Rimbink Pato and Masket Iangalio v Miki Kaeok and The Electoral Commissioner of Papua New Guinea (2004) N2508

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 18 February 2004
• Court: National Court
• Citation: (2004) N2508
• Year: 2004
• Judgement Number: N2508

Full Title: Rimbink Pato and Masket Iangalio v Miki Kaeok and The Electoral Commissioner of Papua New Guinea (2004) N2508

National Court: Hinchliffe J

Judgment Delivered: 18 February 2004

1 NATIONAL PARLIAMENT—Elections—Organic Law on National and Local–level Government Elections ("the Organic Law"), s18 and s19—Powers of the Returning Officers being delegated powers are subject to the overriding and supervisory powers of the Electoral Commission—Returning Officer had no legal authority to make the declaration—Declaration invalid—No valid return of the Writ.

2 Herowa Agiwa v Benias Peri (2003) N2345, Daniel Don Kapi v Samuel Abal (2003) N2327, Application by Daniel Don Kapi (2002) N2259 and Peter Peipul Ipu v Pila Niningi (1998) SC580 referred to

___________________________

N2508

PAPUA NEW GUINEA

[In the National Court of Justice]

BETWEEN

RIMBINK PATO & MASKET IANGALIO

Petitioners

AND

MIKI KAEOK

First Respondent

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Waigani: Hinchliffe J

2004: February 18

R. Pato the Petitioner in E.P. No. 65 of 2002

G. Shepherd for the Petitioner in E.P. No. 68 of 2002

K. Naru for Miki Kaeok

R. William for the Electoral Commission of Papua New Guinea

18th February, 2004

Hinchliffe J: By agreement between the parties the trial at this stage has proceeded only on the issue of the late return of the Writ ie whether or not the declaration of the Electoral Commissioner on the 28 July, 2002 or 1 August, 2002 and return of the Writ on the 1 August, 2002 after the date fixed by the Head of State for return of the Writs is an error or omission and/or illegal practice which would constitute a ground for invalidating an election under Section 212(1) and (3) of the Organic Law on National and Local Level Government Elections, (hereinafter referred to as “the Organic Law”).

Before I go on I would like to thank Counsel in this matter for their well researched and thorough written submissions. One set of submissions was filed and then further submissions were filed by Counsel for Mr. Kaeok, the Electoral Commissioner and Mr. Iangalio in reply to an important issue raised in Mr. Pato’s submissions. They were provided on the Court’s invitation in relation to the validity of the Declaration on the 28th July, 2002. It would seem that if the Court was satisfied that the said Declaration was invalid then it would follow that there was never a valid Declaration and therefore never a valid return of the Writ, whether late or not. Of course the Declaration that I am referring to is that of one Romalo Bapu who states:

“I, Romalo Bapu being the duly appointed Returning Officer for Wapenamanda Electorate, hereby certify that Yangakun Miki Kaeok has been duly elected as Member of the National Parliament for the said electorate.

Dated 28, July, 2002

(signed by the Returning Officer)

(signed by the Elected Member)

28/7/2002

13.20 pm”

Mr. Pato has submitted that the said Declaration was invalid, void and of no effect in law. At 5.6 of his written submissions he says the following:

“5.6 The proposition that the Returning Officer had no legal authority to make the declaration when he did so being conceded, it follows that the declaration which is claimed to have been on 28 July, 2002 is void and of no effect in law. Consequently, the endorsement and certification of the Second Respondent as Member returned and elected under Section 175 of the OLNLLGE (the Organic Law) on a writ defective is invalid and a legal nullity and void and of no effect. See Kapi v Abal N2327 of 2003 and application of Daniel Kapi N2259 of 2003.”

In a nutshell Mr. Pato is submitting that if a Declaration was made on the 28th July, 2002, it was invalid and in effect he is saying that a valid Declaration has never been made in the Wapenamanda Open election. If that is correct then a by-election would need to be called. We need to look at the law on this point and what occurred leading up to the 28 July, 2002. The question needs to be asked ______ why was the Declaration invalid? Section 19 of the Organic Law provides as follows:

“19. Returning Officers.

The Electoral Commission shall, by notice in the National Gazette appoint

a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission (underlining is mine). Under a normal situation the Returning Officer will comply with section 175 of the Organic Law which provides, quite clearly, as follows:

“175. Return of Writs

(1) The Returning Officer shall, as soon as conveniently may be after the result of an election has been ascertained

(a) at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b) by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.”

In the present situation there was a variation in that the Electoral Commission had given some directions to the Returning Officers, which to my mind, brought into force the words in the said section 19 “subject to any directions of the Electoral Commission.” I say this because on the 17th July, 2002 the Electoral Commission wrote to the Engan Provincial Returning Officer, Cleophas Roa stating the following:

“You are hereby directed to immediately proceed with scrutiny arrangements for all Open Electorates in Enga Province.

I have reached this decision after receiving a comprehensive written brief from my Lawyer who was recently in Enga to collect on the spot statements from Returning Officers including yourself.

Ballot boxes properly identified for scrutiny must be brought to the Counting Centre for the process to commence immediately. Disputed ballot boxes can remain in the containers outside the Police Station for a firm decision to be reached towards the end of the counting process.

Counting should be held both day and night with specific intentions of concluding the process well before 29 July 2002. At the end of counting for each open electorate including the Provincial Electorate, no official declaration is to be made pending further advice from my office. A senior officer from the Electoral Commission will also be dispatched to Wabag to assist you and my Election Manager with the whole counting process.” (Underlining mine)

It is submitted by Mr. Pato that the Returning Officer for Wapenamanda Open is in breach of the said section 19 by declaring the winner on the 28 July, 2002 when he had been directed by the Electoral Commission not to make such a declaration. There appears to be no dispute, on the evidence, that the said Direction of the Electoral Commission was still in force when the Returning Officer quite wrongfully made the said direction regarding declaration. Mr Naru and Mr William, had made various submissions relating to the declaration but I must say that I have not been particularly swayed by those submissions. It is suggested that the said direction of the Electoral Commission was only directory and not mandatory. I am unable to see that at all as there was a very good reason for the said direction in the letter of the 17 July, 2002 (and a similar reminder in correspondence of the 25 July, 2002) which could only be a mandatory direction and not directory. If it was directory only, then it would defeat its purpose. The Electoral Commission wanted to ensure that all was in Order before a declaration was made. It is clear that the election had had many problems in Enga and the Southern Highlands and the Electoral Commission wanted to be certain, that the said direction was still in force on the 28 July, 2002.

There was also a submission from Counsel that the...