Apelis v Sir Julius Chan [1998] PGSC 43; SC573 (9 October 1998)

Unreported Supreme Court Decisions

SC573

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW NO 54 OF 1998
THE HON. EPHRAIM APELIS
V
SIR JULIUS CHAN

Waigani

Kapi DCJ Sheehan Akuram JJ
29 July 1998
9 October 1998

JUDICIAL REVIEW - under s. 155 (2) (b) of the Constitution - Review of decision of the National Court.

NATIONAL PARLIAMENT - General Elections - Breach of s. 61 of the Organic Law on National and Local Level Government Elections which denies the right to vote or right to be elected under s. 50 of the Constitution is a valid ground for invalidating an election.

NATIONAL PARLIAMENT - Election Petition - Pleading material or essential facts under s. 208 (a) of the Organic Law on National and Local Level Government Elections.

Counsel

C Narokobi for the Applicant

J Nonggor for the Electoral Commission

NM Cooke QC and MM Varitimos for the Petitioner

9 October 1998

KAPI DCJ SHEEHAN AKURAM JJ: This is an application to review a decision of Andrew J brought pursuant to s. 155 (2) (b) of the Constitution. The decision which is sought to be reviewed arose out of applications made by the Hon. Ephraim Apelis (hereinafter referred to as the Applicant) and the Electoral Commission to strike out the petition filed by Sir Julius Chan in EP No 54 of 1997.

In order to appreciate the grounds of review, it is necessary to briefly set out the grounds relied upon in the petition to invalidate the election.

There are several grounds which are broken into different parts. The first ground relied upon alleges that officers of Electoral Commission failed to enroll eligible voters in breach of s. 61 of the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law), thereby denying them their constitutional right to vote pursuant to s. 50 of the Constitution (ground 5).

The second ground of petition alleges unlawful or irregular practices at the polling on the part of the applicant’s servants and agents in that they instructed the petitioners scrutineers to stay 10 to 12 metres away from the polling booths (ground 6).

The third ground of petition alleges that the ballet boxes were left in the hands of polling and presiding officers without any adequate security provided (ground 7).

The fourth ground of petition alleges that irregular and unlawful acts in the counting of the votes were committed by Electoral Commission officials, namely, that the votes were counted so quickly like deck of cards and they must have discounted many of petitioner’s votes (ground 8).

The fifth ground of petition alleges that officers of the Electoral Commission allowed under age people to vote (ground 9).

The sixth ground of petition alleges undue influence of voters by applicant’s supporters, agents or servants (ground 10).

The applications by the applicant and the Electoral Commission sought to strike out the petition on a number of grounds.

GROUND 5

In relation to ground 5 of the petition, the applicant and the Electoral Commission raise two arguments. The first is a question of law, namely, that the failure to enroll eligible voters and thereby denying the right to vote at the elections, is not a ground which comes within s. 218 or any other provision of the Organic Law. They submit that the irregularity in so far as it relates to rejection of people from voting at the polling, is applicable only to “electors” under s. 218 (2) of the Organic Law. Counsel submit that persons who were not allowed to vote are not “electors” and therefore the petitioner cannot rely on s. 218 of the Organic Law.

In summary, they submit that ground 5 in the circumstances of the present case is not a valid ground for invalidating the election under the Organic Law. They submit that the remedy for not getting enrolled on the Common Roll is provided for under Part IX of the Organic Law by means of appeal to the District Court.

The second argument is that ground 5 does not plead material facts in many aspects contrary to s. 208 (a) of the Organic Law and therefore should be struck out.

In reply, counsel for the respondent submits that appeal to the District Court is not applicable in the present case because the alleged voters were not notified of the rejection to enroll under s. 59 of the Organic Law and they had no opportunity to appeal to the District Court before the election. He submits that the ground as pleaded raises a valid ground for invalidating an election under the Organic Law. In respect of pleading counsel submits that the ground pleads all the material facts for the purposes of raising ground 5.

