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Amaiu v Maki [2003] PGNC 128; N2364 (2 June 2003)

N2364

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 59 of 2002

TOM AMAIU

-v-

DICKSON MASA MAKI
And
REUBEN KAIULO
ELECTORAL COMMISSIONER

MT HAGEN: SALIKA, J
2 June, 2003

ELECTIONS – Parliament – Petition disputing elections – Returning Officer – Returning Officer’s duty – Returning Officer’s decision not to count boxes containing votes – whether decision proper and lawful.

ELECTIONS – right of citizens to vote – at a periodic free elections – what is a free election – right of citizens to stand for public elective office

ELECTIONS – where there is no polling – there is no scrutiny – Section 149 of Organic Law on National and Local Level Government Elections.

Cases cited:
Peter Peipul v Pila Niningi and Electoral Commission SC580 (1998)
Baki Reipa v Electoral Commission and Yuntini Bao SC606 (1999)

Counsel:
Mr J Yagi for the Petitioner
Mr K Naru for the 1st Respondent
Mr R William for the 2nd Respondent

02 June, 2003

This is an election petition by Tom Amaiu against Dickson Masa Maki and the Electoral Commission of Papua New Guinea. The petition challenges the validity of the election of Dickson Masa Maki as the duly elected Member of Parliament for the Kompiam Ambum Open seat in the 2002 National Election.

The petitioner was among 26 other candidates who contested the Kompiam Ambum Open seat. He was not the runner up to the First Respondent.

After a preliminary application some of the grounds of the petition were struck out as being incompetent. The petition went on trial on ground 4C alone. In respect of that ground the petition alleged that the Returning Officer Peter Yange unlawfully failed or omitted to Count 16 ballot boxes which were held at the Wabag Police Station which were from the various polling stations in the Kompiam Ambum Open Seat.

The general evidence for the petitioner came from the petitioner himself, Simon Keke who too was an unsuccessful candidate, Peter Neapukali, Kendak Ralik and Michael Malabang.

The evidence of the petitioner, Simon Keke and Peter Neapukali is that on 7 July 2002 Peter Yange the Returning Officer engaged Peter Neapukali to transport 16 ballot boxes from Wabag to Kompiam Station for a fee of K500.00. They said Peter Neapukali did transport the boxes to Kompiam Station and delivered them to Assistant Returning Officer Cyprian Ingi who in turn dispatched the ballot boxes to the various polling stations within the electorate. They said there was polling in those various polling places on that day. They also said the ballot boxes were then taken to Wabag and locked up at the Police Station for safe keeping ready to be counted. They said that when the counting took place Peter Yange the Returning Officer unlawfully refused to count the ballot papers in those 16 ballot boxes. They alleged that the conduct of the Returning Officer gave rise to serious concerns about his impartiality and integrity in that his conduct and actions appeared to indicate that he sided with the First Respondent and was not impartial. They therefore concluded that because the Returning Officer was biased he refused to count the ballot papers in the 16 ballot boxes.

The evidence of the Respondents was that it was true the ballot boxes were loaded onto Peter Neapukali’s vehicle on the 7 July 2002 at Wabag. They agree that Peter Neapukali was to deliver the boxes to the Assistant Returning officer Cyprian Ingi at Kompiam Station.

Cyprian Ingi said Peter Neapukali never arrived and never delivered the ballot boxes to him at Kompiam. The witnesses said the ballot boxes were hijacked at Meriamanda by John Pundari a candidate for the Enga Regional Seat and the petitioner and some other candidates. The evidence for the respondents was that no polling took place at the designated polling stations mentioned in the petition. The witnesses said some unauthorised persons took over the role of presiding officers and allowed people to vote. They also gave evidence that all the polling took place at Meriamanda. In the meantime the genuine voters who were on the common roll were waiting for the polling teams to arrive at their respective polling stations so that they could vote but they never arrived.

In summary the evidence of the respondents was that because there was no polling at the designated polling places and because unauthorised persons conducted polling the ballot papers in the 16 ballot boxes were tampered with and contained the votes of people who may not have been on the common roll they could not be counted.

