NATIONAL COURT OF JUSTICE

IN THE MATTER OF THE ORGANIC LAW ON
NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
IN THE MATTER OF
ELECTION FOR THE BOGIA OPEN ELECTORATE; AND
DR. PHILIP BASSE
Petitioner

And:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First respondent

And:

JOHN TONGRI HICKEY
Second respondent

Madang: Injia J
11 December 2002

ELECTIONS – National – Petition – Objection to Competency – Necessity to plead material facts relied upon to invalidate election – Facts pleaded – Scrutiny of votes not open to inspection by petitioner's scrutineers – Meaning of "open to inspection" – Organic Law on National and Local-Level Government Elections,s 208(a) and s 151(c).

Facts

Both the petitioner and second respondent contested an electorate seat to which the latter was declared to be duly elected. The petitioner contested the decision on various grounds discussed in thejudgment . Verify the authentication of the counting.

Held

1.	If misconduct in the country is proved, the declaration becomes invalid and an order for recount follows.

2.	Other errors and omissions could affect the result of the whole election leading to an order for a by-election.

Papua New Guinea cases cited

Ambane v Electoral Commission & Others (1998) unreported SC559.
Apelis v Chan [1998] PNGLR 404.

Counsel

C Narakobi/B Meten, for the petitioner.
D Kongri, for the first respondent.
P Paraka with P Korowi, for the second respondent.

11 December 2002 

INJIA J: The respondents object to the competency of the remaining grounds of the petition under ONE s 208(a). The petitioner withdrew grounds 2, 5, 6, 8, 9 and 10. The remaining grounds are 1, 3, 4 and 7. The remaining grounds are:-

"Irregularity by the First Respondent"

Ground 1 

That during the counting the first respondent, its servants and/or agent unlawfully and irregularly prevented counting to be opened to scrutineers pursuant to section 151 of the Organic Law.

Facts

1.1	The counting for the Bogia Open Electorate commenced on 6 July 2002 and ended on 13 July 2002 with the declaration of the Second Respondent as the duly elected Member for Bogia Open on 15 July2002.

1.2	During the counting the second respondent, through its servants and agents, unlawfully instructed the scrutineers to stay about 10 metres away from the counting area.

1.3	The counting centre was set up in a manner where the scrutineers and the counting official were separated by a rope and the tray for a candidate closest to the scrutineers was about 3 metres away.

1.4	Raynauld Kauke, Robert Basse and Francis Gaging, scrutineers for the petitioner, observed that the tray for the candidate's were lined up in a row corresponding to each candidates box number with Box 1 being the closest to the sorter of the votes and furtherest from the scrutineers. The said scrutineers observed that the Petitioner's box being Box 6, tray was about 8 to 10 metres away from the scrutineers.

1.5	During the progress of the counting the counting official did not show to the scrutineers any of the ballot papers counted. They merely sorted the ballot papers, placed the ballot papers in each candidate's tray and counted the ballot paper for each of the candidate. These actions of the counting official were never opened to the scrutiny of the candidate's scrutineers.

1.6	In addition, the distance from the sorters of the ballot papers to the scrutineers was about 10 to 12 meters, and the scrutineers were not able to see and scrutinize the process of sorting the ballot papers before they were placed in each candidate's tray and counted.

1.7	As a result, the scrutineers were not able to verify or screen the votes counted for the Petitioner and other candidates and alleges that votes were placed in other candidates trays, which affect the final result."

Ground 3

That the first respondent its servants and/or agents at Boatola Polling Booth illegally and irregularly refused to admit an enrolled voter in the Bogia Open Electorate, Yana Vali, to vote as an elector in the Bogia Open Electorate Election for which he was enrolled contrary to section 132 of the Organic Law.

Facts

1.1	The agents of the first respondent conducted polling at the Boatola Polling Booth for the Budua people to vote in the election for a Member for the Bogia Open Electorate on 26 June 2002.

1.2	Yana Vali is an enrolled elector in the Bogia Open Electorate.

1.3	On 26 June 2002, Yana Vali entered the polling booth to cast his votes but was unlawfully refused by agents of the first respondent to vote as an enrolled elector in the Bogia Open Electorate for a Member of Parliament for the Bogia Open Electorate."

