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Reipa v Bao [1999] PNGLR 232 (5 May 1999)

[1999] PNGLR 232

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BAKI REIPA; AND
ELECTORAL COMMISSION

V

YUNTIVI BAO

WAIGANI: LOS, WOODS, SALIKA JJ
25 February; 5 May 1999

Facts

The respondent filed an Election Petition against the first and second applicants seeking to annul the election of the first applicant as Member of Parliament for Kainantu Open Electorate.

The trial judge found that "it was the legal or constitutional duty of the Electoral Commission to ensure the security of ballot boxes such that the failure to so observe would amount to an error or omissions by officers of the Electoral Commission". The trial judge also found that it was the legal and factual responsibilities of the Electoral Commission under the Organic Law on National and Local-level Government Elections to provide and ensure safe custody and care of ballot boxes.

The applicants sought review of the National Court’s decision pursuant to s 155(2)(b) of the Constitution, which provides that where there is no right of appeal to the Supreme Court and where, on merits, there is an important point of law to be determined, the procedure under s 155(2)(b) would apply.

Held

1. To invoke the procedure under s 155(2)(b) of the Constitution, there must be gross error, clearly apparent on the face of this evidence before the National Court before the Supreme Court can grant a review; or there are cogent and convincing reasons or exceptional circumstances shown to warrant such a review.
   
2. As the right to vote is fundamental under s 50 of the Constitution, it imposes heavy responsibility and onus on the State, through the Electoral Commission, to ensure that the right to vote is meaningful, in that the vote of every citizen has a meaning and effect on the result of an election.
   
3. The Constitution implies, in reference to the integrity of elections, to include full protection and security of the poll.
   
4. The failure of the Electoral Commission in providing security resulting in the destruction of ballot boxes and papers amounted to breach of his constitutional duty.
   
5. The applicants have not shown that there has been a gross error or some serious mis-statement of the law such that the Supreme Court can and should intervene.
   
6. Application dismissed.
   

Papua New Guinea cases cited

Gavera Rea v Rarua [1977] PNGLR 338.

Kamond v Pill (1993) unreported.

Poto v Mune (1994) unreported.

Counsel

A Manase, for the first applicant.
J Nonggorr, for the second applicant.
H Nii, for the respondent.

5 May 1999

WOODS AND SALIKA JJ. The applicants have each filed an application seeking Review of the decision of the National Court following the hearing of Election Petition 32 of 1997 whereby the Judge granted the petition and held that the applicant herein Baki Reipa was not duly elected and declared the election for the Kainantu Open Electorate void.

In brief the grounds for the Reviews challenge the finding of the Judge that it was the legal or constitutional duty of the Electoral Commission to ensure the security of ballot boxes such that the failure to so observe would amount to an error or omission by officers of the Electoral Commission within the meaning of s 218 of the Organic Law. And also the finding of the trial judge on the legal and factual responsibilities imposed upon the Electoral Commission by the Organic Law to provide and ensure safe custody and care of ballot boxes.

The Organic Law on National and Local-Level Government Elections clearly states in s 220 that a decision of the National Court in the hearing of an election petition is final and conclusive and without appeal and shall not be questioned in any way. This is why this matter has come before this court as a Review under the Constitution Section 155(2)(b). The principles governing s 155 Reviews have been clearly stated in a number of cases; "In a case where a person or a party to proceedings has no right to appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under s 155(2)(b) of the Constitution is available without the need to meet other established criteria." However there must be a gross error clearly apparent on the face of the evidence before the Court should grant review. Or there should be cogent and convincing reasons or exceptional circumstances shown warranting the review. So it’s not a matter of establishing a simple error in the judge's findings.

So where is the important point of law to be determined or where is the gross error of law apparent on the face of the record.

