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Juvire v Oveyara [2008] PGSC 44; SC975 (3 December 2008)

SC975

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 22 OF 2008

APPLICATION UNDER SECTION 155(2)
OF THE CONSTITUTION

AND:

IN THE MATTER OF PART XVII OF THE
ORGANIC LAW ON NATIONAL AND LOCAL
LEVEL GOVERNMENT ELECTIONS

BETWEEN:

ERIC OVAKO JUVIRE
Applicant

AND:

BONNY OVEYARA
First Respondent

AND:

ANDREW TRAWEN, ELECTORAL COMMISSIONER OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, David, Hartshorn JJ
2008: 25th November
: 3rd December

SUPREME COURT - CIVIL – Section 155(2) Constitution application - Organic Law on National and Local Level Government Elections – Sections 153 & 126(2) - whether initialing of the front of a ballot paper by the presiding officer renders the ballot paper informal - reasons that will render ballot paper informal specified in s.153. None of these reasons specifies that a ballot paper is rendered informal by initialing on the front of ballot paper - initialing of the front of ballot paper by presiding officer does not render ballot paper informal under s.153(1)(a) Organic Law – Review dismissed

Facts:

Mr. Juvire and Mr. Oveyara were candidates in the Okapa Open Electorate in the 2007 General Elections. Mr. Oveyara was declared the elected member after polling the most votes. Mr. Juvire polled the second highest number of votes. Mr. Juvire petitioned the court as to whether the initialing of the front of a ballot paper by the presiding officer renders that ballot paper informal. Sevua J held that it did not. Leave for Mr. Juvire to apply for a review of the decision of Sevua J was granted by this court on 3rd September 2008. This review seeks this court’s clarification on the issue of whether the initialing on the front of a ballot paper by the presiding officer renders the ballot paper informal.

Held:

1. In the absence of any specific provision in the Organic Law specifying that s. 126(2) prescribes how a ballot paper is to be authenticated, s.126(2) does not so prescribe.

2. The initialing of the front of a ballot paper by the presiding officer does not render a ballot paper informal under the provisions of s.153 Organic Law.

3. The review is dismissed.

Counsel:

Mr. A. Manase, for the Applicant
Mr. I.P. Mambei, for the First Respondent
Mr. J. Nonggorr, for the Second Respondent

3 December, 2008

1. BY THE COURT: Mr. Juvire and Mr. Oveyara were candidates in the Okapa Open Electorate in the 2007 General Elections. Mr. Oveyara was declared the elected member after polling the most votes. Mr. Juvire polled the second highest number of votes.

2. Mr. Juvire petitioned the Court concerning the election result on one issue that was agreed by the parties. That issue was whether the initialing of the front of a ballot paper by the presiding officer renders that ballot paper informal.

3. Sevua J found in favour of Mr. Oveyara and held that such an action by the presiding officer did not render the ballot paper informal.

4. Leave for Mr. Juvire to apply for a review of the decision of Sevua J was granted by this court on 3rd September 2008. This review seeks this court’s clarification on the issue of whether the initialing on the front of a ballot paper by the presiding officer renders the ballot paper informal.

5. The section of the Organic Law on National and Local Level Government Elections (Organic Law) that is concerned with determining whether a ballot paper is informal, is s.153.

6. That recourse to other sections of the Organic Law is not necessary to determine whether a ballot paper is informal, apart from postal votes and specific circumstances that are not relevant for our purposes, is provided by s.153(5) which is:

Subject to Divisions 3 and 4, a ballot paper shall not be informal for any reason other than a reason specified in this section.

7. There are various reasons specified in s.153 that will render a ballot paper informal. None of these reasons specifies that a ballot paper is rendered informal if the presiding officer’s initials are written on the front of the ballot paper.

8. The reason specified in s.153 upon which Mr. Juvire relies is s.153(1)(a) which is:

(1) Subject to this section, and to Divisions 3 and 4 and the Regulations, a ballot paper is informal where:-

(a) it is not authenticated by the initials of the presiding officer or by an official mark as prescribed;

9. Mr. Juvire submits that "as prescribed" means, "authenticated by the initials of the prescribing officer as prescribed" and not, "an official mark as prescribed". Mr. Juvire further submits that s.126 (2) Organic Law prescribes for the means of authentication. Section 126(2) is:

The initials of the presiding officer shall be placed on the back of the ballot paper in such a position as to be easily seen when the ballot paper is folded so as to conceal the names of the candidates.

10. Consequently Mr. Juvire submits that if the initials of the presiding officer are placed on the front of the ballot paper instead of the back, the ballot paper is not properly authenticated.

11. Even if "as prescribed" in s.153(1)(a) means "authenticated by the initials of the presiding officer as prescribed", nowhere in the Organic Law does it provide that the procedure in s.126(2) Organic Law is the procedure to be followed for a ballot paper to be authenticated.

12. When a matter is required or permitted to be prescribed by a law it is usual for this to occur by regulation and not by a provision in a statute. Section 297 Organic Law provides for Constitutional Regulations to be made for this purpose. Section 297 is relevantly as follows:

As authorised by Section 258 (Constitutional Regulations) of the Constitution, the Head of State, acting with, and in accordance with, the advice of the National Executive Council may make Constitutional Regulations, not inconsistent with this Law, prescribing all matters that by this Law are required or permitted to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to this Law.....

13. In the absence of any specific provision in the Organic Law specifying that s.126(2) prescribes how a ballot paper is to be authenticated, we are not satisfied that s.126(2) Organic Law does so prescribe.

14. Consequently, as we are of the view that the process of authentication is not prescribed by s.126 (2) Organic Law, "authenticated by the initials of the presiding officer" in s.153 (1)(a) does not require that the initials of the presiding officer be placed on the back of the ballot paper.

15. We are of the view that the initialing of the front of a ballot paper by the presiding officer does not render the ballot paper informal under the provisions of s.153 Organic Law.

16. We are confident that our interpretation of s.153 Organic Law is in accordance with what we believe would have been one of the intentions of Parliament when the Organic Law was passed. That is, that every citizen’s vote should be counted unless the vote is rendered informal by an action of the citizen and not by the action of someone else.

17. For the above reasons we are satisfied that Sevua J was correct in holding that the initialing of the front of a ballot paper by the presiding officer does not render the ballot paper informal under s.153(1)(a) Organic Law.

18. This review is dismissed. The applicant shall pay the costs of and incidental to the review to the respondents.

____________________________________________

Steeles Lawyers: Lawyers for the Applicant
Mambei Lawyers: Lawyers for the First Respondent
Nonggorr & Associates Lawyers: Lawyers for the Second Respondent