Herowa Agiwa v Rueben T Kaiulo, Electoral Commission of Papua New Guinea and Benias [Ben] Peri (2003) N2345

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 18 February 2003
• Citation: (2003) N2345
• Docket Number: In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of Disputed Return of The Koroba/Lake Kopiago Open Electorate
• Year: 2003

Full Title: In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of Disputed Return of The Koroba/Lake Kopiago Open Electorate; Herowa Agiwa v Rueben T Kaiulo, Electoral Commission of Papua New Guinea and Benias [Ben] Peri (2003) N2345

National Court: Kandakasi J

Judgment Delivered: 18 February 2003

1 ELECTIONS—Parliamentary elections—Failure of—proper mode to challenge a decision to fail an election—An election petition is not an appropriate remedy for a person aggrieved by such a decision—Appropriate remedy is judicial review—All the requirements for grant of leave for judicial review, including the need to provide a reasonable explanation for any delay in filing the application must be met before leave for judicial review can be granted—A failure to meet any of these requirements should result in a refusal of leave—Taking an inappropriate action is not a reasonable explanation for any delay—Failing to show a prima facie case of the Electoral Commission having no proper basis to arrive at its decision or that the decision could not have been reasonably arrived at by a fair minded person is fatal to an application for leave for judicial review—Leave for judicial review denied.

2 JUDICIAL REVIEW—Application for leave for judicial review—Decision by Electoral Commission to fail elections on the basis that there was no proper polling, return, scrutiny and counting of votes except for 2,985 votes out of a possible of 80,000.00—No real challenge on the reasons for the decision—Relief sought defies logic and common sense and would have the effect of breaching citizens' right to vote and stand for elective office—No arguable case demonstrated—Leave refused—Constitution s50—OOrganic Law on National and Local–level Government Elections, s19, s73, s75, s97, s113, s115, s118, s127, s130, s138, s147, s148, s150, s151, s175 and s206.

3 SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, Special Reference pursuant to Constitution Section 19; Reference by Francis Damem [2002] PNGLR 696, Enforcement Pursuant to Constitution s57; Application by Daniel Don Kapi [2002] PNGLR 630, The State v The Independent Tribunal; Ex parte Moses Sasakila [1976] PNGLR 491, Constitutional Reference No 1 of 1977 [1977] PNGLR 362, Canisius Karingu v Papua New Guinea Law Society (2001) SC674, Anna Wemay v Kepas Tumdual [1978] PNGLR 173, SCR No 6 of 1984; Re Provocation [1985] PNGLR 31, Air Niugini v Joel [1992] PNGLR 132, In re Moresby North East Election Petition; Patterson Lowa v Goasa Damena [1977] PNGLR 429, Leto Darius v The Commissioner of Police (2001) N2046 and Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145 referred to

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Kandakasi J: Mr Herowa Agiwa is applying for leave of this Court for a judicial review of a decision by the Electoral Commission through Mr Kaiulo to fail the elections for the Koroba/Lake Kopiago Electorate in the recent 2002 National General Elections. Subject to leave being granted, he is asking for a declaration that he was the duly elected member for the electorate in question and for orders to give effect to that relief. The Electoral Commission and Mr Ben Peri are opposing the application.

It is argued for Mr Agiwa in effect that, the decision to fail his election was ultra vires s97 and s175 of the Organic Law on National and Local–level Government Elections (the Organic Law). The basis for this argument falls into two parts. Firstly, the argument is, once a returning officer makes a declaration of a winner of an election under s175 of the Organic Law on National and Local–level Government Elections, there is no power in the Electoral Commission to withhold a forwarding of the relevant writ to Parliament or alter the writ. SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, is cited in support of this argument. Secondly, the Electoral Commission can fail an election only in terms of s97(2) of the Organic Law on National and Local–level Government Elections, where no candidate is nominated and not otherwise. In this case, the argument is that, there were nominations, there was a proper polling, counting of votes took place and that Mr Agiwa was declared winner on 2,985 votes that were counted. The rest of the electors in the electorate were given the opportunity to exercise their rights under s50 of the Constitution but they refused or failed to exercise their rights, without providing any evidence demonstrating how the voters refused or failed to exercise their rights.

The opposing argument is that, the Electoral Commission has a wider power to fail an election in appropriate cases and that the circumstances in which that can be done cannot be circumscribed. Reliance is placed on the recent judgment of the Supreme Court in Special Reference pursuant to Constitution Section 19; Reference by Francis Damem [2002] PNGLR 696 (the Damen reference) in support of this argument. In furtherance of this argument, the Electoral Commission and Mr Peri argue that, it defies any logic or common sense to declare a winner on only 2,985 votes out of a possible of 80,000 votes. To do so would amount to a denial of the voters in the electorate's right to vote under s50 of the Constitution.

Background

The background to this application is straightforward. Following, the call for nominations in the 2002 National General Elections, Mr Agiwa nominated for the Koroba/Lake Kopiago Open electorate and so did Mr Peri. There were 17 others who also nominated for the seat. It is common knowledge now that, there was much trouble in the Southern Highlands during the elections. This resulted in an extension of the return date for the writs in the Southern Highlands Province being from 15 July 2002 to 29 July 2002. That was followed by the Damen reference. That reference concerned a return of the writs after 29 July 2002 and the possibility of an election failure for both the Southern Highlands and Enga Provinces. The reference was prompted by a bad law and order situation, involving amongst others, violence, intimidation, threats, destruction of ballot boxes and papers, holding voters hostage and otherwise preventing voters from properly casting their votes for a candidate of their own choice.

The Supreme Court constituted by Amet CJ, Kapi DCJ, Sheehan J, Sakora J, and Sevua J, by a unanimous decision delivered on 26 July 2002 ( Special Reference pursuant to Constitution Section 19; Reference by Francis Damem [2002] PNGLR 696, effectively held that, it was within the power of the Electoral Commission to decide either to return a person as an elected member if that was possible despite the situation or, decide that the elections in those provinces failed. In so doing, the Supreme Court noted that the Electoral Commission had a wider power to make such a decision under s97 of the Organic Law on National and Local–level Government Elections.

Before the Damen reference and the decision on it, Mr Stanley Kotange, the returning officer for Koroba/Lake Kopiago Open, declared on 11 July 2002, Mr Agiwa as the duly elected member. That was after counting only three ballot boxes representing only 2,985 votes from Mr Agiwa's own area and out of an overall possible of 80,000 votes.

Prior to conduct of polling in the electorate, Mr Peri took issue with the appointment of Mr Stanley Kotange as the Returning Officer. That was on the basis that Mr Kotange is a close political associate of Mr Agiwa. Following the Electoral Commission's failure to revoke Mr Kotange's appointment as the Returning Officer, Mr Peri filed OS 317 of 2002 out of the National Court in Waigani seeking the relief he was denied by the Electoral Commission. The National Court refused to grant the relief sought on basis that, it could not interfere with the conduct of elections which, fell within the powers of the Electoral Commission.

So the Electoral Commission proceeded with preparations for the conduct of elections. After what appears to be a conduct of elections, ballot boxes and ballot papers for the Kopiago LLG as well as those intended for the South Koroba LLG areas seems to have been held at Hetemari and Auwi Logaiyu LLG areas at Auwi. Proceeding on that premise, Mr Peri applied to the National Court under OS 402 of 2002 for their release for counting at Mendi...