Review Pursuant to Constitution Section 155(2)(b); Application for Review by Dr Philip Base [2004] PGSC 27; SC745 (7 May 2004)

SC745

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR No. 73 of 2002

REVIEW PURSUANT TO CONSTITUTION
SECTION 155 (2)(B)

APPLICATION FOR REVIEW BY DR. PHILIP BASE
Applicant

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND:

JOHN TONGRI HICKEY
Second Respondent

Waigani: Kapi CJ., Los J., Salika J.
7th July 2003. 7th May 2004

PARLIAMENT – Elections – Disputed Election Petition – Judicial Review – Constitution s 155(2)(b) – Power of Supreme Court to review – Pleading of facts, s 208(a) Organic Law on National and Local-level Government Elections – Meaning of "inspection" under s 157 of the Organic Law on National and Local-level Government Elections – Application of s 215 and 218 to the same facts – Failure to consider the alternative claim for a recount.

Cases cited:
Application by Ben Semri (Unreported Judgment of the Supreme Court dated 3rd December 2003 SC723).
Malipu Balakau v Paul Torato [1988] PNGLR 242
SC Review 546 of 1988 Kasap and Yama [1988-89] PNGLR 197
Avia Aihi v The State [1981] PNGLR 81
Chan v Apelis (Unreported Judgment of the Supreme Court dated 9th October 1998 SC573)

Legislation cited:
Constitution
Organic Law on National and Local-Level Government Elections (Organic Law)

Counsel:
B. Meten for the Applicant
A. Kongri for the First Respondent
P. Korowi for the Second Respondent

7th May 2004

BY THE COURT: This is an application to review a decision of the National Court under s 155 (2) (b) of the Constitution. The decision sought to be reviewed is a decision of the National Court exercising jurisdiction under the Organic Law on National and Local-Level Government Elections (Organic Law).

By an election petition filed on 24th August 2002, Dr Philip Basse (Applicant), an unsuccessful candidate, disputed the election of John Tongri Hickey (Second Respondent) as the Member for Bogia Open Electorate in the 2002 General Elections. The Applicant relied on ten (10) grounds. However, he withdrew grounds 2, 5, 6, 8, 9 and 10 and purported to proceed only on grounds 1, 3, 4, and 7 as follows:

"Ground 1

That during the counting the First Respondent its servants and/or agent unlawfully and irregularly prevented counting to be open to scrutineers pursuant to section 151 of the Organic Law.

Facts.

1.1 The counting for the Bogia Open Electorate commenced on the 6th July 2002 and ended on the 13th July 2002 with the declaration of the Second Respondent as the fully elected Member for Bogia Open on the 15th July 2002.

1.2 During the counting the First Respondent, through its servants and agents unlawfully instructed the scrutineers to stay about 10 meters away from the counting area.

1.3 The counting centre was set up in a manner where the scrutineers and the counting official where separated by a rope and that the try for a candidate closest to the scrutineers to stay about 10 metres away from the counting area.

1.4 Paynauld Kauke, Robert Basse and Francis Gaging, scrutineers and the counting official where separated by a rope and that the tray for a candidate were line up on a row in correspondence to each candidates box number with Box 1 being the closest to the sorter of the votes and furthest from the scrutineers.

1.5 During the progress of the counting the counting official did not shows to the scrutineers any of the ballots papers counted. They merely sorted the ballots paper, placed the ballot papers in each candidate’ s tray and counted the ballot paper for each of the candidate. These actions of the counting official was never open to the scrutiny of the candidate’ scrutineers,

1.6 In addition, the distance from the sorters of the ballots papers to the scrutineers was about 10 to 12 meters and the scrutineers were not able to see and scrutinize the process of sorting the ballots papers before there were placed in each candidate’ s try and counted.

1.7 As a result the scrutineers were not able to verify or screen the votes counted for the Petitioner and other candidates and alleges that votes were placed in other candidates trays, which affect the final result.

Ground 3

That the First Respondent its servants and/or agents at Boatola Polling Booth illegally and irregularly refused to admitted an enrolled voter in the Bogia Open Electorate, Yana Vali, to vote as an elector in the Bogia Open Electorate Election for which he was enrolled contrary to section 132 of the Organic Law.

