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Enga Provincial Electorate: Torato v Electoral Commissioner, Konu and Balakau [1989] PGLawRp 84; [1988-89] PNGLR 83 (13 March 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 83 - Re Enga Provincial Electorate: Paul Paken Torato v Electoral Commissioner, Edward Konu and Malipu Balakau�

[1988-89] PNGLR 83

N694

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE TORATO

V

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA AND KONU AND BALAKAU

Mount Hagen

Woods J

1-3 February 1989

6-9 February 1989

13 February 1989

13 March 1989

PARLIAMENT - Elections - Disputed election petition - Errors or omissions by officials - Electors not on roll - Electors claiming to vote - Statutory provisions enabling vote where �error in compilation of roll� - Misapplication of provisions - Whether no real electing at all - Whether irregularities affected result - Petition dismissed - Organic Law on National Elections (Ch No 1), s 141(1).

Section 141 of the Organic Law on National Elections (Ch No 1) provides:

N1>�(1)��� Notwithstanding anything in this Law, where a person who is entitled to be enrolled on the Roll for an electorate claims to vote at an election at a polling place prescribed for that electorate and whose name has been incorrectly omitted from ... the certified list of voters for that polling place, ... he may, subject to this Law, be permitted to vote if:

N2>(a)����� ...

(i)������ his non-enrolment is due to an error or omission in the compilation of the Roll; and

(ii)����� he is not enrolled for any other electorate,

and in addition . . .

and makes a declaration in the prescribed form before the presiding officer at the polling place.�

On the hearing of a petition brought pursuant to s 206 of the Organic Law on National Elections disputing the election of a member of Parliament on the grounds, inter alia, that there had been errors or omissions in the conduct of the election which seriously affected the result, the evidence showed that a misapplication of s 141 of the Organic Law on National Elections, in a manner which permitted persons who were not enrolled to vote to vote, affected nearly half of the votes cast in the election and no reliable documentation of the votes cast or the tally sheets was retained by the Electoral Commissioner.

Held:

N1>(1)����� Under the Organic Law on National Elections, entitlement to vote is dependent on an application to enrol having been made. Section 141 of the Organic Law on National Elections is only available to voters who have applied in proper form to be enrolled and the omission of whose name from the roll is �due to error or omission in the compilation of the roll�. A person who has never applied to be enrolled cannot be a person whose �non-enrolment is due to an error or omission in the compilation of the roll�.

In re a Parliamentary Election for the Moresby North-Eastern Electorate; Re petition of Sir Albert Maori Kiki [1978] PNGLR 446, followed and applied.

N1>(2)����� In determining whether the result of the election was likely to be affected by the errors or omissions in the conduct of the election it was relevant:

N2>(a)����� to consider whether there was no real electing at all, or whether the election was not really conducted under the subsisting election laws; and

N2>(b)����� to compare the actual voting and what the voting would have been had the election been free from irregularities.

In re Biami Provincial Parliamentary Election; Banega Isilowa v Yoto Biaguni [1980] PNGLR 140 at 145, considered and applied.

N1>(3)����� In the circumstances, including the large number of irregularities and the wide margin between candidates on the available uncertified records, the Court could not be satisfied that the majority of eligible voters had not been able to elect the candidate they preferred and the petition should be dismissed.

Cases Cited

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

In re Moresby Northwest Parliamentary Election; Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338.

In re a Parliamentary Election for the Moresby North-Eastern Electorate; Re petition of Sir Albert Maori Kiki [1978] PNGLR 446.

SCR No 2 of 1988; Holloway v Ivarato and the Electoral Commissioner [1988] PNGLR 99.

Petition

This was a petition to the National Court pursuant to s 206 of the Organic Law on National Elections, disputing the validity of the election of a member of the National Parliament on the ground, inter alia, of official irregularities.

Counsel

R Pato, for the petitioner.

D Lambu, for the first defendant.

J Mek Teine, for the second defendant.

