Juvire v Oveyara [2008] PGNC 322; N3333 (8 May 2008)

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ANDREW TRAWEN
ELECTORAL COMMISSIONER OF
PAPUA NEW GUINEA
Second Respondent

PARLIAMENT – Elections – Disputed election petition – Election of Member of Parliament – Error or omission by election official – Authenticity of ballot papers - Ballot papers initialled on front instead of back – Whether such manner of authenticity renders the ballot papers informal.

Organic Law on National and Local-Level Government Elections, ss. 126, 153,
206
Organic Law on National & Local-Level Government Elections No. 3 of 1977, ss 126, 153

This is an election petition instituted pursuant to s. 206 of the Organic Law on National and Local-Level Government Elections (the Organic Law), by Erie Ovako Juvire, a losing candidate for the Okapa Open Electorate in the 2007 National General Elections, disputing the validity of the election of Bonny Oveyara, the first respondent, on the ground of error and omission by the Presiding Officer in authenticating 567 ballot papers by initialling them on the front instead of on the back.

On the hearing of a disputed election petition under s. 206 of the Organic Law on National and Local - Level Government Elections, by the petitioner, a losing candidate seeks an order for a recount if the ballot papers are informal on the grounds that there had been breaches of s. 126 and s. 153 of the Organic Law:

4. Section 126 of the Organic Law on National and Local-Level Government Elections provides the manner in which ballot papers in a parliamentary election are to be authenticated. The requirement is that the initials of the Presiding Officer must be placed on the back of the ballot paper. That provision does not deal with informal votes. It does not say that where the initials of the Presiding Officer appear on the front of the ballot papers, the ballot papers are informal

Cases Cited:
Papua New Guinea cases
Re Baiyer Mul Open Parliamentary Elections: Mokwa Mamando v. Pyange Ni [1977] PNGLR 496.
Peter Yama v. Melchior Kasap, The Electoral Commission and Tom Pais (No 2) [1988-89] PNGLR 318.

Counsel.
A. Manase, for the Petitioner
I. Mambei, for First Respondent
A. Kongri, for Second Respondent

1. SEVUA, J: At the 2007 National General Elections, the petitioner and the first respondent were amongst thirty four candidates who contested the Okapa Open Electorate in the Eastern Highlands Province. The first respondent was declared elected on 27 July 2007 with 10,142 votes while the petitioner polled 9, 846 votes. The difference between the winning candidate and the runner up was 296 ballots.

2. At this juncture let me say that, this is a peculiar trial in that instead of the petition progressing to trial in accordance with the management process under the Election Petition Rules, the parties had agreed to a consent order sanctioned by Kandakasi, J as to how the trial should be conducted and the net result is reflected as a term of that consent order. The trial was more or less "short - circuited" in that sense and I should add that the parties are bound by their consent order.

3. The consent orders which are material to this trial are therefore as follows:-

4. At the outset the Court should reiterate that the parties, in agreeing to the Consent Order, are bound by that order, and in my view, they have forfeited their right of review by such a Consent Order. I must confess that I have not come across such consent orders before in my management of election petition since the July 2002 General Elections therefore this is a novel approach to resolving a petition. Be that as it may, the parties' agreement are translated in the Consent Order and they are bound by that consent order, which ever way the Court determines the legal issue raised in this trial.

5. There is no real dispute as to the facts of this case. Both the petitioner and the first respondent were candidates in the Okapa Open Electorate election in the 2007 National General Elections. The first respondent who polled 10, 142 votes was declared elected as the Member of Parliament for Okapa. The petitioner who polled 9, 846 votes was the runner up candidate with the second highest number of votes after the first respondent.

6. During scrutiny, it was discovered that 567 ballot papers were signed or initialed by the Presiding Officer, Graham Tagindo, on the front instead of on the back of the ballot papers. The scrutineers of other candidates therefore objected to the counting of those ballot papers on the ground that they were signed on the front and not the back of the ballot papers. On that basis the scrutineers claimed that those ballot papers should have been ruled informal.

