N9054
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 79 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE
SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

PASTOR BERNARD PETER KAKU
Petitioner

V

WILLIAM POWI
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2021: 10th, 11th, 14th, 17th, 18th, 19th, 25th May, 24th August

ELECTIONS – petitions – Organic Law on National and Local-level Government Elections, Part XIV (the scrutiny), Part XVI (the return of the writs) – counting of votes – failure of successful candidate to secure absolute majority of votes – whether result of election determined in breach of Organic Law, s 168 (scrutiny of votes in election) – whether result of election lawfully declared in “special circumstances” under Organic Law, s 175(1A).  

The petitioner disputed the election of the first respondent in the 2017 general election by presenting a petition. It was based on nine grounds, which were, after upholding of objections to competency and various Supreme Court proceedings, reduced to two: No 4 and No 6. Both grounds related to the counting of the votes. Ground 4 alleged that the returning officer failed to complete and determine the result of the election by scrutiny and prematurely declared the first respondent as elected without the first respondent attaining an absolute majority of first preference votes and without counting any other votes and without excluding candidates in a progressive manner, thereby breaching s 168(1) of the Organic Law on National and Local-level Government Elections (the Organic Law). Ground 6 alleged that s 175(1A) of the Organic Law, which allows the Electoral Commission (the second respondent) to declare a result “in special circumstances … based on information concerning scrutiny and any other information provided by the returning officer or assistant returning officer”, had been erroneously applied when declaring the first respondent elected. The respondents argued that both grounds, which rely on the allegation that the returning officer declared the result, and therefore the petition, should be summarily dismissed as it was the Electoral Commissioner (not the returning officer) who declared the result. It was further argued that the Electoral Commissioner had lawfully exercised his discretion under s 175(1A) of the Organic Law to declare the result in special circumstances, notwithstanding the first respondent’s failure to attain an absolute majority of votes, due to the first respondent being the clear leader after counting of first preference votes and the return of the writ being delayed by more than two months after the date originally set for its return and the extreme difficulties faced in returning the writ on time, which were caused in large part by the petitioner. 

Held: 

(1)	Though grounds 4 and 6 erroneously stated that the result had been declared by the returning officer (as the result was declared by the Electoral Commissioner), the error was inconsequential as: (a) it did not relate to the gist of the grounds, which was, re ground 4, that the result was declared despite the scrutiny process not being completed and no absolute majority attained by the successful candidate, and, re ground 6, that s 175(1A) had been improperly invoked; and (b) the fact that it was the Electoral Commissioner who declared the result was not reasonably known to the petitioner at the time of filing the petition as the declaration was not made in public and the writ returned was signed by the returning officer, which gave rise to the reasonable inference that he had declared the result. In view of the obligation imposed on the Court by s 217 of the Organic Law to be guided by the substantial merits of each case, it would be unjust to summarily dismiss the petition. The application for summary dismissal was refused.

(2)	Ground 4 was, subject to determination of ground 6, upheld as the result was declared after counting of the primary votes only, before proceeding to progressive elimination of losing candidates, without any candidate attaining an absolute majority, which was tantamount to determination of the result on a first-past-the-post basis, contrary to the limited preferential system required by the Organic Law, s 168.

(3)	Ground 6 was upheld as the precondition (Electoral Commissioner has directed returning officer not to declare a result) to exercise by the Electoral Commissioner of the power in s 175(1A) of the Organic Law to declare a result “based on information concerning scrutiny and other information provided by the returning officer or an assistant returning officer” was not satisfied. Section 175(1A) is not a catchall provision allowing the Commissioner to declare a result in “special circumstances”; and, even when the precondition is satisfied it does not allow the Commissioner to declare a result if no candidate has attained an absolute majority. Section 175(1A) could not be relied on in the circumstances of this case to authorise declaration of the result.

(4)	The inevitable consequence of upholding grounds 4 and 6 is a declaration that the first respondent was not duly elected. 

(5)	In exercising the discretion of the Court as to other relief that should be granted it was relevant to take account of other irregular and/or unlawful facts and circumstances regarding declaration of the result, viz the result was not publicly declared at the place of nomination (it was declared in private, in the presence of only one candidate, the successful candidate, and a few other persons, and it was not at the place of nomination, contrary to s 175(1)(a) of the Organic Law) and the declaration was made by the Electoral Commissioner during a period in which he had delegated his powers to an acting Electoral Commissioner, who gave reasons for the unusual declaration that were garbled, misleading and almost incomprehensible, and furthermore the writ for the election, when returned to the Governor-General, was not signed by the officer who declared the result (the Electoral Commissioner), contrary to s 175(1)(b) of the Organic Law. 

