In the Matter of The Organic Law on National and Local-Level Government Elections; Rimbao v Kopeyala [1997] PGNC 79; N1585 (28 June 1997)

Unreported National Court Decisions

N1585

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS. NO. 265 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE WAPENAMANDA OPEN ELECTORATE
AND
RONALD RIMBAO - PLAINTIFF
AND
MAKU KOPEYALA AS RETURNING OFFICER FOR THE WAPENAMANDA OPEN ELECTORATE - FIRST DEFENDANT
AND
RUBEN KAIULO AS ELECTORAL COMMISSIONER OF PNG - SECOND DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - THIRD DEFENDANT

Mount Hagen

Akuram J
28 June 1997

ELECTIONS - Application for order to suspend counting of votes for Wapenamanda Open Electorate until such time as the polling for SAPUNDIS and IMANGABOS Polling Places in the TSAK Census Division are conducted and completed - orders refused - application dismissed.

Counsel

Peraki for the Applicant

No appearance for the Respondents

28 June 1997

AKURAM J: The Applica way of an f an Originating Summons and Notice of Motion moved for the following orders:

1. An order thatcthe inunt vohe votes for the Wapenamanda Open Electorate be suspended nded until such time as the polling for the Imangabos and Sapundis pollinges inTsak s Div are cted ompleted.eted.

2.

2.&#160  &##16;& An that that the Defendanendants conduct polling for the Imangabos and Sapundis polling places in the Tsak Census Division on such date as set by this Honourable Court.

3.&ـ҈ T60; The tihe time reme required for the entry of the orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

4. The Defendants be at libeoty to apply.

5. &##160;; S60; Such fuch further or other orders as this Court thinks fit.

However, in this application he only sort thers No3, 4 . That is:

1. &##160;; T60; The cohe cohe countinunting of the votes for the Wapenamanda Opda Open Electorate be suspended until such as tllingthe Imangabos and Sapundis polling places in the Tsak Census Division aion are core conductnducted and completed.

2. ҈& T60; The time time required for the entry of the orders be abridged to the date of settlement by the Registrar whichl takce forthwith.

3. &ـ T6e Defe Defendantndants be at e at liberliberty to apply.

4. The matter bedfixe hforingaring next week.

The Plaintiff/Applicant relied on the Affidavit of one PIS Robertson PANAO, igibler inelect but ntly teacher at Hagen Park High School in Mt. Mt. HagenHagen City City.&#16. Hi0; His Affs Affidaviter nter alia, says:

4. & A60; According to the certified list of voters there is a total of 1000+ enrolled voters for the Sis po place and another 1000+ for the Imangabos pollinolling place. As polling was to start atrt at 8.00 am and considering the number of people that were going to cast their votes, I together with all the people of my tribe assembled at the polling place well before 8.00 am whene was no sign of any pollinolling officials until about 12.30 pm when a chopper emerged.

5. As the pollinc plas wa trhe tribes traditional singsing ground it was big and wide enough for a chopper to land so we signalle pil landto ouprisechoppnded on the banks of the Topak river whic which is h is some some two ktwo kilomeilometres tres away from the polling place. I e suspicious so I rushedushed to the place where the chopper was landing with a group of people to see what was happening when f distance I saw three people coming out of the chopper with two ballot boxes with a handbagndbag. Immediately thereafter, the three persons ran towards the bushes to take cover whilst the chopper flew in a southerly direction from the first landing and just the polling place where the people had been assembling all day.

6. &##160; The the the second time time the chopper landed about 700 meters east of the polling place near a cliff and dropped off ballot boxes and people whor ideed thves aling officials. These pese polling offg offg officialicials had come out of the cliff and on to the main road and then into the polling place.

7. ;ټ I60; I did ndid not see the ballot boxes from the first landing being brought to the polling place except some ballot papers in a handbag which was identical to the one dropped off at the banks of the Topak river by a p whose name I do not know.&now. In relation to the ballot boxes from the second landing, two ballot boxes together with large number of ballot papers wrapped in a plastic were carried out of the chopper by Mapiso Napili, Win Paul and Iso Langa all pollingcials and supporters of a pf a particular candidate.

8. & U60; Upon their arrival at the polling place and introduction as polling officials and infront of the capacity crowd I asked for an explanation on the following matter>

60;&##160;ـ The reason as to whyo why they they were were late late by at least four to five hours;

b. &#T60; eae rs aonto w y they they directed the chopper pilot to land at two isolated locations when the polling place was big enour theper td;

9. & The entire 10o0+ voters prrs present were not happy with the explanations given and the situation became very emotional and tense and there was near riot so I had to get up at the top ovoicealm ttuation down.&#16. Af0; After tter the sion rion returned to normal, I proposed and all agreed that we should petition the Provincial Returning Officer to suspend polling for that day.