Cur adv vult

13 March 1989

WOODS J: This is a petition by Paul Torato who was a candidate at the 1987 National Elections for the Enga Provincial, seat. The candidate declared elected was Malipu Balakau.

The petitioner is alleging errors and omissions by the officers of the Electoral Commission in the conduct of the elections and that these errors and omissions seriously affected the results.

The petitioner also alleged malpractices by the winning candidate. However, I refused to hear evidence on those grounds as the grounds were not sufficiently pleaded in the petition. The principles on the requirements of a petition under the Organic Law on National Elections (Ch No 1) (the Organic Law) have been clearly enunciated by the Court in a number of cases culminating in the case of SCR No 2 of 1988; Holloway v Ivarato and the Electoral Commissioner [1988] PNGLR 99. It was there emphasised (at 101) that:

�... 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 which must be 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 grounds in par 3 do not do this, they merely state vague allegations. Under an Act and procedure where there is no requirement for pleadings and an emphasis on limiting the use of lawyers, the allegations must be more specific and therefore set out the details of the alleged malpractice, where, and when and what they are. If lawyers are involved there can be an interlocutory application to strike out any vague grounds but that is not necessary. I can rule at the actual hearing that the grounds are not properly pleaded and I did so here and refused to hear any evidence on those allegations.

It was also suggested that the allegations against the Electoral Commissioner were defective as pleaded. I did not agree with that. In some of the grounds there is no way that a petitioner can know the detailed material until he has had a chance to look at the material and in many instances the electoral material or documents is the evidence. This is particularly relevant in relation to the allegation 2(b) about abuses of s 141. The import of the Supreme Court decision referred to above is that you may not really know the details of the persons to whom ballot papers were given under s 141 until you have sought inspection of the electoral documents which cannot be done until after a petition is filed.

I am satisfied that the allegations against the Electoral Commissioner have been validly pleaded.

The first allegation relates to the destruction of 7,634 votes from the Provincial Polling Station at Kandep. There seems to be no dispute that this did occur. This means that that number of votes was not distributed among the candidates.

The next allegation covers the failure to use the certified list of voters � the common roll � at various polling places in the Kompiam-Ambum electorate. There appears to be no dispute about that. Apparently because of that failure, the polling officials allowed people to vote under s 141 of the Organic Law. Whilst this omission should not have occurred, I do not feel that in itself is a matter that should void an election. By stretching the terms of s 141 it may have been the procedure to use when the officials had no common roll through their own omission. The danger here is that there could be an abuse of s 141.

The Organic Law on National Elections (Ch No 1), s 141, provides as follows:

N2>(1)����� Notwithstanding anything in this Law, where a person who is entitled to be enrolled on the Roll for an electorate claims to vote at an election at a polling place prescribed for that electorate and whose name has been incorrectly omitted from ... the certified list of voters for that polling place, ... he may, subject to this Law, be permitted to vote if:

(a)����� ...

(i)������ his non-enrolment is due to an error or omission in the compilation of the Roll; and

(ii)����� he is not enrolled for any other electorate,

and in addition:

(iii)���� he did not know, and had no reasonable opportunity of knowing, that he was not enrolled, or had no reasonable opportunity of making a claim for enrolment or transfer of enrolment, as the case requires; or

(iv)���� he made a claim for enrolment or transfer of enrolment, as the case requires, in respect of the electorate, and the claim was received by the Returning Officer before 4 pm on the day of the issue of the writ for the election and he did not, after making a claim for enrolment or transfer of enrolment and before the issue of the writ, become qualified for transfer of enrolment to another electorate;

...

and makes a declaration in the prescribed form before the presiding officer at the polling place.�

The next allegation is about widespread abuse of s 141 of the Organic Law. The evidence clearly shows an incredible use of s 141. Unfortunately, the polling records of the Electoral Commission in Enga Province are seriously deficient, the Commission is unable to produce the final records and figures and there are no official tally sheets. However, from the records and figures that we do have, it appears that around half the votes cast in the elections in Enga Province may have been votes given through s 141. I cannot believe that the Electoral Commissioner was so inefficient that half of the voters in the Province had applied to be put on the roll and yet because of failures of the Commission�s staff to process the applications they had not got around to issuing appropriate amended common rolls. There is no evidence from the Electoral Commission that there was a backlog in processing applications for enrolment and in producing the common roll and actually, if my memory is correct, the Electoral Commissioner was stating that, at the time of the polling throughout the country, the rolls were generally up to date.