Facts

3.1 The agents of the First Respondent conducted polling at the Boatola Polling Booth for Budua people to vote in the election for a Member for the Bogia Open Electorate on the 26th June 2002.

3.2 Yana Vali is an enrolled elector in the Bogia Open Electorate.

3.3 On the 26th June 2002, Yana Vali entered the polling booth to case this votes but was unlawfully refused by agents of the First Respondent to votes as an enrolled elector in the Bogia Open Electorate for a Member of Parliament for the Bogia Open Electorate.

Ground 4

The First Respondent its servants and/or agents at Dugulava Polling Booth illegally and irregularly refuse to admitted on 31 enrolled eligible voters in the Bogia Open Electorate to vote as an elector in the Bogio Open Electorate Election for a Member of Parliament for Bogia Open Electorate to section 132 of the Organic Law.

Facts

4.1 The agents of the First Respondent conducted polling at the Dugulave Polling Booth for the Dugulave Village to vote in the election for a Member for the Bogia Open Electorate on the 25th June 2002.

4.2 The following named 31 people are enrolled elector in the Bogia Open Electorate to vote for a Member for the Bogia Open Electorate:

Kausisi Ignatius Kebai, Kintau Saragum, Kojoura Lazarus Arikanae, Maguna Sagen, Makam Maria Saragum, Moaguru Sadeba, Pakei Tukura, Poakila John Yarakang, Ribaga Kumading, Mosa Buleka, Saneka Agnes Saragum, Sangarol Theresia Munki, Uraine Maria Yarakang, Yoruku Nubura, Anuakoko Kabubu, Ararua Manamaine, Arumika Sagaria, Asiki Joseph Yabubia, Badai Mumua, Sinima Rose Kalawa, Ribaga Aupae, Ururubia Tola, Yabubia Toia, Yabubia Basse.

4.3 On the 25th June 2002, the said 31 people attended at Gugulave Polling place to cast to cast their votes but were unlawfully denied the right to voted by agents of the First Respondent to votes as enrolled electors in the Bogia Open Electorate for a Member of Parliament for the Bogia Open Electorate.

Ground 7

That on the 18th June 2002, at Biliau Village, the Agents and/or servants of the First Respondent unlawfully and irregularly conducted polling outside a prescribed place of polling in that the agent and/or servants of the First Respondent did take ballots papers into home of three (3) electors from where the electors voted contrary to section 132 of the Organic Law.

Facts

7.1 The polling for Biliau Village was conducted on the 18th June 2002.

7.2 The polling official at the polling was Mr. Joe Adani.

7.3 During the polling, the said presiding officer Mr. Joe Adani, on three separate occasions took ballots paper out of the prescribed polling place into the homes of three separate electors who voted inside their homes.

7.4 The names of the three electors were Boaging Lou, Kalamengbia Tanepoukadau and Obekabeka Kangol."

The Electoral Commission (First Respondent) and the Second Respondent filed objections to the competency of the remaining grounds. In essence, they based their objections on pleading of facts contrary to s 208 (a) of the Organic Law. The trial judge upheld the objections by the Respondents and dismissed the remaining grounds of the petition.

The Applicant has filed this review against the decision of the trial judge on the following grounds:

"GROUNDS:-

(1) That the learned trial judge erred in law in dismissing Ground 1, 3, 4 and 7 of the Petition pursuant to section 208(a) of the OLNE in that the trial Judge wrongly applied section 208(a) Ground 1, 3, 4 and 7 of the Petition did set out facts relied on to invalidate the election.

(2) That the learned trial judge erred in law and in fact in dismissing Ground 1 of the Petition in that the facts of whether the scrutineers complained or not was a matter of evidence and would have been produced at trial and in any event had the matter proceeded to trial the said evidence in the affidavits filed of Francis Gaging, Arthur Kauke and /Robert Basse would have been adduced.

(3) That the learned trial judge erred in law and in fact in dismissing ground 1 of the Petition on the basis that it was inaccurate to plead that the scrutiny or counting was irregular or illegal in that it was a matter of evidence during trial proper that the Court would have reasonably come to such a conclusion and in doing so acted contrary to section 151 of the OLNE and the relevant affidavits filed that were to be relied upon at trial.