10. ـ The hand writ written petition was signed by the scrutineers of all the candidates contesting in the electorate and the presiding officer. That was about 5m and the the presidificered to take the sahe said petition to Wabag leaving behind tind the other polling official to stop overnight at the polling place on tderstanding that the presiding officer would return the nexe next day.

11. &#That dayt as Twas Thursdaursday 28th June 1997 and still there was no sign of the presiding officer and again on Friday 27th June 1997 when I left for Mount Hagp>

13. I strongly feel that I together with my other people have not freely exercised our rights to casts our votes due to the inefficiency of the polling officers under suspicious circumstances. As such Ily re that; this CourtCourt gran grant thet the orders sought in the Originating Summons.

Having heard Mr. Peraki on this application and reathe affidavit, the main issue is whether the conduct of the polling officials should warranarrant the denial of the rights of the people in these two polling places to vote.

The Constitution in section 56(1)(a) referred by Counsel says that only citizens may vote for, or hold, elective public offices and is one of the rights of a citizen and that is to vote. Section 146 of rganic Law Law on elections also referred to by Counsel sets out the grounds for adjournment of Polling on account of riot and :

“146. ADJONT OFING ONNG ON ACCOUACCOUNT OF RIOT

(1) #160; ҈ The pingiding officofficer may adjourn the polling from day to day where the polling is interrupted or obstructed by riot or open violence.

(2)ـ҈& If from any cause a polling booth at a at a poll polling ping place is not open on any day during the period for taking the poll at that polling place, the presiding officer may adjourn the polling for a period not exceeding seven days but in no event beyond the end of the polling period, and shall forthwith give public notice of the adjournment.

(3) &#160re fer any reason the the polling is adjourned at a polling place, those electors only:

(a) ـ&#1e led led fe elee elete for which the polling place is prescribed; or

(b)&#(b) &160; & who; who are oare otherwiherwise entito votelectors for the electorate,

and have not not alreaalready voted, are entitled to vote at the adjourned polling at that polliace.

(4); &#160 Noth Nothing inng in this section shall be deemed to affect the provisions of Division 1.”

Subon 4 saysing in the section affects the provisions of Division 1 dealing with Poth Pollinglling Sche Schedules and in Section 117 says an election shall not be challenged for failing to observe a polling schedule, etc.

In the present application all I have is an affidavit of one person alleging certain irregularities on the conduct of polling officials. The substantial allegationations which need more evidence to be substantiated. I cannot act on eve of onlf only one person and stop the whole counting.&#160ever, if these allegations are found to be material later ater after the counting in the Court of Disputed Returns, it than has the e of vitiating the election.tion. This is what section 218 envisages and reads:

“218. IMMATERIAL ERRORS NOT TO VITIATE ELECTION

(1) ;ټ Subjectbject to Suto Subsection (2), an election shall not be avoided onunt oelay e decladeclaration of nominations, the polling, the declaration of the poll or thor the rete return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) ; Where an elecaor was, on , on account of the absence or an error of, or an omission by, an officer, prevented from voting in action NatiCourtl not for the purpose of determining whether the absence or e or error rror of, oof, or ther the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

The evidence disclosed in this case is regarded by the Organic Law on Elections as immaterial. They cannot be used tiate iate the outcome of the elections. The Plaintiff may say, is t is not the issue as the issue is that people did not hhe opportunity to exercise their Constitutional right to vote. Howevhat exercisercise of e of the Constitutional right is subje the prevailing circumstancstances as alleged and those are regarded by the Organic Law as immaterial.

One must also keep in mection 126 (6) which says tays that “the Electoral Commissioner is not subject to direction or control by any person or authority”. Although sectio (4) and send section 50 of the Constitution gives the citizen the right to vote but those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignify of mankind. In the present case, the Organic Law on Election regulates the right to vote and Part XIII of the Organic Law (Ss.113-146) sets out the regulatory provisions. Any serious breach of them would only vitiate the outco voting in a Court of DispuDisputed Returns.

What I have said is, one must look at the intends and purpose of the Constitutionovisions on elections with the Organic Law which basically ally says, the elections process must not be stopped. It must take irmal course urse and if there are any complaints, they should really be raised in the right forum, the Court of Disputed Returns0; Courts must not interfere with the Administrative function of the Electoral Commission.

I am therefore, not satisfied that this court should stop the Electoral Commission from going ahead with the counting. Iefore refuse the applicatlication and orders sought and dismiss the application.

Lawyer for the Applicant: Peraki Lawyers

No Appearance for Respondents