(6)	It was ordered and declared pursuant to s 212(1) of the Organic Law and s 155(4) of the Constitution that the first respondent was not duly elected, that there shall be a recount of votes for the electorate and that, pending the result of the recount, the first respondent is suspended, on full pay, from discharging all powers, functions, duties and responsibilities of the office to which he had not been duly elected. 

Cases Cited

The following cases are cited in the judgment:

Electoral Commission v Kaku (2019) SC1866
Electoral Commission v Kaku (2020) SC1950
Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 05.03.21, unreported
Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 31.05.21, unreported
Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 13.08.21, unreported
Hagahuno v Tuke & Electoral Commission (2020) SC2018
Kaku v Powi & Electoral Commission (2019) N7729
Kaku v Powi & Electoral Commission (2020) N8259
Kimisopa v Ame & Electoral Commission (2018) N7289
SC Ref No 4 of 2002, Reference by the Attorney-General [2002] PNGLR 696
SC Ref No 4 of 2017, Reference by the Ombudsman Commission (2019) SC1814

TRIAL

This was the trial of an election petition disputing the validity of an election.

Terminology and dates

In this judgment:

•	‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections;

•	dates refer to the year 2017 unless otherwise indicated.

Counsel

R Diweni, for the Petitioner
A Baniyamai, for the First Respondent
H Nii, for the Second Respondent

24th August, 2021

1.      CANNINGS J: The petitioner Pastor Bernard Kaku filed a petition disputing the election of the first respondent William Powi as member for Southern Highlands Provincial in the 2017 general election. He seeks orders that the first respondent was not duly elected, that the election be declared null and void and that a by-election be held. 

2.     The petition was based on nine grounds, which were, after the upholding of objections to competency and various Supreme Court proceedings, reduced to two: No 4 and No 6 (see Electoral Commission v Kaku (2019) SC1866; Electoral Commission v Kaku (2020) SC1950; Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 05.03.21, unreported; Kaku v Powi & Electoral Commission (2019) N7729; Kaku v Powi & Electoral Commission (2020) N8259). 

3.    The trial of the petition commenced on 10 May 2021 and concluded on 25 May 2021. A decision was reserved to 1 June 2021 but was unable to be delivered then due to a stay of these proceedings granted by the Supreme Court, pending determination of a slip rule application regarding an earlier Supreme Court decision (Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 31.05.21, unreported). The slip rule application was recently dismissed (Electoral Commission v Kaku SC Rev (EP) No 1 of 2020, 13.08.21, unreported), which means that the stay order has dissolved and the decision of the National Court can now be handed down.

4.    Both grounds of the petition relate to the counting of the votes. Ground No 4 alleges that the returning officer failed to complete and determine the result of the election by scrutiny and prematurely declared the first respondent (the successful candidate) as elected, without the first respondent attaining an absolute majority of first preference votes and without counting any other votes and without excluding candidates in a progressive manner, thereby breaching s 168(1) of the Organic Law on National and Local-level Government Elections (the Organic Law). 

5.    Ground No 6 alleges that s 175(1A) of the Organic Law, which allows the Electoral Commission (the second respondent) to declare a result “in special circumstances … based on information concerning scrutiny and any other information provided by the returning officer or assistant returning officer” was erroneously applied when declaring the first respondent as elected. 

6.     The respondents argue that both grounds, which rely on the allegation that the returning officer declared the result, and the entire petition, ought to be summarily dismissed as it was the Electoral Commissioner (not the returning officer) who declared the result. 

7.     It was further argued by the respondents that the Electoral Commissioner lawfully exercised his discretion under s 175(1A) of the Organic Law to declare the result in the special circumstances prevailing, notwithstanding the first respondent’s failure to attain an absolute majority of votes, due to the first respondent being the clear leader after counting of first preference votes and the return of the writ being delayed by more than two months after the date originally set for its return and the extreme difficulties faced in returning the writ on time, which were caused in large part by the petitioner. 

ISSUES

8.    These are the key issues for determination:

1.	Should the petition be summarily dismissed due to an error of fact in grounds 4 and 6?

2.	Should ground 4 be upheld?

3.	Should ground 6 be upheld?

4.	What orders should the Court make?  

FACTS
9.     Before considering those issues, I make the following findings of fact concerning the events that culminated in the return of the writ to the Governor-General on 29 September 2017. 

