SCR No 1 of 1990; Re Recount of Votes [1990] PGSC 20; [1990] PNGLR 441 (2 November 1990)

SC REVIEW NO 1 OF 1990; REVIEW PURSUANT TO CONSTITUTION, S 155(2)(B); APPLICATION BY THE ELECTORAL COMMISSION

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PARLIAMENT - Elections - Disputed election petition - Evidence - Recount ordered - Whether all ballot papers included - Result of recount subject to court satisfying itself in any just manner - Substantial merits and good conscience - Provincial Government Elections Act (Ch No 56), ss 118, 194.

ADMINISTRATIVE LAW - Judicial review - Grounds for granting - Nature of - Discussion.

An election petition in the National Court alleged irregularities committed by electoral officials in the counting of ballot papers. The trial judge ordered a recount of nominated ballot boxes. The recount revealed discrepancies in relation to votes cast pursuant to s 118 of the Provincial Government Elections Act (Ch No 56). The trial judge then re-examined (over objections from both petitioner and respondent) the s 118 votes. Any question of irregularities in s 118 votes was not specifically addressed in the election petition.

N1>(1) Where a recount of votes is ordered on the hearing of an election petition, all ballot papers, including votes under s 118, are subject to scrutiny, and the court may satisfy itself of the result of the recount in any way it may deem just, guided by the “substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not” as provided for in s 194 of the Provincial Government Elections Act (Ch No 56).

N1>(2) (Los J dissenting) There was no error by the trial judge which justified judicial review.

Discussion (by Sheehan J) of the nature of judicial review and the grounds on which judicial review is available.

Biami Provincial Parliamentary Election, In re; Banega Isilowa v Yoto Biaguni [1980] PNGLR 140.

SC Review No 5 of 1988; Application by Melchior Kasap; SC Review No 6 of 1988; Application by Yama [1988-89] PNGLR 197.

This was the hearing of an application for judicial review made pursuant to s 155(2)(b) of the Constitution, in relation to a decision of the National Court to declare an election void under the Provincial Government Elections Act (Ch No 56).

The decision sought to be reviewed is a decision of the National Court exercising jurisdiction under the Provincial Government (Electoral Provisions) Regulations 1977 (Ch No 56). These provisions apply by virtue of the Central Provincial Assembly — Provincial Elections (Interim Provisions) Act 1978. The validity of the election in relation to Hiri East constituency in the Central Provincial Government Assembly was disputed. The National Court declared that the election for the Hiri East constituency was absolutely void. Pursuant to s 197 of the Regulations, the decision of the National Court is final and conclusive and without appeal and shall not be questioned in any way. There is ample authority which states that this provision only prohibits “an appeal” but does not affect the power of review under s 155(2)(b) of the Constitution: see In re Moresby North East Election Petition [1977] PNGLR 429; Malipu Balakau v Paul Torato [1983] PNGLR 242.

Where there is a right to appeal and the appellant has not exercised such right, he must justify the reasons for not exercising that right when invoking the right of review under s 155(2)(b) of the Constitution: see Avia Aihi v The State [1981] 1 PNGLR 81.

Where there is no such right, and therefore no appeal lies to a higher tribunal, he does not have to justify reasons for this. In SC Review No 5 of 1987; Re Central Banking Regulations [1987] PNGLR 433, the Court said (at 437):

“In a case where a person or a party in a proceedings has no other way of coming before this Court in similar circumstances as in this case s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first established. In this case, there is an important point of law to be determined and it is not without merit.”

See also SC Review No 5 of 1988; Application by Melchior Kasap; SC Review No 6 of 1988; Application of Yama [1988-89] PNGLR 197. There is now a series of Supreme Court cases which clearly set out the limited number of instances in which s 155(2)(b) is available.

It has not been disputed that the legal issues raised by this Review should be reviewed by this Court. Mr Ame, counsel for the Electoral Commission, submitted that the trial judge fell into error:

N2>1. In that he wrongly admitted evidence in the trial. It is submitted that this evidence related to an issue which was not pleaded in accordance with s 184 of the Regulations.

N2>2. That even if the trial judge rightly admitted the evidence in the trial he fell into error in not giving the other parties the opportunity to address the issue.

The petition in the National Court alleged irregularities committed by the electoral officials in relation to the counting of ballot papers. The trial judge made the ruling that out of the four ballot boxes which were counted, boxes No 3 and No 4 should be recounted. This recount was in fact carried out by electoral officials. As a result of the recount of the two boxes, Sibona Karukaru had 679 votes and the petitioner had 665 votes. These figures show a difference of 14 votes.