The petition sought and did obtain the invalidation of the election on the grounds that following the polling at a polling place and when the relevant ballot box was in the custody of the Electoral officials, certain persons forcefully obtained the Box and unlawfully destroyed the box and thereby the votes such that a total of 466 ballot papers for the electorate were not counted and this deprived 466 eligible voters from having their choice of candidate included in the final poll for the electorate. And because the winning margin was less than this number of votes therefore the result of the election was affected.

In upholding the petition the Judge found that the failure of the Electoral Officials to properly provide security for the ballot papers such that the Box was destroyed by criminal elements and the papers thereby lost was an error or omission by officials.

The applicants before us are submitting that the trial judge has made a gross error in finding that the responsibilities and duties of the Electoral Commission went so far as to ensure complete security for ballot boxes. It appears to be suggested from the submissions that the duties of the Electoral Commission are purely administrative duties.

The Constitution provides in s 126 that elections to the Parliament shall be conducted in accordance with an Organic Law by the Electoral Commission. And further the provision states that the Organic Law shall make provision for and in respect of the appointment, constitution and procedures of the Electoral Commission and for safeguarding its independence, and the electoral system, and safeguarding the integrity of elections. It is submitted therefore that the Organic Law comprehensively sets out the duties and responsibilities of the Commission and its officers and nowhere in the Organic Law is it stated that the Commission and its officers are responsible for the security of matters like ballot boxes and ballot papers. It seems to be suggested that the officers of the Commission can merely ignore situations where there are security lapses such that boxes can be disrupted or destroyed.

We find that these submission are quite shallow and must only encourage the Commission and officers to adopt a could not care less attitude to the conduct of elections.

The Constitution clearly provides in Section 50 for the right to vote as a fundamental right of all citizens. So how can this right have any meaning if the State and the relevant State authorities do not ensure that all eligible voters can exercise their right and for the complete security or integrity of the poll. It must be implied in the reference to the integrity of elections in the Constitution Section 126 that this must include the full protection and security of the poll. Whilst it should not be open to a single disgruntled individual to completely invalidate an election by a simple criminal act, there must be a very high obligation on the Commission and its officers to provide a full security. And if the State authorities and the Commission itself do not ensure such a complete security then they must bear the consequences of failing to ensure the integrity of every citizen's vote. The Constitution Section 50 creates a heavy responsibility and onus on the State through its instrumentality the Electoral Commission to ensure that the right to vote is meaningful such that the vote of every citizen has a meaning and effect on the result of an election. If the Electoral Commission and the State fails in its duty to guarantee the integrity of the Poll and all votes cast then it is clearly in breach of its constitutional responsibilities and this is more than errors and omissions but a clear breach of the Constitution. So to put these failings in the same bracket as petty mistakes is misleading. It must be a simple matter for the Electoral Commission before completing an election to declare for a new poll in specific areas if matters get so far out of hand that a proper poll has failed. It must not be a matter of saying wait until a petition is filed. There must be a responsibility to act appropriately before a poll is concluded when serious disruption takes place. The Organic Law clearly provides in ss 115 and 117 for the power and responsibility to adapt polling schedules to meet with unforeseen and difficult situations and even sudden emergencies. The Electoral Commission and the Government seems to have been taking the easy way out in recent years and ignoring its responsibilities and leaving it to expensive and time consuming petitions to sort out its own problems. It is time that the Electoral Commission acted appropriately in Elections.

The Judge clearly raised the above matters in his judgement and in particular the legal and constitutional duty of the Electoral Commission through its officers, servants and agents to ensure the security of the ballot boxes and the poll and he clearly considered whether what happened was beyond the control or expectations of the officials.

We find that the Judge has made no gross error of law in finding that the officials of the Commission have failed in their duty whereby criminal elements were able to destroy a ballot box with sufficient papers which have cast doubts on the validity of the poll. So there is no real substantial matter of law or gross error to enable this court to have the power to interfere with the Judge's findings.