10.     After the polling was completed on 8 July, counting of votes commenced at Mendi on 11 July under the supervision of returning officer Jacob Kurap. The bulk of the ballot boxes brought to the counting centre for counting were undisputed but there was a significant number, which came to be referred to as ‘84 disputed ballot boxes’, which became contentious. 

11.    Mr Kurap at one stage set them aside in a marked container that was held at Mendi police station, which was interpreted by a number of persons including the petitioner as an indication that he had decided not to count them.

12.     I find that in fact Mr Kurap made no decision that the 84 disputed ballot boxes not be counted. Objections were made by many of the 24 candidates, including the petitioner, to those disputed boxes being included in the count. The prevailing view was that Mr Kurap had in fact made a decision to count them which could not be reversed, and any review of that decision could only be undertaken by the National Court through an election petition.

13.     Mr Kurap later came to the view that the 84 disputed ballot boxes should be counted or, at least, that he needed to make a further assessment of them before making a final decision on whether they be counted. However, his attempts to retrieve them from the container at the police station were thwarted by many persons, including the petitioner.

14.     I accept Mr Kurap’s evidence that the petitioner, on about 26 July, became so agitated by the perceived decision to count the 84 disputed ballot boxes, that he “fisted” Mr Kurap in the face.

15.     Mr Kurap did not complete the counting of first preference votes before deciding that the security situation in Mendi made the orderly completion of scrutiny untenable. He also feared for his personal safety. He left Mendi on 28 July and went to Port Moresby, where he attempted to declare the first respondent (who led the primary vote by a substantial margin) as the successful candidate.

16.     The Electoral Commissioner, Mr Patilias Gamato, declined to accept that result. Mr Kurap then indicated that he would not continue as returning officer.

17.     Amidst the confusion created by there being a vacuum in the position of returning officer, the Southern Highlands Election Manager, David Wakias, appointed an assistant returning officer from one of the Open electorates, Francis Akol, to continue the counting of first preference votes. Mr Akol did so, counting a further 102 ballot boxes.

18.     However, the arrangements made by Mr Wakias regarding Mr Akol were not recognized by the Commissioner, who then appointed Michael Ariando as returning officer.  

19.    Mr Ariando resigned soon after being appointed, and did not do anything tangible regarding the counting of votes. 

20.    On about 6 August a new returning officer, Steven Gore Kaupa, was appointed. The ballot boxes, excluding the 84 disputed ballot boxes, were then taken to Mt Hagen, where a new counting centre was established.

21.    There were no significant security incidents at Mt Hagen. Counting of first preference votes was continuing in an orderly manner when on 23 August the Commissioner gave a direction to Mr Kaupa regarding the 84 disputed ballot boxes, which had been left behind in Mendi, by a letter in the following terms:

OFFICE OF THE ELECTORAL COMMISSIONER

23 August 2017

The Provincial Returning Officer
Southern Highlands Province 
c/-PO Box 5348
BOROKO 
National Capital District

Attention: Mr Steven Gore Kaupa

Dear Sir, 

RE: REMAINING (84) BALLOT BOXES LOCKED UP IN MENDI TO BE COUNTED 

Thank you for accepting your position as the Provincial Returning Officer for Southern Highlands Province to complete the Election process for the Southern Highlands Provincial Governor's Seat. As a result of the lengthy delay and numerous court proceedings before the courts, the counting has been delayed for the Southern Highlands Provincial Seat.

For this Provincial Seat, there were a total of 648 ballot boxes for counting. Mr Jacob Kurap, the Provincial Returning Officer counted 462 ballot boxes out of the 648 ballot boxes. When Jacob Kurap resigned, Mr Francis Akol and David Wakias without authority illegally tampered with and counted 102 ballot boxes. Of the 648 primary ballot boxes, a total of 564 primary ballot boxes had been counted and the balance of 84 primary ballot boxes remain to be admitted for counting before commencing quality check and elimination.

I now direct you to follow this direction when you commence counting before the quality check and elimination:

1.	Admit the remaining 84 primary ballot boxes and commence counting.
2.	You are directed not to declare a winner until after you have complied with my direction Number one (No 1) above.

I trust you will comply with my directions without fail.