As far as we can determine from the reasons for decision, the trial judge did not address the first issue directly. He addressed the issue by way of adopting two cases, In Re Moresby Northwest Parliamentary Election, Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338 and Cole v Lacey [1965] HCA 11; [1965] 112 CLR 45 which deal with application of s. 218 of the Organic Law. With respect, these two decisions deal with proper grounds where s. 218 is applicable. They do not deal with the point raised in the present case. Both cases deal with either rejection or counting of informal votes. These are votes rejected by election officials on grounds other than the right or an entitlement of a person to vote at an election. Any error by an officer with regard to counting of such informal votes come within the ambit of s. 218. Cole v Lacey (supra) deals with pleading of ground relating to informal votes and Gavera Rea v Mahuru Rarua Rarua (supra) deals with the counting of informal votes at the counting of votes.

In the present case, the persons whose right to vote have been denied as pleaded in ground 5 are persons who were not on the roll at the time of the election and therefore they were not entitled to cast their votes according to s. 131 (1) of the Organic Law. There is no suggestion that these votes were wrongly rejected by officials at the polling.

Section 218 (2) is applicable to persons who come within the meaning of “elector”. This word is defined under the Organic Law to mean “a person whose name appears on a Roll as an elector”. We find that s. 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of the poll or the return of the writ. The conduct complained of in the present case does not come within that process and therefore does not come within the ambit of s. 218 of the Organic Law. In this regard, we find that the trial judge fell into error when he applied the principles enunciated in Cole v Lacey (supra) and Gavera Rea v Mahuru Rarua Rarua (supra) to the present case.

The question then arises; whether, the conduct complained of in the present case can be a ground for invalidating an election under any other provision of the Organic Law?

Under s. 215 (3) (b) of the Organic Law, the National Court is empowered to declare a person returned was not elected or declare an election void on the ground of an illegal practice other than bribery or undue influence. That provision is as follows:

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

(a) ...

(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 elected or that the election should be declared void.”

It is clear from this provision that an election may be invalidated on the ground of an illegal practice other than bribery or undue influence provided the Court is satisfied that the result of the election was likely to be affected by such illegal practice. The question in the present case is whether the failure to enroll voters by officers of the Electoral Commission is an illegal practice. Section 178 of the Organic Law defines illegal practices at elections and it is clear that the conduct complained of is not an illegal practice. We also note in passing that the facts do not come within the meaning of an illegal practice under s. 105 or s. 106 of the Criminal Code (Cap 262). It follows from this that the facts pleaded in ground 5 of the petition is not a valid ground which comes within the ambit of s. 215 (3) (b) of the Organic Law.

The question that remains to be considered on ground 5 is whether the denial of the right to vote or right to be elected to elective public office in the circumstances of the present case are in themselves a ground on which an election may be invalidated under any other provision of the Organic Law? In this regard s. 212 (1) (f), (g), (h) of the Organic Law gives the Court powers to invalidate an election. Section 212 (3) gives the National Court very wide powers to invalidate an election “on such grounds as the Court in its discretion thinks just and sufficient”. This gives the Court very wide discretion as to any ground and the basis upon which the National Court may invalidate an election. We have not been referred to any authority where the denial right to vote and the right to be elected was the sole ground upon which an election may be invalidated.

The only case which may be analogous to the present case is an application brought by way of enforcement of the right to vote pursuant to s. 57 (1) of the Constitution in Kandep Tindiwi Malapu v The Electoral Commission; Jimson Paraki Sauk Mark Wasum v The Electoral Commission [1987] PNGLR 128. The applications were brought by two candidates in the Kandep Open Electorate and Enga Provincial Electorate for declaration, injunction and an order to conduct fresh elections. In brief, certain ballot boxes were unlawfully burnt by certain supporters which resulted in the destruction of 7,634 votes before the counting of votes took place. The application was made under s. 57 (1) of the Constitution to enforce the right to vote and the right to be elected to elective public office. In considering the validity of the election on account of the right to vote and to stand for elective public office the Court said:

“Under s. 57 (1) of the Constitution, where right of a person is denied, such as, for example, where a person who is qualified to vote is not allowed to vote, he may come to the court and get an order to enforce the right. Such a person would exercise the right to vote if voting is still continuing. The situation is different when the breach has occurred and there is no way of enforcing the right in the manner described above. Insofar as the rights under s. 50 are concerned, there is no specific provision as to the validity of elections on account of a breach of a right. However, s. 57 (3) gives a general discretion to ‘make all such orders and declarations as are necessary or appropriate for purposes of the section.’ Insofar as this is discretionary, it is analogous to a breach of right under s. 42 (2) of the Constitution. Constitutional Reference No 1 of 1977 [1977] PNGLR 362. This is a wide discretion and in considering the validity of election on account of breach of rights under s. 50, it would be relevant to consider whether the breach would affect the result of election.”