(4) That the trial judge erred in law in holding that the fact that 33 people were denied their right to vote, contrary to section 132 of the OLNE, did not affect the election result without hearing evidence at trial which would have sworn that the winning margin was only 17 votes.

(5) That the trial judge erred in law and in fact in dismissing the Petition without taking into account the relief of recount in the Petition.

(6) That the learned trial judge erred in law in allowing the counsel for the Second Respondent to move the motion on the objection on competency when there was no allegation in the Grounds of the Petition against the Second Respondent."

The principles governing the exercise of judicial review under s 155 (2) (b) of the Constitution are well established. The Supreme Court set out the principles in the recent decision of Application by Ben Semri (Unreported Judgment of the Supreme Court dated 3rd December 2003 SC723). The Court held:

"An appeal against a decision of the National Court in election matters is prohibited by s 220 of the Organic Law on National and Local-level Governments (Organic Law)

However, the Supreme Court has an inherent power to review a decision of the National Court under s 155 (2) (b) of the Constitution (Malipu Balakau v Paul Torato [1988] PNGLR 242, SC Review 546 of 1988 Kasap and Yama [1988-89] PNGLR 197. Bearing in mind the prohibition to appeal by s 220 of the Organic Law, the scope of a review under s 155 (2) (b) should be given a limited scope. The Court should not allow appealable points to come in the guise of a judicial review.

In an endeavour to establish the scope of review under s 155 (2) (b), the Supreme Court in Avia Aihi v The State [1981] PNGLR 81 held that an applicant must demonstrate:

(1) there are clear legal grounds meriting a review

(2) there are cogent and convincing reasons or exceptional circumstances

(3) it is in the interest of justice that the review be granted"

The grounds alleged in the present case relate to errors of law in pleading.

Ground 1 of the Petition

Ground 1 of the petition raises the issue of non-compliance with s 151 (c) of the Organic Law which provides:

"The scrutiny should be conducted as follows:

(c) all the proceedings at the scrutiny shall be open to the inspection of the scrutineers"

Counsel for the Applicant submits that this section determines the relevant and material facts for purposes of pleading under s 208 (a) of the Organic Law. He submits that the trial judge made errors of law in applying s 208 (a) of the Organic Law to the circumstances of this case. In this regard the trial judge held:

"The main facts essence of the pleaded therein is that submitted by counsel for the petitioner. Accepting that position to be so, I must still determine if the facts as pleaded conform to the requirements of s 208 (a) in conjunction with s 151 (c). The relevance of the facts to be pleaded under s 208 (a) under this ground is to be determined with reference to s 151 (c). What then does the term "proceedings at the scrutiny" and "open to inspection of the scrutineers" in s 151 (c) mean? As these terms are not defined in the OLNE. I accept the practical approach to defining these terms, as was the approach preferred by Los J in one of the cases cited by Mr Meten, to be the correct approach.

In my view ‘proceedings at the scrutiny’ means the whole process of ‘counting’ the votes cast at the polling in an election. And ‘open to inspection by scrutineers’ means that the counting of votes is an openly transparent process which takes place in public and in the presence of and witnessed by scrutineers. See s 154 for the procedural steps at the counting. And ‘inspection’ cannot mean that every ballot paper in a ballot box for a particular candidate, to be allocated to a particular candidate and subsequently counted, is to be made available to every scrutineer, for physical inspection before it is counted, for I would be impractical to complete the counting process within reasonable time. I do not think that is the intention of s 151 (c). But in a situation where a scrutineer(s) were to witness certain questionable activities say in the distribution of ballot papers to individual candidates, which would raise suspicion in the scrutineers’ mind that the ‘scrutiny’ or ‘counting’ of the votes is not been done properly in accordance with s 154, then the onus is on that scrutineer(s) to raise or register an objection, before the votes are counted or after the votes are counted but before the winner is declared under s 168, and make a request to the proper counting official to inspect the ballot paper placed against each candidate in their respective ‘trays’. If no such objection and/or request is made, then the electoral official is entitled to assume that the votes are so allocated to each candidate remain unchallenged, and proceed to count them and declare the result of the election. Thereafter it would not be open to a scrutineer representing a candidate to later complain of the votes for a particular candidate being wrongly allocated to different candidates. Such an assertion would lack proper basis and at the most, speculative."