7. The Assistant Returning Officer, Patrick Osborn, then suspended counting and consulted the Election Manager. Consequently a direction was issued that the 567 ballot papers were formal and were to be counted, and they were counted.

8. The petitioner has therefore challenged the election of the first respondent on the basis that the officials of the second respondent committed an error or omission by permitting the 567 ballot papers improperly marked, initialled, or authenticated from Ballot Box 41 when the said ballot papers should have been declared informal.

9. By consent of the parties, as I have adverted to at the beginning of this judgment, the parties went to trial on only one legal issue, which has also been alluded to at the outset, therefore no evidence was adduced in the trial. Parties only made submissions on the law.

10. Counsel for the petitioner, Mr. Manase, submitted that the law is clear on the question of authenticating ballot papers. The Presiding Officer must authenticate ballot papers by initialling them on the back, not the front. He relied on In re Baiyer - Mul Open Parliamentary Election: Mokwa Mamando v. Pyange Ni [1977] PNGLR 496; where the Court held inter alia that:

"In s. 126 (2) of the Organic Law on National Elections which provides that "The initials of the presiding officer shall be placed on the back of the ballot paper in such a position so as to be easily seen when the ballot paper is folded so as to conceal the name of the candidates," the words "on the back of the ballot paper" are to be given their normal meaning, and where ballot papers were initialed on the front instead of the back this amounted to an "error of or an omission by an officer" within s.218 (1) of the Organic Law on National Elections."

11. Mr. Manase also submitted that the manner of authenticating ballot papers is as prescribed in s. 126 of the Organic Law, therefore a ballot paper is informal pursuant to s. 153 of the Organic Law if it is not authenticated in accordance with s. 126. With respect, I do not accept that submission although counsel maintained that argument in his oral submissions. He was unable to show where the Organic Law says s. 153 is subject to s. 126 therefore where the Presiding Officer does not initial ballot papers on the back in accordance with s.126 (2), section 153 can be utilized to declare such ballot papers informal. Mr. Manase referred to ss. 126 and 153 of the Organic Law in his submissions.

12. In my view, Section 153 of the Organic Law sets out what an informal ballot paper is. By sub-section (1) (a), a ballot paper is informal if it does not have the authentication by the initials of the Presiding Officer or an official mark as prescribed. It does not say that the ballot paper is informal where the initials of the Presiding Officer appear on the front of the ballot paper.

13. Mr. Mambei, counsel for the first respondent, firstly submitted that the signing of the ballot papers by the Presiding Officer on the front, is not informal pursuant to s. 153 of the Organic Law. He argued that the purpose of s. 126, which deals with authenticating ballot papers, is to protect the integrity of the ballot papers from abuse by electors who might illegally obtain the ballot papers and mark them. Counsel cited the case of Peter Yama v. Melchior Kasap, The Electoral Commission and Tom Pais (No 2) [1988-89] PNGLR 318 in support of his submission, however, I consider that that case does not apply here. I am of the view that the facts of that case and the application of the law are different to the present case therefore that case is not relevant to this case.

14. Mr. Mambei's second submission is in relation to s. 153, however he quoted sub-section (1) (a) of the 1977 Organic Law, not the current Organic Law amended to 21 September 2007. However, subsection (1) (a) of s.153 of the 1977 Organic Law is in the same terms as s. 153 (1) (a) of the current Organic Law.

15. Alternatively, counsel submitted that even if the 567 ballot papers are considered informal, both the petitioner and the first respondent had not reached the formula 50 percent plus 1 absolute majority thus the petitioner could not seek to be declared duly elected. Therefore counsel submitted that the petition itself is frivolous and should not stand. Unfortunately, I am unable to accept that submission because that issue was not pleaded in the petition and it was not an issue raised by the respondents.

16. Mr. Kongri, counsel for the second respondent, the Electoral Commission, submitted that the ballot papers in question, though marked on the front, therefore inconsistent with s. 126; that provision does not state that such ballot papers are informal. He relied on a passage in Craies Statutes Law, 6th ed., page 250, and submitted that s.126 is directory only. That passage is as follows:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of acts done."

