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Warigi v Trawen [2014] PGNC 223; N5535 (24 March 2014)

N5535

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 587 OF 2013

BETWEEN

VINCENT GOHUSE WARIGI
CANDIDATE FOR GOROKA URBAN LORD MAYOR'S SEAT, GOROKA URBAN LLG
First Plaintiff

AND

JEFFERY SASUWO
PRESIDENT FOR GAHUKU RURAL LLG & CANDIDATE FOR
GAHUKU RURAL LLG
Second Plaintiff

AND

AILEEN AKUNAI
COUNCILLOR ELECT FOR WARD 8, GAHUKU RURAL LLG
Third Plaintiff

AND

LAVAX ARINASO, COUNCILLOR ELECT FOR WARD 3, GOROKA URBAN LLG
Fourth Plaintiff

AND

GOROKA ADMINISTRATION
Fifth Plaintiff

AND

ANDREW TRAWEN, ELECTORAL COMMISSIONER
First Defendant

AND

THE ELECTORAL COMMISSION OF PNG
Second Defendant

Waigani: Makail, J
2014: 05th & 24th March

JUDICIAL REVIEW – PRACTICE & PROCEDURE – Application for Leave for judicial review – Review of decision by Electoral Commissioner to declare failed election – Jurisdiction of – Whether decision to fail election "reviewable" – Whether election petition appropriate – Organic Law on National and Local-level Government Elections – ss. 97 & 206 – National Court Rules – O 16, r 3.

JUDICIAL REVIEW – PRACTICE & PROCEDURE – Application for Leave for judicial review – Principles of – Locus standi – Sufficient interest – Aggrieved candidates – Delay – Proceedings commenced promptly – Exhaustion of alternative remedies – Arguable case – Authority of Electoral Commissioner to declare failed election – Grounds on which Electoral Commissioner may fail election – Organic Law on National and Local-level Government Elections – s. 97 – National Court Rules – O 16, r 3.

Cases cited:

Supreme Court Reference by Francis Damem, Attorney-General (2002) SC689
Philemon Embel & Joseph Kopol v John Harisol & Electoral Commission (2012) N4732
Kiee Toap v The State and Returning Officer for Mendi Open Electorate (2004) N2731

Counsel:

Mr Paul Mawa, for Plaintiffs
Mr Ray William, and Ms Christine Lari, for Defendants

RULING

24th March, 2014

1. MAKAIL, J: This is an application for leave for judicial review pursuant to O 16, r. 3 of the National Court Rules. Although O, 16, r. 3 (supra) states that leave shall be made ex parte, in the exercise of my discretion, I granted leave to the defendants to be heard. I did so because there appeared to be no decided case on the authority of the Electoral Commissioner to declare a failed election, although I was informed by counsel and am also aware that there have been similar applications made and leave granted by the Court. Two of them are listed for trial today and they are OS (JR) No 517 of 2013: Joseph Kunukunu v Rex Manege & Electoral Commission and OS (JR) No 703 of 2013: Bullmiabe Benson Angobe v John Tipa & Electoral Commission. It would therefore give the Court the benefit of both sides' arguments and assist it decide the question of leave.
Background Facts

2. The plaintiffs seek leave to review the decision of the Electoral Commissioner to declare failed elections in the Goroka Lord Mayor's seat for Goroka Urban Local-level Government, President's seat for Gahuku Local-level Government, Councillor Ward 8 seat for Gahuku Local-level Government and Councillor Ward 3 seat for Goroka Urban Local-level Government.

3. According to the plaintiffs' affidavits filed in support of the application, they were candidates in the 2013 Local-Level Government election in the Eastern Highlands Province. The first plaintiff was one of 42 candidates who contested the Goroka Urban Local-level Government ("LLG") seat. There were no issues with the counting of votes at the Goroka Council Chambers. On 11th August 2013, after the elimination of the 18th candidate, he was leading with 2,314 votes and behind him was Liden Giheno with 999 votes. It was alleged that on the night of 11th August 2013, criminals broke into the Electoral Commission's office and tampered with ballot-boxes. On the morning of 12th August 2013, counting was suspended and investigation was conducted into the alleged incident. Three days later, the Electoral Commissioner issued a directive to the Electoral Manager in Goroka declaring that the election for the Goroka Urban LLG Lord Mayor's seat failed.