We would adopt the interpretation given by the trial judge of the meaning of s 151 (c) of the Organic Law. We wish to further clarify the meaning of the word "inspection" in the context of scrutiny of votes. Whilst it may not be practical for each ballot paper to be examined physically by every scrutineer (that is to say every scrutineer should physically examine each ballot paper individually), what is important is that every scrutineer should be in a position to see or view every ballot paper as they are sorted and distributed to each tray for the various candidates.

We consider that this is implied by other provisions of the Organic Law such as s 152 which provides that a scrutineer may object to a ballot paper as informal. A scrutineer is unable to object to a ballot paper as informal in accordance with s 153 if he is not in a position to see or view the process of sorting and distribution of each ballot paper.

Pleading of distance between the scrutineers and the position where the ballot papers are being sorted is a relevant fact on the issue of whether a scrutineer is able to see or view the ballot papers. However, pleading of the distance of itself without more is not sufficient as was held in Chan v Apelis (Unreported Judgment of the Supreme Court dated...SC573). The only other pleading of fact in the Chan v Apelis case (supra) was that the petitioner polled less than the opponent in an area where the petitioner had strong support. The Court held that this fact was incapable of supporting any allegation that there was any error by the electoral officials in the sorting and distribution of ballot papers.

The Chan v Apelis case may be distinguished from the present case. In addition to pleading the distance, the Applicant in the present case pleads other relevant facts. He pleads the names of the scrutineers who described the manner in which the counting table was set up and the trays as well as the distance from the scrutineers to the Applicant’s tray where ballot papers were distributed. The petition specifically pleads that the scrutineers were unable to see and scrutinize the process of the sorting of the ballot papers. These are material facts to indicate whether the scrutineers were able to see or view the manner in which the ballot papers were counted.

If a scrutineer is unable to see or view the sorting and distribution of ballot papers, he is entitled to raise his concern with the officials and request the appropriate official not to proceed with scrutiny of votes until arrangements are put into place to enable him to see or view the process of scrutiny. A scrutineer should raise the objection at the time in order for the electoral officials to correct the error and to enable him to participate meaningfully in the scrutiny. The trial judge had this in mind when he stated:

"But in a situation where a scrutineer(s) were to witness certain questionable activities say in the distribution of ballot papers to individual candidates, which would raise suspicion in the scrutineers’ mind that the ‘scrutiny’ or ‘counting’ of the votes is not being done properly in accordance with s 154, then the onus is on that scrutineer(s) to raise or register an objection, before the votes are counted or after the votes are counted but before the winner is declared under s 168, and make a request to the proper counting official to inspect the ballot papers placed against each candidate in their respective ‘trays’."

The trial judge further stated:

"If no such objection and/or request is made, then the electoral official is entitled to assume that the votes so allocated to each candidate remain unchallenged, and proceed to count them and declare the result of the election. Therefore it would not be open to a scrutineer representing a candidate to later complain of the votes for a particular candidate being wrongly allocated to different candidates. Such an assertion would lack proper basis and at the most, speculative."

Whilst we agree that if a scrutineer does not raise an objection, a ballot paper(s) remains unchallenged at the time of sorting and distribution of the ballot paper, we do not agree that "it is not open" to a scrutineer to later raise the complaint.

The correct view in our opinion is that a complaint made later in a petition may be regarded as lacking any credibility. That is a matter of evidence and weight to be considered at the trial. Similarly, whether or not a scrutineer standing at the distance indicated in this case was able to see or view the ballot papers is a matter of evidence or weight to be determined at the trial.

In our opinion, the trial judge erred in law in determining this issue without proceeding to trial.

The nature of pleading in ground 1 is such that it was not possible to plead the number of ballot papers which may have been unlawfully distributed or allowed to be counted. This difficulty is expressly pleaded in paragraph 1.7 of the petition. The Applicant could not rely on this ground to plead and prove that the errors by electoral officials did affect the result of the election in accordance with s 218 of the Organic Law. Facts pleaded in ground 1 do not support the allegation that the errors pleaded did affect the result of the election under s 218 of the Organic Law.

