N2262

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 357 OF 2002

BETWEEN:

JAMES TOGEL
Plaintiff

AND:

PAPUA NEW GUINEA ELECTORAL COMMISSIONER
First Defendant

AND:

MATHIAS PIHEI
Second Defendant

KOKOPO	:	Lenalia, J.
2002		:	5 July

Counsel:
K. Latu,	for the Plaintiff
Dr. Nonggorr,	for the three Defendants

July 5th

DECISION

LENALIA, J.		The Plaintiff through his lawyer came before me on the 5th of July by a Motion on Notice seeking an injunction to restrain the two Defendants, their servants and agents from counting the last three ballot boxes being referred to as 0017, 0018 and 0020 which related to the North Bougainville Open Electorate. Those three ballot boxes were claimed by the Plaintiff and believed by him and his three witnesses to have been tempered with.

The motion was fully argued before me on the above date and having considered the urgency with which the application was made and the fact that, only three boxes remained to be counted after which the winner should be declared I gave an extempore judgement in the afternoon of the same date. I announced my decision and said, I would give reasons later. I do so now.

Evidence by affidavit from the Plaintiff is that he is a candidate standing for the North Bougainville Open Electorate on the North Solomons Province. James Togel deposes that as counting in his electorate was proceeding, he and his witnesses found that the final three boxes had been or were suspected of being tempered with and that the three ballot boxes should altogether be disqualified from being counted.

Mr.Togel was leading in the number of votes counted for the electorate he was contesting after count 56 and following him was the current Deputy Prime Minister Honourable Michael Ogio. Quite interestingly, Mr. Michael Ogio’s action is looming and has been filed and according to his lawyers, if the decision in the current application is in favour of applicant/plaintiff, they will seek alternative orders in their Notice.

Mr. James Togel deposes that as counting was progressing in his electorate, it was found that ballot boxes Nos. 0017, 0018 and 0020 appeared to have been tempered with.

Mr. Togel further alleges that on ballot box No. 0017, it did not have any outer seal on it to prevent it from unofficial votes being inserted into the ballot box. On ballot boxes Nos. 0018 and 0020, evidence shows that they each had no padlocks. After having observed these, witness and scrutineer Junias Kidoro alerted the Returning Officer Mr. Ray Tama, but according to Mr. Togel and his scrutineer and witness referred to above the aforementioned Returning Officer could not heed their calls.

Despite evidence by the plaintiff that the Provincial manager confirmed publicly that the affected ballot boxes might have been tempered with, no evidence was called to substantiate such allegations. I infer from the plaintiff’s evidence that because he is leading in counting after count 56, if the final three boxes were counted the runner-up might have the chance to catch up with the plaintiff. Actually there is no evidence to suggest tempering.

Scrutineers Timothy Siopsi and Robert Kongai both deposed to the same suspicion that because of the manner under which the three ballot boxes were handled, they should be disregarded and be not counted by the Second Defendant, his servant sand agents. Junias Kidoro suggest in his evidence that at the time of counting a Peoples Democrative Movement scrutineer raised the same concern with the Returning Officer. In fact this witness seems to say that scrutineers for various candidates had agreed to not having to count two of the ballot boxes the subject of this proceedings.

In arguing the motion, Mr. Latu of counsel for the plaintiff submitted that the manner under which the last three ballot boxes were treated which are now in dispute one had no outer seal and two others without padlocks obviously suggest there must have been some foul-play on the part of the First and Second Defendants, their servants and agents. Mr. Latu urged that, the Applicant/Plaintiff should be granted the orders he seeks.

Dr. Nonggor of counsel for the two Defendants mainly argued that because of the nature of the Organic Law on National and Local-Level Government Elections has been designed, it is such that, such law empowers the Electoral Commissioner his servants and agents to conduct elections without interference from the Courts and the only right open to the plaintiff was to wait until the declarations were made and then if Mr. Togel looses, he can take the matter up with the Court of Disputed Returns.

To begin with s.105 of the PNG Constitution provides for General Elections. The Head of State with advice of the Electoral Commission fixes the first and last days of the period during which the polling takes place and also fixes the dates by which writs for the general election must be returned: see Subsection (2) of s. 105 of the Constitution. It is common knowledge now that the writs for elections were issued in April 2002 and are returnable by the 15th of July barely some 10 days away from 5th of July 2002. The return of the writs, are to be effected as nearly as may reasonably be on the "fifth anniversary of the date fixed or the return of the writs for the previous general election". See s. 105 (3) of the Constitution.

Further s. 126 (1) of the Constitution provides that elections to the National Parliament must be conducted according to or with an Organic Law and such elections, must be conducted by the Electoral Commission. In my view s. 126 (1) is a reference to the previous Organic Law on National Elections and the Organic Law on National and Local – Level Government Elections certified on 9th of April, 1997.

The Plaintiff seeks orders to restrain the two defendants from counting the three final ballot boxes. Under s. 152 of the Organic Law on National and Local-Level Government Elections (herein after referred to as OLNLLGE) scrutineers of various candidates are empowered to mark ballot papers either "admitted" or "rejected". Although the section does not specifically mention anything about ballot boxes, here is in my view the case where the powers of delegation given to the Electoral Commissioner pursuant to ss. 18 and 19 of the OLNLLGE an officer appointed as a Returning Officer or Assistant Returning Officer exercises and is charged with the duty of giving effect to the running of the elections. The Returning Officer or his Assistant would in my view determine whether to count a ballot box or not.

The delegated functions of the Electoral Commissioner, is defined in s. 18 of the above law and s.19 provide for Returning Officers. These sections read as follows:

"18.	Delegation.

(1)	The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2)	Every delegation under Subsection (1) is revocable, in writing, at will.

(3)	No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission.

19.	Returning Officers.

The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission".

I have a very strong view that the Electoral Commissioner and his Officers have very wide powers to conduct and run the election smoothly. That power stems from the Constitution itself see s. 126 (7) and ss. 5,6, & 7 of the OLNLLGE. As noted earlier, despite there being no mention of whether or not a Returning Officer should or should not either admit or reject a ballot box or boxes does not in my view take away the power to reject a ballot box. The conduct of scrutiny is supervised by the Returning Officer or his Assistant.

It may have not been the intention of the Parliament that a ballot box or boxes should be altogether rejected by my reading of s. 154 (1)(2)(a) – (h) and ss. 156 (1) (1)(a) – (h) and (2) and s. 157 and the painstaking functions taken to observe which votes are formal and which are informal, one would think that if the Electoral Officials could have such powers to conduct such functions, why not have such powers to reject a ballot box or a number of them. It is noted here too that scrutineers have the powers to admit or reject a ballot-paper at a scrutiny pursuant to s. 152 and s. 153 of the OLNLLGE.

It is my firm view that if I were to grant the orders sought would be tantamount to unduly interfering with the two defendants Constitutional functions in running the elections on the North Bougainville Open Electorate. Further, I am of the view that the proper venue to determine this type of abuses would be a Court of Disputed Returns if the runner-up is declared winner. I refuse and dismiss this application with costs ordered in favour of the two Defendants.

Orders accordingly.
___________________________________________________________________
Lawyer for the Plaintiff	:	Latu Lawyers
Lawyer for the Defendants	:	Nonggorr & Associates Lawyers