Waine v Electoral Commissioner [2007] PGNC 35; N3132 (29 June 2007)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

PARLIAMENT – Elections – Nomination of candidate – Plaintiff not personally nominated – Plaintiff in United States of America at time of nomination – Plaintiff’s brother nominated on behalf of plaintiff – Plaintiff’s name subsequently removed as candidate – Whether National Court has power to order reinstatement of plaintiff as nominated – Whether National Court has jurisdiction to intervene during process of elections – Whether National Court has power to order relief sought by plaintiffs.

Organic Law on National and Local-Level Government Elections s.4, s.5, s.15, s.19, s.82, s.83, s.85, s.86, s.87, s.88, s.89, s.91, s.92, s.93, s.96, s.97, s.206

Billy Jababa v. Iambakey Okuk [1983] PNGLR 69
Immelman v. Sutherland Municipal Election (Returning Officer) [1921] CPD 1 (SAP)
Re Organic Law on National Elections [1982] PNGLR 289
Re The New Ireland Provincial Constitution [1984] PNGLR 81
Thomas Niggints v. The Electoral Commission (1992), unreported, N 1072, 24th June 1992 (Woods, J)
William Dihm v. Returning Officer for Moresby South Electorate & Anor [1992] PNGLR 377
Special Reference Pursuant to Section 19; Reference by the Attorney General (2002), unreported, SC 689, 26th July 2002; (Amet CJ, Kapi DCJ, Sheehan, Sakora, Sevua, JJ)
NEC & Luke Lucas v. Public Employees Association of PNG [1993] PNGLR 264
The Electoral Commission & Ors v. Pila Niningi (2003), unreported, SC 710, 20th June 2003 (Kapi, CJ, Salika, Gavara-Nanu, JJ)
Oscar Pomaleu & Ors v. William Skate Jr (2006), unreported, SC 838, 21st July 2006 (Kapi, CJ, Injia, DCJ, Salika, J)

1. SEVUA, J: The plaintiff filed these proceeding by ordinary originating summons and sought the same relief claimed in his notice of motion. There are:-

2. In support of the application, the plaintiff relied on eight affidavits including his own and that of counsel. The defendants relied on two affidavits sworn by the first defendant, Andrew Trawen, the Electoral Commissioner and John Elle, the Election Manager and Provincial Returning Officer.

3. The facts of the case are as agreed to by all parties as contained in a Statement of Agreed and Disputed facts directed by the Court and filed on 21 June 2007. The facts are as follows.

4. Writs for the General Elections were issued on 4 May 2007. Nominations opened on the same day and closed on 10 May 2007. Polling will generally commence on 30 June until 10 July 2007. Polling in Simbu will be conducted on 9 July 2007. Counting of votes will be held from 10 July to 30 July 2007. The writs will be returned on 30 July 2007.

5. The plaintiff who has a PhD in biochemistry is employed as the Principal Investigator for Du Pont, a scientific research corporation in USA. He had, since 2005, planned to enter politics, and is the founder and leader of Stars Alliance Party Inc. For reasons that were stated in the agreed facts, the plaintiff was not present in Kundiawa on 10 May 2007 to nominate personally as he was in USA. With the consent of the plaintiff, his brother Dr. Arnold Waine signed the nomination form in Port Moresby on 10 June 2007, witnessed by Bonny Waim Korugl, a cousin brother.

6. The nomination of the plaintiff by his brother was confirmed by the Stars Alliance Party for the Simbu Provincial Seat. The nomination form was then faxed from Dream Inn in Port Moresby to Kundiawa. However, it was not faxed to the Provincial Returning Officer or the Returning Officer in Kundiawa, instead it was faxed to a third party in Kundiawa. An unnamed representative of the plaintiff with supporters of the Stars Alliance Party delivered the nomination form to the Provincial Returning Officer, John Elle, who received the nomination.

7. At the close of nomination at 4.00 pm that day, John Elle conducted an official draw of candidate’s nominations for the Simbu Provincial Seat. The plaintiff’s name was drawn on the fifth count and allocated a number 14 candidate. Thereafter, email communications were transmitted between John Elle and the Electoral Commissioner on 10th and 11 May 2007, resulting in the advice to John Elle to remove the plaintiff’s name from the draw on 11 May 2007. The plaintiff’s name was therefore removed from the official list of candidates nominated for the Simbu Provincial Seat.

8. Facts in dispute are firstly that, the Returning Officer accepted the nomination on 10 May 2007 as presented; secondly, the Returning Officer, John Elle conducted a redraw on 11 May 2007, and thirdly, the plaintiff’s name was removed as a candidate nominated for the Simbu Provincial Seat after the redraw.

9. At this juncture, the Court notes that from the agreed facts, one pertinent aspect of the Electoral Commissioner’s email to John Elle had been omitted for reasons unknown to the Court, however it is in evidence therefore it is not controversial. That particular part of the email which is Annexure "G" in the plaintiff’s affidavit sworn on 22 June 2007; Annexure "A" in the affidavit of Martin Sine filed on 13 June 2007; Annexure "A" in the affidavit of Korugl Nime sworn on 11 June 2007, and Annexure "A" in the affidavit of John Elle, sworn on 16 June 2007.

10. The omitted part is the first line of the email from the Electoral Commissioner to John Elle on Thursday, 10 May 2007 at 7.26 pm. It reads:

"I have NEVER EVER GIVEN YOU ANY VERBAL ADVICE OR INSTRUCTIONS TO ACCEPT THIS NOMINATION."