Thank you,
[Signed]
Patilias Gamato, ML
Electoral Commissioner 

cc:	The Election Manager – Southern Highlands Province 
cc:	The Provincial Election Steering Committee Chairman – Southern Highlands Province
cc:	The Operations Manager – Highlands Region 
cc:	The Provincial Police Commander – Southern Highlands Province 
cc:	The Provincial Police Commander – Western Highlands Province
cc:	The Police Commissioner – Royal Papua New Guinea Police Constabulary 
cc:	The Commander – Papua New Guinea Defence Force 
cc:	The Regional Candidate – Southern Highlands Province

22.     On 30 August Mr Gamato took leave and appointed Deputy Commissioner John Kalamoroh as acting Commissioner by an instrument of delegation in the following terms:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Organic Law on National and Local-level Government Elections

DELEGATION

I, 	PATILIAS GAMATO, ML, Electoral Commissioner, by virtue of the powers conferred by Section 18 of the Organic Law on National and Local-level Government Elections and all other powers enabling me, hereby delegate all the powers and functions to John Kalamoroh, Deputy Electoral Commissioner, Corporate Services to be exercised in relation to all matters in parts of Papua New Guinea for the period Thursday, 31st August 2017 to Friday 29th September 2017.

Dated this 30th day of August 2017.

[Signed]
PATILIAS GAMATO, ML
Electoral Commissioner

23.     Mr Kaupa enlisted the support of the Police in order to carry out the Commissioner’s direction of 23 August. A significant operation was mounted by the Western Highlands Provincial Police Commander, Samson Kua. However there was strong opposition by most candidates to counting the 84 disputed ballot boxes, and this was confirmed at a meeting at the Highlander Hotel, Mt Hagen, on 13 September, between the candidates (apart from the first respondent) and Mr Kaupa. 

24.     I accept Mr Kua’s evidence that, though the Police made a concerted attempt to bring the 84 disputed ballot boxes from Mendi to Mt Hagen, there were strong and repeated efforts to prevent that happening, and the risk of a breakdown in public order became so great, the mission had to be aborted. The 84 disputed ballot boxes were not brought to Mt Hagen. Their contents have never been counted. 

25.     On 20 September the acting Commissioner, Mr Kalamoroh, revoked the previous direction to count the 84 disputed ballot boxes, by writing to Mr Kaupa in the following terms:

OFFICE OF THE ELECTORAL COMMISSIONER

20 September 2017

The Provincial Returning Officer
Southern Highlands Province 
c/- PO Box 5348
BOROKO 
National Capital District

Attention: Steve Gore Kaupa

Dear Sir,

RE:	WITHDRAWAL OF PREVIOUS DIRECTIONS 

Thank you for your best efforts and acceptance as the Provincial Returning Officer for the Southern Highlands Provincial Seat. By this letter, on behalf of the Electoral Commission and Commissioner, I withdraw all previous directions, including the directions contained in the Commissioner's earlier letter of 23rd August 2017, a copy enclosed herein for your file records. The Electoral Commission can then make a decision given that special circumstances exist in the case of the Southern Highlands Provincial Governor's Seat. The withdrawal takes effect forthwith or as you receive this letter.

Thank you,

[Signed]
John Kalamoroh
Electoral Commissioner's delegate

*encl…

cc:	The Election Manager – Southern Highlands Province 
cc:	The Provincial Election Steering Committee Chairman – Southern Highlands Province
cc:	The Operations Manager – Highlands Region 
cc:	The Provincial Police Commander – Southern Highlands Province 
cc:	The Provincial Police Commander – Western Highlands Province 
cc:	The Police Commissioner – Royal Papua New Guinea Police Constabulary
cc:	The Commander – Papua New Guinea Defence Force 
cc:	The Regional Candidates – Southern Highlands Province

26.     The next step in the process of scrutiny was the counting of preferences and the progressive elimination of candidates. However, that next step did not take place before the declaration was made.

27.    One week after the revocation of the direction regarding the counting of the 84 disputed ballot boxes, the first respondent was declared the successful candidate. At that stage Mr Kaupa had completed the counting of first preference votes and had conducted a quality check. No candidate had attained an absolute majority. 

28.    The declaration was made by Mr Gamato who resumed duty briefly on 27 September for the purpose, it appears, of sorting out the Southern Highlands Provincial seat. Mr Gamato declared the first respondent to be the successful candidate at the conference room of the Electoral Commission’s head office in Port Moresby. Also present were Mr Kalamoroh (who was still the acting Commissioner, in accordance with the instrument of delegation of 30 August), Mr Kaupa and the first respondent, who was the only candidate present. A few other Electoral Commission officers were present. No representatives of the mass media were present. No arrangements were made to live broadcast the declaration to the public. The candidates were not informed that the declaration was to be made in that way. I find that the declaration was made in private. 

