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Parliamentary Election for Moresby North, Re [1978] PNGLR 446 (14 November 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 446 - Re Parliamentary Election for Moresby North-East Electorate; Petition of Sir Albert Maori Kiki 

[1978] PNGLR 446

N175

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE MORESBY NORTH-EASTERN ELECTORATE

RE PETITION OF SIR ALBERT MAORI KIKI.

Waigani

Raine DCJ

13-14 November 1978

PARLIAMENT - Elections - Disputed election petition - Electors not on roll - Electors claiming right to vote - Wrongful rejection - Matters for proof that claim to vote wrongfully rejected - Organic Law on National Elections s. 141[dcl]¹.

On the hearing of a petition under s. 206 of the Organic Law on National Elections disputing the election of a member of Parliament, on the ground, inter alia, that there had been breaches of s. 141 of the Organic Law on National Elections in that when numerous persons who were qualified to vote in the said election claimed to vote at the polling booths their claims to vote were wrongly rejected by the presiding officer or other servants or agents of the Returning Officer;

Held

In order to establish that a person claiming to be permitted to vote pursuant to s. 141 of the Organic Law on National Elections, has been wrongly rejected in that claim there must be shown:

(a)      some “error or omission” on the part of officials;

(b)      that the complainant denied of a vote is “not enrolled for another electorate”, and

(c)      that the complainant denied of a vote has proved one or other of the matters set out in s. 141(a)(iii) or (iv).

In re Moresby North-west Parliamentary Election: Gavera Rea v. Mahuru Rarua Rarua 1977 P.N.G.L.R. 338 at pp. 344-346 and Fell v. Vale (No. 2) [1974] VicRp 19; [1974] V.R. 134 at pp. 136, 137 referred to.

Provisional Ruling

This was a petition to the National Court sitting as a Court of Disputed Returns, pursuant to s. 206 of the Organic Law on National Elections, and contesting the validity of the election of a Member of Parliament on the ground of irregularities in electoral procedures. Two out of some 37 witnesses having been called to prove breaches of s. 141 of the Organic Law on National Elections, his Honour made the following provisional ruling.

Counsel

D. Awaita, for the petitioner.

G. Lay, for the respondent.

L. Daniel, for the Electoral Commission.

Cur. adv. vult.

14 November 1978

RAINE DCJ: I have described this as a provisional ruling for reasons that will later become apparent.

Sir Maori Kiki was narrowly defeated in a by-election in June this year for the Moresby North-Eastern seat. He lost to Dr. Goasa Damena by only 28 votes, 1,003 votes to the 1,031 for the victor. The next candidate, for there were seven in all, received 842 votes.

Sir Maori’s petition, dated 25th August, claimed in par. 4 thereof as follows:

“4.      In the holding of the said election drivers (sic) breaches of the statutory rules governing the conduct of the election were committed by the Returning Officer and or his servants or agents in that:

(i)       When numerous persons who were qualified to vote in the said election claimed to vote at the polling booths their claims to vote were wrongly rejected by the presiding officer or other servants or agents of the Returning Officer.

(ii)      When numerous persons claiming to vote under Division 3 of PART XIII of the Organic Law on National Elections in the said election did in fact vote therein the presiding officer failed or omitted to comply with the Organic Law on National Elections.”

Paragraph 4(ii) is no longer relied on. It is withdrawn.

The petitioner relies on breaches of s. 141 of the Organic Law on National Elections. It reads:

“DIVISION 3   SPECIAL PROVISIONS IN CERTAIN CASES 141.— VOTE OF PERSON WHOSE NAME IS NOT ON CERTIFIED LIST, ETC

(1)      Notwithstanding anything in this Law, where a person who is entitled to be enrolled on the Roll for an electorate claims to vote at an election at a polling place prescribed for that electorate and his name has been incorrectly omitted from or struck from the certified list of voters for that polling place, or where a person who is enrolled on the Roll for an electorate claims to vote at an election at a polling place prescribed for that electorate and his name cannot be found by the presiding officer on the certified list of voters, he may, subject to this Law, be permitted to vote if:

(a)      in the case of a person whose name has been omitted from the certified list:

(i)       his non-enrolment is due to an error or omission in the compilation of the Roll; and

