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Liria v O'Neill [2017] PGNC 143; N6834 (1 August 2017)

N6834

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO 25 OF 2017

BETWEEN
STANLEY LIRIA
Plaintiff

AND
HON. PETER O’NEILL
First Defendant

AND
PATALIAS GAMATO
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail J
2017: 1^st August

CONSTITUTIONAL LAW – PRACTICE & PROCEDURE – Enforcement of constitutional rights – Right to stand for elective public office – Breach of – Polling conducted on a Sunday – Construction of – Sub judice – Supreme Court Reference – Question of polling on a Sunday – Whether unconstitutional – Constitution – Sections 22, 23 and 50 (1) (d) – Organic Law on National and Local-level Government Elections – Section 130 (1) (b)

Cases cited:

Ralph Premdas v. The State [(1979] PNGLR 329

Counsel:

Mr. G.M. Egan with Mr. D. Yariyari, for Plaintiff
Mr. T. Twivey, for First Defendant
Ms. A. Kimbu, for Second, Third & Fourth Defendants

RULING

1^st August, 2017

1. MAKAIL J: By an originating summons, the plaintiff, a candidate for the Ialibu/Pangia Open Electorate in Southern Highlands Province in the 2017 General Election commenced this proceeding to enforce his constitutional right to stand for elective public office under Section 50 (1) (d) of the Constitution. He alleges that he was denied this right when the second and third defendants allowed polling to take place on a Sunday contrary to Section 130 (1) (b) of the Organic Law on National and Local-level Government Elections (“Organic Law”). The end result was that the First Defendant finished first and was declared member for Ialibu/Pangia.

2. The plaintiff seeks, amongst other orders, a declaration that the public declaration of the first defendant as member for Ialibu/Pangia was unconstitutional and of no force or effect as it was made in circumstances where the election was conducted in the electorate in breach of Section 130 (1) (b) of the Organic Law, thereby an infringement of the Plaintiff’s guaranteed constitutional rights afforded to him pursuant to Section 50 (1) (d) alternatively, Section 55 (1) of the Constitution.

3. In the interim he applies for an injunction to restrain or prevent the first defendant from attending the National Parliament at any sitting after the return of writs for the 2017 General Election for the purpose of his making a Declaration of Office and a Declaration of Loyalty based on the public declaration of him as the elected member for the electorate of Ialibu/Pangia in the 2017 General Election. It is common ground between the parties that the National Parliament is set to sit tomorrow (2^nd August), hence the urgency of the application.

4. The first defendant supported by the other defendants objects to the application on the ground that it was sub judice the Supreme Court, the legitimacy of polling on a Sunday under Section 130 (1) (b) is one of the questions stated in a Supreme Court Reference under Section 18 of the Constitution and is before the Supreme Court for an interpretation and its opinion. That is in the case commenced by the current plaintiff in SCC (OS) No. 1 of 2017. Directions have been issued by the Supreme Court and the matter will return before the Supreme Court listing Judge for further directions on 14^th August. That case was commenced prior to this case.

5. The plaintiff concedes that the legitimacy of polling on a Sunday under Section 130 (1) (b) is a question raised in both proceedings, that is, in this proceeding and also in the Supreme Court Reference. Both proceedings are commenced by the plaintiff.

6. Given this, I am of the view that at the centre of the dispute in each case is the interpretation and application of Section 130 (1) (b). This provision reads:

“130. The Polling.

(1) Subject to Subsections (2) and (3), the polling shall be conducted as follows:—

(a) ...........; and

(b) the poll shall open at each polling place at 8 a.m. on each day (other than a Sunday or a public holiday) during the period for taking the poll at that polling place, and shall not close until all electors present in the polling booth at 6 p.m. and desiring to vote, have voted; and”

7. Is this provision obligatory or directory or as the first defendant’s counsel adds, prohibitory? In other words, it comes down to this, is polling on a Sunday permissible or not? It is legal or not?

8. From my reading of copy of the Supreme Court Reference SCC (OS) No. 1 of 2017 which was handed up without objection by counsel for the first defendant I can see that this is the primary question the Supreme Court is being asked to answer.

9. For instance at para. 3 (b) of the Supreme Court Reference, the question posed is, “Was the requirement of the Electoral Commission that voters in the Electorate vote on a Sunday unconstitutional in breach of the provisions of Section 55 (1) of the Constitution?”

10. In the context of a Supreme Court Reference such as the mentioned Supreme Court Reference, it is the constitutionality of the polling on a Sunday that is in issue. Nonetheless, the act of polling on a Sunday raised in the Supreme Court Reference raises nothing more than the question of legitimacy of polling on a Sunday to which Section 130 (1) (b) refers.

11. In the present case, the plaintiff submits that the question is raised in the context of an enforcement of constitutional rights proceedings which gives rise to and is a completely different cause of action to the one filed in the Supreme Court and it is open to him to raise it before this Court for consideration and in the interim seek interim relief to prevent further breaches of his constitutional rights.

12. He has the backing of the Supreme Court in the case of Ralph Premdas v. The State [(1979] PNGLR 329 where it is held that the Supreme Court and the National Court not only have power but a duty to enforce constitutional rights of persons under the Constitution.

13. To the extent that the cause of action in this proceeding is different to the one in the Supreme Court and the power and duty of the Supreme Court and National Court is to enforce constitutional rights of individuals, those submissions by the plaintiff are upheld. Beyond that, with respect, I disagree. The primary issue stated in the Supreme Court Reference (above) is the same issue raised in this proceeding for consideration by the National Court.

14. This is clearly seen from the wording of the relief being sought at paras. 1, 2, and 3 of the originating summons. There is a reference to Section 130 (1) (b) in each of those paragraphs. In order for the National Court to be satisfied that the defendants denied the plaintiff his constitutional right to stand for elective public office under Section 50 (1) (d) of the Constitution, it must first be satisfied that polling on a Sunday under Section 130 (1) (b) was illegal. This will require a consideration of this provision which is already before the Supreme Court by way of a Section 18 Supreme Court Reference.

15. I am satisfied that the question of legitimacy of polling on a Sunday under Section 130 (1) (b) is also before the Supreme Court. Being superior than the National Court, the Supreme Court has seized of this question. This is quite apart from the undisputed fact that the Supreme Court Reference was commenced prior to this proceeding, hence the question ought to be resolved by the Supreme Court in that proceeding. For these reasons, I am satisfied the question is sub judice.

16. The application for interim relief in the end, is an abuse of process and must be dismissed, with costs.

Ruling and orders accordingly.

________________________________________________________________
DTY Lawyers: Lawyers for Plaintiff
Twivey Lawyers: Lawyers for First Defendant
Kimbu & Associates Lawyers: Lawyers for Second, Third & Fourth Defendants