Peter Yange the returning officer gave evidence and said he made a decision not to count the votes in the ballot boxes after he received reports from his appointed polling officers and security personnel and his Assistant Returning Officer Cyprian Ingi. He said that at the Counting Centre in Wabag just before the decision not to count the boxes was made, he got reports from his presiding officers. He then questioned Peter Neapukali whether he delivered the ballot boxes to Cyprian Ingi at Kompiam Station. At the counting centre Peter Neapukali told Peter Yange that because it was getting late and it was night he delivered the boxes to the respective polling stations. Peter Yange asked Peter Neapukali in the presence of Cyprian Ingi and the Security personnel. Peter Yange then asked presiding officers to confirm Peter Neapukali’s story. The presiding officers denied receiving the ballot boxes. Peter Yange then asked the officer in charge of security personnel whether Peter Neapukali had delivered the boxes to Cyprian Ingi. The officer in charge said he and his men returned from Meriamanda and said that they never went to Kompiam. From all the evidence Peter Yange collected he decided he would not count the votes in the 16 ballot boxes.

The issue then is whether the decision by Peter Yange to reject the 16 ballot boxes from the scrutiny process was proper and lawful. The ballot boxes were held at the Wabag Police Station at the time of counting and at the time the decision was made by Peter Yange to reject them.

Section 50 of the Constitution gives the right to vote and to stand for public office. That right is to be exercised at genuine free elections and the persons elected must be freely elected or chosen.

Section 126(i) of the Constitution provides that elections to Parliament is to be conducted in accordance with an Organic Law of the Electoral Commission. Subsection 2 of the same section provides that the general election shall be held in accordance with sections 105 (general elections) and 106 (by elections).

The Organic Law on National and Local Level Government Election is a law to implement s.126 of the Constitution.

Part XIII of the Organic Law which begins with s.113 to 146 provide for the manner in which polling is to take place. The processes and procedures provided for in those sections of the Organic Law are geared towards putting into effect s.50 of the Constitution that is the "right to vote ........ at periodic, free elections ........."

The s.50 of the Constitution right also gives every citizen who is of full capacity and has reached voting age to take part in the conduct of public affairs either directly or through freely chosen representatives. For instance in this case the petitioner, a citizen and who is of full capacity and is of voting age is entitled to be elected to public office at genuine, periodic free elections (underlining is mine). In other words if the petitioner is to be elected as a member of Parliament he is to be elected in a genuine free election. He will then be said to have been a freely chosen representative.

A freely chosen representative to Parliament means that those who chose him did so out of their own free conscience and will. They were not under any undue influence or intimidation to choose him. They were not under any compulsion or in the power of another person or persons to choose him. In such a case private rights of voters are respected.

A free election means that the elections were run trouble free. It also means there was no undue pressure or undue influence exerted on the election officials in conducting the election.

In this case Peter Yange the Returning Officer had to be satisfied that the votes contained in the 16 ballot boxes were not tampered with. He also had to be satisfied that polling did take place at the designated polling places. The evidence from Peter Yange is that he was not satisfied that there was polling in those polling places. He therefore refused and rejected the 16 boxes outright. The Organic law is silent on the power of the Returning Officer to reject outright a ballot box from counting with votes inside. This is such a case where the Returning Officer rejected outright the 16 boxes.

Part XIV of the organic Law deals with scrutiny. S.147 of the Organic Law says that:

"The result of polling shall be ascertained by scrutiny".

Section.149 of the Organic Law gives the Returning Officer the duty to conduct the scrutiny process.

A scrutiny is a thorough and detailed examination of ballot papers to see that they are not filled in irregularly. A returning officer whose job is to conduct the scrutiny is therefore acting more like the Chief Scrutineer as each of the candidates are usually represented at the scrutiny by their appointed scrutineers.

In this case the returning officer before he made his decision to reject the 16 ballot boxes from scrutiny received reports from his presiding officers from the affected polling stations and also from the security personnel and his assistant returning officer that there was no polling at the designated 16 polling stations. They reported to the returning officer that any ballot box purportedly containing votes from any of those 16 polling stations were not to be counted as there was no polling.

Peter Yange reasoned then that if there was no polling in those 16 polling stations there would be no scrutiny. The scrutiny process is activated to ascertain the result of polling. The returning officer was therefore of the view that if thee was no polling there was nothing to scrutinize. He accordingly refused to allow the ballot papers to be scrutinized.

Under s.19 of the Organic Law the Returning Officer is given the general duty to give effect to the Organic Law subject to any direction of the Electoral Commission.

