Unreported National Court Decisions
N1860
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP 76 OF 1997
IN THE MATTER OF THE KANDEP OPEN ELECTORATE DON DOMB PULLIE POLYE – PETITIONER
V 
JIMSON SAUK PAPAK – FIRST RESPONDENT
THE ELECTORAL COMMISSION – SECOND RESPONDENT
Mount Hagen & Waigani
Woods J
3-5 March 1999
8-13 March 1999
15-16 March 1999
25 March 1999
29 April 1999
PARLIAMENT - National Elections - failure to poll - the right to vote - failure to properly secure the poll - the integrity of the election - breaches by the Electoral Commission. 
Counsel
P Dowa for the Petitioner
G Sheppard for the First Respondent
A Kongri for the Second Respondent
29 April 1999
WOODS J: This is a Petition disputing the election of Jimson Sauk Papak as the duly elected Member of Parliament for the Kandep Open Electorate in the Enga Province during the 1997 National Elections. The Petitioner seeks to have the election of Mr Papak declared invalid. The Petitioner was among a number of candidates vying for the seat. The First Respondent was declared the winner of the seat having polled 8,347 votes whilst the Petitioner polled second with 7,155 votes, a difference of 1,192 votes. There were 11 other candidates and according to the Tally Sheet 27,476 votes were cast. 
The Petitioner made a number of allegations and briefly they may be summarised as follows:
Bribery – that the first respondent firstly directly bribed a number of voters at Kaip village; secondly that he gave Rural Action Project Fund monies to the Kandep District Manager to procure support for him; and thirdly he offered money to the Kandep High School to procure support and votes. The second two allegations herein were ruled upon at the end of the evidence for the Petitioner and it was ruled that there was insufficient evidence for these latter two allegations to be further considered. 
A number of allegations of the First Respondent being directly or through supporters being responsible for undue influence and interference and illegal practices at various polling places throughout the electorate, namely at Kuiakale Rest House, Titip Rest House, Sirindaka Rest House, Maru Rest House, Mamballa Rest House, Porgermanda Rest House, Kaniyan Rest House, Kinduli Rest House, Laguni Rest House, and Kupanda Rest House.
Allegation of undue pressure being applied by the First Respondent or his supporters during the counting of boxes which led to the inclusion of corrupted boxes in the Count.
Allegation of illegal and improper practices by the Second Respondent in failing to poll at 4 scheduled Rest Houses namely, Yumbis, Karekare, Pyalendaka, and Iamapiak and thereby depriving 2,527 eligible voters of their right to vote. 
Allegations of careless action by the Second Respondent in the security of the polling and counting. 
Allegations of the Second Respondent improperly allowing an extension of polling times at two rest houses. 
The Petitioner sought to have a number of boxes excluded from the counting and declarations that the counting of various boxes were illegal and should be discounted and a declaration that the election be declared void and various other alternative orders. 
A number of witnesses gave evidence on the allegations and the Respondents also called a number of witnesses in answer to the allegations. I will go through the various allegations and the evidence. 
Bribery. There were three separate allegations of bribery and a number of witnesses were called. With respect to the allegations involving the District Manager at Kandep and the Kandep High School I ruled on those allegations and the evidence during the trial and ruled that there was insufficient evidence to require the Respondents to answer the allegations and those allegations were not proved. 
On the allegation of the bribery at Kaip village Winjia Rest House there were witnesses from the Petitioner who gave evidence of the meeting and what was alleged over the offers of money and there was the evidence of the First respondent and others that the meeting did not take place. Bribery is a very serious allegation involving a criminal offence and the standard of proof required must be equivalent to the criminal standard. In view of the clear conflicting stories and the absence of any real independent evidence or circumstances to assist the court I must find that I cannot be satisfied on the allegation. 
Undue influence interference and illegal practices at various rest houses.
Kuiakale: I was not satisfied on the evidence that the First respondent himself was involved in any incident at this polling place. Some witnesses gave evidence of some disturbance during the polling but this was not supported by other witnesses and there was no evidence that there was any stuffing of votes or that eligible voters had been deprived of their right to vote. The evidence was that the box was sealed properly at the close of polling. So this allegation needs no further consideration.