This person I heard is in US and on his way to PNG and arriving tomorrow. How on earth can we accept his nomination without his physical presence in PNG and for that matter in Kundiawa

12. That email was in response to the message from John Elle to the Electoral Commissioner on 10 May 2007 at 5.56 pm which reads:

13. The plaintiff has raised three legal issues for determination by this Court. These are:

14. Having heard submissions from both counsels and considered the above issues, I consider that the threshold or fundamental issue in this case is whether the plaintiff nominated according to law. Thus, other issues referred to by the plaintiff’s counsel are subsidiary to that threshold issue, and that is what this Court must determine first. Other fundamental issues are whether the National Court has power to intervene in the election process, and whether the National Court has jurisdiction to grant the relief sought by the plaintiff in his originating summons and notice of motion.

15. The plaintiff, at the outset must establish that his nomination was done in accordance with the Organic Law on National & Local-Level Government Elections (hereunder the Organic Law). In order to determine that issue, it is necessary to refer to Part XI of the Organic Law, s.83 to s.96 – The Nominations. It is also relevant to refer to Part VIII of the Electoral Law (National & Local-Level Government Elections) Regulation 2007, (hereunder the Regulation 2007) which deals with Writ and Nomination and it covers s.43 – s.52.

16. Under Part XI - The Nominations, the plaintiff must be duly nominated, s.83. Section 85 provides the mode of nomination. A nomination must be in the prescribed form, which is Form 23, pursuant to s.45(1) of the Regulation 2007. A sample of Form 23 is the "purported" nomination form annexed to the affidavit of the plaintiff and other affidavits. Then s.86 Organic Law and s.46(1) Regulation 2007 stipulate who the nomination should be made to. The authorised officers to whom a nomination may be made to are the Returning Officer, the Provincial Returning Officer, An Assistant Returning Officer, or a person authorised by the Electoral Commission. The first three officers are the officers designated to the electorate or the Provincial Seat which the nomination relates to.

17. Section 91 Organic Law provides the place of nomination which are the office of the Returning Officer; the office of the Provincial Returning Officer and the Office of the Electoral Commissioner, before a person duly appointed by the Electoral Commissioner to accept nomination.

18. I have alluded to the threshold issue which, in my opinion, must be determined first before other issues. This issue has been sidestepped by the plaintiff and his counsel. It is my view that before, the Court determines whether the plaintiff’s nomination was accepted or not, it must first determine whether or not the plaintiff did nominate.

19. The evidence which supports the agreed facts is that, at the time of nomination on 10 May 2007, the plaintiff was in the United States, not in Port Moresby or Kundiawa. He did not complete Form 23 and did not personally sign it, instead he consented to his brother, Dr. Andrew Waine to complete Form 23 on his behalf. Another undisputed fact is that the Nomination or Form 23 was transmitted by facsimile to a third party in Kundiawa, not the Returning Officer or the Provincial Returning Officer for the Simbu Regional Seat. The third party then, on instructions by Dr. Andrew Waine in Port Moresby, delivered the nomination to the Provincial Returning Officer.

20. Contrary to the plaintiffs counsel’s submission that the Returning Officer "accepted" the nomination, the Returning Officer did not. The affidavit of John Elle the Election Manager and Provincial Returning Officer for Simbu clearly sets out what had transpired. His evidence is not in controversy. He deposed to the fact that approximately 8.00 am on the morning of 9 May 2007, he received a call on his mobile phone from Dr. Waine who said, "I am still in USA, can I nominate electronically?" John Elle said no, Dr. Waine had to be present personally to nominate before the hour of nomination at 4.00 pm Thursday, 10 May 2007.

21. On the morning of the same day, a drunk supporter of the plaintiff went to John Elle and demanded that Dr. Waine’s nomination be accepted. The drunk said to John Elle, "Chimbu is not your place and Dr. Waine is a true leader the Chimbu people need." John Elle managed to get the police to remove that drunkard supporter.

22. Then after that incident, John Arabel, a candidate for the Sinasina Yongomugl electorate came to John Elle and enquired if the plaintiff could nominate by special arrangements outside the country or in Port Moresby. John Elle advised John Arabel that Dr. Waine must nominate in person and not through a third party.

23. At 3.30 pm on the same day, John Arabel returned with 15 supporters, to lodge Dr. Waine’s nomination. However, John Elle did not accept the plaintiff’s nomination. John Elle said: "I refused and told them that Dr. Waine must be present himself for me to accept his nomination." Some time after, the same people tried to force John Elle to accept the plaintiff’s nomination, however, John Elle stood by his earlier stance and reminded the supporters that the plaintiff was not physically present to allow the due process of law on nomination to proceed.

24. John Elle then noticed that the nomination form was a faxed copy from Dream Inn in Port Moresby, and the signature appeared to have been forged. He then asked some questions which were answered and the record appear at the bottom of page 3 of his sworn affidavit. I quote those questions and answers.

"Q1.	Who signed the nomination form?
Ans.	Dr. Clement Waine
Q2.	How could Dr. Waine sign the form when he is still in USA?
Ans.	A specimen signature was forwarded via the Internet
Q3.	Where was the nomination filed and through whom?
Ans.	In Port Moresby through the PNG Electoral Commissioner’s Office
Q4.	If this Form was filed in Port Moresby, then where is Form EC 25 to accompany the nomination?
Ans.	This is not significant. You are depriving the Simbu people of a true leader if you don’t accept Dr. Waine’s nomination."

25. Further heated arguments ensured between the plaintiff’s supporters and the Provincial Returning Officer. The supporters demanded that the Provincial Returning Officer obtain a decision from the Electoral Commissioner to accept the plaintiff’s nomination. John Elle told the supporters that the law did not allow anyone else apart from the Returning Officer for the electorate concerned to accept nominations 48 hours before the close of nomination. John Elle then contacted the Electoral Commissioner by telephone and referred to the Electoral Commissioner’s telephone conversation as follows – "John I have talked to Dr. Waine already. It’s okay, I will explain." John Elle took those words to mean Dr. Waine was cleared to be nominated. Then the emails I have adverted to earlier were exchanged.

