N7145

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 63 OF 2017

IN THE MATTER OF 
A DISPUTED RETURN FOR THE MADANG PROVINCIAL ELECTORATE

BETWEEN:
JAMES YALI
Petitioner

AND:
PETER YAMA
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

&
 
EP 69 OF 2017

BETWEEN:
JERRY SINGIROK
Petitioner

AND:
PETER YAMA
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Higgins, J
2018:  8, 9, 12, 13, 14, 15 & 16 February,
1 March

ELECTIONS – petitions – validity of return of a member of the National Parliament disputed by petition – alleged errors by polling officials – alleged bias of returning officer and assistant returning officer – proof of bias – alleged delays in polling – alleged failure to control unlawful voting – alleged errors in counting – obstruction of scrutineers.

ELECTIONS – petitions – powers of court in event of proof of errors by polling officials – Organic Law, Section 218.

QUALIFICATIONS OF CANDIDATES – one candidate disqualified – nomination accepted by Electoral Commission – candidate under sentence of imprisonment but on parole until after elections concluded.

PNG case cited

State v James Yali [2005] PGNC 191; N2988 & [2006] PGNC 26 N2989

Counsel:

Mr. F. Lunge, for the Petitioner, James Yali
Mr. B. Lai, for the Petitioner, Jerry Singirok
Mr. W. Otto assisted by Mr. T. Ilaisa, for the First Respondent
Mr. L. Okil, for the Second Respondent

1 March, 2018 

1.	HIGGINS, J:  Two electoral petitions have been presented concerning the election of a member for the Madang Provincial Electorate at the 2017 National General Elections. The first to be heard was presented and filed on 7 September 2017 by Mr Jerry Singirok, an unsuccessful candidate in the election (EP No. 69 of 2017). The respondents are Honourable Peter Yama MP, the successful candidate, and the Electoral Commission of Papua New Guinea as the second respondent.

2.	Mr Yama initially relied, in his Petition, on two grounds.  The second allegation of bribery was withdrawn.  The remaining allegation is that the second respondent (Electoral Commission) erred in accepting the nomination of the Petitioner in the second matter (EP No. 63 of 2017), Mr James Yali. It is contended that Mr Yali was not qualified to stand for or to be elected. The stated ground for that conclusion was that, at the time of nomination, Mr Yali was rendered disqualified from being elected by reason of the operation of Sections 50 and 103 (3)(c) and (e) of the Constitution.

3.	Section 50 confers upon every citizen a right to vote and stand for public office. Those rights are not, however, unqualified.

“50 (1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who:

(a)	is under sentence of death or imprisonment for a period of more than nine months; or
(b)	has been convicted within the period of three years next preceding the first day of the polling period for the elections concerned, of an offence relating to elections that is prescribed by an Organic Law an Act of the Parliament for the purposes of this paragraph,

has the right and shall be given a reasonable opportunity-

(c)	to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d)	to vote for, and to be elected to elective public office at genuine, periodic, free elections; and
(e)	to hold public office and to exercise public functions

(2)	The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

4.	A provision regulating the right of citizens to stand for Parliament is Section 103 of the Constitution.

5.	Relevant for present purposes is Section 103(3) -

“A person is not qualified to be or to remain a member of the Parliament if:–
 
(c) subject to subsection (4) and (7), he is under sentence of death or imprisonment for a period of more than nine months; or
….…..
(e)	he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment no. 24 – Electoral Reforms; or 
(f)	he is otherwise disqualified under the Constitution.”

6.	Under subsection (4), a disqualification by virtue of Section 103(2)(c) is suspended until the appeal period has expired or, if an appeal has been lodged, the appeal has been determined.

7.	Subsection (6) provides:

“If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty, the writ for the by-election has not been issued, the member is restored to his seat.”

8.	A key question then is whether the amendment to Section 103(3) inserting Section 103(3)(e) was enacted and in force as at the date of Mr Yali’s offence for which he was convicted and sentenced. A further question is whether in any event, Section 103(3)(c) applies to Mr Yali.

9.	The facts as found by Cannings J in the State v James Yali [2005] PGNC 191; N2988 & [2006] PGNC 26 N2989 were that Mr Yali did on 13 October 2004, commit the offence of rape contrary to Section 347 of the Criminal Code. The conviction was recorded on 13 December 2005 and a sentence was imposed on 19 January 2006 of 12 years imprisonment commencing on the date upon which the offender, Mr Yali, had been taken into custody.

