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Re Central Provincial Government (Electoral Provision) Act; Pako v Morea [1984] PGNC 13; N477 (31 July 1984)

Unreported National Court Decisions

N477

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 45 OF 1983
IN THE MATTER OF: THE CENTRAL PROVINCIAL GOVERNMENT (ELECTORAL PROVISION) ACT
BETWEEN: GAU PAKO
PETITIONER
AND: TAUMAKU MOREA
RESPONDENT

Waigani

Woods J
24-25 May 1984
29 May 1984
31 May 1984
1 June 1984
26-27 June 1984
2-6 July 1984
31 July 1984

PROVINCIAL ELECTIONS - allegation of bribery - error and omissions by electoral officials.

INSUFFICIENT EVIDENCE OF BRIBERY.

ERRORS AND OMISSIONS LIKELY TO HAVE AFFECTED THE RESULT - discretion in the court whether to avoid election.

WOODS J: This is a petition by GAU PAKO who was a candidate at the 1983 Central Provincial Government Elections for the electorate of HIRI WEST. The candidate elected was TAUMAKU MOREA.

The petitioner has made a number of alions but the only ones on w on which evidence was brought or suggested before this court were one instance of bribery and then errors and omissions by the electoral officials in closing polling stations early, not allowing eligible electors to vote, unlawful interference with ballot boxes, and careless handling and accounting of ballot papers.

The law is quite clear in s.192 of the Provincial Government (Electoral Provisions) Regulation ch.56. Section 192 reads:

“Voiding election for illegal practices

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2)҈&ـ A finding by t by the Nahe Nationational Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) &#160 Nateonal Court shall hall not declare that a person returned as elected was not duly elected, or declare an election void:

(a) &##160;; on the the groundround of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) he toundrof an illegal pral practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that tsult e ele was y to fected, and that itat it is j is just tust that that the cahe candidate should be declared not to be duly elected or that the election should be declared void.”

And s.195 plainly envisages that an election may be avoided on account of an error or omission by an officer when it says:

“Immaterial errors not to vitiate election

(1) &#Subject to Subsection (2)n (2), an election shall not be avoided on account of a delay in the declaration of nominations, the po, thearati the or the return of the writ, or on account of the absence or anor an erro error of,r of, or a or an omission by, an officer which did not affect the result of the election.”

And s.195(2) is relevant when it states that where an elector was prevented from voting the Court shall not admit evidence of the way in which the elector intended to vote in the election.

To summarise the above provisions. If a candidate has committed or has attempted to commit bribery or undue influence his election shall be declared void. If a person other than the candidate has committed or has attempted to commit bribery or undue influence with the active support or authority or active encouragement of the successful candidate then the election shall be declared void.

If anyone including the candidate commits an illegal practice other than bribery or undue influence or there is a case of an error or omission by an officer, the National Court must be satisfied that the result of the election was likely to be affected and it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

There are quite clearly two steps here. Even if I am satisfied that the result of the election was likely to be affected, I still must decide whether it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

The onus of proof in this matter is on the petitioner and he must prove his allegations to my entire satisfaction. This is not as high a standard as the criminal standard of proof beyond all reasonable doubt, it is a standard of proof less than that. Frost, CJ. in In Re Menyamya Open Parliamentary Election (1977) P.N.G.L.R. 298, @ 301 referred to a statement that “a Judge before defeating an election should be very sure, he ought to have a reasonable assurance that the ground was really made out” and he went on to say that “before I uphold the petition, I am of the opinion that the ground must be proved to my entire satisfaction”. I have adopted this statement of the standard of proof.

The following were the allegations on which evidence was brought:

(a) Toat mote vwers coun ed thed than the Presiding Officer’s returns showed as having been validly issued. There appears to be a discrepancy of 23 votes betwee Tal Ballpers d andballot papers at that the coue countingnting. The. There isre is nothing in the evidence before me to enable me to find that this was a deliberate tampering of ballot papers. Rather it appears to be errors and omissions of an electoral official who may not have been sufficiently able and capable of managing polling in an election.

(b) &##160;; Certainrtain allegallegations were made concerning the early closure of KURIVA polling place. I am not satisfied that this was by virtue of an illegal pre by inning candidate or an error or omission by the Pthe Pollinolling Officials.