However, on 5 October 1989, counsel for the petitioner in his submissions brought to his Honour’s attention discrepancies in relation to s 118 votes in ballot boxes No 3 and No 4. These discrepancies were discovered during the recount ordered by the court. To be specific, counsel for the petitioner alleged that only 376 ballot papers were discovered compared to 416 envelopes. The implication of this is that 40 ballot papers were missing. It is not clear from the record, or from counsel who appeared in the National Court, as to how this evidence came before the trial judge. However, the trial judge acting on this submission decided to re-examine all s 118 ballot papers and envelopes in all the four ballot boxes. At this point, counsel for the Electoral Commission and counsel for Mr Karukaru objected to this course being taken by the trial judge. The essence of their objections was that the petitioner had not specifically pleaded s 118 votes in the petition and therefore this could not be raised during the trial. However, the trial judge rejected these submissions and re-examined s 118 votes.

The question is: Did he fall into error in this regard? I find that the objections that were made at the trial were misconceived and the trial judge correctly rejected the objections. The petitioner showed that there should be a recount of all the votes. The ground for this was specific. One of the grounds was that the ballot boxes No 3 and No 4 were counted at great speed so that the scrutineers were unable to properly scrutinise the counting of the votes. When such an allegation is pleaded, it is impossible to plead the nature of the errors which may have been committed. In my view it is up to the respondent to convince the trial judge that the counting of these two boxes was properly done and scrutinised. They had the opportunity to do that at the trial. His Honour, in dealing with these issues, said:

“On the facts I find that the last two ballot boxes, being No 3 and No 4, were processed too fast and I further find that on the balance of probabilities this finding is sufficient to warrant this Court to order a recount for boxes 3 and 4 only.”

Where a recount is ordered, the effect is that all ballot papers are subject to scrutiny. This includes the votes under s 118. It is apparent from the record and the judgment of the trial judge that there were discrepancies discovered in relation to s 118 votes in boxes No 3 and No 4 during the recount. Counsel for the respondent did not dispute that there were such discrepancies. The objection was based on the raising of a new fact and I have already concluded that this was a misconceived objection.

The trial judge in fact examined all s 118 votes in all of the ballot boxes. I am in some difficulty about whether the trial judge should have examined boxes No 1 and No 2 as they were not pleaded in the petition. However that is irrelevant as the trial judge found that all s 118 votes in ballot boxes No 1 and No 2 were regular. However, he found 17 irregular s 118(1) envelopes in ballot box No 3 and 13 irregular s 118(1) envelopes in ballot box No 4. The grounds upon which he found them irregular are set out in the trial judge’s judgment. He ruled that 29 s 118(1) envelopes were irregular on the basis that the voters did not sign the declarations and that the presiding officer did not indicate in the appropriate box the grounds on which he permitted the electors to cast their vote under s 118. On this review, counsel for the respondents have not questioned any of these grounds at all.

It is clear that the National Court has power to order a recount and the court may satisfy itself of the result of the recount in any way it may deem just. The important thing is that the trial judge must be guided by substantial merits and good conscience without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not (see s 194).

The second ground of review relates to complaints that the trial judge failed to give the respondents to the petition an opportunity to call evidence to explain the 40 missing ballot papers (s 118 votes). In my view this ground of review cannot succeed.

The trial judge did not determine this petition on the basis of the 40 missing s 118 ballot papers. This evidence was discovered during the recount ordered by the court. The trial judge was invited to personally re-examine and recount s 118 votes again because of the discrepancy. Convinced by this, the trial judge re-examined and recounted s 118 votes in court. Counsel for the respondents objected to this course being taken. I have already concluded that the trial judge did not fall into error in dismissing these objections.

The trial judge makes no further use of the fact of the 40 missing ballot papers. He proceeded on the irregularities he discovered from examining the declarations under s 118 on the envelopes. In this regard he discovered that in respect of 29 envelopes, electors failed to sign the declarations and the presiding officer failed to indicate the grounds on which he permitted the electors to vote. He concluded that this was a material irregularity contravening s 118 and the ballot papers contained in these envelopes should have been rejected by the presiding officer under s 138 or rejected at the preliminary scrutiny under s 139. As to these irregularities, it is difficult to see how the electoral officials would improve on these fatal errors if they were given an opportunity to explain in accordance with the principles of natural justice contained in s 59 of the Constitution. These errors cannot be corrected.

However, all parties should have the opportunity to address the court on the effect of these errors on the result of the election. In this regard, the respondents to the petition make no complaint. In fact all parties were aware of the irregularities and the trial judge reserved his decision for consideration.

Indeed, in this Court they do not contest the trial judge’s ruling on the irregularities nor do they contest the effect of these irregularities on the result of the election.