26. On Friday, 11 May 2007, the Electoral Commissioner advised John Elle that the nomination of Dr. Waine was not proper and that he (Electoral Commissioner) had been misunderstood on this issue. The Electoral Commissioner then directed a redraw of the candidate’s nomination. Subsequently, the plaintiffs name was removed from the draw.

27. The nomination paper or Form 23 needs to be referred to because in my view, it contains significant information which supports the arguments raised by the defendants. Form 23 starts off with the title, "NOMINATION OF CANDIDATE FOR ELECTION AS MEMBER OF NATIONAL PARLIAMENT." It is addressed to the four authorised officers described in s.86 (1) Organic Law and s.46 (1) Regulation 2007. The form continues as follows:

"I hereby nominate as a candidate......
Name:	Dr. Clement Waine (PhD)
Place of Nomination:	Kundiawa
Occupation:	Research Scientist

1.	I am ..............
2.	I have .............
3.	I have ...............
4.	I am ..............
5.	And I declare that I am ..................
6.	I declare that I am...............
7.	I submit ................
8.	I am .....................
9.	I have ...................

29. Then there is a space for the candidate’s signature and his name followed by the date and the witnesses’ signature, name etc. At the bottom of the form is the declaration by the Returning Officer or any of the three authorised officers who receive the nomination. There is a space for his name, a space for the place received, and a space for the date received. The Court notes that the endorsement part is blank and that is consistent with the evidence of John Elle that he refused to accept the plaintiff’s nomination by not endorsing the nomination form because the plaintiff did not personally nominate.

30. The affidavits filed by the plaintiff and his witnesses are basically the same in material facts. I do not think the defendants dispute these except that there are some significant variances which I will revert to later. In essence, all the affidavits filed by the plaintiff are substantially the same as most of the agreed facts that have been alluded to earlier.

31. I now turn to the submissions of the plaintiff’s counsel. I reiterate that instead of the plaintiff’s counsel addressing the Court on the threshold issue raised at the beginning of his submissions, counsel had sidestepped that issue and jumped to the issue of the acceptance of the plaintiff’s nomination. But that submission is not supported by any credible evidence that the Returning Officer had validly accepted the plaintiff’s nomination on 10 May, 2007.

32. Instead counsel went to great lengths in submitting that the faxed copy of the nomination was delivered to the Returning Officer who "accepted" the nomination. That is erroneous because John Elle has deposed to the fact that he refused to accept the nomination despite threats and intimidation by the plaintiff’s supporters. John Elle’s evidence is undisputed. He refused to accept the plaintiff’s nomination because it was not made in accordance with the Organic Law. That is further demonstrated by his refusal to endorse the bottom of page 3 of Form 23 which required the endorsement of the Provincial Returning Officer. How can it be said that the Returning Officer "accepted" the plaintiff’s nomination when the Returning Officer has sworn an affidavit to the effect that he refused the plaintiffs nomination? The defendant’s evidence directly contradicts the plaintiff’s submission that the Returning Officer had "accepted" the plaintiff’s nomination.

33. The Court needs to ask, where did the plaintiff nominate, and to whom? The evidence is undisputed. The plaintiff was in the United States. He did not nominate in person. Instead he had consented to his brother finalising his nomination. What provision of the Organic Law allows for that? Counsel has failed to refer to specific provisions of the Organic Law which permit a person to nominate on behalf of an intending candidate, in this case, Dr. Arnold Waine nominated on behalf of the plaintiff. The plaintiff did not nominate in Port Moresby at the Electoral Commission Office. That was a lie by the plaintiff’s supporters in Kundiawa. He did not nominate to any of the duly authorised officers in s.86(1) Organic Law and s.46(1) Regulation 2007. Furthermore, the plaintiff did not nominate at any of the places specifically stated in s.91 Organic Law.

34. Counsel for the plaintiff strongly argued that there is no provision on the Organic Law which states that a candidate must be physically present to nominate. But by the same token, he has neither pointed the Court to any provision in the Organic Law which allows a person to nominate and lodge Form 23 on behalf of an intending candidate, nor has he cited any Supreme Court cases to support his proposition. It is not difficult to see why the proposition by the plaintiff has no basis in law.

35. First, the Electoral Commission has been conducting General Elections on the premise that every intending candidate for past elections has nominated in person. The Court can take note of nominations in the country in past elections and including the present 2007 Elections as a huge fanfare where intending candidates are escorted by scores of people cladded in traditional regalia and joined in convoy of trucks and buses to usher the intending candidate to formally nominate personally.

36. Secondly, the nomination paper or Form 23 is a very important form. It is by law, a prescribed form (s.85). Most of the requirements in the form itself are matters that require the personal selection by the intending candidate. As I have alluded to, the form contains various criteria which the candidate himself/herself must select. The numerated paragraphs in the form itself has the following:-

1.	I am ...............
2.	I have ..............
3.	I have ..............
4.	I am ................
5.	And declare that ...............etc etc

37. These are criteria that the candidate himself must prefer, not a relative or a third party. In the present case, it is the plaintiff who should have selected these criteria in the form because each of these criteria relates and refers to him, not another person.

38. The fact that Dr. Arnold Waine, the plaintiff’s brother, had gone ahead and ticked all those criteria did not, as a matter of fact, mean that the plaintiff personally selected them in the nomination form. As a matter of law, there is no provision in the Organic Law that permits a candidate to do what the plaintiff did in this case. Therefore both in fact, and in law, the plaintiff did not personally nominate for the Simbu Regional Seat on 10 May 2007. I find as a fact, that he did not nominate and that is undisputed.

39. The plaintiff’s counsel’s submission that the Organic Law does not require a candidate to be physically present to nominate is a misconception. It is unmeritorious and preposterous. It has no merits. There are good reasons why an intending candidate must nominate personally.

