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Yarekei v Electoral Commission [1992] PGNC 121; [1992] PNGLR 223; N1098 (22 June 1992)

N1098

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ELECTORAL LAW FOR THE PROVINCIAL GOVERNMENT ELECTIONS
AND IN THE MATTER OF DISPUTED RETURNS FOR THE MARAWAKA CONSTITUENCY AND

SAMARIE YAREKEI

V

ELECTORAL COMMISSION

Goroka
Newell AJ

2-5 May 1992
22 June 1992

CONSTITUTION - Right to vote, s 50 - Equality and participation of citizens, National Goal 2 - Failure to permit eligible voters to vote - Validity of elections.

ELECTION - Provincial Assembly - Remote area - Difficulties caused by poor communications.

ELECTION - Provincial Assembly - Allowing persons appearing ineligible to vote without reference to Voter Review Tribunal - Consequences of not establishing Voter Review Tribunals at each polling place in the Marawaka Constituency.

Facts

The petitioner was a candidate in the election for Marawaka Constituency in the Eastern Highlands Provincial elections, 1991. The election was hampered by bad weather conditions and disruptions caused by some of the people in polling areas. These led to the dates and places of polling being changed, and a number of persons being prevented from voting through the confusion caused by varying the dates and places for voting, often with insufficient notice. In addition, the election was not conducted in accordance with the Electoral Act 1978 of the Eastern Highlands Province. Consequently, there was nothing recorded to indicate that Voter Review Tribunals were established at each polling place to resolve conflicts.

Held

1. The election for the Marawaka Constituency in the Eastern Highlands Provincial election in 1991 declared void;

2. Costs of the petitioner be paid by the respondent, to be taxed if not agreed;

3. Deposit to be refunded to the petitioner.

Cases Cited

Inamuka v Nahe (1992) unpublished N1008.
Poia v Valai [1990] PNGLR 388.
Wenge v Electoral Commission (1990) unpublished N855.

Counsel

D Umba, for petitioner.
R Rea, for respondent.

22 June 1992

NEWELL AJ: A provincial election was held in the Eastern Highlands in January 1991. The petitioner was a candidate in the Marawaka Constituency. The writs were issued on 29 November 1990 and nominations opened on the same day. The polling period was to be from 8 to 12 January. Popiana Kakuri won the Marawaka Constituency when he polled 785 votes. The petitioner came second with 758 Votes - a difference of 27 votes. The total votes cast were 3650, of which 6 were declared informal. The total number of candidates was 8. The other 6 candidates had votes ranging from 46 to 537, the next lowest vote being 532. The total number of ballot-papers issued was 9080, of which 5430 were unused. This latter sum indicates that perhaps as low as one-third of those on the electoral roll actually did vote. As the Electoral Roll for both the 1991 and previous provincial elections was never put into evidence by the petitioner, we have no reliable means of knowing whether the amount of ballot-papers issued accurately reflects the number of people on the roll for the constituency.

Evidence from both the petitioner and the respondent indicated that a considerable number of people in each polling place were unable to vote due to poor road conditions hampering the ability of polling teams to move without adequate helicopter support, and a lack of adequate notice of changes of polling dates, again due to poor communications. In addition, worsening weather conditions (and an apparent need to avoid the possibility of the helicopter being unable to fly due to low cloud and the weather conditions) meant that the polling team left Wiyobo with at least 20 and more probably a 100 people of voting age being unable to come in to vote before the helicopter left. There were 20 (or more) potential voters noted at Wiyobo when the helicopter containing election officers left early. Evidence indicates that the following people were unable to vote:

Mala Village - at least 20 people - polling did not continue in afternoon;

Yamuru Village - at least 41 people - it is not clear if any or all of these were eligible voters; evidence of Samson Waga was 21 (he then corrected it to 41) did not vote

Wauko Village - 50 people - told to vote elsewhere;

Unari Village - 96 people walked to Wiyobo for a changed date, but the helicopter with the polling team did not wait;

Wampe Village - 87 voters did not vote (affidavit); 89 did not vote - evidence of Iri Dainai; other evidence suggested it was 105 did not vote;

Wako Village - 50 people did not vote.

These figures are taken from the affidavits filed in this matter. The evidence given in Court was slightly different than this, and is noted above.

Whether all were eligible voters is not clear. However, as is stated below, there is clear evidence from the electoral documents tendered by the respondent that the electoral officials did not refer ineligible voters to the Voter Review Tribunal, but allowed votes which could not properly be allowed.