It is also clear from the judgment and it has not been disputed in this Review that the electoral officials did not comply with the procedures for counting s 118 votes. The procedure set out under s 139(d) and (e) of the Regulations is as follows:

N2>“(d) Number each envelope consecutively from one upwards in the top right-hand corner until all the envelopes have been dealt with; and

N2>(e) without further examining the declarations of a voter, or permitting any other person to do so, withdraw from the envelope each ballot paper contained in it, and, without inspecting or unfolding the ballot paper or allowing any other person to do so, place on it a number corresponding with that placed on the envelope from which the ballot paper has been withdrawn, and deposit the folded ballot paper in a locked ballot box for further scrutiny.”

The envelopes were not numbered and nor were the corresponding ballot papers which were drawn from the envelopes given the corresponding number on the envelopes. This was a serious error and the trial judge or this Court is unable to determine which candidates got the votes from these irregular envelopes. Any attempt to work out where these votes would have gone is pure speculation. This Court can not do that. What would the Court do in these circumstances? If the number of irregular envelopes was less than 14 which is the leading margin by Mr Karukaru, then it could be said that the error committed by the electoral officials did not make any difference to the result of the election. However, it cannot be said with any great degree of certainty that the error in this case would not affect the result. In this case the winning margin of 14 votes is exceeded by 19 votes which should not have been counted.

If the court was able to trace where the votes from the irregular envelopes were counted, this could result in any one of two positions. First, all these votes could have been distributed amongst all the candidates and Mr Karukaru would still be leading. On the other hand, all these votes could have been counted to make up the total amount of votes for Mr Karukaru. In which case, Mr Karukaru’s votes could have been reduced by 19 and the petition could have more votes in the end. But this Court will never know. In my view it would not be fair and just to leave the result of an election in an uncertain fashion as in this case. The only way to resolve this uncertainty is to declare the election void and run fresh elections. I do not find that the trial judge erred in coming to this conclusion. I would confirm the decision of the trial judge that the election was absolutely void.

LOS J: In this application the Electoral Commission seeks to review a decision by the National Court on an election petition from the Hiri East Constituency in the Central Provincial Government Assembly Election. The petitioner was Tau Loi of Gaire Village who disputed the validity of the election of Sibona Karukaru. The petitioner alleged that during the counting of the votes certain irregularities occurred. They were:

N2>“(a) Five ballot papers belonging to the petitioner were wrongly placed in the First Respondent’s tray. They were later voluntarily returned by the counting official to the petitioner’s tray.

N2>(b) Three ballot papers belonging to the petitioner were wrongly placed in another candidate’s tray, namely Mr Bae Tau. They were also voluntarily returned to the petitioner’s tray.

N2>(c) One ballot paper which was informal was declared formal in favour of the first respondent by the official of the second respondent in charge of the distribution of the votes and was later declared informal at the strong protest of the petitioner’s counting scrutineer, Mr Ala Loi.

N2>(d) The speed and manner in which the distributing official of the second respondent counting the voters was not at a rate in which the counting scrutineers of each candidates would have ample time to clearly scrutinise all the single votes of each candidates. Further, at the counting of boxes 3 and 4, the votes were packed in bundles and distributed to the respective candidates. These had prevented the scrutineers of each candidates from clearly checking the back pages of each ballot paper and further prevented the said scrutineers of each candidates to check each single ballot paper in each bundle.

N2>(e) Throughout the counting of ballot boxes 3 and 4, the votes of the first respondent were not subjected to scrutiny.”

The Court of Disputed Returns (the court) while dismissing the other grounds of the petition, ordered a recount of the votes in the ballot boxes No 3 and No 4. After the recount slight variations were discovered in the counts. But on the whole the winning candidate still had the lead. During the recount something else was discovered: in the ballot box No 4 there were more s 118(1) envelopes than the ballot papers themselves. There were 49 in fact. After consideration and analysis the court found 19 of these envelopes to be still irregular. On the ground that these were errors and omissions that had gone to the root of the elections the court declared the election absolutely void. Other consequential orders were also made.

The applicant seeks to review the court’s decision on two grounds. First, the applicant says the court erred in law in admitting the evidence of facts not pleaded in the petition. These were the votes under s 118(1) of the Provincial Government Elections Act (Ch No 56) where it was shown that there was a greater number of envelopes than the ballot papers. Secondly, it is argued in the alternative, that if that evidence was correctly admitted, but court erred in law in not giving the applicant an opportunity to adduce evidence on those facts and address on them.

Before the Supreme Court, the applicant’s counsel sought to present the arguments on leave separately from the argument on merits. Under the Provincial Government Elections Act, as in the Organic Law on National Elections (Ch No 1), there is no right of appeal from the decision of any court of disputed returns: s 197. Therefore the legal position is not like the type that had been fully discussed in Avia Aihi v The State (No 2) [1982] PNGLR 44 and many other subsequent cases. The only avenue the applicant has is a review under s 155(2)(b) of the Constitution. The applicant can therefore automatically come before the Supreme Court and present both arguments together. But when presenting the arguments the applicant must show the merits of the application.