40. It is my considered opinion that under the Organic Law, the Provincial Returning Officer or Returning Officer has the primary responsibility for the conduct or deposition of all intending candidates nominating for election to Parliament. Nomination is a necessary legal step of the whole democratic process of election. It must therefore be carried out properly and in a manner that the commencement of the election process, especially the integrity of nomination, is not corrupted and manipulated by people who are not candidates for election.

41. In my view, the Provincial Returning Officer’s or Returning Officer’s responsibility to ensure a valid and proper nomination is a constitutional responsibility which must ensure that the integrity of the process of election is safeguarded. If the Provincial Returning Officer or Returning Officer fails to discharge that responsibility, there can be no valid nomination. His responsibility includes endorsing all nomination forms where his signature, name, and the date he signs is required at the end of the form itself. In the present case, the Provincial Returning Officer, John Elle, refused to endorse the nomination form therefore the plaintiff’s nomination was not accepted.

42. Mr. Manda referred to Billy Jababa v. Iambakey Okuk [1983] PNRLR 69 in support of his submissions that the Returning Officer had "accepted the plaintiff’s faxed nomination payment delivered to him before the hour of nomination." The Supreme Court said:

"The whole purpose of a nomination procedure in our electoral system is to prevent a plethora of candidates presenting themselves as candidates for election to office..............."

43. If the plaintiff had intended to contest the 2007 National Elections, he could have travelled to Papua New Guinea, say, a month before the issue of writs and commencement of nomination so that he could fulfil his intention to stand for public elective office. Having contemplated this issue in 1994, and finally decided in 2005 to contest the 2007 Elections, why did he not return to Papua New Guinea well in advance to prepare himself for the election starting with nomination? Was he serious, and if so, why was he not in the country before the nomination process? In my view, what the Supreme Court said in the above case, is to prevent this kind of situation. The plaintiff’s counsel has extensively quoted s.88 and s.89 Organic Law to support his client’s contention that the consent by the plaintiff to his brother to nominate on his behalf is what s.88 envisages. Sections 88 and 89 provide:

The consent and the declaration of qualifications referred to in Section 87(1)(a) shall be sufficient if the candidate signs the form of consent and declaration in the nomination paper, but the Returning Officer receiving the nomination, or the electronic advice of the nomination, as the case may be, may accept any other form of consent and declaration, whether accompanying the nomination paper or not, that he considers satisfactory, and that acceptance is final.

No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nomination, or the electronic advice of it, as the case may be, is satisfied that the provisions of this Law have been substantially complied with.

44. It is my view that the plaintiff’s counsel has misconceived the correct meaning of s.88. Reference to "other form of consent and declaration" in that provision does not refer to the nomination form itself because the other form of consent and declaration need to accompany the nomination paper. In other words, those are separate documents to the nomination form. There is no evidence at all that any other kind of consent and declaration were lodged with the nomination form (Form 23). Therefore, I do not see how the plaintiff can import reliance on s.88.
Similarly, s.89 does not assist the plaintiff either because the basis of the Provincial Returning Officer refusing to accept the plaintiff’s nomination was not because of any default or error in the nomination itself. The basis for refusal to accept the plaintiff’s nomination was that the plaintiff was not physically present to nominate. In my view, the plaintiff’s presence or non-presence does not constitute a formal default or error.

45. I consider that the Provincial Returning Officer’s inclusion of the plaintiff’s name on the nominated candidates draw was based on an erroneous assumption as the evidence from both his affidavit and that of the Electoral Commissioner filed on 21 June 2007 deposed to. In any event, it is my view that the email from the Electoral Commissioner to John Elle clarifies the whole issue of nomination of the plaintiff. The Provincial Returning Officer is subject to the directions of the Electoral Commissioner. The conduct of elections is at the sole discretion of the Electoral Commissioner who has made a decision in this case. Can this Court intervene in that decision?

46. Mr. William, counsel for the defendants, submitted that the plaintiff’s nomination was not proper before the Returning Officer because of the combined effects of s.83, s.85, s.87, s.89 and s.91 Organic Law, which requires a candidate to be physically present to nominate before the Returning Officer, Provincial Returning Officer, Assistant Returning Officer, or a person authorized by the Electoral Commissioner.

47. Counsel also submitted that the plaintiff’s nomination was not made to the Returning Officer as the plaintiff was not present to do that. A faxed copy of the nomination form can only be made under s.86 (3). In the present case, the plaintiff was not present in person to nominate, he did not comply with the law therefore this matter should be dismissed on this basis.

48. The plaintiff’s counsel’s next submission is based on whether the defendants could in law, remove a candidate declared by the Returning Officer under s.93 Organic Law, from the list of candidates after the close of nomination. The plaintiff maintained the argument that his nomination was accepted and drawn in Count 5 in the candidates draw therefore the proceedings should have adjourned to the date of commencement of polling pursuant to s.96 (2) Organic Law.

49. That submission puts the cart before the horse. In order for a candidate’s name to be drawn and issued with a ballot number, he must first be validly nominated. I have already referred to the defendant’s evidence on how the plaintiff’s nomination was done and delivered to the Provincial Returning Officer in Kundiawa. In view of that evidence which is largely uncontested, I consider that the inclusion of the plaintiff’s name in the draw was based on first, the threats, intimidation and harassment by the plaintiffs supporters, and secondly, on a misconceived and misunderstood telephone message from the Electoral Commissioner. The evidence which I accept is that the Electoral Commissioner never instructed, John Elle to accept the plaintiff’s nomination in the manner it was done. The adjournment of proceedings to the polling period which the plaintiff’s counsel submitted is subject to the provision of the Organic Law under s.96 (2). The fact is that the plaintiff’s name had already been removed then, therefore the final list of candidates who had lawfully nominated was the list that would have adjourned to the polling period.