17. It is counsel's submission that only s. 153 of the Organic Law deals with informal votes and that section is subject only to Divisions 3 and 4 which cover s. 154 to s. 167 Postal Votes and ss. 159 to 167 Scrutiny of votes under Division 3 Part XIII. Mr. Kongri further submitted that in Mamando's case (supra) the Court did not consider, nor did it discuss s. 153 and its application to that issue.

18. He contended that the Presiding Officer had duly authenticated the ballot papers, which is the intention of s. 126. Secondly, counsel submitted that the electors had marked their intention of their candidates on the ballot papers except that the Presiding Officer had initialled them on the front. Finally, he submitted that the ballot papers did not have any other mark which could identify the voters. The 567 ballot papers should not therefore be declared informal.

19. The Court has duly considered all the oral and written submissions by the parties. It is necessary at this stage to cite sections 126 and 153 in full because, as I alluded to, these two provisions are the relevant law which the Court will invoke to determine the issue in this petition.

20. Counsels have cited several cases, however I am of the view that they are not applicable to the present case therefore I will not refer to them.

(1) No ballot-paper shall be delivered to a voter without being first initialed or affixed with an official mark as prescribed by the presiding officer, and an exact account shall be kept of all initialed ballot-papers.

(2) The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.

(1) Subject to this section and to Divisions 3 and 4 and the Regulations, a ballot-paper is informal where:-

(a) it is not authenticated by the initials of the presiding officer or an official mark as prescribed; or

(b) subject to subsections (2) and (3), it has no vote indicated on it or it does not have the voter's first preference for one candidate and his contingent votes for two other candidates or where there are less than two other candidates, for the remaining candidate; or

(c) subject to Subsection (4), it has on it any mark or writing not authorized by this Law or Regulations made under this Law to be put on it) by which, and on the face of the ballot paper alone, in the opinion of the officer conducting the scrutiny, the voter can be identified.

(2) Where there are two candidates only and the voter has indicated his vote by inserting the identification numbers and/or the name of one candidate for the first preference and left the other two squares and lines blank, the voter shall be deemed to have indicated the order of his preference for both candidates.

(3) Where there are three candidates only and the voter has indicated his vote by inserting the identification numbers and/or the names of two candidates for the first and second preferences, and the square and line for the third preference has been left blank, the voter's preference shall be deemed to have indicated his preferences for all candidates.

(4) Subsection (1) (c) does not apply to a mark or writing placed on a ballot-paper by an officer, notwithstanding that the placing of the mark or writing on the ballot-paper is a contravention of this section.

(5) Subject to Divisions 3 and 4, a ballot-paper shall not be informal for any reason other than a reason specified in this section.

22. For purpose of comparison, I also refer to Sections 126 and 153 of the 1977 Organic Law.

(1) No ballot-paper shall be delivered to a voter without being first initialed by the presiding officer, and an exact account shall be kept of all initialed ballot-papers.

(2) The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position so as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.

(1) Subject to this section, and to the provisions of Divisions 3 and 4, and the Regulations, a ballot-paper is informal if –

(2) Subsection (1)(c) does not apply to a mark or writing placed on a ballot-paper by an officer, notwithstanding that the placing of the mark or writing on the ballot-paper is a contravention of this Law.

(3) Subject to Divisions 3 and 4, a ballot-paper shall not be informal for any reason other than a reason specified in this section.

(4) Notwithstanding the provisions of this section and of Section 128, where the Returning Officer is satisfied that any mark made on a ballot-paper clearly indicates the intention of the voter and the candidate for whom he was given his name, the Returning Officer shall not determine that the vote is informal merely because the mark is not an "X".

23. Having considered the submissions and the provisions of the two Organic Laws, I am of the view that Sections 126 and 153 of the present Organic Law are the relevant provisions of the Organic Law to determine the issue raised in this petition.

