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National Court of Papua New Guinea |
PAPUA NEW GUINEA N8768
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 1 OF 2020
IN THE MATTER OF A DISPUTED RETURN FOR THE PEIT CONSTITUENCY
BETWEEN
HUBERT TIHIN MATARA
Petitioner
AND
BERNARD BOBOS
First Respondent
AND
OFFICE OF THE BOUGAINVILLE ELECTORAL COMMISSION
Second Respondent
Buka: Makail, J
2021: 15th, 16th & 17th February
ELECTION PETITION – Trial – Allegations of errors or omissions at polling – Signing of Special Voters Declaration Form by presiding officer – Votes purportedly cast by blind or physically incapacitated voters – Ballot-papers rejected at count– Declaration form not signed or marked by voter and verified by scrutineer or poll clerk – Integrity of ballot-papers disputed – Proof of – Bougainville Elections Act, 2007 – Sections 117, 131, 203 & 215
ELECTION PETITION – Voters with special needs – Blind or physically incapacitated voters – Procedure for polling for blind or physically incapacitated voters – Procedure for scrutiny of votes of blind or physically incapacitated voters discussed – Bougainville Elections Act, 2007 – Sections 117 & 131
Facts
The votes cast at polling at a polling venue were allegedly by people with special needs and needed assistance, being either blind or physically incapacitated. The presiding officer was required to have the voter signed or mark a declaration form generally described as Special Voters Declaration Form, witnessed by a scrutineer or in his absence, a poll clerk by counter-signing the form and attested by the presiding officer who shall also sign the form. 109 ballot-papers were rejected by counting officials at counting at the preliminary scrutiny stage because the forms accompanying the ballot-papers were not signed or marked by the voter and counter-signed by a scrutineer or a poll clerk. The presiding officer signed for all three of them. The petitioner alleged that the failure by the presiding officer to obtain the signature or mark of the voter and verification from the scrutineer or the poll clerk was a minor error or omission and that the integrity of each ballot-paper was not compromised. The counting officials committed an error or omission when they rejected the ballot-papers at the preliminary scrutiny stage.
Held:
Cases Cited:
Hubert Tihin Matara v. Bernard Bobos & Office of the Bougainville Electoral Commission: EP No 1 of 2020 (Unnumbered & Unreported Judgment of 15th February 2021 per Makail J)
Counsel:
Mr. P. Kaluwin, for Petitioner
No appearance, for First Respondent
Mr. S. Dewe with Mr. D. Kints, for Second Respondent
JUDGMENT
17th February, 2021
1. MAKAIL J: The allegation to be proved at trial is errors or omissions by polling and counting officials under Section 215 of Bougainville Election Act, 2007 (BE Act).
Jurisdiction of National Court
2. The petition arises from the election of members of House of Representative of the Autonomous Bougainville Government (ABG). Pursuant with Section 203 of the BE Actwhich provides that until a Bougainville High Court is established, the National Court is conferred jurisdiction to decide the validity of an election, recall poll or return of an ABG election, the petitioner Mr Hubert Tihin Matara petitions the National Court in relation to the election of the first respondent Mr Bernard Bobos. The petition was allowed to progress to trial after the Court ruled that the petition contained material facts to support the ground on errors or omissions under Section 215: see Hubert Tihin Matara v. Bernard Bobos & Office of the Bougainville Electoral Commission: EP No 1 of 2020 (Unnumbered & Unreported Judgment of 15th February 2021 per Makail J).
Applicable Law
3. Section 215 of the BE Act provides for errors or omissions. It states:
“215. IMMATERIAL ERRORS NOT TO VITIATE ELECTIONS
(1) Subject to Subsection (2), an election or recall poll shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election or recall poll.
(2) .............”.
Allegation of Errors or Omissions
4. Adopting the allegations of fact set out in the ruling on objection to competency of 15th February 2021, the facts as pleaded at para. B (1) to (9) of the petition tell a story of a polling team no. 028 conducting polling at Notaoh Hamlet in Peit Constituency where ballot-box no. 1051 3/3 was situated. The total number of ballot-papers cast was 111. However, at counting on 4th September 2020, ballot-box no. 1051 3/3 was not counted. Candidates were advised that it will be set aside because polling officials has wrongly signed the Special Voters Declaration form. Apparently,109 ballot-papers were not counted and only 2 were counted.
5. On 5th September 2020 candidates met and resolved to send a written petition to the polling officials to include the ballot-papers for counting. They received no response. At the end of the final elimination Mr Bobos polled 1,346 votes and Mr Matara polled 1,305. The difference was 41 votes. Mr Bobos was declared winner on 15th September 2020.
6. The allegation is that, as there was no dispute between the candidates and their scrutineers in relation to the inclusion of ballot-box no. 1051 3/3, it should have been included for counting and 109 ballot-papers should have been counted. The electoral officials failed to do so. Their failure constituted an error or omission.
