Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney–General for The Independent State of Papua New Guinea (2002) SC689

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Sheehan J, Sakora J, Sevua J
• Judgment Date: 26 July 2002
• Citation: [2002] PNGLR 696
• Docket Number: SCR 4 of 2002
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC689

Full Title: SCR 4 of 2002; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney–General for The Independent State of Papua New Guinea (2002) SC689

Supreme Court: Amet CJ, Kapi DCJ, Sheehan J, Sakora J, Sevua J

Judgment Delivered: 26 July 2002

SC689

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 4 OF 2002

SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19

REFERENCE BY FRANCIS DAMEM, ATTORNEY GENERAL FOR THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani : AMET, CJ, KAPI, DCJ, SHEEHAN, SAKORA, SEVUA, JJ.

2002 : 22, 24 & 26 July

Mr G. Egan with Mr K. Kua for Attorney General

Dr. J. Nonggorr for the Electoral Commission

Mr. D. Cannings for Ombudsman Commission

Mr L. Henao for the National Parliament

Mr G. Sheppard with Ms.C. Copeland for certain Candidates

Mr A. Jerewai for a Intervener

BY THE COURT: This Reference is brought by the Attorney General authorised under Section 19 of the Constitution to seek the opinion of the Supreme Court on questions relating to the interpretation or application of the Constitution or Organic Laws. The Attorney General states:

“This reference arises out of the conduct of the general national and local level government elections in the provinces of Enga and Southern Highlands, and in particular, the effect upon the fairness of such elections of actual serious and widespread violence and/or intimidation and/or threats and/or destruction of ballot boxes and ballot papers and/or riots and/or sacking of polling booths and/or the holding of hostages and/or the spoiling of ballot papers and/or the tampering with of ballot papers and/or the forging of signatures and/or the giving of false names and/or the prevention of people from voting. The Referor, acting in the public interest, is thereby concerned that the citizens of Papua New Guinea have not had a full and free opportunity to vote and participate in the 2002 national and local level government elections and also as to the rights of candidates to seek election to public office”.

The facts giving rise to the Attorney General’s concerns and his bringing this Reference are detailed in the affidavit of Police Commissioner Joseph Kupo, QPM and confirmed by an affidavit of the Electoral Commissioner, Mr Rueben Kaiulo, filed in an application under Section 18 of the Constitution (SC APP 5/2002) and heard concurrently with this Reference.

The essence of this evidence is that upon inquiry into reports from electoral officials, Police and others, of disturbances and interference with the election process detailed in the Reference, the Electoral Commissioner gave advice to the Head of State, pursuant to Section 177 of the Organic Law, that resulted in the extension of time for the return of the writs for all electorates from 15th July to 29th July 2002. The Electoral Commissioner also foreshadowed the possibility of failure of elections in some electorates.

The questions posed by the Attorney General are as follows:

1. Is an election a failure if: …

(a) Errors or irregularities in the conduct of the election had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the Law as to elections an/or the Constitution; or

(b) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the Writ for such election, or during the course of voting in such election, of serious and/or widespread.

i. Violence; or

ii. Intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with of ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names an/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

1. Does the power of the Head of State under s. 97 of the Organic Law on National and Local Level Government Elections (hereinafter call “the Organic Law”) include the power to declare, prior to or upon the return of the Writ for any one electorate, that an election has failed in circumstances where there is prima facie evidence, in respect of that electorate, that either:

(a). Errors or irregulars in the conduct of the election had been such that it could not said that the election had so been conducted as to be substantially in accordance with the Law as to elections and/or the Constitution; or

(a) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the Writ for such election, or during the course of voting in such election, of serious and/or widespread:

i. Violence; or

ii. Intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with of ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names an/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

1. If the answer to the question as posed in paragraph thereof is “yes”, can the Head of State declare that an election has failed on grounds other than those as specified in s. 97 (2) of the Organic Law?

2. If the answer to the question as posed in paragraph 2 hereof is “yes”, then does that power include the power to declare that the election in respect of any one electorate is void ad inition?

3. If the answer to the question as posed in paragraph 4 hereof is “yes”, does the power impose a duty upon the Head of State to make such declaration prior to either the return of the Writ for the electorate in question or the issue of a new Writ for a supplementary election as stipulated by s. 97 of the Organic Law?

4. If the answer to the question as posed in paragraph 5 hereof is “yes”, is the Electoral Commission under a duty to advise the Head of State to make such declaration in circumstances where there is prima facie evidence that:

(a) Errors or irregularities in the conduct of the electio9n had been such that it could not be said that the election had so been conducted as to be substantially in accordance with the Law as to elections and/or the Constitution; or

(b) A fair election result could not be said to have been possible in an electorate or electorates by reason of the occurrence, after the issue of the Writ for such election, or during the course of voting in such election, of serious and/or widespread:

i. Violence; or

ii. intimidation; or

iii. Threats; or

iv. Destruction of ballot boxes and/or ballot papers; or

v. Riots; or

vi. The sacking of polling booths; or

vii. The holding hostage of people entitled to cast a vote in the election; or

viii. The spoiling of ballot papers;

ix. The tampering with of ballot papers either before or after the casting of a vote; or

x. The forging of signatures; or

xi. The giving of false names an/or addresses and/or identity sufficient to enable the person seeking to vote to be identified in the polls; or

xii. The prevention of voting by people entitled to vote.

1. The answer to the question as posed in paragraph w hereof is “no”, does the Supreme Court, upon application made to it by the Attorney-General or any other competent...