NATIONAL COURT ORDERS RE-COUNT FOR MADANG OPEN

By BRYAN KRAMMER

The National Court in Madang yesterday (6/8/14) ordered a recount of the Madang Open By-Election. The Court upheld Petitioner Peter Yama's election petition disputing the election of Minister of Petroleum and Member for Madang Nixon Duban. Yama disputed the Duban's election on several grounds of errors and omissions (irregularities) by PNG Electoral Commission in conducting the polling and counting of the By-Election.
The Trial Judge Sakora sustained the following grounds contested in Yama's petition.

1) Lack of security during polling - the By-Election was conducted without police presence.

2) Two ballot-boxes were destroyed outside the police station.

3) The Returning officer and his Assistant Returning Officer defied written instructions by the Electoral Commissioner Andrew Trawen not to participate in the counting after the preliminary count.

4) Returning Officer refusal to include 6,116 ballot-papers discovered by Yama at his mother's grave at the Town's cemetery.

5) Unused ballot-papers found in the vehicle of the Assistant Returning Officer hired by vehicle.

6) The scrutineers did not sign off Form 66A (primary vote count) before the transfer to Form 66B (preference votes).

7) Re-polling conducted at the two wards, 4 and 21 figures were not made available to the court by the Returning Officer.

8) Duban's declaration was done in haste without informing the other candidates and public when the declaration was made.

Yama sought orders for a manual recount under the supervision of Lae Police and that 6,116 ballot-papers he discovered be included.

The Court granted Yama's request for a recount and that 6,116 ballot-papers be included. The Court ordered the recount be conducted no later than 22 August 2014.

Parties return to Court on Monday to make submissions on the process of the recount whether manual or electronic and the security measures to be put in place.

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This is Yama's third successful court challenge seeking orders for a recount. In 1987 Yama contested the Madang Provincial Seat. Melchior Kasap was declared the winner on 10,572 votes. The former Member Tom Pais finished 2nd on 9,756 and Yama finishing 3rd on 9,614.

Yama took the matter to court seeking a recount claiming errors and omissions by the PNG Electoral Commission. Kasap disputed Yama's petition claiming he did not finish in 2nd place and has no right to challenge. Yama' claimed he had the support and blessing of the runner up Tom Pias who could not afford to go to court. It was reported during the trial Tom Pais was sitting under the Talis tree observing the court proceedings. In the end the National Court upheld Yama's petition ordering a recount.

Following the recount Tom Pais as declared the winner on 11,104 followed
Melchior Kasap on 10,785 and Peter Yama 10,079. The National Court declared Tom Pias the duly elected Member. Yama and Kasap then took Tom Pais to court arguing the was not party to the court proceedings and the Court has no powers to declare him the winner. In the end the Supreme Court upheld he National Court's decision and dismissed Yama and Kasap's appeal.

In 1992 Yama contested the Sumkar Open, one of the six open seats in Madang Province. He was successful and elected into Parliament as first time MP.

In 1997 National Elections Yama lost the seat to Mathew Gubag he challenged the decision in the National Court but his petition was struck out for want of prosecution. Yama appealed and his petition was in reinstated by the National Court. The PNG Electoral Commission then challenged the decision in the Supreme Court (SC). The SC overruled the National Court dismissing Yama's petition.

In 2002 National Elections Yama contested the Usino-Bundi Open Seat another electorate in Madang Province and was elected back into Parliament.

In 2007 National Elections Yama decided not defend his seat and instead contest Madang Provincial Seat. He finishing 3rd behind Jim Kas in 2nd place. Sir Arnold Amet was declared the winner. The difference being more than 10,000 votes.

Yama then challenged Amet's election in National Court on allegations of bribery and undue influence (false statements) levelled against Sir Amet and errors and omission by the PNG Electoral Commission, again requesting a recount. The bribery charges were later withdrawn by Yama the errors and omission allegations were struck down during the course of the trial. In the end the National Court trial judge Sakora only upheld undue influence charges finding Sir Amet guilty of undue influence (making false statement) during the election campaign period. The judge ruled.

• Sir Arnold Amet made derogatory remarks which, viewed together with his standing as former Chief Justice and his Christian beliefs, amounted to undue influence. The alleged comments by Sir Amet include:

"You people of Kevasop should not vote for leaders who have 2 or 3 wives".

Yam claimed Arnold Amet knew that persons with more than one wife can become members of Parliament yet he made the statement to induce the electors to refrain from voting Peter Yama.

• Nick Mare campaign committee member of Sir Arnold made derogatory remarks that amounted to undue influence. Alleged comments by Nick Mare were:

"You all of Sungilbar continue to be out of your mind in choosing a man. The man you support had already contested the Sumkar Electorate and he contested the Usino Bundi and now he wants to contest the Madang Regional Seat. This man you support is a Highlands man. You must be out of your mind to support a Highlands man like him. You must vote for Amet a local man "Peter Yama is a Highlands man and if you vote for him and if he wins, Madang town will be taken over by the Highlanders".

• Sir Michael Somare made derogatory and sensitive remarks which, in the context of his status as Prime Minister with wide political and leadership influences, amounted to undue influence. The alleged comments made by Sir Somare include:

"Don't vote for a man like Peter Yama . Peter Yama is a thief and he cannot change Madang Province and the Party he has set up cannot change Papua New Guinea. Vote for National Alliance man Arnold Amet for the Madang Regional Seat".