The Court was dealing with exercise of discretion under s. 57 (3) of the Constitution which gives a general discretion to “make all such orders and declarations as are necessary or appropriate for purposes of this section”. The Court also considered the procedure by way of petition and stated:

“It is also relevant to consider the alternative procedure by way of petition under the Organic Law on National Elections. It may be appropriate in some cases to deal with disputes by way of petition under s. 212 (2).”

In our view, it is possible as a matter of law for a candidate to petition the result of an election on the grounds that the right to vote and the right to stand for elective public office under s. 50 of the Constitution has been breached. This ground would come within the wide powers given by s. 212 (3) of the Organic Law on “such grounds as the Court in its discretion thinks just and sufficient”.

The second argument put forward by counsel for the applicant and the Electoral Commission is that ground 5 has not pleaded material facts which constitute or support the ground of denial of the right to vote and the right to be elected to elective public office under s. 50 of the Constitution. The law with regard to what facts are required to be pleaded are set out in Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99 at p. 101 Kapi DCJ stated the principles of pleading:

“The ground on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s. 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s. 208 (a) of the Organic Law. The facts set out under s. 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.”

The right to vote and the right to be elected to elective public office is regulated by the Organic Law. According to the Organic Law all eligible voters must enroll in accordance with Part VII of the Organic Law. Ground 5 has specifically pleaded that electoral officials have breached s. 61 of the Organic Law in failing to register eligible voters. This simply pleads the ground. Section 208 (a) requires pleading of essential or material facts to support or constitute the ground relied upon. It is necessary to plead that eligible voters had made a claim for enrollment or transfer in accordance with s. 55 (4) of the Organic Law and that the officials failed to register them on the roll. The requirement for claim for enrollment under s. 55 (4) is that an eligible voter must sign a claim for enrollment and must be attested by a person in accordance with s. 56 of the Organic Law. Ground 5 has not pleaded these material facts. It simply pleaded that a person compiled a list of names and sent the list to the officials for enrollment. None of these eligible voters signed a claim for enrolment and no other person has attested the claim for enrollment under s. 56 of the Organic Law.

We have reached the conclusion that the facts as pleaded do not constitute a breach of s. 61 of the Organic Law. This pleading fails to plead the material facts and therefore it is struck out.

GROUND 6

This ground generally alleges that the petitioner’s scrutineers were kept about 10 to 12 metres away from the polling booth (grounds 6.1, 6.2, 6.7). Counsel for the applicant and the Electoral Commission submit that these facts do not constitute a valid ground of invalidating an election under s. 218 of the Organic Law.

We find that there is no requirement under the Organic Law as to the exact distance scrutineers are required to stand away from a polling booth. Under s. 129 of the Organic Law, scrutineers and others are entitled to enter and remain in the polling booth. A scrutineer is not entitled to enter a compartment of a polling booth whilst a voter is present in the compartment (s. 128 (1) (c) of the Organic Law). There is no other requirement. The distance pleaded of itself cannot constitute a ground for invalidating an election under s. 218 of the Organic Law. Grounds 6.1, 6.2 and 6.7 are struck out.

Ground 6.3 pleads a different ground. The allegation is that the presiding officer marked Benson Sokip’s vote wrongly to the applicant when he indicated to vote for the petitioner. In respect of the vote casted by Mrs Bung it is alleged that the presiding officer deliberately marked the petitioner’s photo rather than in the correct box with the deliberate intention to making this particular vote informal to the detriment of the petitioner. We find that the facts pleaded as such constitute an irregularity within the meaning of s. 218 of the Organic Law. If this were the only ground of petition, we could strike it out as it cannot be said that these two errors would affect the result of the election. However, as it will become apparent in our opinion, there are other grounds of petition which remain to be considered at the trial and therefore this ground should remain to be considered with the other grounds. Whether or not these errors did affect the result of the election, is a matter for the trial judge to consider after hearing all the evidence at the end of the trial.

