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Yama v Kasap [1988-89] PNGLR 318 (11 August 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 318 - Peter Yama v Melchior Kasap 

[1988-89] PNGLR 318

N788

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PETER YAMA

V

MELCHIOR KASAP, THE ELECTORAL COMMISSION AND TOM PAIS (NO 2)

Madang & Waigani

Bredmeyer J

1-5 August 1989

11 August 1989

PARLIAMENT - Elections - Voting - Method of marking ballot papers - Ascertaining voter’s intention - Marking paper with “X” - Sufficiency of marking - When ballot paper to be treated as informal - Organic Law on National Elections (Ch No 1), ss 139, 154(4).

Under the Organic Law on National Elections (Ch No 1): s 139 provides that an elector shall record his vote by placing an “X” in the square opposite the name of the candidate for whom he wishes to vote; and s 154(4) provides that, notwithstanding s 139, where a Returning Officer is satisfied that any mark made on a ballot paper clearly indicates the intention of the voter for a candidate, the Returning Officer need not declare the vote informal because the mark is not an “X”.

The 1987 National Elections were the first national elections where photographs were shown on the ballot papers.

Held

On the scrutiny or counting of votes the golden rule for the officials to follow is: Does the mark on the ballot paper clearly show the intention of the voter for one candidate? If it does, then the vote is valid and should not be declared informal. Thus an “X” or other mark in the box provided for the voter to put his mark, or partly in the box and partly out of the box, or totally outside the box but near the box, can be accepted as formal provided it clearly shows the voter’s intention to vote for that candidate and none other. Similarly, an “X” or other mark on the candidate’s photo, or partly on his photo and partly off his photo, or totally outside the photo, but near the photo, should be accepted as formal provided it clearly shows the voter’s intention to vote for that candidate and none other.

Cases Cited

In re Moresby Northwest Parliamentary Election; Rea v Rarua Rarua [1977] PNGLR 338.

Rooney v Pokasui and The Electoral Commissioner [1982] PNGLR 351.

SC Rev No 5 of 1988; Re Applications of Kasap and Yama [1988-89] PNGLR 197.

Petition

This was the hearing of a petition to the National Court disputing the result of the Madang Provincial seat in the National Elections. This was the second of three decisions by Bredmeyer J in this case, the first being a decision given in an unpublished judgment of 25 March 1988 which was reviewed by the Supreme Court in SC Rev No 5 of 1988; Re Applications of Kasap and Yama [1988-89] PNGLR 197.

The third and final decision of Bredmeyer J was given in an unpublished judgment dated 24 November 1989 which declared Tom Pais the winner of the seat.

Counsel

L Henao, for the petitioner.

N Kirriwom, for Melchior Kasap.

P Ame, for the Electoral Commission.

V Kapa, for Tom Pais.

Cur adv vult

11 August 1989

BREDMEYER J: Melchior Kasap won the election for the Madang Provincial Electorate in the 1987 National Elections. Peter Yama lodged a petition against the result and that petition was heard by me in February and March 1988 (Peter Yama v Melchior Kasap and the Electoral Commission (No 1). In an unpublished judgment dated 25 March 1988, I found that the votes had been wrongly counted by the Returning Officer and that the correct result was as follows:

I declared Tom Pais the winner and following that decision he took his seat in Parliament. Mr Yama applied to the Supreme Court for a review under s 155(2)(b) of the Constitution and the decision of the Supreme Court SC365 was handed down on 24 May 1989: see SC Rev No 5 of 1988; Applications of Kasap and Yama [1988-89] PNGLR 197. The Supreme Court affirmed my counting of the votes but ordered a rehearing on the basis that I had not dealt with a number of grounds in the petition. As an interim measure the Court restored Mr Kasap to the seat in Parliament.

At the commencement of the rehearing in Madang, Tom Pais, who was not a party in the first hearing or on the hearing of the review before the Supreme Court, sought leave to intervene and I granted leave and directed that he be added as a respondent. At the outset of the rehearing, counsel for Mr Yama, supported by counsel for Mr Kasap, asked that I stand down from the case because of judicial bias for a remark I made in my first judgment as follows:

“If a candidate has been fairly elected then he should be declared as such without having to go through the expense of a recount or a by-election.”

I rejected that application on the basis that I have been ordered to rehear this case by the Supreme Court and that the remark quoted was affirmed by the Chief Justice and, indirectly, by the Deputy Chief Justice. I consider that I am not biased and if the petitioner succeeds in the remaining grounds of appeal I will make the appropriate orders.

