N909

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN RE CENTRAL PROVINCIAL GOVERNMENT ELECTIONS: POIA

V

VALAI AND ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Waigani
Sheehan J

4-8 September 1989
11 September 1989
12 September 1990

PARLIAMENT - Elections - Provincial government elections - Voting - Polling schedule - Variation of - When permitted - Failure to adhere to - Effect of - Where voters deprived of vote - Provincial Government (Electoral Provisions) Regulations (Ch No 56), ss 90, 91, 92, 94.

The Provincial Government (Electoral Provisions) Regulations (Ch No 56) (the Regulations), s 94, provides:

"An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of Section 92, or of a variation or a departure from a polling schedule."

Section 90 requires the returning officer to prepare a detailed timetable of dates and places for voting so that voters will have "a reasonable and sufficient opportunity to vote at the election". Section 91 requires this polling schedule to be published as prescribed. Section 92(2) provides that where it is impracticable to adhere to a polling schedule the schedule may be varied subject to compliance with s 91 and s 92(3) and (4) provide:

"(3) Subject to any directions given by the Returning Officer, a presiding officer:

(a) may, where in his opinion it is necessary or desirable in order to meet an unforeseen contingency or emergency and it is impracticable for the Returning Officer to vary the polling schedule under Subsection (2), depart from the polling schedule in relation to a polling place; and

(b) shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.

(4) Where the presiding officer departs from the polling schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it."

Held

(1) Whilst the provisions of s 92 of the Regulations permit variation, upon adequate notice, of a polling schedule, to allow for unforeseen circumstances arising at the time, such as, for example, bad weather, they do not authorise a variation, such as the cancellation of a polling place or part of the timetable to such an extent that eligible voters are prevented from voting at all.

(2) Accordingly, a request from voters, through their councillors, to join two polling places did not constitute an unforeseen contingency or emergency warranting a variation and failure to conduct polling at a scheduled polling booth so that a number of eligible voters sufficient to alter the result of the election were prevented from voting, rendered the election void.

Petition

This was the hearing of an electoral petition disputing the validity of an election to the Central Provincial Government.

Counsel

N Kirriwom, for the petitioner.
J Aisa, for the first respondent.
J Sirigoi, for the second respondent.
Cur adv vult

12 September 1990

SHEEHAN J: The petitioner, Mathew Poia, was one of the candidates in the 1988 Central Provincial Government election for the Zarima Constituency of the Goilala District.

In this election, the first respondent, Mr Socrates Valai, was declared the winner with a total of 752 votes; the petitioner was 13 votes behind him on 739 votes. The petitioner now disputes the validity of the election on four grounds.

Ground 1: that the first respondent personally or through his agents was guilty of illegal practices by arranging for sectional voters to vote knowing that they were under-age or otherwise ineligible by birth or residence.

Ground 2: The second respondent, the Electoral Commission, was guilty of illegal practices in that it directly or indirectly allowed sectional votes by persons who were under-age or not qualified to vote by birth or residence.

Ground 3: The second respondent, the Electoral Commission, is alleged to be guilty of illegal practices in appointing to one of its polling teams (namely polling team number four at Upper Kunimaipa) a polling official believed to have strong political ties to the first respondent.

Ground 4: That the second respondent, the Electoral Commission, failed to conduct polling at a duly designated polling place namely Karuama No 2 village thereby depriving over 30 eligible voters of the opportunity to cast their votes.

The petitioner claims that these illegalities affected a significant and sufficient number of eligible voters such that the result of the election cannot stand. The election should therefore be declared void.

Ground 3 may be dealt with first. The petitioner took issue with the second respondent allowing one John Koit to be a member of the number four polling team because Mr Koit was alleged to be allied politically to the first respondent.

Affidavits were filed and evidence given by and on behalf of the petitioner alleging great concern about this man being a member of the polling team. But at the hearing it quickly became evident that the returning officer and indeed the whole of the polling team bad no knowledge of Mr Koit having any connection with the first respondent. He was in fact engaged simply as one who knew the constituency well, and one able to speak the local language.

Once objection was taken, the presiding officer, Mr Livingston Limbingi drew up an agreement which all objectors accepted and signed. By that agreement Mr Koit, while remaining a member of the polling team, was placed in a position so that he could not, in any way, assist or influence any voter. He would simply assist the keeping of the common roll. I am quite satisfied that the presiding officer dealt quickly with this matter and to the satisfaction of the petitioner. I find there is no substance in this ground whatsoever.

Though not included in the petition, there was a further ground argued in the submissions by counsel for the petitioner. This was that the scrutineer for the petitioner, Leo Amuea, had been subjected to intimidation at two polling places. It was alleged that he had been threatened because he objected to ineligible persons being allowed to vote as sectional voters. It was conceded by and on behalf of the petitioner that in fact there was no evidence to link this supposed threatening behaviour and intimidation to the first respondent; but it was claimed that intimidating behaviour of those seeking the admission of such votes was a significant factor in the presiding officer allowing in, ineligible sectional voters.