4. The decision to fail the election was made contrary to a Report by the Assistant Returning Officer. The Report stated that only four candidates' boxes were tampered with and twenty-four candidates remained after elimination 18. The total number of votes removed from the four candidates was 1,787. It also recommended the confirmation of five councillors already declared in the Goroka Urban LLG and also the declaration of the first plaintiff as elected.

5. The second plaintiff was one of 35 candidates who contested the Gahuku Rural LLG President's seat. There were 8 Wards in this LLG and after counting each Ward's ballot-boxes, the ballot-box for the President was counted. The winner of each Ward was declared in order from 1 to 8. On 15th August 2013, the third plaintiff was declared winner as Councillor-elect for Ward 8. When the declaration was made, counting for the Presidential seat was at the elimination rounds and the second plaintiff was leading with 3,799 votes and the runner-up was trailing with 2,154 votes.

6. The third plaintiff was a candidate for Ward 8 in Gahuku Rural LLG. She was declared winner but was affected by the same decision of the Electoral Commissioner. The fourth plaintiff was a candidate for Goroka Urban LLG Ward 3. This LLG has five Wards. There were fourteen candidates for Ward 3 and after counting, on 06th August 2013, he was declared winner, having polled 715 votes while the runner-up Kenneth David polled 702 votes. Because of the alleged tampering of ballot-boxes, his election was also voided by the same decision of the Electoral Commissioner. There were other candidates whose elections were voided by the same decision and they filed affidavits supporting this application. Almost three months after the decision, on 04th November 2013, the plaintiffs commenced these proceedings.

Legal Principles on Leave

7. There is no need for an academic discussion on the principles of leave as they are well settled. They are; locus standi or sufficient interest, delay, exhaustion of alternative remedies and arguable case.

Locus standi-Sufficient Interest

8. There is no issue as to the plaintiffs' locus standi or sufficient interest. They have a direct interest in this dispute because they were candidates in the election and are aggrieved by the decision.

Delay

9. There is also no issue as to delay. The proceedings were commenced promptly, that is, about three months after the decision to fail the election was made.

Exhaustion of Alternative Remedies

10. The contest is on the principles on exhaustion of alternative remedies and arguable case. In relation to the exhaustion of alternative remedies, the plaintiffs submit that the decision by the Electoral Commissioner to declare failed election under s. 97 of the Organic Law on National and Local-level Government Elections ("Organic Law") is final and there is no other avenue provided by it for an aggrieved candidate to seek redress of this grievance. They further submit that the National Court in its review jurisdiction is the only place where they may bring their grievance and it is wrong to suggest that the National Court lacks jurisdiction or it is premature for them to bring their grievance to the Court.

11. The defence forcefully submits that it is premature for the Court to intervene and review the decision of the Electoral Commissioner because the election is still in progress. This process started with the issue of writs and will end when the writs are returned to the Head of State. As the election has failed for these Wards, there are no writs to be returned to the Head of State and until and unless candidates are returned, the election process is incomplete. The reason for this proposition is that the right to dispute the result of the election is by way of a petition. It says that an election petition is the appropriate cause of action open to the plaintiff and can be commenced only after the supplementary election results.

12. It relies heavily on the Supreme Court decision in Supreme Court Reference by Francis Damem, Attorney-General (2002) SC689 for this proposition and submits that the Supreme Court has held that the decision to fail an election lies solely with the Electoral Commission and it is not the duty of the Court or anyone for that matter to prescribe or circumscribe the circumstances by which the Electoral Commissioner may exercise the power under s. 97 of the Organic Law to declare a failed election. To do so would be usurping the power of the Electoral Commissioner.