24. With respect to the petitioner and his counsel, I do not accept the proposition they have offered in relation to the phrase, "as prescribed" in s.153 because they have not cited any case law to support such a proposition. Mr. Manase's submission that the phrase "as prescribed" appearing in s.153 means as prescribed by s.126 has no merit and I reject that submission. There is nothing in s.153 that says the words "as prescribed" means, as prescribed by s.126. Section 153 is not even made subject to s.126. The words, "as prescribed" in s.126 mean, as prescribed by the Presiding Officer, not as prescribed by s.153. As I adverted to, Mr. Manase has not referred the Court to any Supreme Court authority to support his submission therefore I find no merit in that proposition.

25. It is my view therefore that the phrase "as prescribed" in s. 153 (1) (a) does not mean as prescribed by s. 126, as there is nothing in s. 153 that states so. The words "as prescribed" mean as prescribed by the Returning Officer in s.126.

26. I am of the opinion that the two provisions are different in nature and application in so far they relate to ballot papers in a parliamentary election. The former deals with how ballot papers are to be marked by the Presiding Officer while the latter deals with informal votes, that is, what are informal ballot papers. They do not deal with the same matter. As I mentioned above, s.153 is not made subject to s.126, therefore there cannot be any doubt that the two provisions deal with two distinct matters.

27. In its ordinary usage, the word "prescribe", or "to prescribe", means a direction as to what something should be done, or how it should be done. Therefore, "as prescribed" by the Presiding Officer in s.126 means what the Presiding Officer decides what should be done and how it is to be done or carried out. What the Presiding Officer prescribes in s.126 is not what s.153 prescribes. There is nothing in s.153 which states that "as prescribed" in that section means what s.153 prescribes should be done in s.126. There is no doubt in my mind that the two provisions speak of, and cover two different things.

28. The Court is of the view that counsel for the petitioner has misconceived the meaning and application of s.126 and s.153 of the Organic Law. Section 126 is not subject to s.153, and vice versa. Nothing appears in each section that says one is subject to the other therefore I am of the view that Mr. Manase's submission has no basis in law. Section 153 is subject only to Divisions 3 and 4, and the Regulations, not s.126.

29. I therefore hold that s.126 of the Organic Law on National and Local-Level Government Elections provides the manner in which ballot papers in a parliamentary election are to be authenticated. The requirement is that the initials of the Presiding Officer must be placed on the back of the ballot paper. That provision does not deal with informal votes. It does not say that where the initials of the Presiding Officer appear on the front of the ballot papers, the ballot papers are informal.

30. Furthermore, I am of the view that s.153 sets out the type of votes that are to be considered informal. In that provision, ballot papers that are not authenticated by the initials of the Presiding Officer or those that do not contain any official marks are informal. Secondly, ballot papers which do not have any votes marked on them or do not contain any preference votes for three candidates are informal. Thirdly, ballot papers that have any mark or writing which are not authorized by the Organic Law and which voters can be identified are informal. Subsections (2) and (3) of the section do not apply here.

31. The authentication of ballot papers with the initials of the Presiding Officer on the front of the ballot papers rather than on the back as required by s. 126 does not render such ballot papers informal. There is nothing in s. 126 which expressly states that ballot papers shall be informal by reason of the initials of the Presiding Officer appearing on the front of the ballot papers. While Section 126 is mandatory, I consider it directory only.

32. However, I consider that subsection 5 of s.153 is the solution to the issue raised in this petition. Subsection (5) reads:-

"Subject to Divisions 3 and 4, a ballot paper shall not be informal for any reason other than a reason specified in this section." (my emphasis)

33. Section 153 (1) (c) renders any vote bearing a mark or writing which is not authorized by the Organic Law or the Regulations informal. The initials of the Presiding Officer on ballot papers is provided for in both Sections 126 and 153 therefore such initials are not unauthorized.

34. Assuming that s.153 (1)(a) means that the prescribed mark of the Presiding Officer must be on the back of the ballot-papers, but as with the 567 ballot-papers in question, the marks appear on the front of the ballot papers, I consider that subsection (4) can be invoked in respect of the Presiding Officer's marks on those ballot papers. In my view, subsection (4) takes care of the anomaly by the Presiding Officer so that the ballot papers are not informal. However in this case, I do not think subsection (4) can be invoked because s.153 does not deal with authentication of ballot papers.