This is a limited rehearing and it is confined to pars 1(f) and 2(a), (b) and (c) of the petition and such other paragraphs, if any, as may be left outstanding after my first decision. No evidence was led by the petitioner on par 1(f) of the petition and he thereupon abandoned that ground. Paragraph 2(c) alleges that keys for two ballot boxes in official sealed envelopes were discovered during counting in a rubbish bin outside a supermarket in Madang. Evidence was led of that fact at the first hearing but no evidence was led as to where the keys came from or how they got into the rubbish bin. At the rehearing, evidence was given by Mur Baium, the Returning Officer for the Sumkar part of the Provincial Electorate, that two boxes delivered to him were without keys and that he was forced to open those boxes by bolt-cutters. It is possible that these keys were used to tamper with the votes in a box, but without supporting evidence, I am unable to infer that. In view of Mr Baium’s evidence I think it likely that these two keys related to the two boxes which he received on Karkar and which he opened with bolt-cutters. I consider that the absence of the keys from proper custody is not of any special significance. It is not an error or omission which in my view affected the result of the election.

THE LAST TWO BOXES OPENED BY KARKAR

The Sumkar Electorate covers part of the North Coast and the whole of the island of Karkar and the counting for those votes was done at Silin on Karkar Island. Sambe Bona, who was a scrutineer for Peter Yama on Karkar Island, said that on the day of the counting an assistant presiding officer, Jeffrey Burir, announced that all the boxes were counted. Shortly after that another assistant presiding officer, Lambiu Karop, said that there were two more boxes to be counted. About ten minutes later the two boxes were obtained, brought to the counting room and, according to Mr Bona and to another witness named Mugau Der, Mr Lambiu Karop borrowed the Returning Officer’s car keys in order to go to his house to collect the keys to the boxes. This evidence was led to show a serious irregularity in the scrutiny of the votes. (I add here that the checking of the ballot papers to see if they are formal or informal, and the counting of the votes, is called the scrutiny of the votes in the Organic Law on National Elections (Ch No 1).) I consider that this irregularity is not alleged in Mr Yama’s petition and hence, on the strict rules of pleading which relate to electoral petitions, I should not have allowed this evidence to be presented. Nevertheless, the evidence slipped in. But if I am wrong in that ruling of law I make findings of fact on the evidence. I accept Mr Bona’s evidence that the announcement was made that all ballot boxes were counted and then Mr Lambiu Karop said that there were two more boxes to be counted which were then brought in and counted. However, I reject his evidence that they were opened by keys. I much prefer the evidence of the Returning Officer, Mur Baium, who was in charge of the scrutiny, who said that these boxes were brought in late by helicopter. The lateness was caused by a delay in the helicopter picking up these boxes from the inland part of the mainland. They arrived about mid-day with assistant presiding officer Karop. The Returning Officer went to the helicopter and met Mr Karop and collected the two boxes. Mr Baium knew all about the two boxes and the assistant presiding officer Burir had no authority from him to announce that all the ballot boxes were counted. That was a mistake on his part. These two boxes were counted and I accept Mr Baium’s evidence that he had no keys for the boxes and he opened the boxes with bolt-cutters. I prefer his evidence because I was impressed by him as a witness and he was the officer in charge of the scrutiny. I was less impressed by the evidence of Mr Bona; I thought his memory wrong on some details. For example, it is clear to me that these were the last two boxes counted and the result of that count is contained in exhibit D (Sumkar). Mr Bona gave evidence that there were no votes in those two boxes for Mr Yama whereas, in fact, exhibit D shows there were nine votes for him in one box and one vote in the other. He also says that there were no informal votes in those two boxes which is contradicted by exhibit D which shows that there were 21 informal votes. I accept Mr Baium’s evidence as truthful and I find no irregularity whatsoever in the counting of those two boxes.

