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Negints v Electoral Commissioner [1992] PGNC 18; N1072 (24 June 1992)

Unreported National Court Decisions

N1072

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 102 OF 1992
THOMAS NEGINTS V THE ELECTORAL COMMISSIONER

Mount Hagen

Woods J
24 June 1992

PARLIAMENT - elections - destruction of votes - protection of right to vote - jurisdiction of National Court.

Case Cited

Malapu & Wasum v Electoral Commissioner [1987] PNGLR 128

Counsel

P Kopunye for the Plaintiff

R Pato for the Defendant

24 June, 1992

WOODS J: This is an Originating Summons for a declaration and an order to conduct fresh polling in certain polling places as part of the polling for the 1992 National Elections.

The circumstances that have given rise to these proceedings is that following polling at certain villages in the Tambul Nebilyer Constituency in the Western Highlands on the 16th and 17th June the ballot boxes from those villages were destroyed before they could be placed in the security of a depository where all ballot boxes for the Western Highlands were to be kept. Following the completion of polling in all parts of the country on the 26th June counting will take place. The application points out that the origin of all the votes destroyed can be ascertained with certainty, because of the number of votes destroyed the final result may be affected and this would lead to a successful challenge by Petition following the results, and that there is still time to repoll in those villages before the close of polling on the 26th June. It would therefore save possible future expense and ensure that everyone's right to vote was substantiated if the Commissioner was to so repoll those villages.

Counsel for the Electoral Commissioner has submitted that the National Court does not have jurisdiction to deal with this application because under the National Court Rules an Order for a Declaration is required to be made by way of Judicial Review under Order 16. This question was raised in a similar case in Malapu v Electoral Commissioner [1987] PNGLR 128, however this particular question was never resolved in that case as the parties continued the submissions on the basis of an Application under s.57 of the Constitution for the right to vote and the right to be elected to Public office. That submission is also being raised here.

However Counsel for the Electoral Commissioner has submitted that even if the evidence from the Plaintiff is accepted there is a procedure set out in the Organic Law on National Elections namely the Petition under s.206 and it is premature to hear such an application now and by any procedure.

Whilst I am sure that an Originating Summons can be used to seek declarations I can deal with this application by looking at the Organic Law on National Elections.

The Organic Law is amongst other matters to provide for the holding of National Elections. It sets out the method and procedures for the holding of elections. And it provides in s.206 for a method of challenging an election where the circumstances may warrant it and in s.212 the National Court may amongst other tings declare an election void where it considers it just to do so.

So says the Plaintiff what about where it appears that the actual election is not being carried out properly or where there is sufficient interference such that even before the end of polling it may appear that there has not been a free and fair election. 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 Commissioner with fairly wide powers and discretions 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 such 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 the 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 realise 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. I may think that I can see a simple answer which may save time and money afterwards but can I be really sure. If I interfere now and make orders invalidating certain votes and allowing for people to vote again or to vote who have not been able to vote I must be certain of what I am doing and to do so I would perhaps have to hear a lot of evidence. Within the time constraints and the logistic constraints of polling schedules can I really do that.

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 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.

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

I therefore dismiss the application.

Lawyer for the Plaintiff: Kopunye Lawyers

Lawyer for the Defendant: Steele's Lawyers.