13. The Court was also invited to follow the course it took in election related disputes such as aggrieved candidates commencing proceedings to challenge the decisions of Returning Officers to either refuse or allow disputed ballot-boxes containing ballot-papers into scrutiny. It cites the case of Philemon Embel & Joseph Kopol v John Harisol & Electoral Commission (2012) N4732 as an example where the Court dismissed the entire proceedings for being an abuse of process. It strongly submits that the plaintiffs are attempting to derail the electoral process and this Court should not allow this to happen.

14. The defence line of argument suggests that the decision to fail an election by the Electoral Commissioner is not "reviewable" and the Court lacks jurisdiction to review it. If the Court accepts this proposition, then the only time an aggrieved candidate may challenge the result of an election is by way of a petition under s. 206 of the Organic Law. The decision to fail the election was made under s. 97 of the Organic Law. It states:

"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 candidate is nominated or returned as elected."

15. According to this provision, there are two grounds on which an election is deemed to have failed. They are firstly, where no candidate has nominated and secondly, where no candidate has been returned as elected. In this case, the second ground was the reason for the decision. With respect, the defence submission fails to appreciate the fact that the Electoral Commissioner has made a decision. The decision is that the election in each of these wards failed. It is a final decision because the election has failed. That means, no candidate was returned.

16. In my view where the Electoral Commissioner makes a decision to fail an election, the election process is at an end and it is wrong to suggest that it is incomplete and still in motion. Where a supplementary election is held, it is a new election and the electoral process is restarted with issuance of new writs for affected wards, nomination of candidates, etc... Here, some of the plaintiffs were declared winners and some were waiting to be declared, but as a result of the decision, no-one was returned as elected. Thus, no candidates were returned as elected in order for the plaintiffs to petition the Court to challenge the validity of their elections. In fact, for those plaintiffs who were declared winners, it would be illogical for them to petition the Court to challenge their own win.

17. Secondly, the decision was a result of an exercise of power under s. 97 of the Organic Law. To suggest that the exercise of power by the Electoral Commissioner is not "reviewable" or subject to scrutiny by the Court would make the Electoral Commissioner unanswerable to anyone. There is no provision in the Organic Law or any other law providing for an administrative appeal process or appeal process in the Courts (District Court or National Court) by which an aggrieved candidate may seek redress. It appears, the only avenue is the review jurisdiction of the National Court.

18. The Supreme Court Reference by Francis Damem, Attorney General (supra) and Philemon Embel & Joseph Kopol (supra) are not relevant. In the earlier case, the Supreme Court quiet correctly held that it is not the role of the Court to prescribe or even circumscribe the circumstances, in which the power under s. 97 of the Organic Law may be exercised. But in this case, parties are not arguing over the circumstances as the Electoral Commissioner has already determined them. According to the Notice published in the Electoral Commission's Bulletin No. 29 of 2013 dated 15th August 2013. (see annexure "A" of supplementary affidavit of the first plaintiff sworn on 09th January 2014), he declared a failed election in a number of Wards in the Highlands provinces because of:

".......serious and widespread violence, intimidation, threats, destruction of ballot boxes and ballot papers, riots, ransacking of polling booths, holding of hostages, spoiling ballot papers, tampering with ballot papers, forging of signatures, giving false names, preventing of people from voting, illegal sharing of ballot papers amongst candidates and supporters and no freedom to female or elderly electors to vote freely."

19. What the parties are arguing about in this case, among others is, whether these grounds existed and justify the decision. This is the distinction, thus that case is not relevant. In the latter case, the electoral process was in progress and the plaintiffs wanted to stop it because they disputed nine ballot-boxes from being admitted to scrutiny. They alleged that the ballot-papers in those boxes were tampered with at polling locations in the Nipa-Kutubu Open electorate and should not be counted. They objected to the admission of the ballot-papers into scrutiny but the Returning Officer rejected their objection and admitted them. The Returning Officer made that decision pursuant to s. 153A of the Organic Law. The Court held that as the Returning Officer had made a decision to count the boxes and s. 153A states that the decision may not be challenged other than by way of a petition, the proceedings were premature and amounted to an abuse of process. Accordingly, the Court dismissed the proceedings.