Titip. I was not satisfied on the evidence that the First Respondent himself was involved in any incident at this polling place. The evidence was that polling continued most of the day until some rain came in the afternoon. Then the evidence is that the Box was taken by some pastors to the Wau church for overnight security. The next day the election officials continued with some voting in the morning to enable the last voters, who had missed out because of the rain, to vote. The specific allegation against the First Respondent is not proven, any allegation about the polling on the next day is covered by the Organic Law on National and Local-Level Government Elections Section 115. Whilst I find that the way the security of the ballot box and papers was handled overnight sould be of some concern that by itself may not be relevant to the security of the whole poll, there is no evidence of any illegal stuffing of votes overnight but it may be relevant with other factors. It is also noted that the Presiding Officer was quite lax in the signing of the Sex Tally Sheets and Return some weeks later and then backdating them 
Sirindaka. The allegation here was about the change of the actual polling place from Sirindaka proper to Longap. It appears from the evidence that the places adjoin and there was an argument over the neutrality of the actual polling place. The allegation was that the removal of the polling booth to Longap, referred to as Longap market, was unauthorised and done by force. On the whole of the evidence before me I am not satisfied that there was any force used, rather that it may have been a matter of discussion between village leaders and the electoral officials. As to whether Sirindaka registered voters were actually deprived of their opportunity and right to vote by the moving of the Polling booth to Longap is not clear, it is only suggested. As to the status of the polling official Amos Legap I am not satisfied that he was unauthorised. I do wonder about the security for the ballot box overnight after the polling although there is no direct evidence that there was any tampering or stuffing of the box. 
Maru. It is alleged that a Jonny Lee a supporter of the First Respondent held up and threatened the polling officials with a gun and forced some invalid votes to be registered. The evidence does not support any involvement of the First Respondent. Jonny lee himself gave evidence and denies the incident. There is no evidence of any criminal charges against him for this threatening behaviour. And a polling official denies there was any disturbance. The box appeared to have been sealed and locked properly. This allegation is therefore discounted. 
Mamballa. It is alleged that the First Respondent directly interfered with the polling by ordering the officials to record all the votes for himself. And further whilst there were only 877 eligible voters on the roll for Mamballa there were actually 895 votes recorded for the First Respondent. I could not be satisfied on the evidence that the First Respondent did interfere as alleged. What could be cause for concern is that comparing the figures in the Common Roll and the Tally Sheet it should be impossible to have more than 100% turnout of voters and there is no explanation of how there could have been 18 more voters than on the common roll. 
Porgermanda. There is no evidence of the First Respondent’s involvement in any disturbance here however the evidence is clear that there was a disturbance late in the day and ballot papers were removed. As a result the polling was affected and polling closed early and a number of voters may have been deprived of their right to vote. An analysis of the Common Roll and the Tally Sheet shows that whilst generally there was a 100% turnout in most areas of this electorate in this polling area only about 60% voted. And the evidence is that about 250 voting papers were taken. . So clearly some voters may have been deprived of their right to vote through the failure of the Electoral officials to properly conduct polling and secure the polling and secure the ballot papers. 
Kaniyan. There is no evidence that the First Respondent himself was involved in any disturbance. It was agreed that there was a disturbance blamed on a group of men who had some complaint and held up the start of the polling. The evidence is confusing as to where and when this disturbance happened. Was it as the polling officials were coming to the polling place or was it when they had arrived at the polling place. The officials themselves appear confused. Whilst this confusion must cast doubts on their credibility there is no real evidence that the polling itself was interfered with or disrupted once it had started such that the integrity of the poll itself must be suspect. Still it was an unsatisfactory situation that the box and papers were interfered with and there was a lack of proper security. 
Kinduli. There is no evidence that the First Respondent himself was responsible for the disturbance at Kinduli however the evidence was clear that some people did disrupt the polling such that the whole poll had to be aborted at Kinduli, and thereby 749 eligible voters were deprived of their right to vote. 
Laguni. There is no evidence that the First respondent was himself responsible for the disturbance at Laguni. The evidence suggests that it may have been supporters of another candidate who caused the disruption. Anyway the end result was that there was a serious disturbance which resulted in the abortion of the poll and over 900 eligible voters were deprived of their right to vote. This suggests that the Electoral officials themselves had insufficient security to protect the integrity of the poll and to properly conduct the poll. 
Kupanda. It is alleged that the First Respondent himself came and threatened the polling officials at gunpoint and seized the box and took it away. There is contradictory evidence here and I am not satisfied that the First Respondent acted as alleged. It is suggested from the evidence that after the conclusion of polling the Ballot Box was taken to a tradestore and kept there overnight for security. Whilst this suggests a failure in the security arrangements there is no evidence that the box and votes cast were actually tampered with, it having been sealed and locked in accordance with procedures.
In connection with the allegations concerning undue influence and interference with the polling I am not satisfied on the evidence that the First Respondent himself unduly interfered with the polling. However it is clear that there were failures in the security and management of the polling and some disturbances. 