10.	The expiry of that sentence would have occurred on a date less than 12 years after its commencement. Mr Yali was entitled to some remissions. There is also evidence that he was granted parole. The order for Parole records that Mr Yali was granted parole on 9 February 2010. It was noted that his sentence would expire on 12 December 2017. It follows that, at the time he was nominated as a candidate for the Madang Provincial Electorate, Mr Yali was still subject to the sentence imposed by Cannings J on 19 January 2006 albeit that he was not in custody. He was and remained at conditional liberty until 12 December 2017 when his sentence expired.

11.	I note that Section 21(3) of the Parole Act 1991 provides that time spent on parole is deemed to be time served towards that part of the parolee’s sentence that is remaining at the time of his release on parole. That is to be contrasted with “remission” of a sentence. A remission occurs pursuant to the Correctional Service Act 1995, Section 120.

12.	Section 120 (1) provides:
“Subject to this section, the Commissioner shall grant to a detainee remission equal to one third of the period of sentence.”

13.	Section 120 (3)(b) provides:

“Remissions do not apply in respect of the period of sentence served while on parole, subject to the Parole Act 1991.”

14.	It is therefore clear that time spent by Mr Yali whilst released on parole was time served in respect of the original sentence as reduced by remissions granted prior to release on parole but the time to be spent on parole before the expiration of the sentence is not reduced by, or eligible to be reduced by, remissions by virtue of Section 120 of the Parole Act.

15.	It follows that until 12 December 2017, Mr Yali was “under sentence of imprisonment for a period exceeding nine months.”

16.	I do not accept the submission by Mr Yali’s counsel that the sentence of imprisonment becomes less than or equal to nine months if the sentence has nine months or less to run before its expiry. The sentence is and was until its expiry, a sentence of imprisonment for a period exceeding nine months.

17.	It further follows, therefore, that when nominated and at the casting and counting of votes and declaration of the poll, Mr Yali was a person “not qualified to be or remain, a member of Parliament” within the meaning of s.103(3) Constitution.  A question was raised as to whether Mr Yali was also disqualified by virtue of Section 103(e) of the Constitution. That added Section 103(3)(e) as a ground of disqualification. i.e: [that]:-

“he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment no. 24 – Electoral Reforms.”
               
18.	The amendment in question was, on 25 June 2002, certified as having passed the Parliament with the requisite majorities on 29 August 2011 and 23 January 2002. The amendment was to come into operation “on certification”. The amendment is stated to have been effected by legislative instrument 881 of 2006 Section 1. If so, it was brought into operation after the date of the offence found to have been committed by Mr Yali and does not add to the ground for disqualification I have found to exist.

WHAT IS THE EFFECT OF THE PARTICIPATION BY MR YALI IN THE ELECTION

19.	I note that the Electoral Commission was, before nominations were accepted, warned of the apparent lack of qualification to stand for election affecting Mr Yali.

20.	It is relevant to note that the Organic Law on National and Local-Level Government Election 1997 (OLLGE) provides that the ballot-paper to be marked by an elector shall have, per Section 124(2)(a), “three spaces or boxes for a voter to indicate his preferences – 1, 2 and 3 either by the prescribed candidate identification number or by candidate name.”

21.	Section 134 provides for various circumstances pursuant to which a person seeking to cast a vote may be denied a vote.

22.	Under Section 139, an elector, where there are more than three candidates nominated must write in three candidates in order of preference. There is no provision for marking more than three.

23.	Section 153 prescribes the circumstances by reason of which a ballot-paper is informal and, hence, excluded from the scrutiny.

“(1)	Subject to this section, and to Divisions 3 and 4 and the Regulations, a ballot-paper is informal where:-

a)	It is not authenticated by the initials of the presiding officer or by an official mark as prescribed; or

b)	Subject to subsection (2) and (3), it has no vote indicated on it or it does not have the voters first preference for  one candidate and his contingent votes for two other candidates……; or

c)	(a marking which identifies the voter)

(2)	(If only two candidates, indicating one only suffices for formality)

(3)	(Provides that where there are only 3 candidates indicating 1st and 2nd preference is valid under section 154 of the presiding office, after rejecting all informal votes, counts the 1st preference votes for each candidate. There is required to be a record of the votes cast for each candidate.)