THE AUTHENTICITY OF THE TALLY SHEET FOR THE SUMKAR PART OF THE PROVINCIAL ELECTORATE

Evidence was led from Mur Baium, the Returning Officer for Sumkar, that at the end of the scrutiny he and his assistant returning officer signed a tally sheet known as EC601 which was then sent on to the Electoral Office in Madang. Mr Ame, counsel for the Electoral Commission, then showed the witness exhibit D (Sumkar) which is a tally sheet for the Sumkar part of the Madang Provincial seat and attached to which is the “Returning Officers General Return” which is produced on a form EC604. That return gives details of the ballot papers issued and returned and the number of votes in different categories etc. The tally sheet EC601 is meant to be signed by the Returning Officer and assistant returning officer and there is also provision for it to be signed by three scrutineers. The Returning Officer’s general return EC604 is meant to be signed by the Returning Officer. In this case both documents are unsigned. The documents were tendered to the Court at the first hearing by Justus Bawaloi, the Returning Officer for the Madang Provincial seat and also the Provincial Electoral Officer for the Madang Province. He produced these documents along with many others as an official record from his office in Madang sent in by the Returning Officer. Although exhibit D (Sumkar) was not the tally sheet signed by Mr Baium, I note that it is in very neat form with very few alterations and I consider it likely that it is a fair copy of the one which he signed. I say that because in the Madang part of the same electorate the officials prepared a tally sheet at the time of scrutiny but said that it got filthy and, after the declaration of the poll, they prepared a fresh one for submission to the Electoral Commission. In the case of Sumkar, the tally sheet for the Provincial seat was prepared by the assistant returning officer, Vincent Kasawari, who was not called as a witness. I consider it likely that the writing on the exhibit produced to me was done by him and that instead of sending in the one prepared at the time, he later made a fair copy of it and did not bother to sign it or to get the Returning Officer to sign it.

Is exhibit D (Sumkar) accurate? As I related in the first judgment, the counting of the votes for the Provincial seat was done at the same time as the counting of the votes in the six Open electorates and the results were telephoned through to the Returning Officer, Mr Bawaloi. He noted those results on sheets of paper headed “Progressive Results”. Each sheet of paper contains the number of the ballot box, for example, “Count No 1”, the time of the phone message, the names of all eleven candidates, and the number of ordinary and sectional votes cast for those candidates, plus the number of informal votes, plus the totals. There were 39 boxes opened in the Sumkar part of the Provincial seat and all 39 worksheets have been produced as exhibit A (Sumkar). With my Associate I have checked every figure in the 39 worksheets against the details of the 39 boxes contained in exhibit D and can say that every figure is identical. I am satisfied that exhibit D (Sumkar) is an accurate copy of the signed original and that it is an accurate record of the scrutiny of the votes carried out at Silin on Karkar Island. Moreover, I consider this matter too was not pleaded in the petition and therefore cannot, and should not, be raised at this hearing and I regret that the evidence slipped in without my ruling it inadmissible at the time.

THE INFORMAL VOTES

The remaining matters in the petition are pars 2(a) and (b) which read as follows:

“(a)    The presiding officers on numerous occasions failed or neglected to initial ballot papers in accordance with Section 126 of the Organic Law on National Elections by reason whereof a substantial number of electors were denied an effective vote which resulted in a record number of 6,551 votes being declared informal for the said Madang Provincial Electorate.

(b)      Numerous ballot papers were declared informal, despite protest from Scrutineers of the Petitioner, because electors had marked an “X” indicating their intention to vote for the Petitioner in the empty box relating to the Petitioner, which had he not been an independent candidate would have ordinarily contained a photograph of the political leader of his party. The said ballot papers were not otherwise marked.”

By s 126 of the Organic Law on National Elections (Ch No 1) (the Organic Law), all ballot papers are required to be initialled by the presiding officer and by s 154(1)(a), a ballot paper is to be rejected if, among other reasons, it is not authenticated by the initials of the presiding officer. The number of informal votes cast in this election was 4,861 which figure is obtained by adding up the informal votes in the six tally sheets of exhibit D which make up the total votes for the Provincial seat. The total number of votes cast was 81,934 so the informal votes represent 5.93 per cent of the total vote. To find some comparable figures I have looked at the “Second Statistical Report on the 1987 National Elections per Polling Station”, produced by the authority of the Electoral Commissioner. That report shows the percentage of informal votes in other Provincial Electorates. I have selected some of these:

In my view nothing swings on the number of informal votes cast in the Madang Provincial Electorate nor in the percentage.

