Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

In the Matter of The Organic Law on National and Local-Level Government Elections, In the Matter of Elections in Enga Province and Southern Highlands Province [2002] PGNC 4; N2436 (30 July 2002)

N2436

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 420 of 2002

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF ELECTIONS IN ENGA PROVINCE AND SOUTHERN HIGHLANDS PROVINCE

AND IN THE MATTER OF AN APPLICATION BY THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant

Waigani: Sevua, J.
29th & 30th July 2002

PARLIAMENT – Elections – Return of Writs for election – Date fixed for return of Writs already lapsed – Whether Court has power to extend return date of Writs.

CONSTITUTIONAL LAW – Date for return of Writs extended once under s.177 of Organic Law on National and Local-Level Government Elections – Whether National Court has power to extend date for return of Writs under Schedule 1.16 Constitution.

Cases cited:
SCR 4 of 2002 Reference by the Attorney General, SC697, 26th July 2002.
Application by Sir Julius Chan, (SCR 71 of 1997), unnumbered, 3rd April 1998.

Counsel:
Dr J. Nonggorr for Applicant

30th July 2002

SEVUA, J: This is an urgent application by the Electoral Commission pursuant to Schedule 1.16 of the Constitution seeking orders that the return dates for the electorates specified in Column 1 are deemed extended from 29th July 2002 to the dates specified in Column 2.

COLUMN 1 COLUMN 2

Enga Province

1. Wapenamanda Open 31st July 2002

2. Wabag Open 31st July 2002

3. Kandep Open 31st July 2002

4. Lagaip Porgera Open 31st July 2002

5. Kompiam Ambum Open 02nd August 2002

6. Enga Provincial 02nd August 2002

Southern Highlands Province

7. Imbongu Open 02nd August 2002

8. Ialibu Pangia Open 02nd August 2002

9. Mendi Open 02nd August 2002

10. Tari Open 02nd August 2002

11. Kagua Erave Open 02nd August 2002

12. Nipa Kutubu Open 02nd August 2002

13. Komo Magarima Open 02nd August 2002

14. Koroba Kopiago 02nd August 2002

15. Southern Highlands Provincial 02nd August 2002

The applicant also seeks further orders the Court deems fit.

The date fixed for the return of the writs was 29th July 2002. By law, that date expired at the stroke of midnight last night. However, the writs for all the above named electorates were not returned, either because scrutiny has not been completed, or ballot boxes are not readily available for counting. The circumstance in respect of each of these fifteen electorates are set out in the affidavit of Dr. Nonggorr, sworn and filed on the 29th July 2002 and these are set out hereunder.

1. Wapenamanda Open Electorate - The Electoral Commissioner has received a report that 5 to 7 ballot boxes have yet to be counted and the status of these ballot boxes as to whether or not they are to be admitted is yet to be determined. He will determine this today and if the ballot boxes are to be counted, counting will proceed and the result will be determined by 31st July 2002.
   
2. Wabag Open Electorate - The Electoral Commissioner has been advised that counting for this electorate has been completed however the Returning Officer has been unable to determine the number of ballot papers in 7 ballot boxes that were destroyed by fire at Wabag Police Station as returns from the presiding officers have not yet been received and collated. These returns are necessary for the Electoral Commissioner to determine if the destroyed ballot papers will make a difference in the final result. He expects this information this afternoon therefore he will need until 31st July 2002.
   
3. Kandep Open Electorate – The situation with this electorate is the same as in Wabag Open Electorate. The Electoral Commissioner requires until 31st July 2002.
   
4. Lagaip Porgera Open Electorate - The Electoral Commissioner has received a report that more than 11 ballot boxes are yet to be counted therefore scrutiny has not been completed. The Electoral Commission expects scrutiny to be completed by 31st July 2002.
   
5. Kompiam Ambum Open Electorate - It has been reported to the Electoral Commissioner that 20 ballot boxes have not been counted due to a dispute over these ballot boxes. Court proceedings relating to these ballot boxes were determined yesterday. The Returning Officer will decide today whether or not the ballot papers in these ballot boxes can be counted. If counting is to proceed, it will take at least 3 days to complete counting. A declaration will be expected on 2nd August 2002.
   
6. Enga Provincial Electorate - The result of this electorate will not be determined until votes for the Kompiam Ambum Open electorate are counted. A declaration for this seat will not be made until 2nd August 2002.
   
7. Imbongu Open Electorate - The Electoral Commissioner has been advised that counting for this electorate is still in progress in Mount Hagen. More than 20 ballot boxes are still in Mendi and these are required to be airlifted to Mt Hagen since candidates and their supporters had prevented the ballot boxes to be flown into Mt Hagen. The Commission expects that counting will be completed and the result known on 2nd August 2002.
   