In this case the petitioner relied on a letter written by Michael Malabag who is the Assistant Electoral Commissioner Operations and who was in charge of the Elections in the Highlands provinces during the 2002 General Elections. When the dispute arose as to whether Peter Yange should count the 16 ballot boxes Mr Malabag recommended that the 16 boxes be counted. The petitioner submitted that as a representative of the electoral Commissioner Peter Yange was directed to count the boxes and that he should count the boxes. I am guided by the Supreme Court which held that a direction issued by the Electoral Commision to count ballot boxes cannot overcome the counting of votes in a ballot box which has been tampered with. See PETER PEIPUL v PILA NINGI AND ELECTORAL COMMISSION SC580 (1998)

The Supreme Court in BAKI REIPA v ELECTORAL COMMISSION AND YUNTINI BAO SC606 (1999) has said that there must be "complete security or integrity of the poll" for the elections to be "genuine" and "free" and that if polling is disrupted by criminal acts such as hijacking of ballot papers and boxes then the integrity of the poll is called into question.

In this case Peter Yange had received reports from his presiding officers and security personnel that the 16 ballot boxes were hijacked by John Pundari and the petitioner and that there was polling at Meriamanda where all the 16 boxes were filled. The polling at Meriamanda was reported to have been conducted by officials not appointed by Peter Yange or his Assistant Returning Officer but appointed by John Pundari and the Petitioner. These were the reports that were given to Peter Yange before he made his decision not to count the ballot boxes. In other words the 16 ballot boxes that were meant to go to the 16 different polling places did not go to those places. Instead they were all filled at Meriamanda. Once that happened their integrity came into question. The eligible voters from the 16 polling stations in the meantime were waiting for the polling teams to arrive but never did. Peter Yange believed that there was no polling in the 16 polling stations. As there was no polling there was nothing to scrutinize.

The case for the petitioner in my view must rise and fall with the evidence of Peter Neapukali. His evidence is vital to the petitioner’s case. His evidence is that he took the 16 ballot boxes to Kompiam and delivered them to Cyprian Ingi. He had been paid K500.00 to deliver the boxes. Upon his agreement to deliver the boxes for a fee of K500.00 he entered into a contractual agreement with Peter Yange to deliver the boxes. Peter Neapukali said the petitioner was also at Kompiam when he delivered the boxes to Cyprian Ingi.

Cyprian Ingi denied ever receiving the said boxes from Peter Neapukali.

The petitioner in his evidence said he did not go to Kompiam but returned from Meriamanda. Peter Neapukali told Peter Yange at the counting centre that he had delivered the boxes at their respective polling station because it was night and not to Cyprian Ingi.

Having heard and observed Peter Neapukali in this court I considered him to be an untruthful witness. He told calculated and deliberate lies in this court, that he delivered the boxes to Cyprian Ingi. I find that he perjured himself. He is a deliberate liar. He in the end had the gut to present himself at the counting centre to be the scrutineer for the petitioner. He told lies to Peter Yange that he had delivered the boxes to the respective polling stations as it was night. He had a vested interest apart from the money he was offered to take the boxes to Kompiam.

He then came to this Court and told lies.

I accept Cyprian Ingi’s evidence that Peter Neapukali never delivered the 16 ballot boxes to him on the 7 July 2002. He has no reason to lie. He had no interest in who won the elections. He was simply interested in carrying out his duty as Assistant Returning Officer. Peter Neapukali has tried to tarnish the reputation of Cyprian Ingi with his lies.

From the whole of the evidence I am satisfied that the 16 boxes made it only to Meriamanda courtesy of Peter Neapukali. If the Electoral Commission paid Peter Neapukali I suggest he should not have been paid because he failed to carry out his contractual obligation to deliver the boxes to Cyprian Ingi at Kompiam.

I further find that there was no polling in the designated polling places. I need not say anything about the other witnesses because as I have said the Petitioners case must rise and fall with Peter Neapukali’s evidence. His evidence has been struck down. It follows then that the decision by Peter Yange not to subject the 16 ballot boxes to scrutiny was a reasonable decision and according to law.

His decision in my view amounts to protecting the integrity of the poll. The actions of Peter Neapukali on the other hand were calculated to corrupt the poll. Appropriate action by way of laying possible electoral charges would be in order. The electoral Commission is duty bound to act because it is such actions of a few who corrupt the whole election process.

In the end result the petition is dismissed because there was no polling and because there was no polling there was nothing to scrutinize. The decision to exclude them from counting in my view was correct.

Costs are awarded to the First and Second Respondents. The K2,500.00 as security for costs is to be divided equally between the two respondents.
_____________________________________________________________________
Lawyer for the Petitioner: Yagi Lawyers
Lawyer for the First Respondent: Naru Lawyers
Lawyer for the Second Respondent: Nonggor Lawyers