N2508

PAPUA NEW GUINEA
[In the National Court of Justice]

BETWEEN

RIMBINK PATO & MASKET IANGALIO
Petitioners

AND

MIKI KAEOK
First Respondent

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hinchliffe J
2004: February 18

Counsel:
R. Pato the Petitioner in E.P. No. 65 of 2002
G. Shepherd for the Petitioner in E.P. No. 68 of 2002
K. Naru for Miki Kaeok
R. William for the Electoral Commission of Papua New Guinea

18th February, 2004

Hinchliffe J:	By agreement between the parties the trial at this stage has proceeded only on the issue of the late return of the Writ ie whether or not the declaration of the Electoral Commissioner on the 28 July, 2002 or 1 August, 2002 and return of the Writ on the 1 August, 2002 after the date fixed by the Head of State for return of the Writs is an error or omission and/or illegal practice which would constitute a ground for invalidating an election under Section 212(1) and (3) of the Organic Law on National and Local Level Government Elections, (hereinafter referred to as "the Organic Law").

Before I go on I would like to thank Counsel in this matter for their well researched and thorough written submissions. One set of submissions was filed and then further submissions were filed by Counsel for Mr. Kaeok, the Electoral Commissioner and Mr. Iangalio in reply to an important issue raised in Mr. Pato’s submissions. They were provided on the Court’s invitation in relation to the validity of the Declaration on the 28th July, 2002. It would seem that if the Court was satisfied that the said Declaration was invalid then it would follow that there was never a valid Declaration and therefore never a valid return of the Writ, whether late or not. Of course the Declaration that I am referring to is that of one Romalo Bapu who states:

"I, Romalo Bapu being the duly appointed Returning Officer for Wapenamanda Electorate, hereby certify that Yangakun Miki Kaeok has been duly elected as Member of the National Parliament for the said electorate.

Dated 28, July, 2002
(signed by the Returning Officer)

(signed by the Elected Member)
28/7/2002
13.20 pm" 

Mr. Pato has submitted that the said Declaration was invalid, void and of no effect in law. At 5.6 of his written submissions he says the following:

"5.6	The proposition that the Returning Officer had no legal authority to make the declaration when he did so being conceded, it follows that the declaration which is claimed to have been on 28 July, 2002 is void and of no effect in law. Consequently, the endorsement and certification of the Second Respondent as Member returned and elected under Section 175 of the OLNLLGE (the Organic Law) on a writ defective is invalid and a legal nullity and void and of no effect. See Kapi v Abal N2327 of 2003 and application of Daniel Kapi N2259 of 2003." 

In a nutshell Mr. Pato is submitting that if a Declaration was made on the 28th July, 2002, it was invalid and in effect he is saying that a valid Declaration has never been made in the Wapenamanda Open election. If that is correct then a by-election would need to be called. We need to look at the law on this point and what occurred leading up to the 28 July, 2002. The question needs to be asked ______ why was the Declaration invalid? Section 19 of the Organic Law provides as follows: 

"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 (underlining is mine). Under a normal situation the Returning Officer will comply with section 175 of the Organic Law which provides, quite clearly, as follows:

"175.	Return of Writs

(1)	The Returning Officer shall, as soon as conveniently may be after the result of an election has been ascertained 

(a)	at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b)	by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament."

In the present situation there was a variation in that the Electoral Commission had given some directions to the Returning Officers, which to my mind, brought into force the words in the said section 19  "subject to any directions of the Electoral Commission." I say this because on the 17th July, 2002 the Electoral Commission wrote to the Engan Provincial Returning Officer, Cleophas Roa stating the following:

"You are hereby directed to immediately proceed with scrutiny arrangements for all Open Electorates in Enga Province.

I have reached this decision after receiving a comprehensive written brief from my Lawyer who was recently in Enga to collect on the spot statements from Returning Officers including yourself.

Ballot boxes properly identified for scrutiny must be brought to the Counting Centre for the process to commence immediately. Disputed ballot boxes can remain in the containers outside the Police Station for a firm decision to be reached towards the end of the counting process.

Counting should be held both day and night with specific intentions of concluding the process well before 29 July 2002. At the end of counting for each open electorate including the Provincial Electorate, no official declaration is to be made pending further advice from my office. A senior officer from the Electoral Commission will also be dispatched to Wabag to assist you and my Election Manager with the whole counting process." (Underlining mine)

It is submitted by Mr. Pato that the Returning Officer for Wapenamanda Open is in breach of the said section 19 by declaring the winner on the 28 July, 2002 when he had been directed by the Electoral Commission not to make such a declaration. There appears to be no dispute, on the evidence, that the said Direction of the Electoral Commission was still in force when the Returning Officer quite wrongfully made the said direction regarding declaration. Mr Naru and Mr William, had made various submissions relating to the declaration but I must say that I have not been particularly swayed by those submissions. It is suggested that the said direction of the Electoral Commission was only directory and not mandatory. I am unable to see that at all as there was a very good reason for the said direction in the letter of the 17 July, 2002 (and a similar reminder in correspondence of the 25 July, 2002) which could only be a mandatory direction and not directory. If it was directory only, then it would defeat its purpose. The Electoral Commission wanted to ensure that all was in Order before a declaration was made. It is clear that the election had had many problems in Enga and the Southern Highlands and the Electoral Commission wanted to be certain, that the said direction was still in force on the 28 July, 2002.

