apart from supplementary elections resulting from the declarations of failure of elections for particular electorates, because there has already been an extension as provided by s 177 of the Organic Law, there can be no further extension of the time limit prescribed by the return of the writs on 29 July 2002.

Section 176 in our opinion provides essentially for delays in physical transmission of documents or writs. It does not permit an extension of time to complete an election process such as scrutiny or count.

Notwithstanding the decision in Delba Biri v Bill Ninkama [1982] PNGLR 342, the decision in Chan v Electoral Commission, in our view, may enable the Electoral Commission to rely on Schedule 1.16 to deem an appropriate extension of a period of time necessary to enable practical compliance with the requirement to return the writs by the date fixed for return of the writ by 29 July 2002.

Question 11

Answer: No.

The power to extend has been exercised, and since the polling period has expired, no further extension is possible under s 177 of the Organic Law.

Question 12.

Answer: Yes.

Questions from the Electoral Commission's Reference (SC Ref 5/2002)

(a) If a supplementary election is held, is such a supplementary election to be held under first past the post voting or under preferential voting?

This question has already been answered in Question 8 above.

(b) If the writs for some electorate are not returned, by the return date of 29 July 2002 or other date, can the electoral Commissioner give his advice to the Head of State under Section 76 of the Organic Law on Integrity of Political Parties and Candidates to invite the political party with the highest number of endorsed candidates returned from those writs that are returned on 29 July 2002, to form government?"

Answer: Yes.

The Electoral Commission is obliged to advise the Governor General, under s 76 of the Organic Law on the Integrity of Political Parties and Candidates, on the date fixed for the return of the writ. By definition, in Schedule 1.2 of the Constitution the day fixed for the return of writs specifies that date as being the day by which the majority of the writs are to be returned.

Lawyer for the State: Posman, Kua & Aisi Lawyers.
Lawyer for the Electoral Commission: Nonggorr & Associates.
Lawyer for the Ombudsman Commission: Ombudsman Commission.
Lawyer for the Certain Candidate: Maladinas Lawyers.
Lawyer for the Intervener: Jerewai Lawyers.