In any regard there was no evidence that potential voters were deprived of the opportunity of voting so in no way has it been shown that on any interpretation that the result of the election was likely to be affected.

(d) & (k) Certainewitn cses fomeard ward and said they were not allowed to vote at the Sabusa Polling Station. Whilst I am not satisfied that it was an electoral ial wfused theiht to I amsfied that thet the offi officialscials at S at Sabusaabusa were were or should have been aware of what the unknown white haired man was doing, and I am satisfied that the officials by their errors and omissions deprived a number of voters of their right to vote.

(f) ; It is alleged that an offn official unlawfully interfered with the ballot boxes and therefore the ballot papers. Whilst the use of the ballot boxes by Team No.2 was a bit erratic and there was no satisfactory explanation why the second box should have been used for such a large proportion of the votes such that a lot of forcing of voting papers into the box had to be done, there was no evidence before me that there had been any tampering or interference. Polling officials must always be aware of the fact that they must be seen to be doing everything correctly and must always ensure their actions are above question. So whilst there was questionable conduct by the officials there was no errors and omissions and no evidence under the allegation that votes were tampered with and that the result of the election was likely to have been affected.

(i) &##160;; T60s wais was an a an allegation suggesting bribery or undue influence through some beer and a sum of K200 however this ece waweak the allegation can be immediately dismissed.

To void an electionction is a is a very very serious matter. Of course if it has been proved that the winning candidate committed or was a party to illegal practices to secure his election then in all justice he should not be allowed to retain his illegally gained advantage. However if it is a matter of errors and omissions by officials why should a successful candidate suffer and why should the community incur such expense and disruption and uncertainty of representation unless it is clearly shown that because of the errors and omissions the final result of the election was affected and the wrong person was declared elected.

Elections should only be fought once and once fought the country is entitled to have certainty of representation, certainty of government. There is nothing in the evidence before me to suggest that the winning candidate used illegal or corrupt means to secure his success in the election.

And I am not satisfied on the evidence before me that the errors and omissions and sloppy practices of the election officials in this election caused a different final result than would have happened if the polling had been done more efficiently. Whilst I am satisfied a number of voters were deprived of their right to vote I have no reason to feel that the final result of the election meaning the declaration of TAUMAKU MOREA as the winning candidate would have been any different. Even if up to 80 people had been deprived of their right to vote I would not feel that for that reason alone I should exercise my discretion to void the election in this case even where the margin is a mere 39 votes. Just because on one extreme analysis of probabilities if such votes had gone a certain way the final result could have been affected does not mean I should exercise my discretion to void the election. Elections should not be fought twice just because of one outside possibility. There must be a very good reason. Section 189(2) is very clear:

“The National Court may exercise all or any of its power under this section on such grounds as the Court in its discretion thinks just and sufficient.”

I am not satisfied that the final result of the 1983 election for the Central Provincial Government seat of Hiri West would have been any different if the errors and omissions brought to my attention in this case had not occured. I therefore dismiss the petition.

I cannot impress too strongly on the Electoral Commissioner the need to ensure that polling is above suspicion and to ensure that the officials perform their duties properly.

Any deviation from correct open procedures is immediately open to suspicion. And candidates should appoint efficient scrutineers who know what their job is and who should immediately report any examples of errors and omissions - not wait to catalogue them well after the election is all over. For example at Sabusa, scrutineers should have taken positive action when people were deprived of the right to vote, that is what you have scrutineers for. And petitions before this court should be pressed immediately the election is over not left for months while memories fade.

Costs are in the discretion of the court. I order that the petitioner pay the respondent TAUMAKU MOREA’S costs on this petition.

Because of the errors and omissions and apparent lack of care by officials of the Electoral Commissioner which quite naturally raised suspicions in the eyes of the voters I make no order as to the costs of the Electoral Commissioner.

Lawyer for the Petitioner: Young & Williams

Counsel: G. Lay

Lawyer for the Respondent: Ikenna Nwokolo

Counsel: I. Nwokolo

Lawyer for the Electoral Commission: The Secretary for Justice

Counsel: R. J. Everingham