Ground 4

That the first respondent, its servants and/or agents at Dugulava Polling Booth illegally and irregularly refused to admit 31 enrolled eligible voters in the Bogia Open Electorate for a Member of Parliament for Bogia Open contrary to section 132 of the Organic Law, to vote.

1.1	The agents of the first respondent conducted polling at the Dugulava Polling Booth for the Dugulava Village to vote in the election for a member for the Bogia Open Electorate on 25 June 2002.

1.2	The following named 31 people are enrolled electors in the Bogia Open Electorate to vote for a Member of Parliament for the Bogia Open Electorate:

Kausis Ignatius Kebai, Kintau Saragum, Koipura Lazarus Arikanae, Maguna Sagem, Makam Maria Saragum, Moaguru Sadeba, Pakei Tukura, Poakila John Yarakang, Ribaga Kumading, Mosa Buleka, Saneke Agnes Saragum, Sangaroi Motele, Saragum Irande, Saragum James Sauria, Saragum Wadakai, Sinama Theresia Muriki, Uraine Maria Yarakang, Yoruku Nubura, Anuakoko Kabubu, Ararua Manamaine, Arumika Sagaria, Asiki Joseph Yabubia, Badai Mumua, Sinama Rose Kalawa, Ribaga Aupae, Ururubia Tola, Yabubia Tola, Yabubia Basse and Yarakang Lin.

4.3	On the 25th June 2002, the said 31 people attended at Dugulava Polling place to cast their votes but were unlawfully denied the right to vote by agents of the first defendant to vote as enrolled electors in the Bogia Open Electorate for a Member of Parliament for the Bogia Open Electorate.

Ground 7 

That on the 18th June 2002, at Biliau Village, the agents and/or servants of the first respondent unlawfully and irregularly conducted polling outside a prescribed place of polling in that the agents and/or servants of the first respondent did take ballot papers into home of three (3) electors from where the electors voted contrary to section 132 of the Organic Law.

Facts

1.1	The polling for Biliau Village was conducted on the 18th June 2002.

1.2	The polling official at the polling was Mr. Joe Adani.

1.3	During the polling, the said presiding officer Mr. Joe Adani, on three separate occasions took ballot papers out of the prescribe polling place into the homes of three separate electors who voted inside their homes.

1.4	The names of the three electors were Boaging Lou, Kalamengbia Tanepoukadau and Obekabeka Kango.

It is accepted by all parties that all these remaining grounds relate to errors or omissions, committed by Electoral Commission officials and they come under s 218. If they were to be proven by the petitioner, then it would be necessary for the petitioner to prove and the court to be satisfied, that the result of the election was in fact affected, before the court invalidates the election. It is also accepted by all parties that if the first ground were to be proven, then the election of the first respondent as the successful candidate is declared invalid and an order for re-count follows, and it remains for the court to declare the new winner in accordance with the result of the re-count. Similarly, in relation to grounds 3,4 and 7, if these grounds were proved by the petitioner, then the question arises as to whether those errors and omissions did actually affect the result of the whole election, the result being the declaration of the successful candidate as duly elected, and an order for a by-election would then follow.

In relation to the first ground, the respondents' submission is that the facts pleaded under this ground do not raise valid grounds, because firstly, there is no requirement under the OLNE that prescribes the distance between the counting of votes and the scrutineers, as it was held by the Supreme Court in Apelis v Chan SC 573 (1998) at p. 12. Secondly, this ground does not plead particulars of how or why the result of the election was actually affected, with reference to number of votes cast for a particular candidate, being erroneously or by omission allocated to other candidates.

Thirdly, the allegation in Clause 1.7 as to the result of the election being affected is speculative and not based on properly pleaded facts, again with reference to number of votes affected.

It is submitted for the petitioner that the facts as pleaded under this ground are sufficiently pleaded, to satisfy the requirement of s 208(a) and demonstrate a breach of s 151(c) which is in mandatory terms. And that section provides:

"The scrutiny shall be conducted as follows:

(c) all the proceedings at the scrutiny shall be open to the inspection of the scrutineers".

He submits reference to the scrutineers being placed 8 to 10 meters away from the counting is intended to be read in conjunction with the other parts of the allegations, the essence of the whole of this ground being that because they were kept 8 – 10 meters away from the counting, they were prevented by electoral officials from witnessing and inspecting the distribution of ballot papers amongst the different candidate's "trays" to ensure that ballot papers or votes belonging to a candidate were not allocated to another candidate. For this reason, the petitioner cannot be expected to supply details of votes belonging to a candidates' wrongly allocated to different candidates.