50. However that argument disregards the fact that the Provincial Returning Officer in this case is subject to the directions of the Electoral Commission by virtue of s.19 (1) Organic Law. Pursuant to s.5 (2), the Electoral Commission consists of the Electoral Commissioner. Therefore by law, the Returning Officer is not above the Electoral Commissioner but is subservient to the Electoral Commissioner and subject to his directions. In the present case, the Electoral Commissioner had directed that the plaintiff’s name be removed as a candidate. In my view, that is the end of the matter.

51. Mr. Manda had cited a South African case, Immelman v. Sutherland Municipal Election (Returning Officer) [1921] CPD 1 (SAP), however I do not consider it relevant in this jurisdiction because it is not binding in our jurisdiction. To accept the plaintiff’s submission that the faxed nomination is valid for purposes of nomination under the Organic Law is quite mischievous. There is no provision for a nomination to be done by facsimile transmission. The only reference to "electronic advice" is found in s.86 (3) and s.87 (1)(a) Organic Law. The only circumstance in which electronic advice is permitted is where a nomination is made to an Assistant Returning Officer or other persons referred to in s.86 (1) and that officer needs to notify the Retuning Officer for that electorate where the nomination relates to.

52. Those provisions of the Organic Law do not permit nominations by facsimile or other electronic means, therefore there can be no legal or constitutional basis for the plaintiff’s submission that he had nominated by electronic means thus his nomination was valid. It follows that the South African case relied on is not a binding precedent pursuant to Schedule 2.2 Constitution.

53. Furthermore, Mr. Manda cited and referred to the English Practice at Parliamentary or European Parliamentary Election in Volume 15 of Halsburys Laws. I consider that the procedures there are not applicable to Papua New Guinea simply because the Organic Law on National Elections regulates the election process in this country, not the English or European Parliamentary practices or elections on nominations. This Court therefore does not need to consult Halsburys Laws of England.

54. Counsel submitted that s.88 and s.89 Organic Law allow flexibility of nomination. Once again I find no merit in that submission. The consent and declaration of qualification required in s.87 (1)(a) Organic Law were not signed by the plaintiff. The Returning Officer has a discretion to accept any other form of consent and declaration that accompany the nomination. The plaintiff’s counsel is misinterpreting this provision in submitting that the consent signed by the plaintiff’s brother is the actual nomination form itself.

55. I do not accept that as the correct interpretation of s.87 (1)(a). That provision means that in order for a candidate’s nomination to be valid, he must do two things. First, he must consent to act as a member if elected, and secondly, he must declare that he is qualified by law to be elected. The actual consent and declaration are in the nomination form or Form 23 itself which he must sign. But a Returning Officer who is receiving the nomination form has a discretion to accept any other form of consent and declaration that are lodged with the nomination form. Clearly, in my view, this provision does not allow flexibility in nomination, but a discretionary power is vested in the Returning Officer.

56. Alternatively, the plaintiff’s counsel submitted that the defendants are estopped from removing the plaintiffs name from the nominated candidates draw because the defendants knew that the plaintiff was in USA; his request to nominate by electronic means were not properly considered; and further that the defendant should have obtained proper legal advices on the flexibility of nomination under s.88 and s.89. As I have held earlier, there is no basis for this contention because those provisions do not provide for flexibility of nomination.

57. Citing the judgment of my learned brother Sakora, AJ in William Dihm v. Returning Officer of Moresby South Electorate & Anor [1992] PNGLR 377, the plaintiff’s counsel submitted that this Court should adopt the same approach in the case where the Court had allowed the plaintiff in that case to exercise his right under s.50 (1)(d) Constitution to nominate even though the Electoral Commission had not assisted the plaintiff to nominate within the period of nomination.

58. However, there are valid reasons why this Court is unable to follow that case. First, a National Court decision is not binding on another National Court unless it is of persuasive value. Secondly, the facts of that case are not the same as the facts of the present case therefore what the Court decided on that case cannot apply in the present case. Thirdly, the issue of constitutional right to elective public office is quite often misconceived by many litigants and their legal advisors. The right to stand for elective public office is not an absolute right under s.50 Constitution. Sub-section 2 stipulates that the exercise of the rights in ss (1) may be regulated by a law. The right to stand for public office is therefore qualified by the law called the Organic Law on National and Local-Level Government Elections. Accordingly, I hold that the right to stand for public office is a qualified right, not an absolute right.

59. In the present case, the plaintiff’s right to stand for public office is qualified as it is regulated by the Organic Law. He must follow the requirements of due process of nomination, and be elected before he occupies a public office.

60. Finally, Bill Dihm’s case was determined in 1992 prior to two important decisions of the Supreme Court in The Electoral Commission & Ors v. Pila Niningi (2003), unreported, SC 710, 20th June 2003 (Kapi, CJ, Salika, Gavara-Nanu, JJ) and Oscar Pomaleu & Ors v. William Skate Jr (2006), unreported, SC 838, 21st July 2006 (Kapi, CJ, Injia, DCJ, Salika, J). I will revert to those Supreme Court decisions later in the judgment. In placing reliance on Dihm’s case, the plaintiff’s counsel submitted that the defendants could not in law remove the plaintiff from the list of nominated candidates for the Simbu Provincial Seat.

61. The final submission of the plaintiff is in respect of the third issue he raised which relates to his contention that his constitutional right under s.50 (1)(d) Constitution to stand for elective public office had been breached.

62. I reiterate that the right to stand for public office is not an absolute right, but a qualified right. The Organic Law on National Elections regulates that right. I do not accept the plaintiff’s submission that his right to stand for public office has been denied or breached by the defendants. His right is regulated by the Organic Law. He must first comply with the nomination process in the Organic Law in order to be elected to public office in order to claim the right to public office. As I have found, his nomination was invalid and therefore the Electoral Commission directed the removal of his name as a candidate.

