N3490

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS N0 482 OF 2008

BETWEEN

MICHAEL MARABE
Plaintiff/Respondent

AND

JOHN ELLE
First Defendant/Applicant

AND

ELECTORAL COMMISSION
Second Defendant/Applicant

(NO 2)

Wabag: Yalo, AJ
2008: 2, 3 September

	LOCAL-LEVEL GOVERNMENT ELECTION PROCESS - Application to set aside interim injunctive orders – appointment of venue for scrutiny of ballots - whether National Court should intervene and determine venue for scrutiny of ballots – whether Electoral Commission be allowed to manage and organize and conduct election process uninterrupted by the National Court – whether appropriate to invoke National Court’s inherent power under Section 155(4) Constitution to issue appropriate orders to do justice in the particular circumstances of the case.

Cases Cited

Thomas Negints v Electoral Commission N1072
SCR No 4 of 2002 Reference Pursuant to Section 19 Constitution, Reference by the Attorney-General (26 July 2002)
Electoral Commission & 3 Ors v Pila Niningi SC710 (20 June 2003)
Oscar Pomaleu & 2 Ors v William Skate and Dan Kakaraya SC838 (21 July 2006)

Counsel

Mr Ray William, for the First and Second Defendants/Applicants
Mr R Lains, for the Plaintiffs/Respondents 

RULING ON MOTIONS

1	YALO, AJ: Polling for the Kandep and Wage Local-level Government (LLG) elections commenced on or about 28 July and ended on 4 August 2008. Mr Bain Lyambain, the Returning Officer supervised the conduct of the LLG elections. Polling was conducted without any problem. He assessed the situation on the ground and based on police intelligence and considering experiences in previous General and LLG elections, he made an administrative decision to conduct the scrutiny of the ballots in Wabag Town. He caused all the ballot boxes for Kandep and Wage LLG to be transported to Wabag Town in preparation for counting there. The boxes presently remain in Wabag. 

2	On 14 August 2008 the Electoral Commission removed Mr Lyambain as the Returning Officer. 

3	Upon learning that Mr Lyambain was removed as the Returning Officer and that the Electoral Commission had directed the ballots to be transferred to Kandep for scrutiny of the ballots to be conducted there, Mr Marabe approached this Court on two separate occasions to have the ballots counted in Wabag immediately. I refused both applications. In refusing the first of these applications this Court issued interim orders on 22 August that, among others, the Electoral Commission is restrained from taking steps to transport the ballots to Kandep or elsewhere and it was further restrained from taking steps to count the ballots. 

Issue

4	Should the Court intervene at this stage of the election process and direct the Electoral Commission to count the ballots at a venue of the Court’s choice?

Analysis

5	Before I venture into considering the applicable law, the facts relevant and or central to the issue are these. Mr Lyambain made a lawful decision to appoint the appropriate counting venue. Under Section 148 of the Organic Law on the National and Local-level Government Elections (Organic Law) the Returning Officer has discretion to appoint a venue. This decision was made on 4 August 2008. Section 148 of the Organic Law states:

Counting Centres

The scrutiny shall be conducted at such places, to be known as "counting centers", as are appointed by the Returning Officer for the purpose.

6	On 14 August 2008 the Electoral Commission removed Mr Lyambain as the Returning Officer. In his place Mr John Elle has been appointed. 

7	Is the Electoral Commission bound by the decision of its Returning Officer which was lawfully made under Section 148 of the Organic Law prior to his removal? According to Lyambain’s assessment, Wabag Town is a neutral venue for all the parties. There will be sufficient presence of State security personnel. Ballots for other LLGs in other Districts of Enga Province were counted in Wabag Town without any problem.

8	The Plaintiffs/Respondents submit that as the Returning Officer Mr Lyambain exercised powers delegated to him by the Electoral Commissioner under Section 18 of the Organic Law. Section 18 states: 

Delegation

(1)	The Electoral Commission may, by instrument in writing, delegate to an officer all or any of his powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters of class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2)	Every delegation under Subsection (1) is revocable, in writing, at will.

(3)	No delegation under this Section prevents the exercise or performance of a power of function by the Electoral Commission.

9	Section 19 of the Organic Law provides for the appointment of Returning Officers. Whilst the appointment of Mr Lyambain is not at issue here it is pertinent to point out that a Returning Officer so appointed under Section 19 exercises all powers and performs all functions and duties delegated to him by the Electoral Commission. Section 15 of the Organic Law states that the prime function of the Electoral Commission is to organize and conduct all elections for the Parliament and the legislative arms of the Local-level Governments. So the Electoral Commission is the sole source of the constitutional power to organize and conduct all elections for the Parliament and the legislative arms of the Local-level Governments. This power is delegated to (under Section 18) and is performed or discharged by all its duly appointed officers in accordance with the relevant Organic Law. These powers and functions so delegated are to be exercised or performed subject to any directions of the Electoral Commission. 