The objections in relation to grounds 3, 4 and 7 are similar. In relation to ground 3 and 4, it is submitted for the respondents that these grounds do not plead relevant facts as to how these electors were prevented, refused or denied their right to vote. Reliance is placed on the requirements of s 219, which requires the intending voter to claim his right to vote under the relevant provision of the OLNE, and that he complied with the requirements of the OLNE relating to his eligibility to vote in the election, and that upon so doing, he was refused the exercise of his right to vote by electoral officials. In relation to grounds 3, 4 and 7, it is submitted that they do not plead how a total of 35 votes from 3 polling places out of over 5,000 votes cast for the petitioner, in as many as over 20,000 votes cast in the electorate, in as many polling places in the electorate, actually affected the result of the election. It is submitted that even if these allegations were proven, it could not possibly be proved that the result of the election was actually affected. Therefore, a trial on this allegation would be an exercise in futility.

It is submitted for the petitioner that grounds 3, 4 and 7 sufficiently plead relevant facts required to be pleaded under OLNE s 208(a) and s 132. It is submitted in relation to grounds 3 and 4 that to require the petitioner to plead the reasons as to why or how they were denied their rights to vote is to plead the evidence that is not required to be pleaded by s 208(a) as they are matters of evidence for the "trial." The same submission is made in relation to the requirement in s 219. It is sufficiently pleaded that an elector who was enrolled in the common roll for the Bogia Open Electorate, entered the named polling place to exercise his right to vote but was refused or denied their right to vote. In relation to grounds 3, 4 and 7, it is submitted that in the "conclusion" part of the petition, it is sufficiently pleaded that as a result of these errors or commissions, the result of the election was affected. He submits, the result of the election in s 218 being affected cannot be merely ascertained in terms of number of votes affected; it is the integrity of the whole election process which is questioned by these errors or omissions, as held in the case of Maino v Avei, SC633 (1998) per Los J and myself. In that case we distinguished the decision in Ambane v Electoral Commission & others (1988) unreported SC559.

My own position in relation to these submissions is as follows. I accept Mr. Paraka's submission that the probability or likelihood of the result of the election being affected under s 215(3) in the case of illegal practices, has no application to errors or omissions under s 218. Rather, the test is whether the petition pleads specific facts in terms of number of votes which actually affected the result of the election. Mr. Meten refers me to a passage from the joint majority judgment of the Supreme Court, of myself and Los J in Maino's case which I have referred to above but since that decision was overturned in a subsequent judgment of the Supreme Court under the "Slip Rule" principle, I am not sure if the principles enunciated in the earlier case is sound law and ought to be adopted and followed. Therefore, the result of the election being actually affected under s 218 must be determined with reference primarily to the number of votes cast and scored by the candidates, including the successful candidate and the runner-up, as it was decided by the Supreme Court in Ambane's case.

It follows from the above that I must accept the respondent's submission in relation to grounds 3, 4 and 7. In any case, it would be a futile exercise to conduct a trial on the allegations, because even if they were proved, the court could not be satisfied that only 35 votes from 3 polling places out of so many polling places involving in excess of 20,000 voters who cast their votes in the electorate in good faith and whose votes are not under question, affected the result of the entire election. If the implied suggestion in the petitioner's submissions were that some over 30 electors who were denied their right to vote for the petitioner were proven and those 30 votes would exceed the difference of 17 votes between the petitioner and the first respondent, and therefore the result of the election was affected, then such a suggestion would lack proper basic under s 218(2) because evidence of how these electors intended to vote is inadmissible in a trial.

That leaves for me to determine the objection in relation to the first ground. I accept that part of the respondents' submission that relates to the scrutineers being kept some 8 to 10 meters away from the counting as I am bound by the ruling of the Supreme Court in Chan v Apelis. But that I consider is not the main essence or focus of this ground. The essence of the facts pleaded therein is that submitted by counsel for the petitioner. Accepting that position to be so, I must still determine if the facts as pleaded conform to the requirements of s 208(a) in conjunction with s 151(c). The relevance of the facts to be pleaded under s 208(a) under this ground is to be determined with reference to s 151(c). What then does the term "proceedings at the scrutiny" and "open to inspection of the scrutineers" in s 151(c) mean. As these terms are not defined in the OLNE, I accept the practical approach to defining these terms, as was the approach preferred by Los J in one of the cases cited by Mr. Meten, to be the correct approach. 