29.     Though it was Mr Gamato who declared the result, the writ for the election was signed by the returning officer, Mr Kaupa, in the following terms:

I, STEVEN GORE KAUPA, being the duly appointed Returning Officer for the SOUTHERN HIGHLANDS REGIONAL Electorate, hereby certify that WILLIAM POWI … has been duly elected as Member of the National Parliament.

Dated: 27 of September 2017

[Signed]
(Signature of Returning Officer)

[Signed]
(Signature of Elected Member}

30.     On 29 September the writ was returned to the Governor-General, together with a covering letter by Mr Kalamoroh, who was still the acting Commissioner:

OFFICE OF ELECTORAL COMMISSIONER

29 September 2017

His Excellency Grand Chief Sir Bob Dadae GCL GCMG KSt. J
Governor General of Papua New Guinea 
P O Box 89
KONEDOBU
National Capital District 
Papua New Guinea 

Excellency, 

RETURN OF WRIT – SEAT OF SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE 

It has been long and costly wait by all stakeholders – by voters, PNGEC, Security Forces, generally population and business houses of the gas-rich province of Southern Highlands.

Excellency, after having carefully considered all facts presented to me by the duly appointed Returning Officer, and unequivocal support expressed by the Commissioner of Royal Papua New Guinea Constabulary, as Head of the combined Security Forces, I now decide to apply provisions of special circumstances expressed in s 175(b) [sic] of the Organic Law on National & Local-level Government Elections.

The situation remains untenable on the ground in all parts of the Province, if the intentions of the majority of voters reflected in the regulatory Election Form 66A by the Returning Officer were not recognized by my Office. [sic]

Your Excellency, admittedly the counting is not fully conclusive, failed to attain the required absolute majority of 50% plus one valid votes cast and admitted to the process of scrutiny-count, as shown in regulatory Election Form 66A, which shows number of votes received by each candidate. [sic] 

I base my decision on intentions of these votes admitted and counted thus far, so excruciating clear to recognize, negate expectations of a lesser majority.

I attest to the report by the Returning Officer, which clearly shows and reflects the clear intentions of majority of votes counted in the official records held, shown on regulatory Election Form 66A, to this point in time - in spite of falling short of the absolute majority of votes.

Given these extenuating circumstances, I advice your Excellency, that you recognize the return of writ, which intentionally recognizes WILLIAM POWI as the member-elect, to represent the Electorate of Southern Highlands Province, in the National Parliament.

Sincerely,

[Signed]

John Kalamoroh
Delegate of the Electoral Commission

1	SHOULD THE PETITION BE SUMMARILY DISMISSED DUE TO AN ERROR OF FACT IN GROUNDS 4 AND 6?

31.     Grounds 4 and 6 are in the following terms:

4. Newly appointed PRO [provincial returning officer] Steven Gore Kaupa failed to complete and determine the result of the SHP [Southern Highlands Provincial] electorate by scrutiny and irregularly and prematurely declared the first respondent thereby breaching ss 142 and 168(1) of the Organic Law.

6. Inappropriate and erroneous application of s 175(1A) of the Organic Law when declaring the first respondent as the member elect for SHP electorate on 27 September on the basis of “special circumstances”.   

32.     There are supporting facts stated in relation to each ground and both sets of supporting facts assert or imply that the result was declared by Mr Kaupa. The respondents have correctly pointed out that this is an error of fact as the evidence shows that Mr Kaupa did not declare the result. It was the Commissioner himself, Mr Gamato, who declared the result.

33.     Does that error of fact mean that either or both grounds of the petition or that the entire petition should be dismissed? No, I consider that the error is inconsequential as: 

(a) it does not relate to the gist of the grounds, which is, in relation to ground 4, that the result was declared despite the scrutiny process not being completed and no absolute majority attained by the successful candidate, and, in relation to ground 6, that s 175(1A) had been improperly invoked; and 

(b) the fact that it was the Electoral Commissioner who declared the result was not reasonably known to the petitioner at the time of filing the petition, as the declaration was not made in public and the writ which was returned to the Governor-General was signed by the returning officer, which gave rise to the reasonable inference that he declared the result. 

34.    I discharge the obligation imposed on the Court by s 217 (real justice to be observed) of the Organic Law to be guided by the substantial merits and good conscience of this case. The Supreme Court (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J, Makail J) recently confirmed in Hagahuno v Tuke & Electoral Commission (2020) SC2018 that s 217 calls for a more liberal approach to the raising of technical objections to petitions. Section 217 states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

35.     If the petition were to be dismissed because of an error of fact which is inconsequential, I would be guided not by the substantial merits and good conscience of the case but by legal technicalities. I would be deciding the case contrary to the Organic Law. I am obliged not to do that. The application for summary dismissal is therefore refused.