8. Ialibu Pangia Open Electorate - It has been reported to the Electoral Commissioner that 14 ballot boxes for this electorate have not yet been counted. Some ballot boxes are still in the electorate and will need to be airlifted by helicopter. The results will not be ready until 2nd August 2002.
   
9. Mendi Open Electorate - The Electoral Commissioner has been advised that 18 ballot boxes are yet to be counted and counting should be completed and a declaration made on 2nd August 2002.
   
10. Tari Open Electorate - The Electoral Commissioner has received a report that almost 20 ballot boxes are available for counting, however more than 50 ballot boxes have not been accounted for. The Commission needs to ascertain where these ballot boxes are, and if it cannot ascertain where they are, a determination will be made on 2nd August 2002.
    
11. Kagua Erave Open Electorate - It has been reported to the Electoral Commissioner that 23 ballot boxes from the Erave Local Level Government area have been returned for counting, however more than 60 ballot boxes are not available. If these unaccounted ballot boxes are not returned for counting by 2nd August 2002, the Electoral Commission will make a determination in respect of this electorate.
    
12. Nipa Kutubu Open Electorate – The Electoral Commissioner received advice that 7 ballot boxes are yet to be counted and 11 other ballot boxes are being kept at Moro Police Station. These 11 ballot boxes need to be airlifted for counting and is expected to be completed and a result declared on 2nd August 2002.
    
13. Komo Magarima Open Electorate – It has been reported to the Electoral Commissioner that 11 ballot boxes are yet to be counted. The Commission needs to ascertain the number of ballot papers destroyed when 5 ballot boxes were destroyed, and this should be done by 2nd August 2002.
    
14. Koroba Kopiago Open Electorate – The Electoral Commissioner has been advised that only 3 ballot boxes were counted and the Commission is attempting to establish if the rest of the ballot boxes for this electorate are available and can be brought for scrutiny. However, the Returning Officer has been unco-operative. If the information required is not supplied by 2nd August, a decision will be made then.
    
15. Southern Highlands Provincial Electorate – A declaration for this seat will not be made until all the votes for the last electorate have been counted. Scrutiny for the last remaining electorates in the province are expected to be completed by 2nd August 2002.
    

Dr Nonggorr also referred to the affidavit of the Electoral Commissioner sworn on 21st July 2002 and filed in support of Supreme Court Reference No 5 of 2002, which was heard concurrently with the Attorney General’s Reference, SCR 4 of 2002. In that affidavit, the Electoral Commissioner had issued some directions in respect of scrutiny in the Enga Province and the Kagua Erave Open and Tari Open electorates, however for the reasons stated herein, scrutiny have been delayed.

Dr Nonggorr further deposed to in his affidavit sworn on 29th July 2002, that the Commission has tried its best to complete scrutiny for all electorates; return ballot boxes in electorates, and determine the status of destroyed ballot boxes by the date fixed for the return of the writs, which was yesterday, however despite all these efforts it has not been possible for the Commission to finalise elections in these electorates and return the writs yesterday.

For all these reasons, the Electoral Commission has come to this Court to seek an order that the deeming provision in Schedule 1.16 be applied to enable the Commission to comply with the time limit for the return of the writs, which by law, expired at midnight last night. The Commission seeks that the period deemed to be extended to permit practical compliance with the time fixed for the return of the writs for the 2002 National Elections, are 31st July 2002 for Wapenamanda, Wabag, Kandep and Lagaip Porgera Open electorates, and 2nd August 2002 for Kompiam Ambum, Enga Provincial, Imbongu, Ialibu Pangia, Mendi, Tari, Kagua Erave, Nipa Kutubu, Komo Magarima and Koroba Kopiago Open electorates and Southern Highlands Provincial electorate.

Dr Nonggorr submitted that the Electoral Commission is not seeking to extend the date fixed for the return of the writs since the Supreme Court last Friday, 26th July, in SCR No 4 of 2002, has already determined that:

"Apart from supplementary elections resultant on determinations that elections have failed in 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 29th July 2002".

However, it was submitted, and counsel urged the Court to apply Schedule 1.16 of the Constitution. It is pertinent to note what the Supreme Court also said last Friday in respect of that provision. The Supreme Court said, at page 14:

"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 the return of the writs by 29th July 2002."

Schedule 1.16 does not provide that an application may be made to the National Court or the Supreme Court to grant an extension for the purpose of practical compliance and there is no precedence that I am aware of and none has been referred to me. However, counsel submitted that this Court has power by virtue of s. 155 (4) and s. 57 of the Constitution to grant the order sought. Whilst I agree that the Court has power under these two provisions, I have some difficulty in overcoming what the Supreme Court has determined. The Electoral Commission has already advised the Head of State who has extended the writ once, and by law, there can be no further extension.