Before getting into the legal arguments on the grounds advanced by the applicant, there is a question as to how the evidence of the empty or extra envelopes came before the court. The counsel for the applicant said that no evidence as such was led by the petitioner but the petitioner’s counsel pointed out to the court during the submissions that there were more envelopes than the ballot papers in the boxes that were under recount. Counsel for the petitioner’s response in this respect was vague. The Supreme Court therefore asked all counsel to ascertain the true position. They subsequently advised the court that indeed that was the position.

I think that the method of adducing the evidence on the envelopes is irrelevant unless there was any fraud involved, because s 194 of the Provincial Government Elections Act obliges the National Court not to be guided by technical rules of evidence but by the merits and good conscience of each case to achieve real justice:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

Once the evidence was before the National Court the two questions raised by the applicant would have become relevant as they are now.

As to the first question, the legal position is clear. Section 185 of the Provincial Government Elections Act sets out the requisites of a petition:

N2>(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election or by the Electoral Commissioner; and

N2>(d) be attested by two witnesses whose occupations and addresses are stated; and

N2>(e) be filed in the registry of the National Court at Port Moresby within two months after the declaration of the election in accordance with s 153(1)(a).”

Both the National Court and Supreme Court have discussed this legal position in many cases, for instance, In re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328. The National Court there said the facts relied upon by any petitioner must be specified in the petition before they could be relied upon to prove the grounds of the petition. Similarly, the National Court, in Mapun Papol v Antony Temo and the Electoral Commission [1981] PNGLR 178, said the requisites of petition required under the Provincial Government Elections Act must be complied with strictly. The Supreme Court, in SCR No 4 of 1982; Re Delba Biri v Bill Ninkama [1982] PNGLR 342, has confirmed what the National Court judges have said, that is, an election petition disputing the validity of an election addressed to the National Court must comply strictly with each and every requirement in the Organic Law on National Elections and the Provincial Government Elections Act.

It is apparent that the fact that there might be more envelopes than the ballots themselves was not specifically pleaded in the petition as grounds for seeking any remedy. Neither the petitioner nor anybody else expected these. On the face of it therefore the petitioner could not rely on these facts. Tau Loi’s lawyer sought to rely upon s 194 of the Provincial Government Elections Act by saying that because the Court of Disputed Returns was not required to be technical about any petition, the evidence on extra envelopes was justifiably received by the court. Presumably he meant that an injustice might be caused if the new facts that came to light during a recount were not relied upon to determine the outcome of the petition. I think that the cases I have cited are very clear that a petitioner cannot rely on s 194 to avoid the requisites of the petition. Section 194 deals with the process of receiving evidence and not the requisites of a petition. In this respect I refer to the Supreme Court statement of law in Delba Biri’s case (at 345-346):

“This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Government Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v Antony Temo (supra) and we are in agreement with what was said there, namely (at 180):

‘However, in my view, this provision is not applicable in considering the preliminary point raised here. This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss 184 and 185 equivalent to ss 208 and 209 of the Organic Law of the Regulation (as applied). This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit. To read s 193 of the Regulation [identical to s 217 of the Organic Law] as applicable to this preliminary point is to bring it in conflict with the intentions of s 186 [s 210 of the Organic Law]. These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statutes that an Act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another; see Maxwell on the Interpretation of Statutes (12th ed, 1969), Ch 9 “Construction to Avoid Collision with Other Provisions”. Sections 186 [s 210, Organic Law] and 193 [s 217, Organic Law] deal with different subject matters.’

It is quite clear to us that s 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only: see Ithaca Election Petition; Webb v Hanlon [1939] QSR 90.”

Also, and incidentally, at that late point in time, the court could not allowed any amendment to the petition to allow for the new facts. For any amendment must be done within a specified time: see Delba Biri’s case, at 349.

I have discussed matters of law and the facts generally. I will now look more closely at the facts, the subject of this review.

The petitioner claimed that the rapid counting and bundling of votes was done in such a way in which a proper scrutineering was impossible. Could these be sufficient facts? What is meant by facts was a subject of a reference by the National Court to the Supreme Court in SCR No 2 of 1988; Holloway v Aita Ivarato [1988] PNGLR 99. As far as possible I state what the Supreme Court said in that case:

N2>(1) The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds;

N2>(3) The facts must be set out sufficiently so as to indicate or constitute a ground upon which an election may be invalidated;

N2>(4) Merely pleading that certain action by election officers was contrary to an election law is not sufficient.

However the Supreme Court acknowledged (at 102) that any rigidity in law cannot operate in an imperfect world:

“What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.”