2	SHOULD GROUND 4 OF THE PETITION BE UPHELD?

36.     The petitioner argues through ground 4 that the result of the election was declared unlawfully because the scrutiny process had not been completed and no absolute majority attained by the successful candidate. It is alleged that this gave rise to breaches of ss 142 and 168 of the Organic Law. 

37.     The alleged breach of s 142 (which is about postal voting) was not pursued at the trial, and is regarded as irrelevant and is disregarded.

38.     The alleged breach of s 168 (scrutiny of votes in election) is significant as this is the provision by which the limited preferential system of voting is implemented. Section 168 states:

(1)	Subject to this section and the Regulations the result of an election shall be determined by scrutiny in the following manner:—
	
(a)	the Returning Officer shall ascertain the total number of first preference votes given for each candidate;

(b)	the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;

(c)	if no candidate has received an absolute majority of votes, a second count shall be held;

(d)	on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the voter's preference;

(e)	where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter's preference shall be repeated until one candidate has received an absolute majority of votes;

(f)	the candidate who has received an absolute majority of the votes is elected;

(g)	if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary;

(h)	if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;

(i)	if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary; and

(j)	if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.

(2)	Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an unexcluded candidate, that ballot-paper—

(a)	shall be deemed to be exhausted; and
(b)	shall be excluded from that count and any subsequent count; and
(c)	shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.

(3)	The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.

(4)	In this section, "an absolute majority of votes" in relation to any count, means a greater number than one-half of the whole number of ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under Subsection (2)).

39.     The petitioner argues that the only stage of the process of scrutiny completed by the returning officer was the counting of first preference votes, the stage prescribed by s 168(1)(a). That stage revealed that no candidate had an absolute majority, therefore the scenario prescribed by s 168(1)(b) did not apply. The process should have proceeded to the elimination stage, commencing with s 168(1)(c) and continuing with the following paragraphs of s 168(1) until one candidate attained an absolute majority. However, the process did not proceed past s 168(1)(a).

40.    The respondents concede that prima facie the scrutiny was not completed in the manner envisaged by s 168(1). However, they argue that this was not a simple case of the returning officer not complying with the law. Mr Kaupa was frustrated in his attempt to complete the scrutiny and prevented from complying with the Commissioner’s 23 August direction to count the 84 ballot boxes, which were still in the container at Mendi police station, by the actions of third parties, especially the petitioner. The apparent failure to complete the scrutiny was due to the actions of other persons, not the returning officer.

41.     The respondents also argue that, though the scrutiny was not completed and there was no absolute majority, the declaration of the first respondent as successful candidate was justified by the special circumstances that were prevailing at the end of September, almost two months after the date for the return of the writ had passed. 

42.     I put that argument to one side for the time being. It will be assessed when ground 6 is determined. If it succeeds the determination of ground 4 will be irrelevant. If it fails the result of the petition will turn on how ground 4 is determined. 

43.     I find no merit in the respondents’ argument that Mr Kaupa was unable to complete the scrutiny. He was unable to comply with the Commissioner’s 23 August direction to count the 84 disputed ballot boxes. The police could not get them, though they tried very hard. Mr Kaupa tried hard too but he failed. This is not a criticism, simply a fact. 

44.     The more significant fact is that on 20 September the direction was revoked. There was nothing then preventing Mr Kaupa from completing the scrutiny. The security of the counting centre at Mt Hagen was intact. The counting had proceeded in an orderly manner. 

45.     The Organic Law required that the scrutiny be continued until such time as one candidate secured an absolute majority. It was not completed and no one attained an absolute majority. This was a breach of s 168(1), the requirements of which are mandatory (Kimisopa v Ame & Electoral Commission (2018) N7289).  Subject to determination of ground 6, I uphold ground 4.

3	SHOULD GROUND 6 OF THE PETITION BE UPHELD?

46.     The petitioner argues through ground 6 that s 175(1A) of the Organic Law was improperly invoked to declare the result, in an attempt to override the failure to comply with s 168(1).

47.     Section 175(1A) states:

Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a)	unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b)	in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

48.     There was no evidence of any official record of a decision to invoke s 175(1A) to support the declaration of the first respondent as successful candidate. The only record of the apparent decision is in what can be gleaned from Mr Kalamoroh’s letter of 29 September, covering the return of the writ to the Governor-General. It is not, however, a clear and concise record of a decision. The letter is, with respect, a garbled attempt to justify an unusual decision, some parts of which are barely comprehensible, but which conveys the impression that there were “special circumstances” to justify the return of the writ.  

