In the Matter of The Organic Law on National and Local-Level Government Elections; Rimbao v Kopeyala [1997] PGNC 80; N1674 (28 June 1997)

Unreported National Court Decisions

N1674

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 Applicant by way of an Originating Summons and Notice of Motion moved for the following orders:

1. ; A60orde that the countinunting of the votes for the Wapenamanda Open Electorate be suspended until such time as the polling for the Imangabos and Sapundis po plac the Censuisionconducted and complcompleted.eted.

2.

2.&#160 ټ A60; An order that the Denendants conduct polling for the Imangabos and Sapundis polling places in the Tsak Census Division on such date as set by this Honourable Court.

3.&ـ &##160; The time required fred for tfor the enhe entry otry of the orders be abridged to the date of settlement by the Registrar wshall take place forthwith.

4. &#T60; efe Dantndbets be atbe at liberty to apply.

5. & S60; fuchher tr other ordr orders as this Court thinks fit.

However, in this application he onlt thers No3, 4 and 5. That is:

1.;ټ The counting of the votes fors for the the WapenWapenamandamanda Opea Open Electorate be suspended until such time as the polling for the Imangabos and Sapundis polling places in the Tsak Census Division are conducted and completed.

2. ـ T60; The time required for the entry of the orders be abridged to the date of settlement by the Registrar wshall take place forthwith.

3. ҈& T60; The Defe Defendants bets be at liberty to apply.

4. The matter be fixedhfor ngaring next week.

The Plaintiff/Applicant relied on the Affidavit of one PIS Robertson PANn eli votethe electobut ctly ieacher at Hagen Park High School in Mt. HMt. Hagen agen City.City. His His AffidAffidavit,avit, inter alia, says:

4. ҈ A60; According to tre ceedified list of voters there is a total of 1000+ enrolled voters for the Sapundising place and another 1000+ for the Imangabos polling place. As polling was to start at 8.0t 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 when there was no sign of any polling officials until about 12.30 pm when a chopper emerged.

5. A theinolllac pwas he trhe tribes traditional singsing ground it was big and wide enough for a chopper to land so we signathe pto lat to urprie cholanded on the banks of the Topak river wher which iich is soms some twoe two kilo kilometremetres away from the polling place. I became suspicious so I rushed to the place where the chopper was landing with a group of people to see what was happening when from a distance I saw three people coming out of the chopper with two ballot boxes with a handbag. 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 past the polling place where the people had been assembling all day.

6. &##160;; T60n foen for the the second 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 as polling officials. These pollinglling offi officialscials had come out of the cliff and on to the main road and then into the polling place.

7. &##160; I60; I did no seebahe t blot 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 riv a pewhose I do n do not knot know. Iow. 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 polling officials and supporters of a particular candidate.

8. ҈ U60; Upon their arraval e the polling place and introduction as polling officials and infront of the capacity crowd I asked for an explanation on the following matters:

a.;ټ & The reason as to whto why twhy they whey were lere late by at least four to five hours;

b. ; The reasons s tothhy dire directed the chopper pilot to land at two isolated locatlocations when the polling place was big enoughthe cr to

ـ The reasons as to why thhr there were were nere not enot enough ough security personnel to oversee the casting of votes in that particular polling place.

8. ҈ The entire 1000+ vo0+ voters 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 of ice tm theation down. own. AfterAfter the the situation returned to normal, I proposed and all agreed that we should petition the Provincial Returning Officer to suspend polling for that day.

9. ټ T60; The hand written pet tion was signed by the scrutineers of all the candidates contesting in the electorate and the presiding officer. That was about 5.30 pm and the ding er agto take the said petition to Wabag leaving bing behindehind the the other polling official to stop overnight at the polling place on the understanding that the presiding officer would return the next day.

10. ; That day was 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 Mt. Hagp>

12. 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 I humbluest this grant the othe ordersrders soug sought in the Originating Summons.

Having heard Mr. Peraki on this application and reading the affidavit, the main issue is whether the conduct of the polling officials should warrant 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 the Organic Law on elections also referred to by Counsel sets out the grounds for adjournment of Polling on account of riot and reads:

146. Adjournmf Polling on AccouAccount of Riot

(1) The presiding officyr maouadjourn the polling from day to day where the polling is interrupted or obstructed by riot or open violence.

(2) ;&&#1m ause ling ling at a at a polling placeplace is n is not opot open onen on any any day during the period for taking the poll at that polling place, the ding er may adjourn the polling for a period not exceeexceeding ding seven days but in no event beyond the end of the polling period, and shall forthwith give public notice of the adjournment.

(3) fereanyr easor the pollinolling is adjourned at a polling place, those electors only:

(a) ; who are enroloed for the the electoror whhe po placpresc; or

(b)&#16) < &160; #1660&#1ho are otherwise ense entitled to vote as electors for the elector/p>

(4) ـ&#1othingthing in thin this section shall be deemed to affect the provisions of Division 1.

Subsection 4 above says nothing in the section affects the sionsivision 1 dealing with Polling Schedules and in S in Sectioection 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. They are substantial allegations which need more evidence to be substantiated. I cannot act on evidence of only one person and stop the whole counting. However, if these allegations are found to be material later after the counting in the Court of Disputed Returns, it than has the effect of vitiating the election. This is what section 218 envisages and reads:

218. Immaterial Ernors o t tiatitiate Election

(1) &##160; Subjectbject to Suboecti), (2), an election shall not be avoided on account of a delay in the declaration of nominations, the pg, thlaratf the poll or the return of the writ, or on account ofnt of the absence or an error of, or an oman omissioission by, an officer which did not affect the result of the election.

(2) & Where an elector was, on , on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of deterg whethe ae or error oror of, orf, or the 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 to vitiate the outcome of the elections. The Plaintiff may say, that is not the issue as the issue is that people did not have the opportunity to exercise their Constitutional right to vote. However, that exercise of the Constitutional right is subject to the prevailing circumstances as alleged and those are regarded by the Organic Law as immaterial.

One must also keep in mind section 126(6) which says that “the Electoral Commissioner is not subject to direction or control by any person or authority”. Although section 126 (4) and 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 outcome of voting in a Court of Disputed Returns.

What I have said is, one must look at the intends and purpose of the Constitutional provisions on elections with the Organic Law which basically says, the elections process must not be stopped. It must take its normal course and if there are any complaints, they should really be raised in the right forum, the Court of Disputed Returns. 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. I therefore refuse the application and orders sought and dismiss the application.

Lawyer for the Applicant: Peraki Lawyers

No Appearance for Respondents