63. Under such circumstances, the plaintiff cannot maintain that his right to stand for public office has been denied. He had all the time in the world to come to Papua New Guinea and nominate in accordance with the Organic Law, however he saw fit to remain in USA and expect that his nomination by his brother would be sufficient and valid. I find this quite plausible, and for a person who professes to be proficient in the field of scientific research with a PhD in a world reknown corporation in the United States, his actions could not be said to be consistent with his evidence that he had since 2005 decided to contest the 2007 National Elections therefore established the Stars Alliance Party as the vehicle to achieve his intention to represent his people in the Simbu Regional Seat.

64. The right to stand for elective public office was canvassed in William Dihm’s case (supra) by referring to the judgment of Kapi, DCJ (as he then was) in Re Organic Law on National Elections [1982] PNGLR 289 and Re The New Ireland Provincial Constitution [1984] PNGLR 81.

65. In Re Organic Law on National Elections (supra), the Court said at 290 - 291

"However, such a right to public elective office may be regulated or restricted by a law under s.50 (2) of the Constitution. The Organic Law on National Elections, pursuant to this Constitutional provision, has restricted or regulated this right to the extent that ss 82 to 96 (inclusive) of the Organic Law on National Elections require that nominations be made in order to be eligible to be elected to elective public office. One of the requirements by the Organic Law is that nominations must be given after the writ is issued and before the hour of nomination (s.86 (d) of the Organic Law). It would appear from this that a person’s right to elective office may only be exercised during this period."

66. In William Dihm (supra) the observation of Sakora, AJ at p384 was stated as follows:

"In the New Ireland Provincial Constitution case, it was held that a law relating to the exercise of rights to vote and stand for public office may, pursuant to s.50 (2) Constitution, regulate the rights but not prohibit them. And in the present context, the rights are regulated by the OLNE and, in respect particularly of valid nominations, the regulatory provisions are found in Part X1 ss 82 – 92 inclusive."

67. I have already commented on this issue, nevertheless let me restate the current position in law. The right to stand for public office to the National Parliament is regulated by the Organic Law on National Elections. It is therefore a qualified right. The above case sufficiently states the legal position succinctly. In order to qualify for that right, a valid nomination is a prerequisite to election to public office. Without a valid nomination, a person cannot claim the right to stand for public office, particularly in an election to Parliament.

68. The Court has briefly alluded to the submissions of the defendant’s counsel, Mr. William. In summary, his submissions are that the plaintiff’s nomination form was not properly before the Returning Officer; the plaintiff did not nominate to the Returning Officer at his proper office; the plaintiff was not present to nominate to the Returning Officer; the faxed nomination form was not faxed by any of the approved persons and a copy of the nomination could only be faxed under s.86 (3); the signature on the nomination form was not the plaintiff’s signature; the plaintiff did not personally consent to, or declare to what was required of him in the nomination form; the plaintiff was outside the country therefore he was not physically present before the Returning Officer to nominate, and the removal of the plaintiff’s name was not because he was not qualified, but because he never nominated at all. Counsel therefore submitted that in the words of s.87, that there was no "valid" nomination.

69. It is not necessary to canvass the facts as they are pertinent here and they have already been stated. One pertinent fact is that the plaintiff was in the United States and did not personally nominate. I therefore find that there was no valid nomination because he did not sign the nomination form, and did not sign the consent and declaration in the nomination form itself.

70. From the primary facts which are not in dispute, I find that the plaintiff was not present physically in Kundiawa to personally nominate to the Provincial Returning Officer for the Simbu Regional Seat. His consent to his brother to formalise nomination on his behalf did not satisfy the requirements of nomination in the Organic Law, especially s.82 – s.92. Despite the fact that counsel for the plaintiff had submitted that the plaintiff had nominated in Kundiawa, that is an error of fact because the plaintiff was in USA therefore did not nominate in Kundiawa.

71. The various criteria or requirements in the nomination form which requires the plaintiff’s personal choice or selection to be indicated by ticks in the appropriate boxes in the nomination form were not made by him. The declaration required in numerated paragraphs 5 and 6 of the nomination form were matters that required his personal attention.

72. Because the plaintiff was not physically present, he did not personally make those declarations. Furthermore, he did not personally consent to act as required in paragraph 6. And further still, he did not sign or endorse the nomination form above the words, ‘candidate’s signature’ at page 3 of the nomination form.

73. Last, but not the least, the Provincial Returning Officer, John Elle, had refused to accept the plaintiff’s nomination, and his refusal is demonstrated by the non-completion of the nomination form under, ‘RECEIPT BY THE RETURNING OFFICER’ appearing at the end of the nomination form on page 3.

74. The combined effect of all these failures or non-compliance with the requirements of nomination is that there was no valid nomination of the plaintiff, and therefore the Electoral Commissioner, by virtue of his powers under s.15 and s.19 Organic Law, had directed that the plaintiff’s nomination be removed. It is my humble opinion that the Electoral Commissioner had the constitutional power to issue that directive.

75. Even if I am considered wrong in my findings and conclusions, the next two issues are whether the National Court has the power to intervene in the election process and whether the National Court has jurisdiction to grant the relief sought by the plaintiff in his originating summons. These are issues which I raised a number of times during the plaintiff’s counsel’s submissions.

76. To determine this question, I revert to the two Supreme Court decisions I cited earlier on because the answers are well clarified in those judgments.

"Where power is expressly given to the Electoral Commission and its officers, the Courts should not interfere in the election process."

78. In the first case, The Electoral Commission & Ors v. Pila Niningi (supra) the appeal relates to the order of the National Court which extended polling period in the Supplementary Elections of the Imbonggu Open Electorate in Southern Highlands Province.

