10
may have already been so great, namely the numbers of votes destroyed but
nevertheless the Judge in the case refused the application and said that the onus of
proving that there had not been a free election had not been discharged because
certain information had not been presented. But by saying that all the information
so needed would be available after the counting of votes suggested therefore that
that it is not till after the counting that you can present all the evidence required.
And of course at that stage you are in the area of the Petition under s 206."
As we have indicated before, this is the correct conclusion of law where legitimate grounds
for invalidating an election are raised during the election process.
However, in respect of polling schedules, s 117 is significant. It clearly states that whether or
not there is a failure to observe a polling schedule or non compliance with s 114 of the
Organic Law or variation or departure from a polling schedule, any such failure can never be
a ground for invalidating an election. Whilst we agree that this provision is to be read within
the context of an election petition, this provision does not give the National Court any
jurisdiction to extend polling period before the result of an election is returned. This power as
we have already pointed out is given to the Electoral Commission under the Organic Law.
The question is whether, any other provision of the law gives the National Court power to
extend a polling period? The Respondent relies on s 155 (4) of the Constitution. He submits
that his application seeks to enforce constitutional rights of people to vote as guaranteed by s
50 (1) of the Constitution and they may enforce them under s 155 (4) of the Constitution. We
understand that the Respondent relies on the last part of the provision which provides:
"…and such other orders as are necessary to do justice in the circumstances of a
particular case"
For this proposition he relies on Application by Imoning [1992] PNGLR 119 and Supreme
Court decision in the same matter see [1992] PNGLR 122. We find that this case does not
deal with s 155 (4). This was an application made under s 57 (1) of the Constitution. The
case was not related to extension of polling period. The case involved the effect of the death
of a candidate on the right to vote. The issue was whether the amendment to s 96 (2) of the
then Organic Law on the National Elections was inconsistent with the right to vote under s
50 of the Constitution?
The matter went on review to the Supreme Court under s 155 (2) (b) of the Constitution. The
case has nothing to do with s 155 (4) or with extension of polling schedule. It does not
support the proposition relied upon by the Respondent.
Woods J made reference to s 155 (4) in Negints v The Electoral Commission (supra). We
referred to this passage earlier. We set it out again in the present context:
"The Electoral Commissioner therefore has fairly wide powers for dealing with
problems. This is an area of Executive Government and Administration. The
National Court of course has wide powers to make such orders as a re deemed
necessary see s. 155 (4) of the Constitution but that does not mean that it should
exercise such powers too freely. The Electoral Commissioner is the expert in the
running of elections, he is the person with responsibility to ensure elections are run
properly, a Court should be very careful before it steps in to overrule the discretion