So how can you then have over 45,000 voters in a total voting population of 110,000 people coming along and stating that they had applied in accordance with s 54 or s 56 of the Organic Law to have their names on the roll in good time before the election and yet their names did not appear on the certified list of voters?

The fact is that, from the evidence before me, this is not the way s 141 was applied. Some witnesses suggested that voters who were not on the roll simply lined up in a separate line and were given ballot papers without there being any inquiry as to their entitlement under s 141. As one of the electoral officials himself said, �In the common roll there were not plenty of names so I used s 141.� Whilst officials, when pressed, made reference to many questions they were supposed to ask, none of them referred to whether the voter had applied under s 54 or s 56 to be put on the roll and when they had so applied, I find it hard to understand how they could have handled the inquiry required under instruction 32 of the Instructions to Presiding Officers in the polling period. If they did follow instruction 32, it seems to be the questions aimed at verifying their rights to be enrolled initially and I would envisage that this would take up to five minutes and perhaps even up to half an hour so how did officials handle and properly scrutinise the eligibility of 365 s 141 voters at Kaipale on 26 June, and 264 voters at Lyamara on 2 and 3 July, and 630 voters at Lenki on 3 July, and 328 voters at Wabag town on 2 July, and 212 voters at Wabag town on 3 July?

The above is just a small example of the numbers that officials had to scrutinise. In the whole of Wabag electorate, there were 13,200 voters out of a total of 23,000 voters who had to be scrutinised.

Section 141 is not the constitutional right to vote that can be exercised at any time. Section 141 is to cover people, and there should be very few of them, who have applied to be put on the roll and therefore should be on the roll but, because of delay or omission by the Electoral Commission in compiling the roll, their application has not been processed. The right to vote is, of course, embodied in the Constitution; however, any properly organised democratic society must ensure that the right is properly organised. Thus we have the Organic Law on National Elections which includes provisions to enable you to exercise that right by applying to be put on the common roll. This procedure to get on the common roll is set out in Pt VII of the Organic Law and s 56 provides penalties if you do not take steps to put yourself on the roll. And, of course, to ensure that rolls are ready in good time before an election, there is provision that such enrolment must be done by the date of the issue of the writ for an election. So quite aside from any penalty for which you may be liable under s 56 if you have not enrolled by the date of issue of the writ, you have forfeited your right to vote.

These enrolment requirements are quite reasonable and must be seen as the obvious way to regulate such a constitutional right in any democratic society.

So if you did not make the initial application to enrol, you are not entitled to turn up on polling day and vote. To be able to insist on enrolment requirements on polling day would create an impossible situation as I have already highlighted above.

Section 141 is only available to citizens whose omission from the roll is due to an error or omission in the compilation of the roll once a voter has applied in proper form. If a voter never applied to be enrolled, then he has not been omitted by an error or omission in the compilation of the roll; he is not on the roll because of his own error or laziness. Therefore merely turning up on polling day and declaring that there has been an error or omission is not sufficient; the Electoral Commission would have to support the application by agreeing that they had not processed the application properly or they had made a printing error.

From the evidence of all the electoral officials, the fundamental starting point of s 141 was completely overlooked. Officials were allowing people to vote under s 141 simply because they were not on the roll or because, in the words of one official, �they had moved because of tribal fights and transfer in their job�, without recognising the relevance of s 56. K D Lamang, by saying (at 2) of his Report on the Election, �Under the present system anybody can vote if they so desire. People who did not enrol should not be able to vote�, is implying that people who were not enrolled were being allowed to vote and that was the sole criterion applied by him under s 141. One official even used s 141 to vote himself because he was not in the area where his name was. This was clear misuse of s 141. All the electoral officials called by the Commission seem to confirm in their own reports or in evidence that s 141 was not applied correctly. Even Edward Konu, the Provincial Returning Officer, in his report on the problem of s 141, implies a misunderstanding and therefore misapplication of s 141.