In my view, "proceedings at the scrutiny" means the whole process of "counting" the votes cast at the polling in an election. And "open to inspection by scrutineers" means that the counting of votes is an openly transparent process that takes place in public and in the presence of and witnessed by scrutineers: See s 154 for the procedural steps at the counting. And "inspection" cannot mean that every ballot paper in a ballot box for a particular candidate, to be allocated to a particular candidate and subsequently counted, is to be made available to every scrutineer, for physical inspection before it is counted, for it would be impractical to complete the counting process within reasonable time. I do not think that is the intention of s 151(c). But in a situation where a scrutineer(s) ignore to witness certain questionable activities, say in the distribution of ballot papers to individual candidates, which would raise suspicion in the scrutineer's mind that the "scrutiny" or "counting" of the votes is not being done properly in accordance with s 154, then the onus is on that scrutineer(s) to raise or register an objection, before the votes are counted or after the votes are counted but before the winner is declared under s 168, and make a request to the proper counting official to inspect the ballot papers placed against each candidate in their respective "trays". If no such objection and/or request is made, then the electoral official is entitled to assume that the votes so allocated to each candidate remain unchallenged, and proceed to count them and declare the result of the election. Thereafter, it would not be open to a scrutineer representing a candidate to later complain of the votes for a particular candidate being wrongly allocated to different candidates. Such an assertion would lack proper basis and at the most, be speculative. 

Applying these principles which I enunciate in relation to s 151(c), the facts pleaded in clauses 7.1 to 7.6 show that the whole counting process in this case was done in the presence of the petitioner's scrutineers. Therefore, it is not accurate to plead in the opening clause of ground 1 that the scrutiny or counting was unlawful or irregular in that sense. Further, there are no facts pleaded as to show the petitioner's scrutineers objecting to and/or requesting the counting officials to inspect the votes allocated to each candidate and they were denied access to the relevant ballot papers for physical inspection. If they were so denied, then it would be proper to plead that they were "unlawfully and irregularly" prevented from scrutinising and inspecting the ballot papers in contravention of s 151(c).

Finally, there is no reference to the exact number of votes affected. Let me assume for argument purposes, that the petitioner's scrutineers were placed 8 to 10 meters away from the counting and were unable to see "X" marks on the ballot papers against the candidates and therefore they were unable to record details of the exact number of votes affected, to be able to plead them in the petition. But as I have already said, that is or may be the result of the scrutineers' own error or omission in failing to raise an objection and requesting an inspection and not that of electoral officials. Their assertion that votes for some candidates were allocated to other candidates is at the best presumptuously speculative. 

And whilst on this point, I quote what the Supreme Court said in Chan v Apelis at p. 12 to 13 of the judgement, in relation to this kind of presumptuous or speculative pleading as to the result of the election being affected:

"Ground 8.1 alleges that the petitioner's scrutineers were kept 10 to 12 metres away from the counting of votes. Again we cannot find any provision in the Organic Law which prescribes the distance between the counting of votes and scrutineers. This of itself does not constitute a valid ground.

Ground 8.2 alleges that the votes were counted quickly like a pack of cards and that many of the votes for the petitioner were discounted. The petition seeks to constitute this ground by further pleading that the petitioner polled less than the applicant in his stronghold areas. In our view, this fact cannot constitute the ground of discounting of votes by the counting officials. The tally sheet can only show the result of the way people voted. The petition has to plead some fact which constitutes the irregularity complained of."

Therefore, I conclude that ground 1 does not plead the relevant and necessary facts pertaining to the "inspection" of ballot papers and the result of the election being actually affected, to warrant a trial on this particular ground.

For all these reasons, I strike out the remaining grounds of the petition, that is grounds 1, 3, 4 and 7. This means the whole petition is also dismissed, with costs to the respondents.

Lawyer for petitioner: Camilus Narakobi Lawyers.
Lawyer for the first respondent: Nonggorr & Associate Lawyers.
Lawyer for the second respondent: Paul Paraka Lawyers.