SC Review No 8 of 1992; Application by Toffamo Simang Mionzing; Re Finschhafen Open Electorate

• Jurisdiction: Papua New Guinea
• Judge: Brown J:
• Judgment Date: 23 June 1992
• Citation: [1992] PNGLR 122
• Court: Supreme Court
• Year: 1992
• Judgement Number: SC429

Supreme Court: Kidu CJ, Konilio J, Sheehan J, Brown J, Salika J

Judgment Delivered: 23 June 1992

SC429

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REVIEW NO 8 OF 1992

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)

APPLICATION BY TOFFAMO SIMANG MIONZING AND ELEVEN OTHER NOMINATED CANDIDATES FOR FINSCHHAFEN OPEN ELECTORATE

Waigani

Kidu CJ Konilio Sheehan Brown Salika JJ

23 June 1992

CONSTITUTIONAL LAW — Review pursuant to s 155(2)(b) of the Constitution — Cases where there is no statutory right of appeal.

ELECTIONS — Constitutional validity of s 96(2) of Organic Law on National Elections.

CONSTITUTIONAL LAW — Right to Vote under s 50 of the Constitution. Section 96(2) of Organic Law on National Elections does not infringe s 50 of the Constitution.

Facts

This is an appeal against the decision of Kapi Dep CJ in which he held that s 96 of the Organic Law on National Elections was inconsistent with s 50 of the Constitution. Section 96, as amended, does not provide for a supplementary election if a nominated candidate died after the declaration of nomination and before the end of the polling period. The learned Dep CJ held, following the death of the nominated candidate for Finschhafen, that to proceed with the elections without giving his supporters a chance to make a fresh nomination would be to infringe their right to vote (see Application by Imoning [1992] PNGLR 119).

The State, which was not joined in the National Court action, sought to get a review of that decision. On a preliminary point, counsel for the respondent unsuccessfully challenged the jurisdiction of the Supreme Court to review the decision of the National Court.

Held

1. The applicant, the State, had no other way to come to this Court except by way of the Constitution, s 155(2). In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case, s 155(2) is available.

2. The right to vote which is guaranteed by s 50 of the Constitution is a right of an eligible voter to freely vote for one of the nominated candidates, i.e. the right to choose a candidate who has been nominated.

3. Section 96(2) of the Organic Law does not in any way infringe the right to vote. This provision relates to circumstances where an election is to be considered to have failed and a new writ issued so that a supplementary election may be held in the particular electorate.

Cases Cited

Application by Imoning [1992] PNGLR 119.

Jababa v Okuk [1983] PNGLR 69.

SC Review No 5 of 1987; re Central Banking Regulations [1987] PNGLR 433.

SC Review No 5 of 1988; Kasap and Yama [1988-89] PNGLR 197.

State v Painke (No 2) [1977] PNGLR 141.

Counsel

J Yagi, P Yayabu and J Aisa, for the applicants.

D Kombagle, for Electoral Commission.

F Dame, for The State.

23 June 1992

KIDU CJ KONILIO SHEEHAN SALIKA JJ: In this application, the applicant prays this Court to review the decision of the National Court in [[1992] PNGLR 119]. This decision resulted from an enforcement of human right application under s 57 of the Constitution brought by Waringo Imoning and other [1992] PNGLR 119 in the National Court. The decision was handed down on 12 June.

In that application the applicants asked the National Court:

(a) to restrain the Electoral Commission from conducting the election for Finschhafen Open Electorate, and

(b) to direct that the Head of State issue a new writ for supplementary election, acting on advice of the Electoral Commission as soon as practicable.

The application was brought on by the death of one of the candidates for the Finschhafen Open Electorate, the late Mr Henu Hesingut. He died after he was nominated but before the polls, which were to be held in that electorate on 13 June.

Prior to February 1992, the death of Mr Hesingut would have resulted in a failed election, and a new writ would have been issued under the then s 96 of the Organic Law on National Elections, which provided:

"96. 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:

(a) no candidate is nominated or returned as elected; or

(b) after the declaration of the nominations and before the end of the polling period a candidate dies.

(3) Where an election has failed, the supplementary election shall be held upon the Roll which was prepared for the purpose of the election which failed."

But s 96 was amended by s 13 of the Organic Law on National Elections (Amendment No 1) Law 1991, which came into operation on 12 March 1992. This law replaced s 96(2) with the following:

"(2) An election shall be deemed to have failed if no candidate is nominated or returned as elected."

The applicants in the National Court argued that this new provision infringed their right to vote under s 50 of the Constitution, which provides, inter alia, as follows:

"(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who:

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the parliament for the purpose of this paragraph,

has the right, and shall be given a reasonable opportunity -

(c) ....; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) ...." (our emphasis)

Kapi Dep CJ, in entertaining the applications, held that the new s 96(2) infringed the applicant's right to vote:

"The question arises, whether s 96(2) of the Organic Law as amended, prohibits the right to vote. The applicants exercised their right and nominated the deceased. The deceased has died. The effect of s 96(2) is that it has prevented them from choosing another candidate of their choice and has prevented them from exercising their right to vote. I therefore find that s 96(2) of the Organic Law is inconsistent with s 50 of the Constitution and therefore void and of no effect. It follows that there is an imminent danger of the right of the applicants being infringed, if the election is allowed to go ahead on the amended provision."

His Honour then granted the orders sought by the applicants.

A preliminary point that must be dealt with first was raised by the counsel for the applicants in the National Court, Mr J Aisa. The issue relates to when this Court's power to review, conferred by s 155(2)(b), is to be invoked. If counsel had read what this Court said in SC Review No 5 of 1987; Re Central Banking Regulations [1987] PNGLR 433 and SC Review No 5 of 1988: Kasap and Yama [1988-89] PNGLR 197, the point would not have been raised at all.

In the first case, the decision of the Court (Kidu CJ; Kapi Dep CJ and Amet J) was as follows (at p 437):

"In this case the applicant, the State, had no other way to come to this Court except by way of s 155(2) .... .

In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case, s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first established. In this case, there is an important point of law to be determined and it is not without merit."

In the latter case, the Chief Justice said (with Kapi Dep CJ concurring) as follows at p 199:

"The first question to be determined is whether the Court should exercise its discretionary power under s 155(2)(b) of the Constitution and review the National Court's decision in question.

This is, of course, not the type of case in Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44; Danny Sunu v The State [1984] PNGLR 305 and the Independent State of Papua New Guinea v Colbert [1988] PNGLR 138. Those were cases where appeals were allowed but the applicants failed to appeal in time and then applied for review under s 155(2)(b). In election cases s 220 of the Organic Law on National Elections specifically provides:

'A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.'

So the only way these applicants could come to this Court is via s 155(2)(b) of the Constitution. In a similar case ... this Court (Kidu CJ; Kapi Dep CJ and Amet J) said:

'In the case the applicant, the State, had no other way to come to this Court except by way of s 155(2) .... .

In a case where a person or a party in a proceeding has no other way of coming before this Court in similar circumstances as in this case s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first...