Clearly, the claim that “the speed and manner in which the distributing official ... counting the votes was not at a rate ... the scrutineers ... would have ample time to scrutinise all the single votes” had been sufficiently set out. Similarly “the votes were packed in bundles ... [these] had prevented the scrutineers ... from clearly checking the back pages” had been sufficiently set out. Indeed, upon the evidence, the court found that comparatively to the counting of other ballot boxes, it took less time to count the votes in the ballot boxes No 3 and No 4, when these two boxes contained more votes that the votes contained in other boxes that took longer to count. Hence an order was made to recount the votes in the ballot boxes No 3 and No 4. The recount meant that anything could have been discovered. Indeed, as a result of the recount, four ballot papers became the subject of disputes and the National Court made certain rulings on them. And indeed, discovered in the ballot box No 4, were 49 s 118(1) envelopes which had no corresponding number of ballot papers.

In my view therefore, the court properly relied on the evidence of the express envelopes because they were discovered as a result of a recount; and the recount was ordered because it was proved upon evidence that indeed the counting of the ballot boxes No 3 and No 4 was done too quickly and the votes in the ballot papers were distributed in bundles to the candidates.

I now deal with the second ground of the review. It is clear that the focus of the hearing was not on any excess envelopes.

The discovery of the excess envelopes, although legally not a surprise, came in such a way that all the parties were not prepared for it. The court adjudged the envelopes against the format in ss 118, 138 and 139 of the Provincial Government Elections Act and concluded that the excess resulted from serious errors and omissions by the electoral officers. I think that as a matter of substantive hearing, the court was entitled to conclude one way or the other. As a matter of process, however, that is only one side of the coin, in my respectful view. The “serious errors” as found by the court begged more questions than giving cause to come to a final conclusion. The objections raised by counsel against receiving the evidence on the discovery of the excess envelopes were based upon the rules pertaining to the requisites of the petition as well as the rules as to admission of evidence. And the court made appropriate rulings on the objections. The question as to how the express envelopes came about remained unanswered. They could have resulted from silly mistakes, indifference or as a result of any of the electoral officers. Without this information the conclusion remained, in my view, a charge against the Electoral Commission. This is unfair. It might be argued that the applicant did not ask specifically for an adjournment or to be given a chance to call evidence to explain how the excess envelopes had occurred. In the normal rules of civil procedure a party cannot obtain relief which has not been sought: Ume More v Papua New Guinea University [1985] PNGLR 401. In this petition, although the objections were directed at the requisites of the petition and rules of evidence, impliedly it was also directed at the need to explain the reasons for the excess envelopes. But more importantly the rules of natural justice under s 59 of the Constitution are directed at the courts and the tribunals. This responsibility cannot be put on the parties totally. “The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.” This principle has been the subject of many Supreme Court cases. In one of them the Supreme Court said that “this minimum requirement is at the root of the principles of natural justice”: SCR Nos 12 and 12a of 1984; Re Joe Parakas v The State [1985] PNGLR 224. A desire to reach finality might have been a just cause not to allow the other party to drag on the petition especially if that party was acting in a way to cause unnecessary delay or merely to abuse the process of justice. In this petition the hearing was at Waigani. The witnesses were within reach. The hearing started in September 1989 and stretched over to October. Recounts were allowed and ordered twice. Looking at the importance of the electoral process generally and the circumstances of the hearing of this petition, with respect, it seems to me that a need to reach finality was not pressing. Fundamentally, the court was to determine whether the winning candidate was of the majority choice or whether the petitioner was the real choice but because of some irregularities he was prevented from winning. I think that s 195(1) of the Provincial Government Elections Act makes that point. If there was a clear majority choice one way or the other irrespective of any error or omission the court could not avoid the election. Section 195(1) provides:

N2>“(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence of an error of, or an omission by, an officer which did not affect the result of the election.”

“The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void:

N2>(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

N2>(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

Various Papua New Guinea cases have discussed this point. I refer to one, for example: In re Biami Provincial Parliamentary Election; Banega Isilowa v Yoto Biaguni [1980] PNGLR 140. Andrew J adopted the principle in Woodward v Sarsons [1875] UKLawRpCP 68; (1875) LR 10 CP 733 at 743 and said (at 145):

“I take the law to have been correctly stated by Lord Coleridge in Woodward v Sarsons. The statement of Lord Coleridge is as follows:

‘We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a free and fair opportunity of electing the candidate which the majority might prefer. This would certainly be so if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament.’ ”

The facts revealed during the hearing that originally the petitioner polled 664 votes while the winning candidate polled 681 votes thus winning by 17 votes. After the recount of the ballot boxes No 3 and No 4 and excluding the four disputed ballot papers the winning candidate was still leading by 13. After the ruling on the four disputed ballot papers the petitioner gained one vote while the winning candidate gained two, hence still leading, but this time by 15 votes. At the end of the day the winning candidate was still leading.