49.     The respondents argue that it is sufficiently clear from the evidence that the decision, which was made by the Electoral Commissioner, Mr Gamato, to declare the result despite the scrutiny being unable to be completed, was made pursuant to s 175(1A): there were special circumstances and the Commissioner relied on information concerning the scrutiny and other information provided by the returning officer in deciding that in those circumstances it was appropriate to declare the result. 

50.     Whether there were special circumstances in the present case was a matter for the Electoral Commissioner, the respondents asserted, relying on the Supreme Court decisions in SC Ref No 4 of 2002, Reference by the Attorney-General [2002] PNGLR 696 (in which the issue was the discretion conferred on the Electoral Commission under s 97 of the Organic Law to advise the Governor-General that an election had “failed) and SC Ref No 4 of 2017, Reference by the Ombudsman Commission (2019) SC1814 (in which the issue was the discretion conferred on the Electoral Commission under s 177 of the Organic Law to advise the Governor-General, where “special circumstances” require it, to extend the time for holding an election, for taking nominations, for polling or for returning writs). 

51.     It is correct that in both those decisions the Supreme Court emphasised that it is for the Electoral Commission, as the independent constitutional institution entrusted by s 126 of the Constitution with the duty of conducting elections, to decide on what needs to be done to discharge that constitutional mandate. The exercise of its discretion as to whether an election has failed (for the purposes of s 97) and whether there are special circumstances warranting extensions of time under s 177 has been held not to be easily subject to review by the courts.

52.     However, both those decisions related to other provisions of the Organic Law, not to s 175(1A). Section 175(1A) is not a standalone provision that says, ‘that in special circumstances the Electoral Commissioner may declare a result based on information concerning scrutiny etc’. I uphold the submissions of Mr Diweni for the petitioner that the power to invoke s 175(1A) is constrained by the words of the provision: the power to decide that there are special circumstances warranting the declaration of a result may only be exercised where the Commissioner has directed the returning officer not to declare a result and the direction is not withdrawn.

53.     In the present case the Commissioner, Mr Gamato, directed the returning officer on 23 August not to declare a result (until the 84 disputed ballot boxes were counted). But the direction was withdrawn on 20 September by Mr Kalamoroh (as acting Commissioner). The precondition to the exercise of power under s 175(1A)(b) did not exist after 20 September.

54.     In summary, the precondition (Electoral Commissioner has directed returning officer not to declare a result) to exercise by the Electoral Commissioner of the power in s 175(1A) of the Organic Law to declare a result “based on information concerning scrutiny and other information provided by the returning officer or an assistant returning officer” was not satisfied. Therefore s 175(1A) could not be invoked.

55.     Section 175(1A) is not a catchall provision allowing the Commissioner to declare a result in “special circumstances”. I consider further, that even when the precondition to its invocation is satisfied, s 175(1A) does not allow the Commissioner to declare a result if no candidate has attained an absolute majority. Section 175(1A) could not be relied on in the circumstances of this case to authorise the Commissioner’s declaration of the result. I uphold ground 6. 
   
4	WHAT ORDERS SHOULD THE COURT MAKE?  

56.     The Court has a wide discretion conferred on it by s 212 of the Organic Law, regarding the orders that should be made when it upholds an election petition. 

57.     Section 212 (powers of court) states:

(1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.

(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4)	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

58.    The Court must also have regard to s 155(4) (the national judicial system) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

59.     I consider that it is necessary to do justice in the circumstances of this particular case (in terms of s 155(4) of the Constitution), and it is just and sufficient (in terms of s 212(3) of the Organic Law), and it is the inevitable result of upholding grounds 4 and 6, for the Court to declare that the first respondent was not duly elected. 

60.     In exercising my discretion as to other relief that is necessary to do justice and would be just and sufficient, it must be emphasised that the options set out in s 212(1) of the Organic Law are not exclusive. The court must look at all the circumstances of the case when considering what is necessary to do justice and is just and sufficient. It is particularly relevant to take account of other irregular and/or unlawful facts and circumstances regarding declaration of the result on 27 September 2017. I identify these as follows:

(a)	The result was not publicly declared at the place of nomination, Mendi. It was declared in private, in the presence of only one candidate, the successful candidate, and a few other persons, and it was not at the place of nomination. This was contrary to the requirement, arising from s 50 (right to vote and stand for public office) of the Constitution, that there be “genuine, periodic, free elections”, conducted in an open and transparent manner. Declaration of the result in private, away from the place of nomination, was contrary to s 175(1) of the Organic Law, which states:

Subject to this section, the Returning Officer or the Electoral Commission 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.