10	The Plaintiffs/Respondents submit that Mr Lyambain properly exercised the powers delegated to him and he invoked powers conferred on him by Section 148 of the Organic Law to appoint Wabag as the venue for scrutiny of the ballots. I note that the Electoral Commission does not dispute the propriety or otherwise of Mr Lyambain’s decision. In fact Counsel for the Electoral Commission concedes to their submission that it would cost Electoral Commission to transport the ballots back to Kandep and I add, or elsewhere. But that, counsel submits, is a matter for the Electoral Commission alone and not for this Court to take into account to intervene into the administrative role of the Electoral Commission. To intervene would be to act contrary to well established Supreme Court authorities. 

11	Given that that is the position, is the Electoral Commission bound by its Returning Officer’s decision? Or alternatively is it at liberty to appoint another venue? Counsel for Mr Marabe did not point me to any relevant provision of the Organic Law that suggests that the Electoral Commission is bound by its officer’s decision in this case. My own research offers me no help. 

12	What I do find though are provisions that clearly suggest the contrary. For instance, Section 18(3) of the Organic Law expressly states that the fact that powers and functions have been delegated does not prevent the Electoral Commission from exercising the same powers itself. The Organic Law is saying that the Electoral Commission has the ultimate reserve power which it may invoke or exercise at any time as it pleases. As to under what circumstances it may do so is not prescribed by the Organic Law. But I understand that to mean that as the ultimate source of the power or function so delegated it has the overriding prerogative to exercise the same delegated powers and functions as it sees fit at any time it chooses to notwithstanding that the delegate of such power is capable of exercising the same power. It is not for the officer delegated the power to question the very source of the power. 

13	Although this may sound straightforward I would assume that the Electoral Commission would exercise such reserve powers where the circumstances of a particular case warrants. To exercise its reserve powers anytime when it may not be appropriate may make its act of delegation meaningless. Furthermore, it is not a healthy administrative practice because its officers may feel that the Electoral Commission has no faith and trust in the way they properly carry out their delegated functions. Be that as it may, in the end, the Electoral Commission does have the overriding prerogative. 

14	The second point is that under Section 19 a Returning Officer exercises the delegated powers and performs the delegated functions "subject to any direction from the Electoral Commission". Applying this provision in the present instance, it means that even if a Returning Officer has properly exercised a delegated power or properly performed a delegated function it is still subject to the direction of the Electoral Commission. The Electoral Commission is entitled to make a decision that overrides, reverses or contradicts the decision of its Returning Officer, having considered all relevant factors. As to whether such an action or decision is proper or not in any given circumstance may be open to be challenged at a proper forum if an aggrieved party so wishes. The important point to note is that the officers exercise their delegated powers and perform their functions "subject to any direction of the Electoral Commission". 

15	There is a further reason that supports the view I have expressed on my reading of Section 18(3) of the Organic Law. Schedule 1.10(3) of the Constitution states: 

Sch 1.10

(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a Court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision. 

16	The Organic Law confers power on the Electoral Commission to delegate its powers and functions under Section 18. According to Schedule 1.10(3) of the Constitution this power includes the power to alter that decision to delegate. So as the source of the power it has the prerogative to withdraw its delegated powers and functions in part or in whole such delegated powers and functions. In the present instance the powers and functions delegated to the Returning Officer Mr Lyambain automatically reverted back to the Electoral Commission upon his removal. The Electoral Commission now has the prerogative to either give effect to Mr Lyambain’s decision to conduct scrutiny in Wabag or elsewhere. 

17	I am convinced that the Electoral Commission is not bound by the decision of the Returning Officer to count the ballots in Wabag. It is at liberty to conduct scrutiny of the ballots in Wabag or appoint another venue. That decision cannot be influenced by the National Court unless it is necessary to do justice in the particular circumstances of a particular case. This is not one of those cases where the Court can invoke its inherent jurisdiction under Section 155(4) of the Constitution. Furthermore the Electoral Commission’s choice of counting venue cannot be influenced by any person or authority, although it is at liberty to consider views of others or the relevant security personnel that may be expressed with a genuine view to assist it. 

18	There is an argument that the Returning Officer made a lawful decision under Section 148 of the Organic Law and unless the Electoral Commission proves that that decision was improper it should give effect to that decision. If there is no legal and proper basis to depart from it why choose another venue. This is good for administrative reasons. It shows that the Electoral Commission is genuine in its delegation of powers. It demonstrates that it relies on its officer’s judgment since he is the one on the ground assessing the situation. To give effect to the officer’s proper exercise of the delegated powers shows that the Electoral Commission is giving meaning to the appointment of the officer and further gives meaning to the delegation of powers and functions. This argument has a lot of merit. In his submissions Counsel for Mr Marabe made representations that the Electoral Commission’s decision to scrutinize the ballots in Kandep and not Wabag may be influenced by politics. So should I then intervene now and compel the Electoral Commission to conduct the scrutiny of the ballots in Wabag? This leads me to the main issue.