FAILURE BY THE ELECTORAL COMMISSIONER TO COMPLY WITH THE ELECTORAL ACT 1978

In the 1991 Provincial Election Returns and Summaries for the Marawaka Constituency (Exhibit R 2), it refers to the Declaration Voters "S 141/118, S 142/119 S 143/130". The presiding officer has signed a certificate relating to the Organic Law on National Elections (or Provincial Government (Electoral Provisions) Regulation 1977). There are no declarations made in respect of the Electoral Act 1978 of the Eastern Highlands Province.

In the matter of Jacob Inamuka v Kasen Nahe (1992) unpublished N1108, I was asked to decide (amongst other matters) whether the Electoral Act 1978 was in force during the 1991 provincial elections. My decision (which was delivered immediately before my decision in this matter) was that it was the relevant law. It had been applicable in that province since the 1978 provincial elections.

So it is clear that declarations made during that election in the constituency were invalid, as not referring to the correct law. This is not a matter as in Jacob Inamuka v Kasen Nahe, where I was asked to deal with requirements for a petition. In this matter, we are dealing with electoral officers making a declaration in respect of legislation that does not apply to the election in question. The sections in the Electoral Act 1978 are different from those in the Organic Law on National Elections and the Provincial Government (Electoral Provisions) Regulation, so the presiding officers and other electoral officials were not apparently complying with the provisions of the correct legislation. For instance, the procedure under the Provincial Government (Electoral Provisions) Regulation, under which the Electoral officials purported to conduct the elections, have no provision for the exercise of the powers of the Voter Review Tribunal in respect of votes under ss 82, 83, 84, 87 and 88 of the Electoral Act 1978. The nearest equivalent to s 118 of the Provincial Government (Electoral Provisions) Regulation is s 87 of the Electoral Act 1978. There is nothing in the exhibits from the Electoral Commissioner to show that the Voter Review Tribunal authorised the 107 s 87 votes for Yamuru and Malagiri (Exhibit R 2).

Under s 118 of the Provincial Government (Electoral Provisions) Regulation it is the presiding officer who makes the decision; but under s 87 of the Electoral Act 1978 the Voter Review Tribunal (made up of 3 to 5 local inhabitants in a rural area - s 80 of the Electoral Act 1978) shall make the appropriate decision. There is nothing in the exhibits from the Electoral Commission to indicate who were members of the tribunal at each of the polling places in dispute. If they were appointed nothing is recorded as to their decisions.

With 107 persons voting without the decision of the Voter Review Tribunal being recorded, it is clear that with only 27 votes difference between the petitioner and the person elected, there is grounds for declaring the election void.

It is obvious that by his failure to comply with the Electoral Act 1978, the Electoral Commissioner and his officers have conducted an election in breach of the Act. So in pursuance of s 117 of the Act, I declare the 1991 provincial elections in the Marawaka Constituency void, even if there were not errors by polling officials in not properly notifying changes to voting schedules and leaving polling places when it was clear that there were voters still coming in to vote before the normal close of polling for the day.

In view of the failure by the Electoral Commission to conduct the election to the Marawaka Constituency in accordance with the Electoral Act 1978, I would recommend that the Commission consider whether they are in a position to dispute any other election petitions filed in respect of any other constituencies in the 1991 provincial elections.

Having considered the provisions of the Electoral Act 1978 so far as they relate to the establishment of a Voter Review Tribunal at each polling place, I would suggest that the Provincial Government consider whether the establishment of such a Tribunal at each polling place is practical, or whether some form of amendment to the Act should be considered before the next provincial government elections.

FAILURE TO PERMIT ALL ELIGIBLE VOTER TO VOTE

Section 50 (1) of the Constitution provides that every citizen of full capacity and of voting age "has the right, and shall be given a reasonable opportunity - ... (d) to vote for, ... elective public office at genuine, periodic, free elections...."

In National Goal 2 - Equality and Participation subsection (1), it is stated that "every citizen should have an equal opportunity to take full part in the political ... life of the country." In subsection (4) it states strong emphasis should be placed on equalisation of services among different areas of the country.

In Wenge v Electoral Commission (1990) unreported judgment N855, Doherty AJ dealt with the situation of a person turning up and not being able to vote. This is distinguishable from the present matter, where we have clear evidence from both the witnesses of the petitioner and the respondent that the reason there was no voting by certain people was because one polling team changed the place and dates of voting but either did not give any notice of the change, or left those places before all people able to vote were able to reach those places to vote. It is clear from what was said that the electoral officials tried hard to conduct the polling properly, but a number of fights, poor weather, poor road communications and shortage of adequate helicopter or other aviation transport prevented election officials from completing the election in the time they had available. If any lesson is to be drawn, it is that all communities, however remote, must be given adequate opportunities to vote, even though to give these opportunities to vote costs a lot more money than in areas where there are adequate roads.