Of course, there is a good argument for s 141 to be relevant in very remote areas where there was no opportunity for people to enrol as Commission officials did not visit or there was no access to a Commission Office. This is what Frost CJ was referring to in In re Moresby Northwest Parliamentary Election; Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338, but on which he did not express an opinion.

However, the main proportion of sectional votes in this election came from areas near the main centres or where there was adequate access and where Commission officials had been to compile rolls.

The National Court, in the case of In re a Parliamentary Election for the Moresby North-Eastern Electorate; Re petition of Sir Albert Maori Kiki [1978] PNGLR 446, clearly enunciated the application of s 141 and I cannot help feeling that the principles or statement on s 141 in that case have been completely ignored by the Electoral Commission. As Raine Dep CJ said (at 450):

�One simply cannot turn up as was done here, on polling day, and claim a vote, unless one complies with the statutory requirements ... There can be no �error or omission� on the part of officials where people who are, to them, completely anonymous, simply fail to come forward and make a claim for enrolment or transfer.�

I refer again to instruction 32 in the Instructions to Presiding Officers and it appears that this is where the whole application of s 141 may have gone wrong. Referring to the Note following instruction 32(2) and the words in note (b):

�One obvious cause of incorrect omission of a name from a roll in the circumstances of the 1977 General Elections is the ignorance of the person that his name is required to be on the roll for the electorate where he has been residing for the last 6 months before the issue of the writs�

and the words in note (c):

�In these circumstances of the 1977 General Elections many people do not realise that they must do this. Such ignorance in the present situation must be regarded as an error in the compilation of the roll�,

it is clear that a very casual interpretation was given to s 141 for the purposes of the 1977 General Elections and such an interpretation has been allowed to continue. This casual interpretation is clearly wrong in law and this is clear from the case above referred to, Re petition of Sir Albert Maori Kiki.

I am satisfied on the evidence that the electoral officials have shown a complete misunderstanding of s 141 of the Organic Law and thereby misapplied the section in the polling for the elections in Enga Province. I shudder to think whether this has been the situation elsewhere in the country. Thus I must come to the conclusion that nearly half of the votes cast in the Enga Province may be invalid.

With respect to the allegation that at Pasalagu one of the polling teams fraudulently completed ballot papers and placed them in the ballot boxes, I am not satisfied that that happened although there seemed to be an inordinately large number of s 141 voters compared to ordinary voters over the three days of polling there. And the reason given for the s 141 votes was �name not in roll�. This has been covered above.

I am not satisfied that allegation 2(e) concerning extra scrutineers for the third respondent is proved but in any respect I do not know what effect this would have if it was proved.

I find no errors in the exercise of a discretion not to order a recount.

I am satisfied on the evidence that polling officials have failed to preserve ballot papers. I have some here as evidence.

I am satisfied that at Laiagam intending voters wishing to vote were refused the opportunity to vote. The electoral officials were very evasive and contradictory over the allegations that the polling at Papyuk was prematurely closed. However, I do not know how many voters were affected and after two and a half days of polling there one could assume that most people who wanted to vote had voted.

I am not satisfied that boxes numbered 87C and 87D were wrongly declared informal. The uncertified tally sheets do not show so large a number of informal votes although, going on to the next allegation, no one seems to know what figures were really the correct figures. The electoral officials appear to have been grossly careless in the keeping of the figures. In effect, I have no properly certified tally sheets or figures to enable me or anyone to analyse the voting. There is a reference to working sheets, which should show correct figures but these ones do not, and I am left with the mysterious loss of all the properly kept or prepared tally sheets and supporting documentation. The court should if petitioned, and anyone should, after an election be able to follow the figures from a polling booth to a box number to a progressive tally sheet to the final result. No one can do this in the case of Enga. In fact, there seem to be three different sets of final figures but no supporting documentation at all for the set of figures on which the final result was declared.