With respect to allegations within the Counting room I find that the evidence about what happened in the counting room is somewhat confusing. It appears that the senior electoral officials were subject to some pressure although where the pressure came from is not clear. The changing of responsibilities between the senior Electoral Officials is not properly explained. There is no evidence that the First Respondent himself was involved. There was the attendance by Police and Army officers at various times although in view of the allegations it may be that there were too many scrutineers acting independently. One person at least had to be ordered out of the counting room and the evidence suggests that there was nothing irregular in that. There is no evidence that any boxes were irregular in their appearance for counting, the problem being the fact that a number of voters had been deprived of their right to vote by failures during the polling, not through irregularities in the actual counting. 
The failure to conduct polling at 4 scheduled polling places of Yumbis, Karekare, Pyalendaka, and Iamapiak is a very serious omission. It actually is a breach of the Constitutional right in Section 50 for every citizen to have the right to vote and in consequence for their vote to have an effect on the elections. The right to vote in the Constitution can have no meaning if the State and the relevant State authority does not ensure that all eligible voters can exercise that right and for the complete security and integrity of the poll. This right to vote creates a heavy responsibility and onus on the State and the Electoral Commission to ensure that the right to vote is meaningful such that the vote of every citizen has a meaning and effect on the result of any election. If the Electoral Commission fails in its responsibility under the Organic Law to guarantee that right to vote and provide it, then it is clearly in breach of the Constitution and has acted illegally. There is no provision in the Organic Law to omit to poll, there is provision in Sections 115 and 117 to adapt polling schedules to meet with unforeseen and difficult situations and even sudden emergencies. To throw up their hands and say it was out of our hands because criminals stole the papers is not an answer, that itself suggests a failure to protect the integrity of the poll. It must still be open to prepare fresh papers and poll when required before the Count is done. And the allegation that it was the Petitioner himself who was the criminal who stole the papers is a very weak one when a charge has only been laid over 18 months after the election and has not been proven in court. The Electoral Commission and the Government seems to have been taking the easy way out in recent years and ignoring its responsibilities to provide proper security for the integrity of the poll. Whilst one must be careful not to allow a few criminal elements to completely disrupt an election through a minor act, this is not the case here. Here we have over 2,500 eligible voters deprived of their right to have there vote taken and counted and made relevant because of the failure to actually poll. Add to that the Rest Houses of Laguni and Kinduli where failure to provide proper security meant that another 1,500 voters were deprived of the right to have their votes included and we have over 4,000 eligible voters deprived where the winning margin was only 1,192. There is no suggestion that these 4000 people deliberately made polling impossible which could raise other considerations, rather it was the failures and faults of the Electoral Commission.
The allegations of careless action and omissions by the Electoral officials in the security of the polling has been covered and noted in the analysis of the various polling places above. It is clear there has been a failure of responsibility, not necessarily by the actual hardpressed polling officials themselves but by the Electoral Commissioner and the Government in failing to support the work of the officials. 
The allegation of improperly allowing an extension of the polling times is clearly answered by Section 115 of the Organic Law which allows for appropriate adaptation of polling schedules. 
At the end of the analysis of all the evidence I find that there have been clear omissions and breaches by the Electoral Commission in their handling of the election. And in particular by their failure to poll in 4 rest houses and the omission here is compounded by their failure to properly secure the integrity of the poll at some polling places. 
On the matter of what happens when a number of voters are deprived of their right to vote or have their vote counted because of failures and omissions it is clear from the legislation that the Court cannot make assessments of possible scenarios of where votes may have gone. Also the authorities have made it clear that of course if the missing or lost votes total less that the winning margin then it cannot be said that the result of the election was likely to be affected. See Frost CJ in Gavera Rea v Rarua [1977] PNGLR 38, and Andrew J in Kamond v Pill [1993] Unreported and Amet CJ in Poto v Mune [1994] Unreported. However as soon as the number of disputed or lost votes exceed the winning margin then as the Court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied. Elections and the validity of every vote are such serious matters that there can be no half measures. Here after considering the missed out polling places plus the failures at places where polling was done and failed there were over 4,000 eligible voters deprived. So when the winning margin is only 1,192 how can anyone say that there has been a proper and fair election. I must find that the Electoral Commission itself has failed to ensure a proper and fair election and I declare that Jimson Sauk Papak is not duly elected and the election is declared void. 
In view of the fact that on the analysis of the evidence it is failures in this election by the Electoral Commission then I must order that the Electoral Commission is to pay the costs of both the Petitioner and the First Respondent in this Petition. This must only highlight the responsibility of the Electoral Commission to act appropriately during an election and in particular when a serious disruption takes place and before the poll is concluded. There is adequate provision in Sections 115 and 117 to adapt polling schedules when the need arises. The Electoral Commission and the Government seems to have been taking the easy way out in recent years and ignoring its responsibilities and leaving it to expensive and time consuming Petitions to sort out its own problems.