There was also a submission from Counsel that the declaration on the 28 July, 2002 was subject to ratification by the Electoral Commission so it would seem to me that Counsel is suggesting that the declaration was not a full declaration but what one might call a "preliminary declaration", or a declaration subject to approval later on by the Electoral Commission. There is absolutely no provision for all of this in the Organic Law, in fact the said section 175 is simple and clear. There is no need to read words into it or read between the lines. It makes perfect sense. The ratification process as referred to by Mr William is not to be seen anywhere and to my mind it would not be in the spirit of the Organic Law. Will all respect to Mr William, I found him to be struggling in this particular part of his submission. Counsel for the Electoral Commission and Mr Kaeok appear to be confusing the wording of the said sections when it is clear from the outset and no other interpretation is required.

I refer to the Wabag Open Electoral case of Daniel Don Kapi v Reuben Kaiulo and Samuel Abal N2327, particularly because it has many similarities to the present. Justice Gavara-Nanu delivered a decision in this matter on the 21 February, 2003, which I agree with.

After referring to almost identical facts as this case, His Honour said, inter alia, as follows:

"Therefore it is plain that, the declaration made by Mr Kwadogi (the Returning Officer) of the petitioner on the 24 July, 2002 was in breach of section 19 of the Organic Law as it was made in defiance of the specific instructions given by the Electoral Commission in its letter of 17 July, 2002, that no declaration was to be made without consulting the Electoral Commission."

He goes on:

"The reason for the control by the Electoral Commission of the Returning Officers and other electoral officials in the performance of their duties is because, it is the responsibility of the Electoral Commission to ensure proper conduct of the elections. This is significant because, the election process is intended to facilitate and to ensure that the people exercise their democratic and constitutional rights to vote into parliament the candidates of their own choice. Those candidates also exercise their constitutional rights to stand for public office pursuant to section 50 of the Constitution. The Electoral Commission therefore has the duty to ensure that the elections are fair, open and free from any form of illegal practices.

Thus the electoral officials including the Returning Officers and others who act contrary to the directions given by the Electoral Commissioner, do so in abuse of the delegated powers given to them by Electoral Commission under ss. 18 and 19 of the Organic Law.

Mr Kwadogi told the Court that even if he had been aware of the letter, he would have still gone ahead and made the declaration, because he had the powers under s. 175 of the Organic Law to do so. But the delegated power given to him under ss. 18 and 19, thus he could only exercise that power validly if the Electoral Commission had not given the specific direction against making declarations. The declaration was therefore a flagrant abuse of his delegated powers under ss. 18 and 19 of the Organic Law, consequently, the declaration was invalid.

In Peter Ipu Peipul v Pila Niningi and Electoral Commission – SC 580, the Supreme Court held that the directions referred to in s. 19 relate to the general duties of the Returning Officers. The direction given in the instant case was in respect of such a duty, but I am of the view that there is always a qualification that, any direction given under s.19 must be lawful and for good reasons. In the instant case, there is no doubt that, the direction given was lawful and for good reasons." 

I agree in total with his Honour and I adopt his approach in this case.

In this case also I have no doubt at all in saying that the direction given was lawful and for good reason.

I note also in the present case that Mr Bapu, the Returning Officer, also said that he would proceed under the said section 175 of the Organic Law and again I say that the Kapi case is very similar to this one now in Court. 

I agree also with Justice Kandakasi when he said the following in Herowa Agiwa v Reuben Kaiulo & Ors N2345:

"As already noted, a Returning Officer for an electorate is "charged with the duty of giving effect to" the Organic Law "within or for his electorate, subject to any directions of the Electoral Commission." (emphasis mine) The important words used by the Organic Law in s. 19 are that the Returning Officers are subject to the directions of the Electoral commission. As such, they are not at total freedom to do as they please but are subject to the directions or control of the Electoral Commission when it comes to a disgrace of their duties and responsibilities. The Electoral Commission is thus, the ultimate and or supreme in the conduct of elections and their returns. Accordingly, there can not be inconsistencies in the conduct of elections and their returns as between as Returning Officer and Electoral Commission. In the event of any such inconsistency, the directions and or the determination of the Electoral Commission should prevail.

Indeed, this was already judicially stated in MP 389 of 2002; Enforcement Pursuant to s. 50. Application by Daniel Kapi (unreported judgment delivered 03/08/02) N2259 (the Daniel Kapi application). This was in relation to the Wabag Open Seat in Enga Province also, out of the 2002 National General Elections."

In light of what I have said I am well satisfied, on the evidence before me, that the Returning Officer for Wapenamanda Open disobeyed a direction of the Electoral Commission and went ahead and publicly declared the winner of the Wapenamanda Open seat without the approval of the Electoral Commissioner. He (the Returning Officer) thereby contravened s. 19 of the Organic Law and by his actions caused the declaration to be invalid and not recognized in law or by this Court. I am further satisfied that there is no provision in the Organic Law for the Electoral Commission to ratify or not ratify afterwards the said declaration and that section 175 of the Organic Law is clear and simple to understand in relation to the return of writs. It follows therefore, that there was not and never has been a valid declaration in the Wapenamanda Open election and therefore there has never been a valid return of the writ whether late or otherwise. 

I make the following Orders and Declarations: 

1.	I declare that Yangakun Miki Keok who was returned as the elected member for Wapenamanda Open was not dully elected.

2.	I declare that the election in respect of Wapenamanda Open is absolutely void.

3.	I order that a by-election be conducted by the Electoral Commission for Wapenamanda Open.

4.	That the Electoral Commission is to pay the costs of all the parties.

Orders accordingly.