In relation to the envelopes upon further counts, consideration and accounting by the court the number of the envelopes with no corresponding ballot papers came down to 19. Had there been a corresponding number of ballot papers and the votes were regular, who would have gained those votes? It is difficult to speculate. But from the fact that at all the stages the winning candidate still gained and hence was still leading, it is my view that not all the 19 votes could have gone to the petitioner. Whenever there was a gain for both the petitioner and the winning candidate it was at the rate of 1:2 in favour of the winning candidate. This, in my view, strongly reflects the choice by the electors. If the 19 votes were to be shared equally the winning candidate would have still won. If the petitioner had gained three quarters of the 19 votes (which is an impossible proposition from the ratio of gain shown so far) he would still not have won.

My analysis and rationalisation of the votes is simply to show that the only way to find out who was the real choice of the majority of the electors was to call for the Electoral Commission officers to explain the cause of the excess envelopes. This course is required by the Provincial Government Elections Act, the decided cases and the requirement of natural justice in s 59 of the Constitution. In failing to take this course the court had made an error in the process of hearing. I would therefore grant the review sought by the applicant. As I am in the minority, there is no need for me to make any consequential orders.

On 16 October 1989, the National Court handed down a decision in respect of a petition lodged challenging the validity of the elections for the Hiri East constituency in the Central Provincial Government Assembly election. The petition was upheld and the election declared void. A by-election for the seat was ordered. There was also an order that the Electoral Commission pay the costs in the petition.

The Central Provincial Elections Act (Ch No 56) provides that a decision of the National Court on an election petition is final. The Electoral Commission has therefore made this application for the National Court decision to be reviewed pursuant to this Court’s powers under s 155(2)(b) of the Constitution.

The grounds cited for review are that the proceedings on the petition in the National Court were improper in that the court admitted evidence on matters not pleaded in the petition: did not permit the Commission the opportunity of responding to that evidence: and in fact granted the petition based on the evidence of the new matter alone.

The submissions made on behalf of the Electoral Commission recognise that there are no appeal rights in respect of a petition decided before the National Court. However, the submissions on an applicant’s right to review and the criteria by which the court should decide whether to grant leave for review or not, call for some comment.

It was submitted that where there is no right of appeal from a National Court decision and a party has no other way of coming to the Supreme Court, he has a “right” to seek judicial review under s 155(2)(b) of the Constitution. However, the submission goes, leave for such a review will only be granted if there is an important point of law to be determined and that the arguments put forward in respect of that point have merit.

It is the Commission’s contention that important points of law are in issue and accordingly, theirs is an appropriate case for judicial review.

Taken separately, these statements have a certain validity about them. Taken together as a summation of the nature of judicial review, they can be quite misleading.

Shortly stated, the supervisory jurisdiction of the National and Supreme Courts in judicial review is to oversee the decisions of subsidiary courts of law, tribunals, public authorities and persons making decisions which affect the public rights of the people of this country.

Citizens are commonly subject to the decisions of any number of organisations, courts, tribunals or authorities, lawfully empowered to carry out specific tasks, or regulating the conduct of a variety of organisations. All such decisions are now regarded similarly. Earlier distinctions between the judicial and administrative or executive nature of such decisions have long since been disposed of: Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.

The powers accorded such authorities include such things as the granting or refusal of licences permits; the administration of government departments, statutory bodies or agencies and their staff; and powers that are delegated to the discretion of ministers or public officials.

The authority for those bodies and individuals to decide on the matters entrusted to them will usually be derived from statute or Parliament. Sometimes it is from the powers incorporated in organisations having acknowledged administrative control over a particular field, such as a profession or sport.

By judicial review the court can ensure that decisions are made in accordance with duties imposed on the various authorities and prevent them from assuming powers which they do not have. But the court cannot determine whether decisions validly made are right or wrong on their merit. It can only see to it that the decisions are made properly and fairly.

If a public body is under a duty to perform a certain act then the courts can order that be done. But, where a body or person has been entrusted with a discretion, the court cannot require that that discretion be exercised in a particular way; it can only require that the exercise of the discretion is made lawfully.

But it must be clear that any person or body granted a discretion to decide matters affecting public rights can only exercise that discretion in a reasoned manner that accords with the purpose of the authority delegated. It cannot be exercised as a matter of whim or personal preference. It must be exercised lawfully. The purpose of judicial review is to ensure that.