Evidence was given before me by a presiding officer in the Usino-Bundi part of the Madang Provincial Electorate that, at the scrutiny, a number of votes were rejected because there were no initials of the presiding officer on the back of them. Similar evidence was given by Mur Baium, the Returning Officer of the Sumkar Electorate. Similar evidence was given by the presiding officer of Team 2 in the Madang Electorate and by a reserve policeman who was present at the scrutiny for the Madang Electorate. Similar evidence was given by a scrutineer for Mr Yama at the Saidor or Rai Coast counting place and his evidence was supported by a policeman who was on duty at the counting centre at that time. Similar evidence was given by a policeman who was on duty at the counting centre at Simbai. No evidence was given about the scrutiny of the votes at Bogia. None of the witnesses who gave evidence said that the presiding officer failed to initial votes. There was no admission from any official that he failed to initial the votes nor from anyone that he saw a presiding officer hand out an uninitialled ballot paper. The evidence was that, at the scrutiny, a number of votes, an unknown number of votes, were rejected because there were no initials on them. I consider that the reasons for the rule in s 154(1)(a) of the Organic Law that a vote not authenticated by the initials of the presiding officer is to be regarded as informal, is to prevent an abuse whereby a voter illegally obtains a ballot paper, marks it, and places it in the ballot box. All the votes that were rejected as informal because there were no initials on the back of them could be informal because the presiding officer failed to do his job, by failing to initial the votes, or because the voters illegally grabbed ballot papers and marked them and placed them in the box. It is possible that the presiding officers got tired and failed to initial some votes. By way of analogy I imagine that if a number of officials had to initial 81,934 cheques over a period of a week or so, a number of omissions would be made. Nevertheless, in the absence of any evidence that the officials failed in their duty, I am unwilling to infer that they did. It is equally likely that some dishonest voters got hold of some blank ballot papers and placed them in the ballot boxes. I distinguish the facts of this case from the facts of the case in In re Moresby Northwest Parliamentary Election: Rea v Rarua Rarua [1977] PNGLR 338. In that case there was evidence from the officials concerned that towards the end of polling they were faced with a tense situation. A large number of angry voters wanted to vote, the deadline for polling was approaching, the officials had insufficient booths, they had run out of certain forms and violence looked like erupting. The officials in those circumstances admitted that they failed to initial a number of votes. In the case before me, I consider that the uninitialled votes were rightly rejected as informal and that the petitioner has not proved any error or omission on behalf of the electoral officials which would justify allowing this petition on that ground.

With reference to par 2(b) of the petition, evidence was led that a number of votes were wrongly rejected as informal. Section 139 of the Organic Law on National Elections reads as follows:

“139.   Method of Marking Ballot-paper

Subject to this Law, an elector shall record his vote on his ballot-paper by placing an “X” in the square opposite the name of the candidate for whom he wishes to vote in such a way as to clearly indicate his preference for that candidate only.”

Section 154(4), dealing with “Informal ballot-papers”, provides as follows:

“(4)    Notwithstanding the provisions of this section or section 139, where the Returning Officer is satisfied that any mark made on a ballot-paper clearly indicates the intention of the voter and the candidate for whom he has given his vote, the Returning Officer shall not determine that the vote is informal merely because the mark is not an ‘X’.”

In Rooney v Pokasui and The Electoral Commissioner [1982] PNGLR 351, evidence was led of a circular issued by the Electoral Commissioner headed “National Parliament Informal Ballot Papers” (EC10 of 1982) and that circular is quoted in full in the judgment (at 352-353). In that case, Andrew J said that that circular accurately states the law on which votes should be treated as informal. I do not know if that circular, or a similar one, was given to the electoral officials in the 1987 elections. I note that the ballot papers for the 1987 elections were different from the 1982 elections in that, for the first time, they showed the photograph of each candidate and, in relation to most candidates, the photograph of that candidate’s party leader also.