(ii)      he is not enrolled for another electorate, and in addition:

(iii)     he did not know, and had no reasonable opportunity of knowing, that he was not enrolled, or had no reasonable opportunity of making a claim for enrolment or transfer of enrolment, as the case requires; or

(iv)     he made a claim for enrolment or transfer of enrolment, as the case requires, in respect of the electorate, and the claim was received by the Returning Officer before 4 p.m. on the day of the issue of the writ for the election and he did not, after making a claim for enrolment or transfer of enrolment and before the issue of the writ, become qualified for transfer of enrolment to another electorate; or

(b)      in the case of a person whose name has been struck from the certified list:

(i)       his name was not, to the best of his knowledge, removed from the Roll, for the electorate owing to objection, or transfer or duplication of enrolment, or disqualification; and

(ii)      he had, from the time of his enrolment for the electorate to the date of the issue of the writ for the election, continuously retained his right to enrolment for that electorate; or

(c)      in the case of a person whose name is on the Roll for an electorate for which he claims to vote but cannot be found by the presiding officer, he claims that his name appears or should appear on the Roll,

and makes a declaration in the prescribed form before the presiding officer at the polling place.

(2)      Where a voter claims to vote under the provisions of this section, his ballot-paper shall be marked and folded in the manner prescribed and returned so folded to the presiding officer who shall deal with it as prescribed.”

Mr. David Awaita appears for Sir Maori, Miss Daniel for the Electoral Commissioner, and Mr. Lay for the respondent Damena.

When opening, Mr. Awaita handed me a list of 37 witnesses he proposed to call. The first eight of these were what might be called s. 141(1)(c) people; I have not heard any yet, but apparently it is claimed they were on the Roll but not permitted to vote, their names not being found thereon by the presiding officer at some polling booth or other. Of course, their numbers alone would not be sufficient to carry the day for Sir Maori.

Witnesses 9 to 32 inclusive are s. 141(1)(a) people. Two of these have been called. The other twenty-two on the panel will, Mr. Awaita tells me, give evidence on substantially the same lines as the men I have heard. Their number combined with the group of eight, could, “prima facie”, be very significant.

Witnesses 33 to 37 are a Kiki or party organiser and some scrutineers.

When I heard the two witnesses give evidence, and was told that the balance of the s. 141(1)(a) witnesses would offer largely similar evidence I was minded, because of purely provisional views I had formed, to discuss s. 141(1)(a) in some depth with all counsel, and Mr. Awaita in particular. Normally I would be rather unwilling to do so, but it was anticipated that close to fifty witnesses could be called. Obviously this meant a lengthy hearing, as I am taking down the evidence in manuscript for a start. I am available for an indefinite period. If not doing this petition I will be sitting in some other case. Thus, it matters not to me. But it does concern me very deeply that needless costs could be incurred, for both Sir Maori and Dr. Damena are employing private practitioners. Without seeking in the least to be critical of private practitioners, whom this country simply cannot do without, their costs are necessarily high in heavy cases that last weeks.

Section 136 gives people the democratic right to vote. It reads:

“136.   RIGHT OF ELECTOR TO RECEIVE BALLOT-PAPER

(1)      The presiding officer or a poll clerk shall, at the polling, hand to each person claiming to vote a ballot-paper duly initialled by the presiding officer:

(a)      if the name under which he claims to vote is on the certified list of voters for the polling place and his right to vote is not challenged; or

(b)      if the name under which he claims to vote is on the certified list of voters for the polling place and his right to vote is challenged, and his answers to the prescribed questions show that he is entitled to vote; or

(c)      if he claims to vote under Division 3 and complies with the provisions of that Division.

(2)      ...

(3)      ...”

Here we are concerned with s. 136(1)(c). Thus it is necessary to turn to Div. 3, of which s. 141 is the opening section. Section 136(1)(c) does not stand on its own.

My strong provisional view is that the envisaged evidence of these 24 witnesses will not support the contention made by par. 4(i) in the petition for the following reasons.