Having heard and considered the evidence of the petitioner’s witnesses on this issue I prefer the evidence of Mr Limbingi. I find that there was no such overt intimidation to warrant this complaint. I also find that the presiding officer was in no way influenced by the supposed intimidation of the petitioner’s scrutineer nor was intimidation a factor in his decision on the issue of sectional voters.

In regard to the allegations that sectional votes were accorded to persons under-age or not eligible by reason of residence or birth, here again I accept the evidence of the presiding officer. The onus is on the petitioner to prove the grounds of this petition and the evidence on this was not convincing. With perhaps one exception it was not shown conclusively that all the persons alleged to be ineligible actually voted.

I am satisfied that proper enquiry was made to ensure that only eligible persons voted under the s 118 provisions. I am sure that objections and no doubt noisy objections were made regarding various voters and potential voters, that is in the nature of a scrutineer’s task, but I accept Mr Limbingi’s evidence that those voters were properly identified as to birth place, or residence and/or age by reference to responsible persons such as village elders, councillors and the like.

It is not necessary to detail all the evidence on this issue but those who gave evidence for the petitioner were not convincing. For example, Leo Ameua and Andrew Suiz both filed affidavits as to under-age voters but they each gave differing dates of birth for over half of those they named. Since they were already relying on the assertions of others regarding those dates of birth, I was not disposed to accept their evidence on the ages of those that they happened to agree on. I find that the petitioner has not made out a case on this ground.

The last ground stipulated by the petitioner was the failure of the officers of the second respondent, the Electoral Commission, to conduct polling at a designated polling place, namely Karuama No 2 village.

The validity of this ground was questioned by counsel for the second respondent on the basis that s 94 of the Provincial Government (Electoral Provisions) Regulations (Ch No 56) precludes an election challenge based on a failure to adhere to a polling schedule. That section reads:

"94. Election not open to challenge.

An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of Section 92, or of a variation or a departure from a polling schedule."

The submission that this ground of the petition should therefore be struck out was not upheld. While s 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.

Part XIII of the Provincial Government Election Regulations is intended to ensure that voters are informed of the times and places for voting. The first requirement is that a schedule is prepared. Section 90 states.

"90. Polling Schedule.

(1) Subject to any directions given by the Electoral Commission, the Returning Officer shall, as soon as practicable after the close of nominations, prepare a polling schedule showing the anticipated dates and times, within the polling period for the constituency, during which the polling booths will open at the polling places in the constituency, in such manner as he considers will give all electors in the constituency a reasonable and sufficient opportunity to vote at the election.

(2) Nothing in Subsection (1) or in this Regulation shall be construed to mean that polling shall be conducted on each day throughout the polling period or on any particular day in the polling period."

Plainly that section requires a clearly detailed timetable of dates and places shall be prepared so that voters will have a reasonable opportunity to vote. To ensure that proper public notice of the schedule is given, s 91 goes on to say:

"91. Publication of polling schedule.

(1) The polling schedule shall be published in the National Gazette and in a newspaper circulating in the constituency, and the Returning Officer shall take such other action as he considers necessary or desirable, or as is directed by the Electoral Commission, to ensure adequate publicity for the polling schedule.

(2) A copy of the polling schedule shall:

(a) be forwarded to the provincial government body and any Local Government Authority and Council and local level government in the constituency; and

(b) be exhibited at such other places in the constituency as the Returning Officer appoints.

(3) A copy of the polling schedule for a constituency shall be forwarded to each candidate in the constituency."

But it is also clear that it is not intended that the published polling schedule shall be a rigid timetable, absolute and unchangeable.

"92. Adherence to polling schedule.

(1) As far as possible, polling booths shall be open in accordance with the polling schedule, and the Returning Officer and presiding officers shall take all such action as is necessary or desirable for that purpose, whether expressly authorized by this Regulation or not.

(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case Section 91 shall, as far as practicable, be observed in relation to the variation.

(3) Subject to any directions given by the Returning Officer, a presiding officer:

(a) may, where in his opinion it is necessary or desirable in order to meet an unforeseen contingency or emergency and it is impracticable for the Returning Officer to vary the polling schedule under Subsection (2), depart from the polling schedule in relation to a polling place; and

(b) shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.

(4) Where the presiding officer departs from the polling schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it." (Emphasis added.)

A schedule therefore may be varied upon adequate notice to allow for unforeseen circumstances arising at the time. This may be for such incidents 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.

Mr Bobby Bireo, the presiding officer for team 1 in the Zarima electorate made a report on why the voting was not conducted at the designated polling place, Karuama No 2. In that report he says:

"... it wasn’t the intention of the officials at all to exclude the voters from Karuama No 2. It was or had been arranged by the people through their councillors, namely: (a) Andrew Auri — Councillor for Karuama No 2 (b) Gregory Gitaia — Councillor for Karuama No 1 to let the polling officials know in advance of the people [sic] intentions to gather at Karuama No 1 to cast their votes."