35. This is not a situation where informal votes were cast by the electors who marked the 567 ballot papers. There is no evidence, not even an iota of evidence, that those voters did not place their preferential votes on the correct place, or that they failed to indicate their first preference and contingent votes on the face of those ballot papers. Furthermore, this is not a situation where the electors failed to indicate their votes on the 567 ballot papers, ie. those ballot papers were left unmarked or blank and the Presiding Officer just initialled them on the front.

36. Therefore the Court is entitled to correctly infer that there was no informal marking by the electors who marked the 567 ballot papers in question. But it was the Presiding Officer who initialled the ballot papers on the front.

37. Should the Court then declare those 567 votes informal under s.126? To do so would in my view be a glaring error by the Court because s.126 does not empower the Court to make a declaration of informal votes. Furthermore, it will be a great injustice to the electors who have indicated their first preferences and contingent votes correctly thereby expressing their will in a democratic election.

38. The Court must be mindful of the fact that its decision does not infringe the voters' constitutional rights under s.50 (1) (d) Constitution. In my view, to declare the 567 votes informal under s.126, which is not the appropriate provision of the Organic Law to do so, will deprive the constitutional rights of those 567 electors, and also the constitutional right of the first respondent pursuant to s.50 (1) (d) and (e) Constitution.

39. Furthermore, I am of the firm view that s.153 (5) is the appropriate provision in resolving the issue raised in this petition. Any reason outside the ambit of s.153 cannot be utilized by the Court to make a declaration of informal votes. Subsection (5) is clear and unambiguous. It does not permit the declaration of informal votes for any reason not found in s. 153. I am therefore of the view that the Court is not empowered by any other provision of the Organic Law except s. 153 to make declaration of informal votes. The only exception is that s. 153 is subject to Divisions 3 and 4, however as I have expressed earlier, those two Divisions deal with postal votes and votes under Part X111 Division 3.

40. Therefore, I am of the opinion that by virtue of s.153 (5) of the Organic Law, the 567 ballot papers cannot and should be not declared informal. That provision speaks for itself. It is the answer to the issue raised here. Divisions 3 (sections 155 - 158) deals with scrutiny of Postal Votes while Division 4 (sections 159 - 167) deals with Scrutiny of Votes under Part XIII Division 3 (sections 141 - 144). Those Divisions are not applicable in the present case.

41. I consider that s.153 (5) is a strict provision and its application excludes s. 126. It does not permit the Court to declare ballot papers informal for reasons outside of s.153. The initialling of the ballot paper in question is covered by s.126. It follows that s.126 (2), cannot be utilized to declare the 567 ballot papers informal because any reason used in s.126 is not a reason specified in s.153.

42. It is undisputed that the Presiding Officer in the present case had authenticated the 567 ballot papers with his initials on the front of the ballot papers in contravention of s.126 (2). The initials of the Presiding Officer appearing on those ballot papers is not unlawful nor unauthorized. Section 126 authorized him to sign or initial ballot papers. Secondly, the 567 voters' identities are not known on the face of those ballot papers.

43. But I consider that the most important thing to appreciate in this case is that s.126 does not render any ballot paper, howsoever marked, informal. It does not state that a ballot paper is informal by reason of the initial or mark of the Presiding Officer not appearing on the back of the ballot paper. To say that it is, in my opinion, is misconstruing s.126 because the purpose of s.126 is not to declare votes informal, but to protect the integrity of ballot papers and to ensure that ballot papers are not illegally obtained by electors and unlawfully marked by them.

44. That leads me to the case which the petitioner relies on, Mokwa Mamando v. Pyange Ni (supra). In respect of placing relevance in that case, I am of the view that Mr. Kongri's submission has some logic and common sense in it.

45. When the Court decided that case on 7 November 1977; the Organic Law on National and Local Level Government Elections, No 3 of 1977, certified on 9 April 1977 was in existence, and I believe it was the law that the Court was referring to at that time.