Should the Court intervene at this stage of the election process?

19	The National Court had an opportunity to consider this issue in June 2004 in the matter Thomas Negints v Electoral Commission N1072 (24 June 1992). In that case ballots were destroyed after polling and before they could be securely kept in a safe depository. The Applicant pointed out that the boxes destroyed could be easily determined with certainty. Because the final outcome will be successfully challenged at election petition and it will save future costs if re-polling in those areas whose ballots were destroyed were conducted immediately. It was submitted that there was sufficient time for the Electoral Commission to conduct re-polling. The Court ruled that the procedure for challenging an election where circumstances may warrant it are provided for under Section 206 of the Organic Law and that the National Court can make appropriate declarations under Section 212 of the Organic Law.

20	The Court further ruled that even where election may not have been conducted in a free and fair manner the Electoral Commission has discretion to make decisions that are appropriate in the particular circumstances of a particular election. It ruled that the Organic Law does not make provision for the National Court to step in and make orders as to how an election should be conducted. The Court, whilst appreciative of its inherent powers under Section 155(4) of the Constitution was cautious not to exercise that power too freely. The Electoral Commission is the expert in running elections and the Court should not step into the shoes of that independent constitutional authority. 

21	The legal principles in Negints’ case have been applied in subsequent Supreme Court cases. In SCR No 4 of 2002 Reference Pursuant to Section 19 Constitution, Reference by the Attorney-General (26 July 2002) the Court enunciated among others, that the "authority to organize and conduct the elections is given to the Electoral Commission. The National Court is given power to inquire into and determine the validity of such elections". 

22	Later in Electoral Commission & 3 Ors v Pila Niningi SC710 (20 June 2003) the Supreme Court extensively quoted the ruling of the National Court in Negints’ case and applied the principles of law laid down therein. In that case Mr Pila Niningi approached the National Court and successfully sought orders compelling the Electoral Commission to extend polling by one more day to give opportunity to eligible voters to vote in six polling venues. This order was appealed on the grounds that the National Court exceeded its jurisdiction interfering with the election process contrary to Sections 115, 117, and 206 of the Organic Law. 

23	Section 115 provides for adherence to polling schedule and the discretion on election official to change the schedule where circumstances permit. Section 117 states that an election is not open to challenge on the grounds of failure to observe polling schedules or variation or departure from polling schedule. Section 177 provides the Electoral Commission discretion to extend time or date for polling or return of writs where circumstances warrant. Section 206 provides for dispute of general elections at the National Court. [In the case of dispute of LLG elections, proceedings should be commenced at the District Court under Section 187(3) Organic Law.] Once again the Supreme Court adopted and applied the law in Negints’ case. It refused to intervene at that stage and direct Electoral Commission as to how it should perform its administrative functions or exercise its administrative powers.

24	Finally again in the case of Oscar Pomaleu & 2 Ors v William Skate and Dan Kakaraya SC838 (21 July 2006) the Supreme Court applied the principles of law in Negints case applied in the Supreme Court cases I have referred to above. The Supreme Court has been consistent with the issue before me. 

25	I add one more reason of my own. In theory the Electoral Commission is an arm of the Executive Arm of Government under our constitutional doctrine of separation of powers; see Section 99 of the Constitution. Whilst in theory the Electoral Commission may come under the executive arm of government, it is arguable that in reality it is not. It is an independent authority existing at arms length and it is not subject to direction and control by any person or authority in the exercise of its powers and the performance of its functions. It is not subject to direction and control by the executive arm. The only two things that connect it to the executive arm are that firstly, its finances come from the executive and secondly, that the Electoral Commissioner is appointed by the executive. 

26	The arms length position of the Electoral Commission within our constitutional context should be appreciated and respected. Indeed this has been the Supreme Court’s attitude. If the actions or inactions of its officers or decisions made by them are improper, or if election processes have not been free and fair the Electoral Commission is better placed to make appropriate decisions that are fair and just in the given circumstances. And if the action or inaction or the decisions of the Electoral Commission or its officers are improper the Organic Law has provided avenue for those aggrieved to approach a court of competent jurisdiction to assert their rights. This is the appropriate time the Organic Law has provided for a party to approach the Court and it is also the proper time, the Organic Law suggests, when the Court may intervene. 