"Where power is expressly given for the Electoral Commission and its officials, the Courts should not interfere in the election process."

80. The Supreme Court referred to a decision of the National Court constituted by Woods, J, in Thomas Niggints v. The Electoral Commission (1992), unreported, N1072, 24th June 1992, and I cite what the Supreme Court, at p.10 cited from that judgment:

"The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the elections however, it does provide the Electoral Commission with fairly wide powers and discretion to act....

The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration.

...... a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner."

81. At page 11 of the Supreme Court judgment in Pila Niningi (supra), the Court referred to the decision of the Supreme Court in Special Reference Pursuant to Section 19; Reference by the Attorney General (2002), unreported, SC 689, 26th July 2002; (Amet CJ, Kapi DCJ, Sheehan, Sakora, Sevua, JJ); in which the Court considered the Electoral Commission’s power under s.97 Organic Law (Failure of Election). The Court held at page 8 that:

"The authority to organise and conduct elections is given to the Electoral Commission. The National Court is given jurisdiction to enquire into and determine the validity of such elections.

The Constitution and the Organic Law sets out how and when elections shall be held, giving time periods and the limits for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writs of election."

82. At page 12 of the judgment in Pila Niningi; after the Court had cited Thomas Niggints and Special Reference by the Attorney General, the Court said:

"We consider that these two cases accurately set out the proper approach in law in respect of the jurisdiction of the National Court in election matters. In respect of polling schedules, the relevant provisions we have set out earlier gives the discretion to extend polling schedules to the Electoral Commission. These provisions do not give any jurisdiction to the National Court."

83. Whilst the issues in those cases are not the same as the issues in the present case, I am of the opinion that the principles of law established by those cases are applicable to the present case. They are binding on this Court. I consider that the Supreme Court has spoken in those cases. The principles of law pronounced in those cases are very clear. The National Court cannot exercise any power or jurisdiction in the present case because it has no power or jurisdiction to exercise. The National Court cannot intervene or interfere with the exercise of discretion vested in the Electoral Commissioner by the Organic law. To intervene with that discretion in the present case, would be to contradict the statement of the law pronounced by the Supreme Court in the cases I have referred to.

84. It is my view therefore that this Court has no jurisdiction to intervene in the lawful exercise of the discretion of the Electoral Commissioner under the Organic Law. He has made a decision to remove the plaintiff’s name from the list of nominated candidates for the Simbu Provincial Seat. I consider that that is a decision he was entitled to make pursuant to s.15 and s.19 (1) Organic Law. This Court therefore cannot usurp his power under the Organic Law. The Organic Law is a law enacted in accordance with s.126 of the Constitution. The primary responsibility for conducting elections is given to the Electoral Commission. The Electoral Commission consists of the Electoral Commissioner by virtue of s.5 (2) Organic Law.

85. I reiterate that the commencement of elections from the issue of writs and nomination to declaration of elected candidates and return of writs, is the sole responsibility of the Electoral Commission as a matter of constitutional Law. This Court should not and ought not to interfere with the Electoral Commissioner’s function. As has been said, the jurisdiction of the National Court is invoked if a return is challenged by way of an election petition under s.4 and s.206 Organic Law. The National Court has jurisdictions when the validity of an election is questioned. Apart from that jurisdiction, the National Court should not interfere with the election process in the present case of the plaintiff’s purported nomination in the Simbu Regional Seat.

86. I repeat that the Electoral Commission has very wide powers in dealing with problems that arise in the election process. In the present case, I consider that the 2007 election process commenced when writs were issued on 4 May, 2007 and intending candidates nationwide began nominating for various seats. It would be dangerous if the Court steps in and overrule the exercise of discretionary powers vested in the Electoral Commission.

87. On the basis of the Supreme Court decisions in the above cases, it is my opinion that this Court has no jurisdiction to intervene in the present case. The Electoral Commissioner’s decision to exclude the plaintiff from the list of candidates for the Simbu Regional Seat is a discretion vested in the Electoral Commissioner alone. The Court therefore should not interfere with that decision, contrary to what many people have perceived.

88. In my view, it is a misconception for people to think that the National Court can intervene or interfere with the exercise of the Electoral Commissioner’s discretion in the election process. The Supreme Court has made it quite clear that the National Court has no jurisdiction, therefore it should not interfere in the election process.

89. Finally, the issue of the mode of bringing this proceeding to Court has been raised by this Court. The defendants have also questioned the plaintiff’s mode of bringing this proceeding. They said the plaintiff should have come to Court by way of an application for judicial review, and should have obtained leave first. They rely on Oscar Pomaleu’s case (supra). The issue here is the abuse of process of the Court.

90. However, the plaintiff argued that he has a choice of proceedings. He could come by ordinary summons, or by way of an application for leave for judicial review. I have been referred to the Supreme Court decision in NEC & Luke Lucas v. Public Employees Association of PNG [1993] PNGLR 264 where the Court held that:

"A litigant has a choice of seeking a declaratory order by way of originating summons under Order 4 or by way of judicial review under Order 16."

91. I think there is some degree of misunderstanding here in so far as the abuse of process issue in what mode of proceedings to apply is concerned. In William Skate Jr (supra) the plaintiff had sought an order in the nature of mandamus, which is a prerogative writ, however he did not apply for leave under Order 16 National Court Rules. In his amended originating summons, he did apply for leave to be granted to file a statement of claim and statement in support. The Supreme Court said this was an indication that the plaintiff intended to apply for leave for judicial review, however that course was not pursued at the hearing of the amended originating summons, and the plaintiff sought substantive orders in his amending originating summons without leave of the Court.

92. The Court held that this was clearly an abuse of the process of the Court. At page 10 of the judgment (William Skate Jr), the Court said the following:

"The law is now well established in this jurisdiction for an exclusive procedure for obtaining a prerogative writ and failure to obtain leave is an abuse of the process of the Court."