(b)	The declaration was made by the Electoral Commissioner during a period in which he had delegated his powers to an acting Electoral Commissioner, which person (Mr Kalamoroh, not the Commissioner) gave reasons to the Governor-General for the declaration of the result that were, with respect, garbled, misleading and almost incomprehensible.

(c)	The writ for the election, when returned to the Governor-General, was signed by the returning officer, Mr Kaupa, not by the officer who declared the result (the Electoral Commissioner, Mr Gamato), contrary to s 175(1)(b) of the Organic Law. 

61.     Because of those irregularities, coupled with the conclusion that the first respondent was not duly elected, it is necessary to do justice and would be just and sufficient to order that there be a recount of votes. 

62.    It is also necessary to do justice and would be just and sufficient, especially because of the strange and unlawful circumstances attending the declaration of the result of the election, to order that the first respondent be suspended from duty, on full pay, pending the result of the recount. To facilitate an orderly transition of power, I will set down a time seven days after this order for the suspension to take effect. 

63.     As for the other relief claimed by the petitioner, it is not appropriate to grant most it. In particular it is not appropriate to declare that the election is void. There were problems with the counting, not so much the polling. Costs will follow the event.  

ORDER 

64.     It is ordered, pursuant to s 155(4) of the Constitution and s 212 of the Organic Law on National and Local-level Government Elections (“the Organic Law”), that:

(1)	Grounds 4 and 6 of the petition are upheld.

(2)	It is declared that the first respondent was not duly elected at the 2017 general election to the seat of Southern Highlands Provincial.

(3)	There shall be, pursuant to s 212(1)(d) of the Organic Law, a recount of ballot papers for the 2017 election for the seat of Southern Highlands Provincial, which shall be conducted in accordance with the Organic Law and the following orders, so that the result of the recount is presented to the Court by the returning officer, supported by an appropriate affidavit, by 5 November 2021 or within such further period to be determined by the Court. 

(4)	The second respondent shall by 31 August 2021:

(a)	appoint a returning officer to conduct the recount and in appointing such returning officer may appoint, at his discretion, Steven Gore Kaupa; 

(b)	determine the place of the counting centre, which may be at Mt Hagen or at any other place outside Southern Highlands Province;

(c)	make all other arrangements necessary for commencement and completion of the recount;

(d)	if necessary, file and serve a notice of motion, seeking any orders that are convenient or necessary to facilitate compliance with this order, including an order under s 225 of the Constitution for provision of funding; and

(e)	file and serve an affidavit deposing to the details of decisions and arrangements made in accordance with order Nos (4) (a), (b) and (c).

(5)	These proceedings will return to Court on 2 September 2021 at 9.30 am, for mention and to check compliance with order (4) and to hear any notice of motion filed by any of the parties in the interim.

(6)	The returning officer has the power in accordance with s 153A of the Organic Law to include or refuse to admit any ballot box in the scrutiny, including those disputed ballot boxes that became contentious during the initial counting at Mendi, referred to at paragraphs B31 and B47 of the petition, so that the returning officer may independently consider any objections and make decisions under s 153A of the Organic Law, without being constrained by decisions or purported decisions of any returning officer who conducted the initial counting at Mendi.

(7)	The Commissioner of Police shall provide the resources and personnel necessary to ensure that all ballot boxes are brought as soon as possible to the counting centre. 

(8)	The first respondent is suspended with effect from 12 noon on 31 August 2021, on full pay, from discharging all powers, functions, duties and responsibilities of the office to which he has not been duly elected, viz member for Southern Highlands Provincial, and other offices he holds by virtue of being the member for Southern Highlands Provincial, pending the result of the recount. 

(9)	The respondents shall, subject to any specific order for costs made during the course of the proceedings, pay the petitioner’s costs of the petition, on a party-party basis, which shall, if not agreed, be taxed. 

(10)	The Registrar shall forthwith refund to the petitioner the security for costs deposited under s 209 of the Organic Law on National and Local-level Government Elections.  

(11)	The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.  

Judgment accordingly.
_____________________________________________________________
Diweni Lawyers: Lawyers for the Petitioner	
Baniyamai Lawyers: Lawyers for the First Respondent 	
Harvey Nii Lawyers: Lawyers for the Second Respondent