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Chan v Schnaubelt [2017] PGNC 286; N6999 (13 November 2017)

N6999

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 7 OF 2017

BETWEEN

J BYRON CHAN
Petitioner

AND
WALTER SCHNAUBELT
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail J
2017: 9^th & 13^th November

ELECTION PETITION – PRACTICE & PROCEDURE – Application to refer questions to Supreme Court for interpretation – Questions on validity of votes cast – Secret ballot – Manner of casting ballot-paper – Folding of ballot-paper in the shape or form of an aeroplane or “balus” – Alleged illegal act – Breach of privacy or secrecy of ballot-paper or vote – No serious and complex constitutional questions arise – Proposed questions trivial and fall within the exclusive jurisdiction of the National Court – Application refused – Constitution – Section 18 (2) – Organic Law on National and Local-level Government Elections – Sections 138 (b), 206 & 215

Cases cited:

Peter O’Neill v. Ombudsman Commission of Papua New Guinea (2015) N5857
Peter O’Neill v. Pondros Kaluwin (2015) N5843

Counsel:

Mr. G. J. Sheppard with Mr. G. Purvey, for Petitioner
Mr. J. Wohunangu, for First Respondent
Mr. J. Simbala, for Second Respondent

RULING

13^th November, 2017

1. MAKAIL J: This is an application to refer seven proposed questions on the validity of votes cast at polling in a General election to the Supreme Court for interpretation pursuant to Section 18 (2) of the Constitution. They are set out in the Schedule of Referral Questions filed on 17^th October 2017.

2. Principal amongst them is whether a breach of a Constitutional Law by operation of Section 138 (b) of the Organic Law on National and Local-level Government Elections (“Organic Law”) has occurred when ballot-papers were intentionally folded to reveal the votes before counting of votes, and if yes, does that mean that all ballot-papers folded in that manner are null and void.

3. There appears to be a general consensus between the petitioner and the first respondent that the alleged illegal act complained of is the first of its kind. The allegation is grounded on illegal practices under Section 215 of the Organic Law.

4. The illegal act complained of is that, the first respondent intentionally instructed, couched and planned the manner in which ballot-papers were folded to reveal the vote. The folding of the ballot-papers was in the form or shape of an aeroplane or “balus” and was intended not to conceal the vote and/or actually reveal the vote. This is contrary to or is a breach of Section 138 (b) of the Organic Law which requires a ballot-paper or vote to be in private or secret.

5. It follows that the proposed questions are not trivial, vexatious or irrelevant and the Court has been urged by both the petitioner and first respondent to refer them to the Supreme Court for interpretation.

6. The Court is further urged to follow the decisions of the National Court in Peter O’Neill v. Ombudsman Commission of Papua New Guinea (2015) N5857 and Peter O’Neill v. Pondros Kaluwin (2015) N5843 and refer the questions to the Supreme Court for interpretation.

7. There, it was held that Section 18 (2) of the Constitution is in mandatory terms and the National Court must refer questions sought to be referred to the Supreme Court unless the questions are trivial, vexatious or irrelevant.

8. The second respondent submitted that it would not be appropriate to refer the questions to the Supreme Court when the competency of the petition is yet to be determined.

9. The second respondent’s submission raises the issue whether, in an election petition, it is appropriate to refer questions to the Supreme Court for interpretation. The other issue is, as contended by the petitioner and the first respondent, whether the questions are not trivial, vexatious or irrelevant.

10. Every citizen who is of full capacity and has reached voting age has a right and shall be given a reasonable opportunity to stand for public office. It is a guaranteed right under Section 50 of the Constitution.

11. It is the case here that the petitioner and the first respondent were given that opportunity when they both contested in the recent General election.

12. The first respondent was elected to hold public office by the majority of voters of Namatanai Open electorate. The petitioner lost. He exercised his right under Section 206 of the Organic Law to dispute the validity of the election or return of the first respondent by filing this petition.

13. The grounds to dispute the validity of an election or return are based primarily on allegations of undue influence, attempted bribery, bribery, illegal practices, errors or omissions. The respective grounds are provided for under Sections 102 and 103 of the Criminal Code and various provisions of the Organic Law including Sections 215 and 218.

14. The dispute resolution process is set out in the National Court Election Petition Rules, 2017 (“EP Rules”).

15. In my view, Section 206 of the Organic Law confers on the National Court exclusive jurisdiction to hear an election dispute by way of a petition.

16. In this case, amongst other allegations, the petition is grounded on illegal practices under Section 215 of the Organic Law. The illegal act complained of which occurred at more than one polling locations is that, the first respondent intentionally instructed, couched and planned the manner in which ballot-papers were folded to reveal the vote.

17. The folding of the ballot-papers in the shape or form of an aeroplane or “balus” was intended not to conceal the vote and/or actually reveal the vote. This is contrary to or is a breach of Section 138 (b) of the Organic Law which requires a ballot-paper or vote to be in private or secret.

18. Section 138 (b) states:

“138. Votes to be marked in private.

Except as otherwise prescribed, a voter upon receipt of a ballot-paper shall without delay—

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

(b) fold the ballot-paper so as to conceal his votes and to show clearly the initials of the presiding officer or the affixed mark and exhibit it so folded to the presiding officer, and then openly, and without unfolding it, deposit it in the ballot-box; and

(c) ..........................”

19. While I accept that this is the first time an allegation of illegal practice under Section 138 (b) of the Organic Law has been alleged, it is my respectful view that the circumstances giving rise to the allegation and the proposed questions are not peculiar. This is because they bring up the same issue, it being the validity of the election or return of the first respondent.

20. In my view, the proposed questions are directly connected to the allegation of illegal practices at polling and fall within the exclusive jurisdiction of the National Court to determine.

21. The Court will inquire into and make findings as to whether, as a matter of fact, ballot-papers were folded in the shape or form of an aeroplane or “balus” by voters when casting their votes at polling; if yes, as a matter of law, whether such conduct breached privacy or secrecy of vote under Section 138 (b) of the Organic Law and if yes, what sort of relief to grant.

22. If the allegation is proven, it would be within the discretion of the Court to consider upholding the petition and declare the election of the first respondent null and void. This relief is amongst others, being sought by the petitioner at para. 2 of the prayer for relief in the petition. It is also the same relief being sought in the form of a proposed question for referral to the Supreme Court for interpretation.
23. I am of the further view that contrary to the submissions of the petitioner and first respondent, while the proposed questions are not vexatious or irrelevant, they are trivial. With respect, they are not serious and complex constitutional questions which would justify a referral to the Supreme Court for interpretation.

24. They add nothing more than the questions that have identified at [21] above, based the allegation of illegal practices in the petition. Given the exclusive jurisdiction of the National Court under Section 206 of the Organic Law, it is appropriate that the allegation of illegal practices under Section 138 (b) of the Organic Law and questions arising there-in, be determined by it.

25. Allowing the National Court that exclusive jurisdiction has its advantages as well, for instance, it will avoid duplication of hearing on the same issue(s) and reduced time and costs. Finally, the point that the second respondent raised as to the competency of the petition can also be addressed by National Court.

26. For these reasons, the application is refused. The petitioner shall pay the second respondent’s costs, of and incidental, to the application.

Ruling and orders accordingly.
________________________________________________________________
Young & Williams Lawyers: Lawyers for Petitioner
Fairfax Legal Lawyers: Lawyers for First Respondent
Harvey Nii Lawyers: Lawyers for Second Respondent