This supervisory jurisdiction of review is an inherent power of both the National and Supreme Courts. Section 155(2)(b) only entrenches the power inherent in the Supreme Court to review the decisions of the National Court. It was said in Avia Aihi v The State [1981] PNGLR 81 (per Kapi J, at 109):

“In my view there is no magic in the words ‘an inherent power to review all judicial acts of the National Court’. The inherent power to review all judicial acts of the National Court simply means that power which is essential to the existence and function of the court from the very fact that it is the final court of appeal. It needs no constitutional provision to say it.”

Judicial review is not an appeal procedure. Judicial review does not consider the merits of any decision that may be challenged. Judicial review is only concerned with the validity of the decision; the subject matter of the decision always remains in the discretion of the relevant authority, otherwise the court would be assuming the powers delegated to others.

Lord Hailsham, in R v Chief Constable of North Wales Police; Ex p Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1160, has given a succinct modern statement of judicial review. He said that the purpose of judicial review:

“... is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.”

That is simply saying that by judicial review the Court can set aside an administrative decision without substituting its own decision. It does not assume the functions of the authority delegated to make the decision. It merely directs that the decision be made fairly and lawfully. In an appeal on the other hand the appellate tribunal may substitute its own decision on the merits for that of the administrative body, officer or court below.

Often the statutes or authority creating the power of decision-making will stipulate that the decision so made is not open to challenge in any court. This basically is the situation in the Provincial Government (Electoral Provision) Regulations 1977 (Ch No 56).

But judicial review, because it is not an appeal procedure, because it does not seek to substitute the decision reviewed with its own, does not conflict with such provisions. Given the supervisory jurisdiction inherent in the National and Supreme Courts and the directives, in s 59 and s 155 of the Constitution, judicial review can be seen as a protection of the integrity of the decision-making process — not an intervention or interference with that process. The comments of Narokobi AJ in Reva Mase v PNG (N260, Narokobi AJ, 1 October 1980, unreported) are relevant and expressive on this point.

The grounds on which judicial review will lie show that in this exercise of its supervisory jurisdiction the Court’s concern is only with ensuring the lawful exercise of delegated power and the validity of the decision-making process. They largely fall within the following headings:

An error of law on the face of the record: That is where the record of the proceedings that background the authority’s decision and/or the decision itself contain an obvious error of law.

Lack of jurisdiction: Where the authority acts without proper jurisdiction, either by embarking on matters which are not within its delegated authority or exceeds the powers which have been granted to it, remedies under judicial review are available.

Failure to comply with the rules of natural justice: Basically this is a duty to act fairly and without bias or oppression. A prime example is that a body or authority empowered to make a decision affecting a person’s public rights is obliged to give that person the opportunity to be heard before a decision is made contrary to his interests.

The decision must not be unreasonable: The decision of any public authority is open to review if can be shown that, if after a proper enquiry and properly directing itself to the question before it, no reasonable authority could have come to such a decision (Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).

It is certainly true to say, as was submitted, that parties have the right to seek judicial review of the National Court decision. However that statement is only correct if it is recognised that the right referred to is the right to seek leave for review. That is, any aggrieved person having sufficient standing in an issue, is entitled to apply to the court to ask that it invoke its inherent jurisdiction and review a particular decision. If the court can be shown that an arguable case on relevant grounds exists then leave will be granted.

In this application this Court, well aware that the National Court has been entrusted with the power of decision in the matter of election petitions, will only grant such leave and intervene on review if it is shown that there is an arguable defect in the decision-making process; not an insignificant fault, but one having sufficient importance as a matter of law to warrant the Court entering upon review of a matter intended to be finalised in the National Court. With this in mind it can be seen that judicial review by the Supreme Court is not an automatic next step open to a dissatisfied party to an election petition in the National Court.

Turning to the present case, the Electoral Commission has complained that the hearing of the petition by the National Court was tainted by the improper admission into evidence of “facts not pleaded in the petition”, alternatively if that evidence was admissible then it was new material concerning which the Commission should not have been denied the opportunity to adduce evidence.

Admission of evidence not permissible by the laws governing the hearing of election petitions would render any decision of the National Court made in reliance on that evidence open to review on grounds that the court had exceeded its jurisdiction and acted ultra vires. If the new evidence was properly admissible but the applicant was prevented from commenting on it or given no opportunity to rebut, then again review would lie to remedy the failure to accord a fair hearing.

Ground 2(d) of the petition was that the votes contained in boxes No 3 and No 4 were counted at such a speed and in such a manner that ample time was not given clearly and properly to scrutinise those votes. The trial judge in fact found that there were grounds for concern and ordered a recount.

