In the Matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Sandaun Regional Seat; Simon J Solo v Amkat Mai and Martin Anska, Returning Officer and Jack Nawaria Assistant Returning Officer and Andrew Trawen, Electoral Commissioner of PNG and Electoral Commission of PNG & John Taluh Tekwie v Amkat Mai, Governor - Elect for Sandaun Province and Simon Solo, Second Runner-up and Mr Martin Anska, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of PNG (2013) N5562

• Jurisdiction: Papua New Guinea
• Judge: Batari, J
• Judgment Date: 04 October 2013
• Court: National Court
• Citation: (2013) N5562
• Docket Number: EP No. 16 of 2012 & EP No. 85 of 2012
• Year: 2013
• Judgement Number: N5562

Full Title: EP No. 16 of 2012 & EP No. 85 of 2012; In the Matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Sandaun Regional Seat; Simon J Solo v Amkat Mai and Martin Anska, Returning Officer and Jack Nawaria Assistant Returning Officer and Andrew Trawen, Electoral Commissioner of PNG and Electoral Commission of PNG & John Taluh Tekwie v Amkat Mai, Governor - Elect for Sandaun Province and Simon Solo, Second Runner-up and Mr Martin Anska, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of PNG (2013) N5562

National Court: Batari, J

Judgment Delivered: 4 October 2013

N5562

PAPA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 16 of 2012 & EP No. 85 of 2012

In the Matter of the Organic Law on National and Local-Level Government Elections

and

In the Matter of Disputed Returns for the Sandaun Regional Seat

BETWEEN

SIMON J SOLO

Petitioner

And

AMKAT MAI

First Respondent

And

MARTIN ANSKA, Returning Officer

Second Respondent

and

JACK NAWARIA Assistant Returning Officer

Third Respondent

And

ANDREW TRAWEN, Electoral Commissioner of PNG

Fourth Respondent

And

ELECTORAL COMMISSION OF PNG

Fifth Respondent

&

JOHN TALUH TEKWIE

Petitioner

And

AMKAT MAI, Governor - Elect for Sandaun Province

First Respondent

And

AND SIMON SOLO, Second Runner-up

Second Respondent

And

MR MARTIN ANSKA, Returning Officer

Third Respondent

And

ANDREW TRAWEN, Electoral Commissioner

Fourth Respondent

And

ELECTORAL COMMISSION OF PNG

Fifth Respondent

Vanimo: Batari, J.

2013: 20 – 23 August

17 September

4 October

ELECTIONS - illegal practices - polling - underage voting - candidate - knowledge or authority of - whether illegal practices committed with knowledge or authority of candidate - election result or return - whether affected by illegal voting - whether just that election result or return be declared void.

ELECTIONS - errors and omissions - polling officials - underage voting - multiple voting - whether polling officials committed errors or omissions in allowing underage and multiple voting - election - error of or omissions by electoral officials.

ELECTIONS - scrutiny - counting - ballot boxes - security of - tampering - proof of - whether sufficient evidence of tampering with ballot boxes and ballot.

ELECTIONS - Returning Officers - duty of - neglect of duties - objection to counting - failure to decide on objections - whether error of or omission by electoral officials - whether election result affected.

ELECTIONS - illegal practices - polling - underage voting - voting by persons under 18 years for themselves or in place of others – legality of - whether an illegal practice for the purpose of s 215 of the Organic Law.

Constitution ss 50(1), 50(1)(d), 126(3(4); Organic Law on National & Local Level Government Elections ss 215, 218, 134, 136, 191,153A, 152, 20, 21(3) 20(4), 19 (2), 149 considered and applied.

Facts

The Petitioners brought proceedings to challenge the First Respondent’s election on grounds of:

a. Illegal practices and undue influence during polling;

b. Illegal practices, errors and omissions at scrutiny or counting;

c. Tampering with ballot boxes;

d. Errors in neglect of duty by Returning Officer; and

e. Irregular appointment of counting officials.