Evidence
7. It was agreed between the petitioner and the second respondent that no deponents of affidavits will be required for cross-examination because much of the facts are not disputed. The petitioner tendered two affidavits; one by Elijah Sapark sworn and filed 23rd September 2020 (exhibit “P1”) and the other by Edward Sinaku sworn 23rdSeptember 2020 and filed 24th September 2020 (exhibit “P2”). The second respondent tendered an affidavit by Wency Salib sworn 29th December 2020 and filed 31st December 2020 (exhibit “D1”). The parties did not tender a sample of the Special Voters Declaration Form and the Court did not have the benefit of viewing it.
Undisputed Facts
8. The undisputed facts are these: when the ballot-papers were being sorted for counting at the preliminary scrutiny at the counting centre on 5th September 2020, 109 ballot-papers from Notaoh village in the Peit Constituency were rejected. The reason given was that it is a requirement that three persons must sign the Special Voters Declaration Form. They are a voter, a scrutineer or in his absence, poll clerk and a presiding officer. In this case only the presiding officer by the name of Dorah Oscar signed for all three of them.
Disputed Facts
9. The disputed fact is in relation to whether the candidates and their scrutineers petitioned the Returning Officer to admit into scrutiny the 109 ballot-papers prior on 5th September 2020. Mr Matara submitted that the candidates and their scrutineers petitioned the Returning Officer to admit the 109 ballot-papers into scrutiny on 5th September 2020 while the Electoral Commission submitted that it was on 6th September 2020 well after they had agreed to disregard them on 5th September 2020.
Procedure for Polling of Blind and Physically Incapacitated Voters
10. Division 3 of Part XIV of the BE Act sets out special provisions in certain cases. One of these categories of cases is voters with special needs and who need assistance at polling. This category of voters is considered as either blind or physically incapacitated. They need assistance to vote and the law makes provision for them. The procedure for polling for this category of voters is prescribed under Section 117 of the BE Act. Section 117 states:
“117. BLIND OF PHYSICALLY INCAPACITATED VOTERS.
(1) If a voter who claims to vote under Section 115 satisfies the presiding officer that his sight is so impaired or that he is so physically incapacitated that he is unable to vote without assistance, the presiding officer shall—
(a) fill in the form of declaration with the required particulars relating to the enrolment of the voter as required by the voter; and
(b) read over to the voter the form of declaration; and
(c) require the voter to sign the form of declaration—
(i) in his own handwriting if he is able to do so; or
(ii) with his mark as his personal signature if he is unable to sign his name in his own handwriting; and
(d) cause the signature of the voter, if made by means of a mark, to be witnessed by a scrutineer present, or if no scrutineer be present, by the poll clerk; and
(e) complete and attest the declaration; and
(f) permit such a person appointed by the voter to enter an unoccupied compartment of the booth with the voter and to mark, in accordance with the voter’s instructions, and fold the ballot-papers for the voter; and
(g) enclose the ballot-papers in the envelope bearing the declaration of the voter, securely fasten the envelope and deposit it in the ballot-box.
(2) If a voter to whom Subsection (1) applies fails to appoint a person under that subsection, or if a voter satisfies the presiding officer that he is so illiterate that he is unable to vote without assistance, the presiding officer shall take action in accordance with Subsection (1)(a) to (e) (inclusive) and shall, in the presence of a person appointed by the voter for the purpose if the voter so desires, or, in the absence of any such appointment, the poll clerk—
(a) mark and fold the ballot-papers for the voter; and
(b) enclose the ballot-papers in the envelope bearing the declaration of the voter, securely fasten the envelope and deposit it in the ballot-box.”
11. Notwithstanding the lack of physical evidence of the Special Voters Declaration Form or in short, declaration form, it is common ground that according to Section 117 of the BE Act in a case where a voter with a special need and needs assistance for being either blind or physically incapacitated, it is a requirement for the voter to sign in his handwriting or if he is unable, place a mark on a declaration form, verified by a scrutineer or in his absence, a poll clerk and attested by the presiding officer.
12. In the present case each voter did not sign or place a mark on the declaration form and verified by a scrutineer or poll clerk. The presiding officer signed the declaration form for all three of them.
13. However, Mr Matara submitted that the error or omission by the presiding officer does not mean that polling was compromised, and that it should be held against the candidates including him. It was a case where voters who were blind or physically incapacitated cast their votesand the presiding officer failed in her duty to diligently complete the declaration form for each voter.
14. I respectfully disagree with Mr Matara. The error or omission by the presiding officer Ms Oscar at polling is quite significant and grave. Where a petitioner disputes the decision of the Returning Officer not to allow the ballot-papers for voters under Section 117 to go beyond the preliminary scrutiny under Section 131 of the BE Act, he must lead evidence to establish that the integrity of ballot-papers were not compromised at polling. Evidence of this must come from either the presiding officer, a voter or better still, one of the voters with a special need (blind or physically incapacitated) or a person who was present at the polling at the material time. The evidence would assist the Court to determine whether the integrity of the ballot-papers was compromised.