However, this was not the only remedy the Applicant claims in the petition. It also seeks an order for a recount of all the ballot papers for the 2002 Bogia Open Electorate Elections. The facts pleaded if accepted by the Court and in the exercise of its discretion could direct a recount of the votes under the provisions of the Organic Law. Unfortunately, the trial Judge dismissed this ground without considering the claim for a recount. In failing to consider the claim for a recount, the trial judge fell into error.

Ground 3, 4 and 7 of the Petition

Grounds 3 and 4 of the petition may be considered together. They plead the right to vote under s 132 of the Organic Law which provides:

"132. Where Electors may vote.

(1) An elector entitled to vote at any prescribed polling place for the electorate for which he is enrolled while that polling place is open.

(2) ..."

The act complained of is the refusal to admit eligible voters to exercise their right to vote at two polling booths for Bogia Open Electorate; Boatola Polling Booth and Dugulava Polling Booth. It also pleads the names of eligible electors who were enrolled but refused from exercising their right to vote.

The trial judge considered these pleadings within the context of s 218 of the Organic Law. He held:

"..., under s 218 the result of the election being actually affected, therefore under s 218 must be determined with reference primarily to the number of votes cast and scored by the candidates, particularly the successful candidate and the runner-up, as it was decided by the Supreme Court in Ambane’s case.

It follows from the above that I must accept the respondents submission in relation to grounds 3, 4 and 7. In any case, it would be a futile exercise to conduct a trial on the allegations, because even if they were proved, the court could not be satisfied that only 35 votes from 3 polling places out of so many places involving in excess of 20,000 voters who cast their votes in good faith and whose votes are not under question, affected the result of the entire election. If the implied suggestion in the petitioner’s submissions were that some over 30 electors also were denied their right to vote for the petitioner were proven and those 30 votes would exceed the difference of 17 votes between the petitioner and the first respondent, and therefore the result of the election was affected then such a suggestion would lack proper basis under s 218 (2) because evidence of how these election intended to vote is inadmissible in a trial."

We can find no error in this conclusion as far as s 218 of the Organic Law is concerned.

However, the acts complained of also fall within the definition of illegal practice under s 178 (e) of the Organic Law which provides:

"178 Illegal practices.

(1).....

(e) wilfully informing an elector during the polling period that he is not enrolled or entitled to be enrolled for a particular electorate, or is not entitled to vote, when as a fact he is enrolled or entitled to be enrolled, or is enrolled or entitled to be enrolled for the electorate, or is entitled to vote, as the case may be."

Consequently, the acts complained of would fall within the ambit of s 215 (3) of the Organic Law which provides:

"215 Voiding election for illegal practices

......

(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void –

(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

(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."

The trial judge made reference to s 215 (3) to indicate the difference in the test to the test under s 218 of the Organic Law. Having dismissed the pleading under s 218, he failed to consider the application of s 215 (3) to the pleading. In so doing, he fell into error. The test under s 215 is characterized by "likelihood of the result of the election being affected". Applying this to the pleading, the number of votes pleaded in grounds 3 and 4 of the petition indicates 32 voters to the margin of 17 votes separating the petitioner and the second respondent in the result of the election. Arguably, 32 voters if allowed to vote could affect the result.

Ground 7 of the Petition

The act complained of in this ground relate to taking ballot papers in to homes of voters and enabling them to vote contrary to the provisions of Organic Law. There is no provision which allows electoral officials to take ballot papers to vote in their homes. The act complained of relate to only 3 electors. If this pleading stood alone, it is not likely to affect the result under s 215 (3) or would affect the result under 218 of the Organic Law.

However, if this pleading is taken together with grounds 3 and 4 of the petition and as it falls within s 215 (3), it can be said that with 35 eligible voters, the result is likely to be affected.

The result is that we would allow the review, quash the decision of the National Court and restore the petition on grounds 1, 3, 4 and 7 of the petition. We would direct that appropriate steps be taken for this matter to proceed to trial.
__________________________________________________________________
Lawyers for the Applicant : Narokobi Lawyers
Lawyers for the First Respondent : Nonggor Lawyers
Lawyers for the Second Respondent : Paraka Lawyers