20. In this case, except for the decision to declare a failed election, at this stage, the plaintiffs do not take issue with the polling and scrutiny of votes. Because of a declaration of a failed election, the electoral process is at an end and no candidate was returned. Thus, there is no way the plaintiffs could challenge that decision. The only recourse to them would, undoubtedly, be a judicial review. This view is consistent with the Court's obita dictum in Kiee Toap v The State and Returning Officer for Mendi Open Electorate (2004) N2731 where after analysing numerous Supreme and National Court cases relating to the conduct of elections and disputes raising thereof, Cannings, J said that if an election was declared failed, the appropriate way to challenge that decision was by seeking leave to apply for judicial review, which in my view correctly represents the law.

21. For these reasons, I am satisfied that the plaintiffs have no other means to seek redress and have properly invoked the review jurisdiction of the National Court to review the decision. I am also satisfied that the decision is "reviewable" by the National Court.

Arguable Case

22. The plaintiffs submit that the decision raises the fundamental issue as to the authority of the Electoral Commissioner to declare a failed election. They say that they will argue at the substantive hearing, if leave is granted, that the Electoral Commissioner has no authority. That authority is vested in the Head of State acting with, and in accordance with, the advice of the Electoral Commissioner. In the alternative, they argue and will argue at trial that s. 97 of the Organic Law is a deeming provision. The grounds on which an election has failed are set out in subsection (2). They are where no candidate has nominated or where no candidate had been returned as elected. Subsection (2), they argue, is a deeming provision and where one or both occurs or exists, the election is deemed failed. It is automatic. The existence of these grounds triggers the decision and subsequently, a supplementary election.

23. In other words, it is not for the Electoral Commissioner to decide whether an election has failed. If no candidate nominates or is returned as elected, by operation of s. 97(1), the Electoral Commissioner is left with no option but to advise the Head of State to issue a new writ for a supplementary election. If the Court accepts this proposition, then they argue, and will further argue at trial that it was wrong for the Electoral Commissioner to rely on the grounds cited above to declare a failed election in the concerned Wards. In relying on these grounds and declaring a failed election, he acted in excess of his jurisdiction and the decision is illegal.

24. In the further alternative, they argue, and will further argue at trial that the grounds did not exist to justify the decision. Furthermore, they argue, and will further argue at trial that if the Electoral Commissioner has power to declare a failed election, he was wrong to making that decision because some of them were declared winners and others were about to be declared winners and should have been returned as elected and the Electoral Commissioner should have allowed that process to be completed. If other candidates were aggrieved by the results, they can file election petitions to challenge the validity of the elections.

25. The defence repeats and emphasises its earlier submissions on the jurisdiction of the Court and time to intervene in such a case. It did not specifically respond to the plaintiffs' submission on whether the issues raised are serious and important for further consideration at trial, except to say that the Electoral Commissioner has authority under s. 97 (supra) to declare a failed election. Nonetheless, as I was satisfied that the decision was "reviewable" and this Court has jurisdiction to review it, I am also satisfied that the issues raised are serious and important. They are constitutional issues.

26. At trial, the Court will need to determine among others, who have the authority to declare a failed election, the grounds on which to declare a failed election and time to declare a failed election. Also, the Court will need to determine whether the plaintiffs, having being declared or about to be declared winners should have been returned as elected, thus rendering it unnecessary for the Electoral Commissioner to declare a failed election under s. 97(2) (supra).

Order

27. I uphold the application and make the following orders:

(a) Leave is granted to the plaintiffs to review the decision of the Electoral Commissioner to declare a failed election as published in the Bulletin No. 29 of 2013 dated 15th August 2013.

(b) Costs shall be in the cause.

(c) Time shall be abridged.
________________________________________________________________
Mawa Lawyers: Lawyers for Plaintiffs
Niugini Legal Practice: Lawyers for Defendants