On the subject of whether the loss of 466 eligible votes from the final poll could have affected the result where the winning margin was 411 votes it is clear from the legislation that firstly the Court cannot make assessments of possible scenarios of where the votes may have gone. Also the authorities have made it clear that of course if the missing or lost votes total less than the winning margin then it cannot be said that the result of the election was likely to be affected. See Frost CJ in Gavera Rea v Rarua [1977] PNGLR 338, and Andrew J in Kamond v Pill (1993) unreported and Amet CJ in Poto v Mune (1994) unreported.

However as soon as the number of disputed or lost votes exceed the winning margin then as the court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but it is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied. Elections and the validity of every vote are such serious matters that there can be no half measures. There is a likelihood and this the trial judge found.

Reverting to the overriding principle governing review under s 155 we cannot find that there has been any gross error or some serious misstatement of the law such that this court can or should intervene. The trial judge was quite entitled to come to the conclusion that he did and we find that we cannot interfere by way of coming to a different conclusion.

We dismiss the applications for review with costs.

LOS J. I have read the judgment by Justices Woods and Salika. I do need to repeat the facts and background leading to the review application. I accept the identification of the issue in the review and I accept Their Honours views on the jurisdictional issue raised under s 220 of the Organic Law on National and Local Level Government Elections and s 155(2)(b) of the Constitution. In the substantive issue however, I differ from Their Honours view.

The main issue revolves around the loss of 466 ballot papers. These ballot papers were in a box forcefully removed and obtained when it was in the custody of the electoral officials. The trial judge found that the box was destroyed by criminal elements. He said however that it was incumbent upon the electoral officials to provide security for the ballot papers but having not done so they breached their duties hence it was an error or omission on their part.

Indeed the electoral commissioner, his officers, and agents have a heavy duty. They have a heavy duty to facilitate the exercise the right to vote a fundamental right of all citizens. So what does that mean. The commission must ensure in practical terms that all qualified citizens enrol, understand how to vote, and know where to go and vote. The commission must ensure for example that no person enrols twice, and no persons votes more than once. Once votes are casted, the ballot boxes must be delivered safely to specified places and left safely for counting. To protect the integrity of the ballot papers the ballot boxes are treated and used in certain way and closed in certain way. Some of these duties are listed in Part XIII of the Organic Law, Division 2 for example.

At times of course things may not work out smoothly. From these experiences, the commission must be sensitive. The commission must plan things in conjunction with the law enforcement agencies to provide security. But to suggest that it is the duty of the commission to guarantee the maximum physical security of every ballot box is to impose extra legal duties upon the commission. The commission like other instrumentalities of the State has a duty to perform efficiently. It cannot be expected to take over the job of the police force or the job of army. The absurdity of the suggestion that the commission is basically responsible for providing maximum security of the ballot papers is this: If a fire starts in a building where ballot boxes are kept and they all get burnt, the court would expect the officials to have got onto fire engines and put off the fire, failing that it would be error and omission. If a bridge collapses, while boxes are transported and the boxes are swept away, could the officials of the commission be blamed for failure to inspect the bridge like good engineers before they drive across? If a plane carrying ballot boxes crashed and thousands of ballot boxes get lost, could that be an error on the part of the electoral officials. Their error may be that they should have chosen to get a different plane with a better pilot.

I consider with respect the electoral officials can only be expected to carry out their specified role under the law and not the role expected of and imposed by law on other instrumentalities. The circumstances of the removal of the ballot box and its destruction are clear. After completion of taking votes safely the box containing the ballot papers was taken safely to an office to be kept safely. A person with a determined mind removed the box and burnt it in the midst of the crowd a police station was not far away. In the circumstances the officials could not do anything. I consider therefore, the trial judge was in error when he found that the destruction of the ballot papers were as a result of an error or omission on the part of the electoral officials. I would therefore grant the application for review.

Order of the Court

Applications for review are dismissed.

Lawyers for applicants: Pato Lawyers & Nonggorr & Associates Lawyers.
Lawyers for respondent: Nii & Mirupasi Lawyers.