Evidence was led to me from five of the six Open Electorates which make up the Provincial Electorate that some votes were wrongly declared informal. For example, in the Sumkar part of the Provincial Electorate the Returning Officer himself drew a sketch of a ballot paper giving an example of an “X” mark placed outside the box of a candidate. I consider that in that example the vote should have been declared formal because, although the “X” mark was totally outside the box provided for the voter, it nevertheless clearly indicated his intention. It is clear from the two sections I have quoted that the golden rule to follow in deciding whether a vote is formal or not, is to ask, “Does it clearly indicate the preference of the voter for one candidate?” In that same electorate, Sambe Bona, a scrutineer for Mr Yama, who was closely watching the counting of his votes, said that some votes were rejected because an “X” was put on Mr Yama’s photograph. I consider that an “X” on the photograph clearly indicates the preference of the voter for that candidate — and that is one of the great advantages of putting a photograph on the ballot paper — and hence should have been ruled formal. I consider that an “X” or other mark on the candidate’s photo, or partly on and partly off his photo, or near his photo if that clearly indicates his intention to vote for that candidate, should have been ruled as formal. In the Madang Open part of the Madang Provincial Electorate, Robert Sumnan, the presiding officer of Team 2, said that a number of votes were declared informal because the voter marked the face of the candidate. I repeat the words I have just said that, if there were no other marks on the ballot paper and that cross or mark is clear, then that clearly shows the preference of the voter for that candidate and should be ruled as formal. Mr Sumnan also said that some votes were rejected as informal because the voter put the “X” beside the candidate’s box. Again I comment that if the “X” mark is beside the box then, provided that it is clearly alongside that box and not close to any other box so that it clearly shows the voter’s intention, then it should not be rejected simply because no part of the “X” is inside the box. In other words, an “X” or other mark in the box, partly in the box and partly outside the box, or totally outside the box, can be accepted as formal provided it clearly shows the intention of the voter to vote for that candidate. In the Saidor or Rai Coast part of the Provincial Electorate, Hambere Gau, a scrutineer for Mr Yama, said that he thought some votes were wrongly rejected because the “X” mark was placed on the side of the box provided for on the photograph. I was not too impressed by this witness as I thought his preference to speak in Pidgin when he had a Grade 10 education showed that he had something to hide. Nevertheless, no electoral officials were called from that electorate to rebut his evidence and the evidence was supported, in relation to marking a photograph at least, by Thomas Kinabu, a policeman who was on duty at the counting centre at Saidor, and I therefore accept the evidence as truthful. Evidence was led from the presiding officer of a team in the Usino Bundi electorate and from a policeman on duty at the counting centre at Simbai on the informal votes. They said that some votes were rejected as informal because the voters did not clearly show their indication marks, but that evidence in itself is neutral and does not show that those votes were wrongly declared informal. No evidence was led from the counting centre at Bogia. Evidence was led by Mur Baium, the Returning Officer for Sumkar and the most senior electoral official to give evidence in this part of the case, who said that prior to the elections the returning officers had been given some training in Lae and the presiding officers and other officials had been given training at Karkar. I consider it likely therefore that, because they received the same training, the mistakes which were made in the Sumkar, Madang and Saidor parts of the Provincial Electorate were repeated in the other three parts of the electorate.

There were 4,861 informal votes cast. An unknown number of those votes lacked the initials of the presiding officer and were rightly, in my view, declared informal. Nevertheless, the rest were declared informal for other reasons and, on the evidence before me and outlined above, some of them were wrongly declared informal. Clearly a properly conducted recount of the informal votes could result in a number of such votes being declared valid. The number of informal votes are such that such a recount could affect the result. I therefore propose to order a recount of the informal votes.

The evidence of the wrongful declaration of some votes as informal was given without objection despite the fact that it departs somewhat from the particulars contained in par 2(b) of the petition and indeed no evidence was led of a vote being rejected because the “X” mark was placed in the empty box which would normally have been filled by the photograph of Mr Yama’s party leader. Mr Yama stood as an independent so the box provided for his party leader on the ballot paper was left blank. As there was no objection, and as the fact that par 2(b) alleges that votes were, in effect, wrongly declared informal, I consider it in order to allow that evidence and to allow the petition on that basis.

I order the Provincial Electoral Officer of the Madang Province, Mr Abraham Wari, who has now replaced Mr Bawaloi, to conduct a strict scrutiny and recount of the informal votes in the Madang Provincial Electorate. I direct him to conduct this recount in Madang at a venue to be chosen by him on Tuesday, 12 September 1989, commencing at 9 am. I direct him to give wide publicity to the recount so that candidates, other than the three who have appeared before me, are told of it and of their rights to be represented at it. The candidates themselves are not entitled to be present but each candidate is entitled to be represented at that scrutiny and recount by a scrutineer nominated by him in writing and/or by a legal representative. I direct Mr Wari not to count as formal any of the votes which have not been initialled by the presiding officer. Those votes are to remain informal. But he is to scrutinise and recount all of the other informal votes in accordance with the Organic Law and bearing in mind the law and principles I have mentioned in this judgment. If there is any dispute over votes which he has accepted or rejected, those votes are to be marked with his decision and kept separately by him in safe custody to be counted by me, after hearing evidence from Mr Wari and submissions from counsel, at a later hearing to be fixed by me in Madang or Port Moresby. I direct Mr Wari to report to me on the result of his scrutiny and count within 14 days after completion of it. I request him at the same time to send copies of his report to the four parties represented at this hearing, that is, Messrs Pais, Kasap, Yama and the Electoral Commissioner and to any other of the candidates who choose to be represented at the recount.

Recount of informal votes ordered

Lawyers for Mr Yama: Henao Cunningham & Co.

Lawyers for Mr Kasap: Kirriwom & Co.

Lawyer for the Electoral Commission: Leo Au, Secretary for Justice.

Lawyers for Mr Pais: V Kapa & Associates.