Held

1) The allegation that Counting Supervisors were irregularly appointed as Assistant Returning Officers is dismissed as the evidence is that they were appointed Counting Supervisors, not Assistant Returning Officers, at [11];

2) Underage voting occurred at the two Oksapmin polling places, at [91-92];

3) Lemon was used to enable double and even multiple voting at least at the two polling venues by Team 72, at [95];

4) Underage voting was widespread and was entertained by the majority of the polling teams, at least four of the polling teams out of six, at [101];

5) Underage voting may be deemed an electoral offence under s 191 of the Organic Law , at [114]. It is a specific offence under s 105 of the Criminal Code, at [17] and an illegal practice against s 215 of the Organic Law, at [117-119];

6) The failure of the polling officials to enforce the constitutional requirement for voting age and the failure to conduct the polling pursuant to the provisions of ss 134 and 136 of the Organic Law brought about a false election result, at [121];

7) The Court should not require the exact number of votes affected to be proven when blatant unconstitutional and illegal practices are shown; it is sufficient to find that the election was a farce and a sham and the total number of votes from the polling affected the result of the election, at [128];

8) In the case of a deliberate breach of the Constitution and electoral laws calculated to unduly influence the election result it is just to declare the election void, at [130];

9) Section 149 is mandatory, scrutiny must be conducted by the Returning Officer and in his absence by an Assistant Returning Officer, at [148];

10) The failure of the Returning Officer to carry out his constitutional duty and the failure of the Electoral Commission to appoint a replacement amounted to there being no legitimate scrutiny of the votes, at [161], consequently there was no election, at [162];

11) Election declared absolutely void.

Cases cited:

Anton Yagama v Peter Yama & Ors (2013) SC1244

Arnold Marsipal v Michael Pondros [1977] PNGLR 354;

Louis Ambane v Electoral Commission & Ors (1988) SC 559.

Neville Bourne v. Manesseh Voeto [1977] PNGLR 298.

Counsel:

I. Mambei, for the Petitioner in EP16/12

J. Kolo for the Petition in EP 85/12

P. Mawa, for the First Respondent.

A. Kongri/J. Umbu, for Electoral Commission.

1. BATARI, J: In this consolidated hearing, the petitioners are alleging that the First Respondent was elected to the National Parliament through illegal means and errors and omissions on the part of election officials in the 2012 General Elections. These charges are denied by the Respondents. A total of 32 witnesses gave evidence. This is the verdict.

BACKGOUND

2. Counting of the West Sepik Regional Seat votes took place at the Vanimo PNGDF base around 4 July, 2012 and ended with the declaration of Amkat Mai, as the duly elected Regional Member for West Sepik Province and Governor-elect for Sandaun Provincial Government on 28 July 2012. He polled 27,784 to beat Simon Solo on 22,975, a difference of 4,809 votes. The Petitioner in EP 85 of 2012, John Tekwie was one of the losing candidates and second runner-up.

3. The petitioners say there was no scrutiny by the Returning Officer, Martin Anska. They also allege the integrity of the ballot boxes from Oksapmin was tainted by illegal practices at polling. It is further alleged the ballot boxes were tampered with. The total number of votes from the six Oksapmin ballot boxes was 9,176. The First Respondent collected 6,875 votes.

4. The common grounds for invalidating the election result allege: -

a. Illegal practices and undue influence during polling;

b. Illegal practices, errors and omissions at scrutiny or counting;

c. Tampering with ballot boxes;

d. Errors in neglect of duty by Returning Officer; and

e. Irregular appointment of counting officials.

5. A total of 31 witnesses were called on these issues. Each witness, except two or three, gave oral evidence in addition to their affidavits.

PETITIONERS’ CASE

6. The case for the petitioners is that Oksapmin polling by teams 67, 68, 69, 70, 71, 72 were flawed due to underage voting, double and multiple voting. They also contend, (though not necessarily in the alternative), the six ballot boxes had been tampered with as seen in broken seals; ballot papers neatly folded with the butts; ballot papers signed by different persons; and same handwriting on ballot papers. The petitioners also say, Returning Officer Martin Anska failed his electoral duties to attend scrutiny.

7. Complaints and objections were not properly dealt with due to absence of Martin Anska from scrutiny and had the six ballot boxes been excluded from scrutiny, the result of the election would have been affected.

RESPONDENTS’ CASE

8. The respondents deny any perpetration, knowledge or authorising of underage voting, double and multiple voting. The First Respondent was not present at any of the polling places and if there was any illegal practice or error or omission, he was neither aware nor a party to it. On the allegations of ballot box tampering, the respondents dismissed it as mere conjecture, lacking evidence of any substance or form.

9. The respondents also contest allegations of irregularities at counting. They say scrutiny was transparent and orderly. No formal or serious objection was raised and minor complaints were appropriately dealt with. On improper appointment of counting officers and neglect of duty by the Returning Officer, there is no evidence on these and the allegations are technically flawed.

RULING: Tampering with Ballot Boxes

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