Grounds 6.4, 6.5, 6.6 do not plead any fact capable of constituting a ground for invalidating an election. These grounds are struck out.

Ground 6.8 simply plead that polling officials did not visit Mora and Matalik villages during the polling for the Namatanai Open Electorate. Under s. 43 of the Organic Law, polling places are either published in the National Gazette or published in the newspaper by the Electoral Commission. In order to constitute a valid ground based on s. 43, the petitioner has to plead the fact that these two villages were published as places of polling by the Electoral Commission and that the officials did not conduct elections at these places. This has not been pleaded. This ground is struck out.

GROUND 7

This ground pleads that inadequate security was provided for the ballot boxes. There is no requirement for provision of any particular kind of security under the Organic Law. In our view the lack of security of itself does not constitute an irregularity within the ambit of s. 218 of the Organic Law. The petition must further plead that the lack of security resulted in some other material irregularity. Ground 7.1 pleads that the inner serial number to Box 0027 from Kandas Village was interfered with and despite protests to declare it invalid, the counting officials went ahead and counted the votes in the box. Similarly, ground 7.2 alleges that Team 8’s Box No. 1 seals were broken and that the returning officer declared that this box was broken. It is not clear on the pleadings whether this box was counted. That of course is a matter which can be clarified at the trial when evidence is called.

We find that the facts pleaded in ground 7 raise a ground for invalidating an election within the meaning of s. 218 of the Organic Law. Whether, or not, this will affect the result of the election is a matter which will be determined at the end of the trial.

GROUND 8

Ground 8.1 alleges that the petitioner’s scrutineers were kept 10 to 12 metres away from the counting of votes. Again we cannot find any provision in the Organic Law which prescribes the distance between the counting of votes and scrutineers. This of itself does not constitute a valid ground.

Ground 8.2 alleges that the votes were counted quickly like a pack of cards and that many of the votes for the petitioner were discounted. The petition seeks to constitute this ground by further pleading that the petitioner polled less than the applicant in his stronghold areas. In our view, this fact cannot constitute the ground of discounting of votes by the counting officials. The tally sheet can only show the result of the way people voted. The petition has to plead some fact which constitutes the irregularity complained of.

Ground 8.3 alleges the same ground pleaded in other grounds; that the scrutineers were standing 10 to 12 metres away from the counting. We have already dealt with this in ground 8.1. This ground is struck out.

GROUND 9

This ground alleges that four persons under the voting age were allowed to vote for the applicant at the time of election. We consider that these are facts which would constitute a valid ground for invalidating an election under s. 218 of the Organic Law. Whether, or not, this will be proven or will affect the result of the election are matters which should be determined at the trial.

GROUND 10

This ground alleges undue influence on the part of supporters, agents or servants of the applicant which affected the outcome of the election result. The trial judge struck out grounds 10.2 and 10.3. However, he did not strike out ground 10.1. In his judgment the trial judge dealt with this ground and stated:

“Ground 10 (or paragraph 10) of the petition alleges that there was undue influence committed by supporters, agents or servants of the first respondent. It has not been pleaded that any of this conduct was done with the first respondent’s knowledge or authority (which if proved would result in the election being voided).”

In our view, this was a serious flaw in the pleading of this ground. The trial judge ought to have concluded that the pleading as it stands does not constitute any valid ground for invalidating an election. It is clear from s. 215 (3) (a) of the Organic Law that the knowledge or authority of candidate as to any undue influence is an essential element of this ground. Without this element, no election can be invalidated. In our view the trial judge erred in not striking out this ground. This ground is struck out.

We allow the review in part and in this respect grounds 5, 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 8, and 10.1 are struck out. We dismiss the review in respect of grounds 6.3, 7, and 9 and direct that the petition should be brought before the Chief Justice for directions on the trial of the petition on the remaining grounds.

Lawyers for the Applicant: Narokobi

Lawyers for the Electoral Commission: Nonggor & Associates

Lawyers for the Petitioner: Warner Shand