In Poia v Valai [1990] PNGLR 388, Sheehan J had to deal with a number of grounds. Ground 4 was that over 30 eligible voters from a duly designated polling place were deprived of the right to vote. In that decision at page 391 he says this ground was objected to on the basis that such ground was precluded by s 94 of the Provincial Government (Electoral Provisions) Regulations. Of this objection he said:

"While section 94 excludes a challenge to an election because polling was not conducted at a particular time or place; this section is not authority for a "variation" of the schedule that results in the prevention of eligible voters from voting at all".

After reciting s 90, 91 and 92 of the Regulation at page 392, he says:

"A schedule therefore may be varied upon adequate notice to allow for unforeseen circumstances arising at the time. This may be for such incident as bad weather, transport difficulties, and the like.

But what this part of the Regulations does not authorise is the cancellation of a polling place or failure to adhere to the schedule to such an extent that eligible voters are prevented from voting at all. In the event that an emergency or special circumstance arises, then certainly a schedule may be varied, with adequate notice being given to the voters affected so that they are able to vote at a different place or at a different time."

It should be noted that Sheehan J did not distinguish or note the decision of Doherty AJ in Wenge v Electoral Commission.

We are not, in this instance (as in that matter), dealing with a voting official who did not try his best in the circumstances. However, he was placed in such a situation that he could not give adequate notice of the change to the voting schedule due to inadequate facilities being given to him to conduct the election properly.

The provisions of s 79 of the Electoral Act 1978 are similar to those in s 107 of the Provincial Government (Electoral Provisions) Regulation. It is clear that both sections give power to election officials to close a poll before 6.00 p.m. if they consider that there are no more eligible voters.

Mr John Ine said that they left early at the end of polling because the weather was closing in and there was low cloud cover. It is clear, if his evidence and that of the witnesses for the petitioner are looked at together, that people were coming in to vote when the helicopter flew off. Mr Ine counted 20 from the helicopter when it took off. The inability of the petitioner to request production of electoral rolls might have been a problem, but there is clear evidence that indicates that more voters than the difference between the leading candidate and the second candidate (the petitioner) might well have not voted. But even if this were not the case, there is clear evidence of irregularities in accepting votes from persons not on the roll.

It is clear from the facts of this matter that not only were the wrong forms used by polling officials (with the implication that the whole election was conducted under the wrong legislation), but also insufficient resources were placed in Marawaka and Wonenara during the 1991 provincial elections, with the result that many people lost the opportunity to vote. It is clear that anyone who is conducting elections there needs to be given at least 2 weeks time for the election, and a helicopter fitted with a loudspeaker and capacity to carry a polling team must be available for permanent use in the Marawaka Constituency. The loudspeaker on a helicopter could then be used to advise remote communities of the date and times when polling is to take place, if dates are changed, as occurred in this matter. When these broadcasts are made, they must be made in tok ples understood by the people in those places, unless one of the three national languages is understood by all voters.

It is clear that when s 90 was drafted it was left open to the presiding officer to determine how "public notice of the adjournment should be given". However, I am not satisfied that proper public notice was given of the changes. So by having a helicopter fitted with a loudspeaker, it is possible to ensure that any variations from the published polling schedule can be effectively brought to the notice of people in remote areas, or areas which are closed through threats of inter-group fighting in adjoining areas.

I declare the election void for the Marawaka Constituency, and that the costs of the petition be paid by the respondent, to be taxed if not agreed on a party and party basis. The deposit be refunded to the petitioner.

The reference in the submission by the respondent in his final submissions to the form of the petition, where it was filed, and where the deposit was filed was not mentioned in the trial of the matter. I consider any such objections should have been made at the commencement of the trial. All the letter, attached to the submissions, says is where the file is located. It does not say where it was filed, or is it being argued that all files must be permanently filed in Port Moresby and never leave there? The receipt for the deposit was issued in Waigani. Such receipts are not issued elsewhere. Also, there is clear evidence from the file that the petition was filed in Waigani on 20 February 1991, well within the 2 months for filing.

_____________________

Lawyer for the petitioner: Dennis Umba.
Lawyer for the respondent: State Solicitor.