93. In my view, there is a clear distinction that needs to be made in the present case, and in William Skate Jr’s case. In the present case, the plaintiff did not claim mandamus although he did claim declaratory orders in his originating summons. He did not claim leave for judicial review. While a declaratory order is also a prerogative writ, Order 16 Rule 1 (2) National Court Rules provides that an application for a declaration or an injunction ‘may’ be made by way of an application for judicial review.

94. The plaintiff in the present proceedings is not seeking a judicial review. He is not asking for leave for judicial review. What he is asking for are declaratory orders and a restraining order. He has not sought leave for judicial review. The originating process he filed is not an application for judicial review, but an ordinary originating summons.

95. It is the opinion of this Court that the plaintiff is entitled to choose the mode of proceedings he desires. The five men bench of the Supreme Court in National Executive Council and Luke Lucas (supra) held that a litigant has a choice of proceedings. It is a five men bench decision and I am bound by it. The situation in the present case compared to William Skate Jr’s case, in so far as the mode of proceedings is concerned, is quite different. The plaintiff in the present case is neither asking for leave nor claiming an order in the nature of mandamus. Accordingly, I find that this is not an abuse of the process of the Court.

96. Having determined that issue, let me return to the substantive relief that the plaintiff is claiming in his originating summons and summarise this decision.

97. The order in the nature of a declaration which the plaintiff seeks to declare that he has a right to stand for elective public office under s.50 (1)(d) Constitution and where he seeks to enforce, in my view, is not necessary. I have already canvassed this issue in my judgment. Whilst the plaintiff has the right to stand for public office just like any other person, that right is regulated by the Organic Law on National Elections. His right to stand for public office is subject to his compliance with the provisions of the Organic Law on National Elections in relation to nomination and election.

98. I do not consider that the plaintiff can succeed in claiming that declaration because his nomination was flawed from the beginning. It was a white wash from the start. He did not comply with the requirements for nomination therefore he cannot claim that his right to stand for public office has been breached or denied by the Electoral Commission. That claim is dismissed.

99. Secondly, the plaintiff sought a declaratory order that the defendant’s action in removing him as a candidate offended s.88, s.89 and s.93 Organic Law therefore amounted to a breach of his constitutional right to stand for public office. Again this provision has been discussed earlier on. The plaintiff did not comply with the nomination process in s.85, s.86, s.87 and s.91 Organic Law therefore his purported nomination was invalid from the start. He did not nominate in accordance with the provisions of the Organic Law that he had cited. The Electoral Commission therefore removed him as a candidate for the Simbu Provincial Seat. His right to stand for public elective office is regulated by the Organic Law. He failed to follow the procedures for nomination in the Organic Law and therefore his nomination was invalid. It is therefore my view that the Electoral Commission did not breach the plaintiff’s right to stand for public office. That relief is also refused.

100. Thirdly, the plaintiff claims an order that the defendants are estopped from refusing to accept his nomination after the close of nomination for reasons of s.87, s.88 and s.93 Organic Law. The plaintiff proceeded on the basis that he had already nominated to contest the Simbu Provincial Seat. However, as I have found, his nomination was invalid for the reasons I have already alluded to. The evidence of the defendants is that the Provincial Returning Officer, John Elle, refused to accept the plaintiff’s nomination because the plaintiff did not nominate in person, and he was not present physically to nominate to the Returning Officer. That refusal was demonstrated by the fact that the Provincial Returning Officer refused to endorse Form 23.

101. Again the plaintiff premised this claim on the basis that he had been validly nominated. However, he did not follow the procedures for nomination in the Organic Law. He cannot claim that s.87 and s.88 were complied with therefore he was duly nominated under s.93. The defendants cannot be estopped from refusing the plaintiff’s nomination because it had been refused from the start. I have already provided the reasons based on the defendant’s evidence as to why the Provincial Returning Officer had refused to accept the plaintiff’s nomination. Accordingly, an order for estoppel is also refused.

102. Fourthly, the plaintiff sought an order that he be declared duly nominated for the Simbu Provincial Seat on 10 May 2007. The Court has already stated the reasons for holding that the plaintiff was not nominated in accordance with law. However, in essence, it can be reiterated that he was in USA on 10 May, 2007 therefore he did not nominate. He did not sign the consent and did not make the declarations in the nomination form (Form 23) therefore he did not nominate. This order is refused for those reasons.

103. Fifthly, the plaintiff claims an injunction to restrain the defendants or their servants or agents from conducting the election for the Simbu Regional Seat until the plaintiff is restored as a nominated candidate. The removal of the plaintiff’s name as a candidate was done in the exercise of the Electoral Commissioners discretion therefore the National Court has no jurisdiction to intervene. This claim is also refused for it has no basis in law.

104. Finally, the plaintiff claims costs on an indemnity basis. The facts and the evidence are clear. The plaintiff was in the United States and he did not nominate. That Organic Law does not provide for nomination in the manner the plaintiff had purportedly nominated. Therefore as the Court had found, he did not nominate according to law. That is the basis for the Electoral Commissioner’s decision to the Provincial Returning Officer for the removal of the plaintiff’s name as a candidate for the Simbu Provincial Seat. Under such circumstances, he is not entitled to costs on a solicitor/client basis. That order is refused as well.

105. It is the judgment of the Court that for all the reasons that have been stated, the plaintiff’s claim in the entire proceeding should be dismissed as having no merit and I so order. Costs shall follow the event.

Greg Manda Lawyers: Lawyer for Plaintiff
Nonggorr & Associates: Lawyer for the Defendants

National Court of Papua New Guinea

Waine v Electoral Commissioner [2007] PGNC 35; N3132 (29 June 2007)