The election night figures had shown a 17-vote difference in favour of the first respondent over the petitioner: the final figures after a recount (conducted on direction of the court by Electoral Commission officers in the presence of all parties) reduced that advantage to 13. The discrepancy of four votes was not sufficient to alter the election result, but when the court reconvened on 5 (?) October 1989 to receive the results of the recount, counsel for the petitioner, when making submissions on the recount results, notified the court that the s 118 ballot papers and s 118 envelopes did not tally.

The applicant, the Electoral Commission, says that evidence regarding that discrepancy was then simply allowed in as evidence before the court despite strong objection voiced by both respondents. Despite arguments that the “new evidence” was not relevant to any ground pleaded in the petition, was not a finding discovered pursuant to the order for recount and in any case was matter that was quite new, taking all parties by surprise, the learned judge accepted the evidence without more. Indeed the result of the petition was determined on this discrepancy without further opportunity being accorded either respondent to offer evidence in rebuttal.

Since this application contains no statement in support, and no evidence or affidavit was offered on this, the essential point of the applicant’s case, the Court asked counsel whether they were agreed that in fact that was how this evidence was put in.

There was some hesitation before counsel agreed that that indeed was the case. They subsequently put their agreement on the matter in writing:

Registry Waigani went through the file to determine the queries raised by their Honours.

(a) How the evidence in relation to the difference in number of the Section 118(1) ballot papers and 118(1) envelopes went into evidence.

(a) The Section 118(1) ballot papers and Section 118(1) envelopes went into evidence through submission of Counsel for the Petitioner after the recount.

The crucial matter here is that counsel went through the file to establish their view of how that evidence was put in. This Court too has examined the file. The challenge to the validity of the National Court’s decision is based on that record.

This Court finds that the only record of the recount being returned to the National Court, and submissions being made on that, and the s 118 votes/envelopes discrepancy, is in the National Court judgment. That record shows that after hearing the objections of the respondents to there being any admission of evidence regarding this discrepancy, the learned judge made a ruling as follows:

“In this case the fact of s 118(1) ballot papers not matching the envelopes came to light in the course of investigating the petitioner’s initial allegations that counting — meaning the scrutineer and counting — of all ballot papers in boxes 3 and 4 was done rapidly and as a result of recount of those boxes ordered by the Court. For this reason I again made an interim order requiring that all s 118(1) envelopes in all 4 ballot boxes for Hiri East Constituency be produced in Court for inspection and their count.” (Emphasis added)

N2>1. There were more s 118(1) envelopes in each box than the number of s 118(1) votes as shown in exhibits A1, A2, A3 and A4.

N2>2. All s 118(1) envelopes in ballot boxes 1 and 2 to were found to be regular

N2>3. 17 and 13 s 118(1) respectively were found in ballot boxes 3 and 4 to be irregular.

The 30 irregular envelopes were reserved for my ruling and were marked as court exhibits.” (Emphasis added.)

While it is true that the judge’s initial order was only for a recount; the discovery of the discrepancy as “a result of the petitioner’s scrutineers request at the recount for a count of the s 118(1) votes” does not in my view amount to any breach of procedure. While the oral evidence of witnesses was complete to that stage, the enquiry in this petition was still open. I consider that the learned judge’s ruling was logical and one well within the ambit of the petition as filed. Faced with a possible discrepancy discovered during the recount that he had ordered (and it may be noted that the detailing of this discrepancy was made by the electoral officers themselves) it was inevitable that the court would make the order that it did for further inquiry to enable it to come to a proper conclusion on the petition.

The record therefore does not support counsel’s contention that the National Court accepted evidence merely on the submission of counsel for the petitioner. It shows in fact that, apprised of a possible discrepancy arising out of the recount, the court ordered further investigation.

That indicates an inquiry pursuant to the court’s duties in considering a petition. Therefore I cannot see any case made out on the first ground.

If therefore that evidence was produced in court for examination and ultimately exhibited, it would seem there was opportunity there for parties to comment on it. There is no record that they did so. Nor is there any suggestion that application was made for the recall of witnesses, or to call fresh witnesses, to give evidence of clarification or rebuttal. Even the application for review does not suggest that application to do so was made but refused.

On the record as it stands then, the learned trial judge quite properly admitted the evidence that the applicant complains of. It was relevant to his inquiry under the petition. But whether parties were surprised by this new evidence or not, whether wishing to give evidence in reply to rebuttal, no application to do so was made or refused.

The applicant has failed to establish the grounds cited in this application. It has failed to show any irregularity or unfairness in the National Court hearing of the petition. The learned trial judge’s decision that the election cannot stand is based on findings of irregularities leading to the inevitable conclusion that without them the result could well have been quite different. Accordingly, this application for review must be dismissed.

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Supreme Court of Papua New Guinea

SCR No 1 of 1990; Re Recount of Votes [1990] PGSC 20; [1990] PNGLR 441 (2 November 1990)

Papua New Guinea Law Reports - 1990