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Papua New Guinea Law Reports |
[1998] PNGLR 421
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND
LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE WAPENAMANDA OPEN
ELECTORATE;
RONALD RIMBAO
V
MAKU KOPEYALA AS RETURNING OFFICER FOR THE WAPENAMANDA OPEN
ELECTORATE;
RUBEN KAIULO AS ELECTORAL COMMISSIONER OF PNG;
and
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
MOUNT HAGEN: AKURAM J
28 June 1997
Facts
The applicant sought certain orders from the National Court including an order to restrain the counting of votes for the Wapenamanda Open Electorate. The applicant alleged that because of certain irregularities of the officials of the Electoral Commission, more than 2000 voters in the Tsak Census Division in the Wapenamanda Open electorate were denied their right to vote in the election. The applicant argued that the actions of the electoral officials resulted in the violation of the voters' rights to vote under s 50 of the Constitution.
Counsel
P Peraki, for the
applicant.
No appearance for the respondents.
28 June 1997
AKURAM J. The applicant by way of an originating summon and notice of motion moved for the following orders:
However, in this application, he only sought Orders No. 1, 3, 4 and 5.
The applicant relied on the affidavit of one Pis Robertson Panao, an eligible voter in the electorate but currently is a teacher at Hagen Park High School in Mount Hagen city. His affidavit, inter alia, says:
Having heard Mr. Peraki in this application and after reading the affidavit, the main issue is whether the conduct of the polling officials should warrant the denial of the rights of the people in these two polling places to vote.
The Constitution in section 50(1)(a) referred by counsel says that only citizens may vote for, or hold, elective public offices and is one of the rights of a citizen and that is to vote. Section 146 of the Organic Law on National and Local-level Government Elections (OLNLGE) also referred to by counsel sets out the grounds for adjournment of Polling on account of riot and reads:
"146. ADJOURNMENT OF POLLING ON ACCOUNT OF RIOT
(1) The presiding officer may adjourn the polling from day to day where the polling is interrupted or obstructed by riot or open violence.
(2) If from any cause a polling booth at a polling place is not open on any day during the period for taking the poll at that polling place, the presiding officer may adjourn the polling for a period not exceeding seven days but in no event beyond the end of the polling period, and shall forthwith give public notice of the adjournment.
(3) Where for any reason the polling is adjourned at a polling place, those electors only:
(a) who are enrolled for the electorate for which the polling place is prescribed; or
(b) who are otherwise entitled to vote as electors for the electorate, and have not already voted, are entitled to vote at the adjourned polling at that polling place.
(4) Nothing in this section shall be deemed to affect the provisions of Division 1."
Subsection 4 above says nothing in the section affects the provisions of Division 1 dealing with Polling Schedules and in s 117 says an election shall not be challenged for failing to observe a polling schedule, etc.
In the present application all I have is an affidavit of one person alleging certain irregularities by the conduct of polling officials. They are substantial allegations, which need more evidence to be substantiated. I cannot act on the evidence of only one person and stop the whole counting. However, if these allegations are found to be material later after the counting in the Court of Disputed Returns, it may have the effect of vitiating the election. This is what s 218 envisages and reads:
"218. IMMATERIAL ERRORS NOT TO VITIATE ELECTION
(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 or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election."
The evidence disclosed in this case is regarded by the OLNLGE as immaterial. They cannot be used to vitiate the outcome of the elections. The applicant may say, that is not the issue, as the argument is that the people did not have the opportunity to exercise their constitutional right to vote. However, that exercise of the constitutional right is subject to the prevailing circumstances as alleged and those are regarded by the Organic Law as immaterial.
One must also keep in mind s 126(6) which says that "the Electoral Commissioner is not subject to direction or control by any person or authority". Although s 126(4) and s 50 of the Constitution give the citizen the right to vote, those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignify of mankind. In the present case, the OLNLGE regulates the right to vote and Part XIII of the Organic Law (ss.113-146) sets out the regulatory provisions. Any serious breach of these provisions may be raised to vitiate an election result in a Court of Disputed Returns.
When we consider the intent and purpose of the constitutional provisions relating to elections and the OLNLGE it is clear that they both declare that the election process must not be stopped. It must take its normal course and if there are any complaints, they should really be raised in the right forum: the Court of Disputed Returns. The courts must not interfere with the administrative function of the Electoral Commission.
I am therefore, not satisfied that this court should stop the Electoral Commission from going ahead with the counting. I therefore refuse the application and orders sought and dismiss the application.
Lawyer for the applicant: Peraki Lawyers.
No Appearance for
respondents.
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