24.	A candidate receiving an absolute majority of formal votes cast is declared elected (Section 168 (1)(b). Under Section 168 (1)(b) if no candidate has received such majority, and in this election, none did, …

“The candidate who has received the fewest number of first preference votes shall be excluded and each ballot paper counted to him shall be counted to the candidate next in order of the voters’ preference.”

25.	By Section 168(1)(e) that process is to be repeated until one candidate receives an absolute majority of the votes.

26.	Section 168(2) provides:

“Where on any count being concluded in accordance with subsection 1(d) or (e), a ballot-paper shows no preference capable, in accordance with this law, of being counted, in that count, to an un-excluded candidate, that ballot-paper:-

a)	shall be deemed to be exhausted; and
b)	shall be excluded from that count; and any subsequent count: and
c)	shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.”

27.	It follows from these provisions that, to be a valid vote, a ballot-paper must be marked by an elector with, in order of preference, three of the candidates who have been nominated for the election.

28.	Mr Yali is a person who, though apparently validly nominated, could not have been elected.  It follows that a vote cast for him as one of the three candidates marked on a ballot paper must be treated as if he had been excluded from the count and the remaining two preferences distributed to the relevant candidate. The contrary view, that the entire vote is to be regarded as informal, in my view unreasonably deprives the affected electors of their right to vote. It is true that their vote is already diminished in value by the inclusion of a first preference for Mr. Yali or a preference for him activated later in the scrutiny.  Nevertheless, it seems to me, it is more consistent with Section 50 of the Constitution and the OLNLGE that the inclusion of Mr. Yali (or any other candidate who is found not to be qualified to be elected) merely diminishes rather than destroys a vote cast for him by an elector.

Mr. Yali's Petition

29.	It follows, of course, that Mr. Yali, being a person not qualified to stand is not qualified to bring a petition. It is accordingly dismissed with costs to the Respondents save that, as it was the 2nd Respondent's duty to reject Mr. Yali's nomination, the 2nd Respondent should not have the benefit of a costs order. I have directed that the evidence adduced by each party be evidence in respect of each matter. It follows that the evidence adduced in Mr. Yali’s case will be evidence in relation to the petition of Mr. Singirok.

Petition of Mr. Singirok

30.	Mr. Singirok relies on the presence in the count of the Madang Provincial Electorate of a disqualified candidate, Mr. James Yali. For the reasons previously stated, this ground of objection is upheld. The disqualification of certain candidates is contained within the Constitution Section 50 and Section 103 (c) and (e). The last of those provisions did not apply to Mr. Yali but, as I have found, Section 103 (c) did.

31.	Given that the 2nd Respondent accepted the nomination of Mr. Yali, the scrutiny of votes could only have lawfully proceeded by first going to the primary votes for Mr. Yali and counting those votes towards the next candidate each elector had specified. If, during the elimination of other candidates, the next vote on the relevant ballot paper was for Mr. Yali, that vote would be credited to the next candidate specified by the voter, if that candidate had already been eliminated or if the vote was a third preference, the previous two having been eliminated, the vote would be exhausted.

32.	The effect of Mr. Yali’s presence in the count up to the final elimination was twofold. First, it may have affected the order in which other unsuccessful candidates were eliminated. Second, it may have allowed a candidate other than Mr. Yali, having received preferences from the votes cast for Mr. Yali, directly or after further elimination, to add to his or her total tally of votes so as to be still unexcluded at the final elimination. Obviously, if Mr. Yama had received more than 50% of the votes cast at the first count it would be irrelevant how many votes were cast for Mr. Yali. However, that is far from the case here.

33.	The primary count, considering only the top 5 candidates was, according to the records of the 2nd Respondent,

(a)	James Yali	45, 806 votes
(b)	Jerry Singirok	42, 277 votes
(c)	Peter Yama	36, 019 votes
(d)	Jim Kas	25, 937 votes
(e)	Ramsy Parawa	20, 726 votes

34.	The total of those votes is 170,765.

35.	The total number of votes cast was 253,899. Thus 83,134 votes were cast for all of the remaining 26 candidates. The elimination of candidates and the exclusion of exhausted votes led to the penultimate tally:

(a)	Peter Yama	85, 382 votes
(b)	James Yali	72, 763 votes
(c)	Jerry Singirok	61, 850 votes

36.	The total of those votes remaining alive was 219,995.

37.	Had Mr. Yali been then eliminated and his next preferences counted the votes would be then be either for Mr Yama or for Mr. Singirok or be exhausted.

