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Rimbao v Kopeyala [1997] PGNC 203; [1998] PNGLR 421 (28 June 1997)

[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:

1. An order that the counting of the votes for the Wapenamanda Open Electorate be suspended until such time as the polling for the Imangabos and Sapundis polling places in the Tsak Census Division are conducted and completed.
   
2. An order that the defendants conduct polling for the Imangabos and Sapundis polling places in the Tsak Census Division on such date as set by this Honourable Court.
   
3. The time required for the entry of the orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
   
4. The defendants be at liberty to apply.
   
5. Such further or other orders as this Court thinks fit.
   

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:

4. According to the certified list of voters there are a total of 1000+ enrolled voters for the Sapundis polling place and another 1000+ for the Imangabos polling place. As polling was to start at 8.00 am and considering the number of people that were going to cast their votes, I together with all the people of my tribe assembled at the polling place well before 8.00 am but there was no sign of any polling officials until about 12.30 pm when a chopper emerged.
   
5. As the polling place was the tribes traditional singsing ground it was big and wide enough for a chopper to land, so we signaled the pilot to land but to our surprise the chopper landed on the banks of the Topak river which is some two kilometres away from the polling place. I became suspicious so I rushed to the place where the chopper was landing with a group of people to see what was happening when from a distance I saw three people coming out of the chopper with two ballot boxes with a handbag. Immediately thereafter, the three persons ran towards the bushes to take cover whilst the chopper flew in a southerly direction from the first landing and just past the polling place where the people had been assembling all day.
   
6. Then for the second time the chopper landed about 700 meters east of the polling place near a cliff and dropped off ballot boxes and people who later identified themselves as polling officials. These polling officials had come out of the cliff and on to the main road and then into the polling place.
   
7. I did not see the ballot boxes from the first landing being brought to the polling place except some ballot papers in a handbag which was identical to the one dropped off at the banks of the Topak river by a person whose name I do not know. In relation to the ballot boxes from the second landing, two ballot boxes together with large number of ballot papers wrapped in a plastic were carried out of the chopper by Mapiso Napili, Win Paul and Iso Langa all polling officials and supporters of a particular candidate.
   
8. Upon their arrival at the polling place and after introducing themselves as polling officials and in front of the capacity crowd I asked for an explanation on the following matters:
   
   1. The reason as to why they were late by at least four to five hours;
      
   2. The reasons as to why they directed the chopper pilot to land at two isolated locations when the polling place was big enough for the chopper to land;
      
   100. The reasons as to why there were not enough security personnel to oversee the casting of votes in that particular polling place.
        
9. The entire 1000+ voters present were not happy with the explanations given and the situation became very emotional and tense, and there was a near riot, so I had to get up and at the top of my voice calm down the situation. After the situation returned to normal, I proposed and all agreed that we should petition the Provincial Returning Officer to suspend polling for that day.
   
10. The hand written petition was signed by the scrutineers of all the candidates contesting in the electorate and the presiding officer. That was about 5.30 pm and the presiding officer agreed to take the said petition to Wabag leaving behind the other polling official to stop overnight at the polling place on the understanding that the presiding officer would return the next day.
    
11. That next day was Thursday 28th June 1997 and still there was no sign of the presiding officer and again on Friday 27th June 1997 when I left for Mount Hagen.
    
12. The reason why we all agreed to petition the Returning Officer to conduct the polling the next day was because with the number of voters, there was not enough time to complete the polling and that it was getting very late coupled with the fact that there was not enough security personnel to take care of the ballot boxes which in any case would have been half filled when darkness fell.
    
13. I strongly feel that I together with my other people have not freely exercised our rights to casts our votes due to the inefficiency of the polling officers under suspicious circumstances. As such I humbly request that this Court grant the orders sought in the Originating Summons.
    

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.