15. In the absence of evidence that polling was not compromised, it leaves open the inference that the integrity of the ballot-paper has been compromised. An example is that, the presiding officer may be an active supporter of one of the candidates and has marked the ballot-papers and Special Declaration Forms to disadvantaged others. The converse is also possible. The presiding officer did what she did to compromise the integrity of the ballot-papers such that they will be rejected at counting. It is also opened to infer that none of the voters were voters with special needs.
16. The only way these possible scenarios can be ruled out is for Mr Matara who has the burden to prove that the counting officials erred in rejecting these ballot-papers to lead evidence to rule them out,which he did not.
Scrutiny of Votes of Blind and Physically Incapacitated Voters
17. Mr Matara relied on Section 131(2) of the BE Act and submitted that the ballot-papers should not have been rejected at the preliminary scrutiny by the Returning Officer on account of the presiding officer’s error or omission in signing the declaration form for herself, the voter and scrutineer or poll clerk.
18. Even so, and notwithstanding the assertion by Mr Matara through his two witnesses that candidates and their scrutineers had agreed for the Electoral Commission to allow the ballot-papers to be counted, the discrepancy on each declaration form was apparent and formed a sufficient basis for the Returning Officer to reject the ballot-papers. The power exercised by Returning Officer is conferred by Section 131 of the BE Act.
19. Section 131 sets out the procedure for scrutiny of votes of blind and physically incapacitated voters in the following terms:
“131. PRELIMINARY SCRUTINY OF VOTES CAST UNDER DIVISION XIV.3.
(1) The Returning Officer shall, in relation to envelopes containing ballot-papers used for voting under Division XIV.3—
(a) place in one parcel the envelopes bearing the declarations of persons who he is satisfied are entitled to vote in respect of the constituency, accept for further scrutiny the ballot-papers contained in the envelopes and in respect of envelopes under Section118, make a notation on a certified copy of the Roll used by him for the purposes of the scrutiny against the names of the persons voting that those persons have been permitted to vote under Section 116, as the case may be; and
(b) place in another parcel the envelopes bearing the declarations of persons who he is satisfied are not entitled to vote in respect of the constituency, or whose declarations are not signed and attested, fasten and seal the parcel, endorse thereon the words "Division 3 voters' ballot-papers rejected at the preliminary scrutiny", and add the name of the constituency, his signature and the date; and
(c) place the envelopes containing the ballot-papers accepted for further scrutiny before him on a table in such a manner that the face only of each envelope bearing the address of the Returning Officer is visible; and
(d) number each envelope consecutively from one upwards in the top right-hand corner until all of the envelopes have been dealt with; and
(e) without further examining the declaration of a voter, or permitting any other person to do so, withdraw from the envelope each ballot-paper contained in it, and, without inspecting or unfolding the ballot-paper or allowing any other person to do so, place on it a number corresponding with that placed on the envelope from which the ballot-paper has been withdrawn, and deposit the folded ballot-paper in a locked ballot-box for further scrutiny; and
(f) place the envelopes in a parcel, endorsed with the words "Envelopes bearing Division 3 voters’ declarations from which ballot-papers have been withdrawn for further scrutiny", fasten the parcel and add the name of the constituency, his signature and the date.
(2) A Division XIV.3 voter's ballot-paper shall not be rejected at the preliminary scrutiny by reason only of the fact that the presiding officer has omitted to attest the declaration of the elector.” (Emphasis added).
20. As the heading states, it is a preliminary scrutiny. At this stage, it is for the Returning Officer to satisfy himself if the declaration form for a voter has been signed or marked by the voter, verified by a scrutineer or poll clerk and attested by the presiding officer. Moreover, under Section 131(1)(b) the Returning Officer shall “place in another parcel the envelopes bearing the declarations of persons who he is satisfied whose declarations are not signed and attested”. (Emphasis added).
21. Given that each declaration form was not signed or marked by the voter and counter-signed by a scrutineer or poll clerk and that the presiding officer signed for all three of them, I am satisfied that the Returning Officer’s exercise of power under Section 131(1)(b) was justified.
22. Finally, Section 131(2) has no application to this case because it applies to a case where the “presiding officer has omitted to attest the declaration of the elector”. In other words, if the voter signed or marked the declaration form, the scrutineer or poll clerk counter-signed it and the presiding officer did not, the ballot-paper should not be rejected for the omission by the presiding officer. This is not the case here. (Emphasis added).
Conclusion
23 Mr Matara has failed to discharge the onus of proof and the allegation has not been proven on the balance of probabilities. The petition is dismissed with costs, to be taxed, if not agreed and the security for costs in the sum of K2,000.00 held by the Registrar shall be paid to the Electoral Commission forthwith.
Order
24. The formal orders are:
1. The petition is dismissed.
________________________________________________________________
Pacific Horizons Legal Services: Lawyers for Petitioner
Jema Lawyers: Lawyers for Second Respondent
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