He said that he and his fellow officials learnt of this intention late on 23 June 1988, the day before polling was to be conducted at Karuama No 1. Polling at Karuama No 2 was scheduled for 25 June 1988. He reported that after checking with scrutineers for the candidates and councillors it was agreed that the councillors for Karuama No 1 and No 2 would let their people know that they should gather at Karuama No 1 to cast their vote.

Thus it was, on 24 June 1988, polling was conducted at Karuama No 1 for voters from that village and Karuama No 2 village. The polling team left later that same day for the next polling station without calling at Karuama No 2. However at the end of polling at that next polling station (Daklavaro) complaints were received regarding a failure to go to Karuama No 2. Though the team in fact was prepared to go back to that village no formal complaint or request for return was made and voting was then declared completed and the ballot box sealed. Mr Bireo confirmed this report in his evidence before the Court.

Under cross-examination he said that he did not know why the people of Karuama No 2 wanted to combine with the people of Karuama No 1 in polling. He said that the matter was fully discussed with all concerned but he "didn’t think" to get formal acknowledgement in writing from all persons that they agreed to the by-passing of Karuama No 2.

In another question, it was specifically put to Mr Bireo that the reason for failure to go to Karuama No 2 was that the polling team was behind schedule and that it was short of funds. Mr Bireo denied this, though in later questioning by Mr Aisa (for the petitioner) he acknowledged that they did want to meet the helicopter because they were on limited funds. However he insisted the reason for combining the two polling places was not because of any emergency but to accord with the wishes of the people. The following exchange is revealing:

"Q. Did you have a discretion not to go to Karuama No 2?
A. No.

Q. Then why didn’t you?
A. Because it was an arrangement by councillors and voters."

Under s 92 of the Regulations, returning officers for the electorate and presiding officers are enjoined to take all action necessary to try to adhere to the schedule. Section 92(3) states (as I have noted and emphasised in that section quoted above) that a presiding officer may, when it is necessary to meet an unforeseen contingency or emergency, ... vary the polling schedule.

But as can be seen from the evidence of Mr Bireo there was no unforeseen contingency or emergency; he says there was simply a request by the voters through their councillors that Karuama No 1 and No 2 be joined as polling places.

The right to vary the polling schedule does not lie with voters or councillors. In any case the arrangement described by Mr Bireo is repudiated by all those persons he said agreed to it. There is no need for me to decide whether there was a request to combine polling places or if it was a unilateral decision of the polling team. I am inclined to accept the story of Mr Bireo since there was no obvious reason at that stage to short-circuit the schedule. But even if these people had made such a request, or even if Mr Bireo were able to produce some written agreement acknowledging the proposal to combine polling places, it seems to me that any such arrangement would be invalid in any case.

With no emergency, no unforeseen contingency, and, in his own words, no discretion not to go to Karuama No 2, it was not open to the presiding officer to make that decision that he did.

In my view the failure to conduct polling at the designated polling booth without just cause is a serious breach of election procedure.

Mr Bobby Bireo said that he believed there were some 30 to 40 voters on the Karuama No 2 roll. He said somewhat vaguely that he believed that 25 to 30 of these voted. The petitioner filed the affidavits of some 32 persons declaring themselves eligible voters from Karuama No 2. They deposed that they had been unable to vote because of the failure of the polling team to attend at that polling place.

These affidavits did not in fact comply with O 11, r 22 of the National Court Rules, in that no certificate appears in the jurat that the affidavit had been read over to the deponent who understood it and made his or her mark. However there was no serious challenge to the fact that these affidavits had been sworn by individuals from Karuama No 2 and the Court, bearing in mind the provisions of s 194 of the Provincial Government Elections Regulations allowed those affidavits into evidence though they did not comply with strict legal forms.

It was submitted that even if the affidavits were admitted under that section, the Court should still address itself to the question of the weight to be attached to them. That is certainly true. It was also submitted that it was the obligation of the petitioner to show that those 32 deponents were either on the common roll or that they had made application to be on the roll. This latter point was not taken at the hearing of the petition but was raised later in submissions.

While it has merit, the evidence before me from the hearing of the petition is the affidavits of 32 deponents whose evidence was not really challenged. They swore they were eligible voters in the electorate prevented from voting because the polling team did not attend at the designated polling place. On the presiding officer’s own estimates a number sufficient to alter the result of the election may not have voted.

The results declared in this constituency were that Socrates Valerian Valai won the election by 13 votes. If 32 eligible voters were prevented from voting in the election and I believe there were at least that number, then that margin could easily have been overturned. Accordingly my finding is that the election must be declared absolutely void, and the person who was returned as elected namely Socrates Valerian Valai must be declared to have been not duly elected.

There will also be an order for costs in favour of the petitioner.

Election declared void

______________

Lawyers for the petitioner: Kirriwom Lawyers.
Lawyers for the first respondent: Aisa Lawyers.
Lawyer for the second respondent: State Solicitor.