27	There is a further observation to be made. Whilst there is no evidence before me, it is common knowledge that corrupt practices used by candidates to be elected to public offices are becoming very common. These candidates use whatever corrupt means to be elected, or to be declared winner of an election, or to be sworn into office and occupy elected public office. Election petitions before the Courts frequently raise complaints that the election process was not free and fair, or that an election official colluded to declare the wrong person as the winner, or that a person who was not declared winner of an election was sworn into elective public office, etc. Candidates sometimes use any corrupt scheme to get to occupy elective public office. The object of their scheme is that if any person aggrieved cares to assert their Constitutional rights and challenge their election he or she may do so through the often expensive, protracted, cumbersome and time-consuming election petition process. They assume that by the end of the election process most, if not all, candidates would have expended all their resources and they would have nothing or very little left, if any, to embark on the expensive and protracted election petition process. If anyone does challenge their election in court they bet on the hope that their challengers will give up considering the expenses and other related difficulties involved in pursuing legal battle. And for them, they at that stage occupy public office so they have resources at their disposal that they could fight the legal challenge. Sometimes they easily negotiate with their challengers and trade the challenge for some valuable consideration. Some petitions are discontinued or withdrawn through these means. This cunning corrupt culture is particular in the Highlands region. 

28	Even if what I have observed here is correct the Courts appear to take comfort that by this time the Electoral Commission has adequate experience to be wary of this cunning culture and take appropriate actions or make appropriate decisions during the conduct of elections. And if the Electoral Commission does not act, then the Organic Law makes adequate provisions to question the Electoral Commission’s action or inaction. The Courts, quite rightly should not intervene mid-way during the election processes. However in circumstances where it is appropriate for this Court to intervene to do justice in the particular circumstances of a case it has the inherent power under Section 155(4) of the Constitution to do so and issue appropriate orders. Where it is evident to the Electoral Commission that the election process has been corrupt or corrupted so much so that it cannot be said to be a free and fair election and the only appropriate action is to declare an election void or failed, it should not hesitate by any measure. It should not take the easy way out and allow a corrupted or what ought to be declared void or failed election to continue to the end and leave the innocent and unfortunate persons to assert their constitutional rights through the often cumbersome and expensive election petition process. The public must not perceive Electoral Commission as subtly or indirectly acquiescing to or in whatsoever manner encouraging the cunning corrupt election culture. 

29	Whilst taking the easy option to avoid further costly repeat election process may be arguably justifiable, the intent, the spirit and the express statement of Section 50 of the Constitution (right to vote and stand for public office) for a free and fair election process and the constitutional rights of citizens are sacrosanct. They could not be swapped for anything else. The obligation to ensure free and fair election process lies with every citizen but much of it rests with the Electoral Commission. 

30	There is a final point. Where the Electoral Commission takes the easy option to declare a candidate elected when it ought to have declared such election void or failed and an aggrieved candidate successfully petitions the election and the court orders for by-election the Electoral Commission is forced to face the consequences it earlier avoided. And that result comes after what is often costly election petition process. So ultimately the State spends more money. 
 
30	It may be argued that the issue before me can be distinguished from those considered by the Courts I have referred to in this judgment. That is to say, that this is an issue about the venue for the scrutiny of ballots. In this particular case the Electoral Commission through its Returning Officer resolved the issue by appointing Wabag as the appropriate venue to conduct scrutiny of ballots and it should not change its mind unless there are valid reasons to do so. 

31	This argument does not convince me to depart from the clear established authority for the reasons I have enumerated earlier in this judgment. Electoral Commission is the authority to manage and conduct elections. No particular factual circumstances that are so convincing have been put forward to oblige me to depart from the well settled authorities so as to do justice in the particular circumstances of this case. The Court was not led to any higher law that is contrary to the settled authorities so as to entitle this Court to depart from them. I am left with no choice but to find myself bound by the clear authorities of the Supreme Court pursuant to Schedule 2.9 of the Constitution. This provision states: 

Schedule 2.9
(1) All decisions of law by the Supreme Court are binding on all other courts but not on itself.

Orders

1	The interim orders of this Court Nos 2, 3 and 6 issued on 22 August 2008 are set aside.

2	The interim order No 3 of 27 August 2008 is set aside.

3	The sealed copies of Messrs Marabe and Lyambain’s Amended Originating Summons, Notice of Motion, Affidavits in Support and other documents filed for the purposes of the amended originating proceedings shall be served on Mr John Elle and the Electoral Commission within 7 days of this Order. 

4	This matter is returnable on the first Motions date in October 2008. 

5	Costs of these proceedings be in the cause. 

_______________________________________

Nonggorr and Associates Lawyers: Lawyers for the Defendants/Applicants
Tamutai Lawyers:Lawyers for the Plaintiffs/Respondents