46. However, one very important observation to be made here is that there was no equivalent provision of s.153 (5), that is, there was no subsection (5) in s.153 in the 1977 law. The absence of an equivalent provision of s.153 (5) in the 1977 law is presumably the reason that the Court in that case used s.126 to declare votes informal. My view is that, the current s.153 (5) prohibits any declaration of informal votes outside of s.153. That means s.153 (5) does not authorize such a declaration under s.126 or any other provision. This Court is not obliged to follow that decision for that reason. And it must be reiterated that s.126 in both Organic Laws does not deal with informal ballot papers.

47. The present s.153 (5) is a recent amendment to the Organic Law as at 21 September 2006. Because this provision did not exist in the 1977 Organic Law, the Court did not address this issue in that case. That is the principle reason that I am not inclined to follow the 1977 decision. As I have alluded to, that case is not a binding precedent to this Court.

48. The pertinent issue in the present case, in my view is, where the ballot papers are not rendered informal by reason of the fact that they do not fall within any of the category of informal votes under s.153, can the Court declare the ballot papers informal under s.126? Section 153 is the only provision in the Organic Law that prescribes or describes what informal votes are. It is my view that the Court cannot declare votes informal under s.126. Section 153 (5) does not permit that.

49. Section 126 deals with authenticating ballot papers by the Presiding Officer. He does that by either placing his initials on the back of the ballot papers or he places an official mark where he himself prescribes. His initials must be on the back of the ballot papers. The purpose of authenticating ballot papers is to protect their integrity so that ballot papers are not lawfully marked by electors. There is nothing whatsoever which says that if the Presiding Officer's initials appear on the front of any ballot papers those ballot papers are informal. To determine whether a ballot paper is informal, the Court must invoke s.153, not s.126.

50. The Court is therefore of the opinion that the present case can be distinguished from Mamando's case (supra). There, the provision dealing with informal votes, although in existence at the time of that decision, did not have an equivalent subsection (5). However, the Court did not even refer to s.153, discuss it, or consider it, yet it was the provision dealing with informal ballot papers. That case is accordingly not a binding precedent and this Court is not bound by it for the reasons that have been stated.

51. That then leads me to whether s.126 is directory. The word "shall" in ss (2) makes it mandatory for the Presiding Officer to place his initials on the back of the ballot papers. In that respect, I agree with Mr. Manase's submission. However, I consider that even though it is compulsory for the Presiding Officer to do that, subsection (2) is directory only because failure to comply with the mandatory dictate of that provision provides no penalty. The Court cannot go to s.153 to invoke the penalty of declaring votes informal.

52. Mr. Kongri has referred to a passage in Craies on Statute Law, 6th ed. p.250 which I have perused, but which is actually part of the judgment of the Privy Council delivered by Sir. Arthur Channel in Montreal Street Railway Company v. Normandin [1917] UKPC 2; [1917] AC 170 at 174 & 175; where the Court stated:

"The question whether provisions in a statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice, to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

53. In applying that principle here, I consider that s.126 (2) is directory only because there is no penalty for its breach. Furthermore, the marking of the ballot papers on the front is not a condition precedent to the validity of the ballot papers. To my mind, the electors' intention and indications on the ballot papers is paramount to whether the Presiding Officer's initials on the ballot papers appear on the back or front, although he is required to put his initials on the back. As long as the ballot papers are correctly marked by the electors, there cannot be any informal votes. The significant point here is that the initials of the Presiding Officer merely legitimized the ballot papers so that the integrity of those ballot papers are protected.

54. There is an old English case which is quite interesting, and which I feel supports Mr. Kongri's submission. I cite it here because I consider it relevant and of some persuasive value as it fortifies my own view in the present petition.

55. The Queen. v. Lofthouse and Wilson (1866) LR 1 QB 433; is a case which relates to s.24 of the repealed English Public Health Act of 1848. For the purpose of electing a local Health Board, "the Chairman shall cause voting papers in the form in Schedule A" to be distributed to persons entitled to vote. Voting papers were distributed however, not precisely in the form prescribed in Schedule A because the columns for the number of votes to be cast were left blank.

