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2 Reference by Attorney-General for the Independent State of Papua New Guinea (Unreported and unnumbered Judgement of the Supreme Court dated 26th July 2002) Malapu v. The Electoral Commission [1987] PNGLR 128 Legislation cited: Constitution Supreme Court Act Organic Law on National and Local Level Government Elections Counsel: J. Nonggor for the First, Second & Third Appellants J Kwimb for the Fourth Appellant Respondent in Person 20th June 2003 BY THE COURT: This is an appeal against a decision of the National Court (Los J) dated 15th May 2003 sitting in Mt Hagen in which the Court directed the extension of polling for one day in Nangop 1 Village, Nangop 2 Village, Nangop 3 Village, Piambil 1 Village, Piambil 2 Village, and Tukupungi Village in the Supplementary Elections for the Imbongu Open Electorate. The background to this appeal may be summarized as follows. After the General Elections in July 2002, the Head of State upon advice of the Electoral Commission declared the elections in six Southern Highlands Electorates including the Imbongu Open Electorate have failed under s 97 of the Constitution. As a consequence, new writs were issued for Supplementary Elections for the six Electorates on 4th April 2003 with nominations to commence on 11th April 2003 and polling to commence on 3rd May 2003. The return of the writs was scheduled for 27th May 2003. Pila Niningi (Respondent) nominated as a candidate for the Imbongu Open Electorate. The polling for the Electorate was originally scheduled for 7th May 2003. Due to weather conditions, the polling was rescheduled to 8th May 2003 and the polling took place on that date. The scrutiny for Imbongu Open Electorate commenced on 10th May 2003. On 11th May 2003, the Respondent filed an originating summons (OS 233 of 2003) in the National Court in Mt Hagen seeking orders for polling to continue for one day in the six polling places referred to above. The Respondent obtained an interim order on the same day stopping the scrutiny of votes for the Electorate pending the determination of issues raised in the originating summons. The originating summons was heard on 15th May and the National Court ordered that polling should continue for one day in the six polling places referred to above. It was directed that this voting should take place within seven days of the order. On 16th May 2003, Peter Peipul, another candidate contesting the Imbongu Open Electorate, filed an appeal to the Supreme Court against the decision of the National Court (SCA 41 of

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Electoral Commission v. Rawali

Judgment

Question Presented: Whether the postponement of the polling day due to inclement weather violated sec. 97, 115, 117, and 206 of Organic Law.

Alleged Acts: The Head of State declared the election in six Southern Highland Electorates failed under section 97 of the Constitution. New nominations were to commence on April 11, 2003 with polling on May 3, 2003. The respondent in this case was a candidate for the Imbongu Open Electorate where the polling was intended to take place on May 7, 2003. However, due to weather the polling took place the following day. On May 10th the scrutiny commenced and on the 11th the respondent filed a summons seeking an extension of voting for one day.

Procedural history: The National Court heard the summons and extending voting for one day in the six polling places. That polling day was to commence within seven days of the final order. Although the polling took place on May 17, 2003, the Returning Officer did not make a declaration due to advice from the Acting Electoral Commissioner regarding the status of an ongoing appeal. After the appeal was discontinued, the Returning Officer declared a winner. On May 23, 2003 the Electoral Commission filed this appeal of the case.

Summary: The court relied on precedent that stated when express authority is given to the Election Commission and its officials through the electoral code, the court should not interfere outside of that power. Further, the right to extend polling schedules is plainly given to the Election Commission authorities, but the courts may intervene to determine the validity of elections.

Conclusion: The court determined that the lower court erred in granting an extension in polling because the power was explicitly granted to the Election Commission. Thus, the court ordered reversal of the National Court’s judgement and directed the Electoral Commission to complete the election process under the Organic Law.

Legal Issue(s)

EMB Independence
EMB Operation
Judicial Independence

Applicable Law(s): Organic Law sec. 97, 115, 117, & 206.

Region: Asia-Pacific

Country: Papua New Guinea

Language of Decision

English

Court: Supreme Court

Election Type: Review of law

Date of decision: Jun 20, 2003

Geolocation

Latitude: -9.347049291

Longitude: 147.5888182

: Geolocation

Primary Documents

Electoral Commission v. Rawali.pdf
english
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