Section 141(1)(a) sets out, in no uncertain way, to ensure that the door is not shut in the face of people who:

(i)       want to exercise their democratic right to vote for the man or woman they see as the best or better candidate, where

(ii)      the person proposing to vote for that candidate is properly qualified to do so, and where the fact he was not enrolled is due to an error or omission.

This states the matter in very broad terms, for I have set out the section in full already.

However, while the voter is protected, and also his right to exercise his democratic rights, s. 141(1)(a) does have some sanctions or restrictions and they are necessary ones. They are clearly seen when one looks at (a) (supra). See, as to witnesses 9 to 32, s. 141(1)(a)(i), (ii), (iii) and (iv). Thus, as well as demonstrating the need for some “error or omission” and that “he is not enrolled for another electorate”, which, I say provisionally, neither witness has succeeded in doing, the complainant denied of a vote has also to show one or other of the matters referred to in (a)(iii) or (iv). He cannot simply turn up and say “I live here, I am old enough”. He has to show that he is on the Roll or has made a “claim” to be on the Roll within the time specified.

The two witnesses I have heard were, it seems, voters eligible to vote, being on the Rolls in Lae and Chimbu respectively in the preceding year. But they had made no application for enrolment or “transfer of enrolment” before 4 p.m. on the day of the issue of the writ for election. All they did was turn up on a polling day and confront those manning the booth.

Both witnesses are quite intelligent. They work and live at the Gateway Hotel. They do not suggest they were unaware of voting procedures, or that they “had no reasonable opportunity of knowing, that (they were) not enrolled, or had no reasonable opportunity of making a claim for enrolment or transfer of enrolment”. (The underlining is mine because they have only been here a year, one coming from Lae, one from Chimbu.) Their evidence gives quite the opposite impression. They never made a claim for enrolment, either in a semi-formal or informal way. They simply turned up at the booth, believing that people should vote. Neither speaks English. One does not write. One knew that as far back as in February or March this year a team of officials was urging people to vote, this was obviously an enrolment team, seeking to get people on the Roll. It operated near the Gateway Hotel, at the 6 Mile stores, near where the witnesses worked and lived.

As I see it, there can be no “error or omission” on the part of officials where people who are, to them, completely anonymous, simply fail to come forward and make a claim for enrolment or transfer. The electoral officials plainly have a duty to make up a Roll, and this means seeking people out. It means a deal of publicity and a lot of work. But the officials have to rely on some public response in a country divided by seas, rivers, mountains and customs, and where there is a great deal of migration from place to place.

However, failing a fairly serious breach of duty by officials in some areas, particularly the more backward ones, where sundry villages are not put in the picture, through neglect of duty, then, leaving aside special personal matters, sickness, training overseas, or so on, it is hard to see how witnesses like the two I have heard can surmount s. 141(1)(a)(iii). One simply cannot turn up as was done here, on polling day, and claim a vote, unless one complies with the statutory requirements. The alternative would result in chaos and possible dishonesty. And, as I have said, Mr. Awaita has indicated that all or most of the remaining twenty-two witnesses in the s. 141(1)(a) category will say much the same as those already called.

It seems to me that I obtain some support for my views from Frost CJ in In Re Moresby Northwest Parliamentary Election: Gavera Rea v. Mahuru Rarua Rarua[dcli]². But I get very real support from Gowans J who dealt with similar legislation in many respects, in Fell v. Vale (No. 2)[dclii]³. Of course, I am not bound by what fell from Gowans J, but with great respect I believe that his Honour was absolutely right, my views coincide with his.

I thank counsel for this early assistance. I now leave it to counsel for the petitioner to consider his situation in the light of this provisional ruling. Provisionally it does seem to me that he has very serious problems.

I have been referred to s. 219. In my opinion it is not helpful here. Section 141 is decisive in this case.

(NOTE: The court then adjourned so that Mr. Awaita could get full instructions. On the following day the petition was withdrawn and, accordingly, dismissed.)

Solicitors for the petitioner: Craig Kirke & Wright.

Solicitors for the respondent: Young & Williams.

Solicitor for the Electoral Commission: C. Maino, State Solicitor.

[dcl]Infra p. 447.

[dcli][1977] P.N.G.L.R. 338 at pp. 344-346.

[dclii][1974] VicRp 19; [1974] V.R. 134 at pp. 136, 137.