It is also alleged that the final tally was incorrect in that incorrect figures were transmitted from the various counting centres to the Provincial Tally Room. Again we have no proper documentation to support any figures. Witnesses have alleged that deliberately incorrect figures were transmitted and this clearly affected the results. Various figures were mentioned by witnesses and the petitioner has presented some amended sets of figures from these and has tried to show that therefore he scored a higher number of votes than the winning candidate. I cannot accept these few bare figures alleged by the witnesses. If they were supported by a proper progressive tally of all votes kept by the witnesses as scrutineers, then I may be able to give them more credence.

This allegation is also linked with the power failures at the counting centres. There is no dispute that they happened but it is disputed for how long they lasted. It is alleged that sorted ballot papers were tampered with during the blackout.

Any such tampering would only have affected the count from one box at the time, therefore such tampering, if it happened, would have affected very few votes. I am not really satisfied that such tampering did happen. Of course, what the officials should have done after a blackout was to re-sort and re-count all votes from the box open at that time.

After an analysis of all the allegations, I am really only left with the conclusion that nearly half of the votes cast in the electorate, being most if not all of the s 141 votes, may be invalid and that the Commission has no reliable documentation for the counting and final figures and that a number of votes cast may not be available for any re-count.

The principles to follow where there have been errors and omissions by electoral officials have been clearly stated in the case In re Biami Provincial Parliamentary Election; Banega Isilowa v Yoto Biaguni [1980] PNGLR 140 at 145: an election is to be declared void if �there is no real electing at all, or ... the election was not really conducted under the subsisting election laws�. There is no real electing at all if a majority of electors have been prevented from electing the candidate they preferred. This cannot apply in the case before me because everyone was able to vote and many people not registered were also able to vote. Also, there is no evidence that the votes of the properly registered voters were rendered void by the errors and omissions of the officials. Even after allowing for the fact that the misapplication of s 141 could lead to dishonesty and fraud, the fact is that I am left with the situation that many people who may have been entitled to vote if they had properly complied and registered in time, did actually vote and indicate their preference. So how can I say that the majority have not declared their preference, bearing in mind that the margins between the candidates were very high in spite of the fact that we have no certified final figures? There were 18 candidates and three sets of figures that can be found from various documents are:

[Set 2]

There are supporting workiners which appear to support the figures from which Set 1 and Set 2 above are taken.span>

A study of some of the working papers available shows that all candidates benefited from the invalid s 141 votes.

If the margins between the candidates were closer, I would have no doubts that the errors by the officials in the application of s 141 would have affected the results, but with such large margins it is harder for me to say that the majority of the electors have been prevented from electing the candidate they preferred.

There is no suggestion that people from outside the electorate were brought in to vote under s 141 and, of course, with the geographical boundaries of a provincial seat this would be most unlikely. There are allegations of double voting but, apart from a couple of names repeated at different polling stations, I am not satisfied that it was done on a scale sufficient to affect the results. In any case, I have not been shown that it was possible to wash off the indelible finger marking.

The 7,634 missing votes from Kandep would not have affected the large winning margin.

It therefore appears that in spite of the gross errors and carelessness by the electoral officials in the application of the Organic Law and the failure properly to preserve the documentation and tally sheets, I cannot be satisfied that the majority of the eligible voters have not been able to elect the candidate they prefer. Therefore, whilst it has been fortunate from an understanding of the law and a revealing of electoral carelessness that the petitioner has brought this petition, I find I must dismiss the petition but, in view of the need to have had these matters aired, I can make appropriate cost orders.

Petition dismissed

Lawyers for the petitioner: Steeles.

Lawyer for the first respondent: State Solicitor.

Lawyer for the second respondent: J Mek Teine.