38.	It is not possible to allocate numbers to any of those three categories. The difference between Mr. Yama and Mr. Singirok was 23,632. The votes Mr. Yali had attracted whether 1st, 2nd or 3rd preferences was 72, 763 as at the final elimination stage. In the primary count he had 45,806. It follows that had Mr. Yali been eliminated from the primary count and his next preferences then distributed is could have left Mr. Singirok with a winning margin. I acknowledge that the most likely result would be that Mr. Yama would be successful but without knowing Mr. Yali’s next preferences it cannot be concluded that the result of the ballot would not have been affected by his inclusion in the scrutiny.

39.	Thus, Section 218(1) is not engaged so as to save the election. The decision to permit Mr. Yali to stand was an error that may have affected the result of the election. The appropriate remedy therefore is to declare that Mr. Yali was not qualified to be a candidate until his sentence expired on 12 December 2017. Further he was not capable of being chosen or sitting as a member until after that date. There must be a re-count of the votes cast with votes cast for Mr. Yali being treated as though he had already been eliminated.

OTHER ISSUES

40.	Other issues were raised concerning the conduct of the scrutiny. It is noteworthy that the allegations concerning those irregularities were not challenged by cross-examination. The evidence to contradict those allegations was also unchallenged.

41.	In those circumstances, insofar as an allegation is uncontradicted, it must be accepted at face value. If it is contradicted by unchallenged evidence that contradiction must also be accepted at face value. It would follow that the Court may well be unable to make a finding one way or the other on such an issue. The party bearing the onus of proof on such an issue would then have failed to prove it. In some cases the variance may be immaterial. An example of that is the separation of scrutineers away from the count. A witness for Mr Singirok alleged it was 10 metres. A witness for Mr Yama alleged it was 5 metres. Either would seriously impede the ability of a scrutineer to assess the information contained on the voting paper to assess its formality or otherwise. Either separation would, arguably, breach Section 151(c) of the OLNLGE. 

“All the proceedings of the scrutiny shall be open to the inspection of the scrutineers.” 

42.	It was also asserted that one of the polling officials had been observed accepting a ride in one of the vehicles of one of the candidates. The official was stood down but returned later in the scrutiny. One polling official deposed that he observed piles of votes being distributed to the wrong candidate.

43.	Another asserted that the presiding officer unreasonably rushed the count so that there was a likelihood of error in the count. It may well be that the concatenation of those errors and omissions would require a recount in any event. In the present case the inclusion in the count of a candidate disqualified from being nominated or elected suffices to render the declared result of the election unsafe.

44.	The fundamental uncertainty can be illustrated by a simple example. If candidates A, B and C remain in the penultimate count it may be that the next preferences of B would overwhelmingly favour C whereas the next preferences of C would overwhelmingly favour A. Whether B or C is the final candidate to be eliminated is vital to the ultimate result.

45.	The flow on effect of the elimination of Mr Yali’s first preference votes at the primary count and thereafter his second preferences if they became live, cannot be readily predicted.  It followed that the election must be declared void.

46.	It should be emphasized that this result is not the fault of either petitioner.  It is that of the Electoral Commission.

ORDERS

(1)	Mr. Yali is to pay the costs of the 1st Respondent to his petition.

(2)	The 2nd Respondent to bear its own costs.

(3)	Mr. Singirok’s petition is upheld; the declaration of the poll and return of the writ set aside and the election declared void. 

(4)	The 2nd Respondent is to pay the costs of Mr. Singirok and the 1st Respondent.           

(5)	There will be a recount of the votes cast conducted in accordance with these reasons.

47.	The Court makes orders accordingly.

____________________________________________________________
Ninege Lawyers: Lawyers for the Petitioner, James Yali
BS Lai Lawyers: Lawyers for the Petitioner, Jerry Singirok	
Lomai & Lomai Attorneys: Lawyers for the First Respondent	
Kimbu & Associates Lawyers: Lawyers for the Second Respondent