While the Court acknowledges that Schedule 1.16 was utilized in the Application by Sir Julius Chan, (SCR 71 of 1997, unnumbered), 3rd April 1998, it is my opinion that, that case has a limited application. I consider that the circumstances in Chan’s case were quite different to the circumstances in the present case. It must be reiterated that in Chan, the National Court Registry was not open at the weekend to enable him to file his petition as the 40 days time limit expired on a Saturday therefore, Schedule 1.16 was invoked to remedy the requirement for practical compliance. It must also be emphasized emphatically that in Chan, the necessary documents were ready to be filed except that the Registry did not open on Saturday and Sunday.

The circumstances which the Court has been asked to invoke the application of Schedule 1.16 in the present case are quite different. There is no evidence that counting in many of these provinces were still continuing and would be completed either last night or early this morning. There is no evidence that counting in all these electorates have almost completed, but that time has beaten the Commission in returning the writs by 29th July 2002. There is evidence that in many of these electorates, many ballet boxes are not available for counting either because they have been destroyed or hijacked by some candidates and their supporters, or the Commission does not know where they are located. Under such circumstances, it is my view that Schedule 1.16 cannot be utilized to make compliance practicable.

Despite Dr Nonggorr’s submission that the Commission is not asking for a blanket order to extend the time for a longer period, I consider that if the Court were to accede to this application, it will do two things. Firstly, the Court will extend the time limit for the return of the writs, and secondly, it will apply Schedule 1.16 in a way that is not restrictive in its application as envisaged, and as aptly demonstrated by Chan’s case. I consider that the reason the Supreme Court did not prescribe any circumstance in which the Electoral Commission may rely on Schedule 1.16 was because it wanted to protect the utility of that very provision. I do not think it is wise to permit the application of Schedule 1.16 in all manner of circumstances without appreciating the restrictive nature of the application of that provision.

For instance, in the circumstances I have alluded to above, if the writs for all these electorates were not ready by midnight last night because they have not been endorsed by the Returning Officers or counting for all electorates are just about to complete past midnight night and the writs may be ready for transmission to the Electoral Commissioner this morning or counting were completed this morning, it may be possible to invoke Schedule 1.16. However, under the circumstances that have been established, it would be tantamount to giving a blanket order for the return date of the writs in all the electorates in Enga and Southern Highlands Provinces. It must be emphasized that the Application by Sir Julius Chan (supra) has a restrictive application, and in my view, the Court must be loathe to grant this kind of application readily so that the very spirit and intent of Schedule 1.16 are not abused by litigants.

It has been submitted that the Electoral Commission has done all it could under the circumstances, but that it is not practicable to comply with the time limit for the return of the writs. It was further submitted that the majority of the innocent citizens will have their constitutional rights affected if the order sough is not granted. Whilst I appreciate the practical difficulties that the elections in these two provinces have brought to bear upon innocent citizens, I am of the view that the Commission has had five years to properly plan this general election. There can be no excuse at all for the Commission to come at the eleventh hour and ask the Court to extend the return date of the writs for Enga and Southern Highlands. Violence, threats and intimidation as deposed to by the Electoral Commissioner in his affidavit sworn on 21st July 2002, should have been seriously considered and appropriate measures of security planned for both provinces.

As to the issue of constitutional rights, this application is not one to enforce or protect constitutional rights of citizens that may have been violated in the election process. Dr Nonggorr has adverted to his client’s application which is still pending, and that is where this issue will be raised.

The evidence by the Electoral Commissioner adverts to reports of widespread criminal acts; hijacking of ballot boxes by candidates and their supporters; destruction of ballot boxes and ballot papers; un-wanton killing, and general lawlessness. There are also reports of polling officials and policemen refusing to carry out their duties because they had not been paid their allowances. These are matters that the Electoral Commissioner should have foreseen and planned so necessary contingencies could be put in place. As I said, the Commission has had five years to plan and organize this national election and, in my view, if that had been done properly, and with sufficient funding and security, we would not be wasting time in Court yesterday, today and the past two weeks in dealing with all manner of applications relating to the 2002 General Elections.

More so, the democratic process would not have been hijacked by some selfish and greedy candidates and their supporters to the detriment of the whole nation, and the country will not be made a laughing stock in the eyes of the international community.

Finally, contrary to the submission by Dr Nonggorr, it is my view that this application is tantamount to an application for an extension of the return dates of the writs for the electorates in Enga Province and Southern Highlands Province. The date fixed for the return of the writs was 29th July 2002, and by the decision of the Supreme Court in SCR 4 of 2002, this Court does not have the power to extend the date for the return of all writs in the two provinces that are affected.

For these reasons, the Court will decline the application.
_________________________________________________________________________
Lawyer for the Applicant: Nonggorr & Associates.