56. Blackburn, J whom Mellor, J concurred with (and Shee, J dissenting) held that although it was the Chairman's duty to fill up the voting papers with the number of votes, the omission did not vitiate them and render the election void. It was said at p.439, by Blackburn, J that the validity of the election "depends upon whether the insertion of the number of votes is a condition precedent to the validity of a voting paper, or in other words, whether the requirement is obligatory. I think the omission does not vitiate the voting paper".

57. I find that that old English case has some resemblance to the present case. The validity of the 567 ballot papers, is not depended on initialling the ballot papers in the front. In my view the validity of those ballot papers depend on whether the electors had properly marked their first, second and third preferences on the ballot papers, not whether the Presiding Officer had initialled the ballot papers on the front or back.

58. I can imagine the gross injustice to the first respondent and the electors where the 567 ballot papers were properly marked but declared informal under s.126, in a situation were each of the person who cast the 567 ballot papers had clearly indicated his/her first preference, second preference and third preference votes in the appropriate columns of the ballot papers that there is nothing informal about such ballot papers, except that the Presiding Officer had initialled them on the front. Can the Court declare those ballot papers informal under s.126? Can the Court declare those ballot papers informal under s.153? Can the election be declared absolutely void? I do not think so. The purposes of the two provisions are quite distinct. Section 153 (5) prohibits such a declaration.

59. The Court must reiterate that, in the present case, there is no evidence at all that the 567 ballot papers contained informal votes under s.153 of the Organic Law. The only purported defect in those ballot papers is that the Presiding Officer initialled them on the front. I find that there is nothing informal about those ballot papers as there is no evidence that they were incorrectly or improperly marked by the electors.

60. Again, I must reiterate that s.153 deals with informal votes. In my view, that is the only provision of the Organic Law which enables the Court to declare ballot papers informal by reasons that are contained in that provision alone. By the same token, the Court must reiterate that s.126 is not the provision dealing with informal votes. I consider that the Court should not use it to declare ballot papers informal because the declaration of informal votes is not a remedy in s.126.

61. Accordingly, the ballot papers authenticated by the initials of the Presiding Officer on the front are not informal.

62. I am of the opinion that it will be a travesty of justice if this Court were to find that the 567 votes were informal under s.126. It is my view that the intention of the legislature to declare votes informal is clearly manifested in s.153. Therefore the utility of s.126 to declare the 567 ballot papers informal would be futile; an injustice, and unconstitutional in my view. I consider that if the Parliament intended that ballot papers not initialled by the Presiding Officer on the back in accordance with s.126 (2) are to be informal, it would have so expressed that in s.126. The absence of that specific intent leaves room for speculations and errors, particularly in the light of the prohibition in s.153 (5).

63. Again the Court must reiterate that s.153 of the 1977 Organic law was available to the Court to consider in Mamando's case. However, the Court failed to consider, discuss, and even refer to it. I noted that it used s.126 to invalidate ballot papers not initialled in accordance with that provision. However, I reiterate that I am not bound by that case because I am of the view that the Court is prohibited by s.153 (5) for declaring votes informal where the reasons for such a declaration are founded outside s.153.

64. For these reasons, and in accordance with paragraph 4 of the Consent Order issued on 17 October 2007, I declare that the 567 ballot papers in question are formal.

65. Accordingly, it is the judgment of the Court, and the Court so orders, that this petition is dismissed with costs to the respondents. The Court further orders that the petitioners security deposit in the sum of K5,000.00 be apportioned equally between the first and second respondents respectively.

Orders accordingly
________________________________
Steeles Lawyers: Lawyer for Petitioner
Mambei Lawyers: Lawyer for First Respondent
Nonggorr & Associates: Lawyer for Second Respondent

National Court of Papua New Guinea

Juvire v Oveyara [2008] PGNC 322; N3333 (8 May 2008)