The Sakora voided Sir Amet's election and ordered a By-Election. Sir Amet challenged the decision in the Supreme Court. The Supreme Court ruled that Yama's petition was incompetent and should have not proceeded to trial. Further there was lack of evidence to prove beyond doubt that Sir Amet committed undue influence. The Supreme Court overruled the National Court decision and reinstated Sir Amet.

In 2012 Yama contested Usino-Bundi Seat. He finished third behind the former Member Anton Kuli and current MP Anton Yagama. Yama disputed the results of the election in the National Court seeking a recount. The trial Judge Justice Cannings upheld Yama's petition on the grounds the appointment of the acting Returning Officer was defective in law. The Judge ordered a recount that resulted in Anton Yamaga being reconfirmed the winner. Yama then appealed the decision in the Supreme Court,. The SC up-hled the decision National Court. Right about the same time National Court upheld my Petition against Duban find him guilty of bribery and fraud and ordered a By-Election.

Yama contested the Madang Open 2013 By-Election. He finished third behind myself and Duban. He challenged the result in the National Court and Sakora has ordered a recount.

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Post Analysis of the Court ordered Recount

It's reported that Duban and PNG Electoral Commission lawyers argued against the recount on the grounds it would not affect the result of the Election. Duban polled 18,226 votes followed by myself on 7,805 and Yama on 5,604. A difference of 10,412 between 1st and 2nd placing.
Yama argued the result was likely to be affected relying on disputed boxes destroyed outside the Madang Police Station and 6,116 ballot-papers he discovered.

On the last day of polling, two ballot-boxes were destroyed while being transported back to Jomba Police Station. Ballot-box for Polling Team #4 containing 1,045 tallied ballot-papers was destroyed in the car-park of the Town Police Station by supporters of candidates after it was suspected of being tampered with while being irregularly transported by sea from Sagalau polling location. Ballot-box for Polling Team #18 containing 979 tallied ballot-papers was destroyed in the car-park outside the Jomba Police Station on the suspicion of vote tampering.

PNG Electoral Commission carried out re-polling for those locations so the issue was corrected.

Typically the Courts will disqualify any ballot-box interfered with or that the contents of the box were in any way tampered with. So it is unprecedented for the National Court to order 6,116 ballot-papers discovered in the open (outside ballot-box) in a public cemetery, in a possession of candidate for over 8 months to be considered in a recount.

I had the opportunity to inspect the 6,116 discovered ballot-paper and 98% of them are marked in favour of Yama. Even with their inclusion brining Yama's total total votes to 11,000 it is not likely to effect result of the election. So why bother with a recount?

The request for a recount was also one of the grounds in my petition, Consequently it will no longer be considered if my Petition is reinstated by the Supreme Court.

To give a better definition of the issues surrounding the request for recount I will provide details of the grounds pleaded in my petition, some of which were also contested in Yama's petition and upheld by the Court.

I alleged that the errors and/or omissions committed by the PNG Electoral Commission impaired and tainted the integrity, impartiality and independence of the entire election process. The results of the election that led to the declaration of Duban was inherently unreliable and is likely to be affected.

This view was supported by the following grounds.

Ground 1 - Irregularities Errors and/or Omissions in the Conduct of the Polling.

(a) The Returning Officer Adolf Duangha appointed by the PNG Electoral Commission conducted the polling without first ensuring police were engaged to provide adequate security offending against Section 126 of the Constitution to ensure the safeguarding of the integrity of the elections.

(b) The failure by the Returning Officer permitting the agents and servants for Duban to take control of transporting ballot-boxes during the polling period.

Ground 2 - Irregularities Errors and/or Omissions in the Conduct of the Counting or Scrutiny (cross checking) of the ballot-papers.

(a) Returning Officer Adolf Duangha and his Assistant Returning Officer Mrs Emma Laviong acted outside their powers by unlawfully denying the candidates scrutineers from open inspection over the entire scrutiny process offending against Section 151(c) of the Organic Law on National & Local-Level Government Elections. Insofar as they refused to provide details of the serial numbers of ballot-papers after being petitioned in writing by candidates to do so on three separate occasions;

(b) The Returning Officer undermined and defied the written instructions of the Electoral Commissioner Mr. Andrew Trawen in his letter dated 16th December 2013 which he refused to accept.

Such instructions included;
(i) the usual process of quality check will be done of all the primary votes prior to commencement of elimination process.
(ii) disclose the returning officers journals to candidates scrutineers to confirm the total allowable ballot-papers and their serial number range.
(iii) that the Returning Officer Adolf Duangha and Assistant Mrs. Laviong would not take part in the quality check and elimination process, except for the final declaration.

Thus denying the candidates’ scrutineers their last and only opportunity to conduct proper scrutiny (cross check) over the 39,073 formal votes counted by cross checking the formal ballot-paper serial numbers against the serial numbers recorded in the presiding officers journals.

(c) The Returning Officer and Assist Returning Officer failed to conduct proper scrutiny of the ballot-papers from Ambenob LLG area a total 18,337 allowable or formal ballot-papers in the presence of a respective presiding officers or poll clerks in accordance with Section 154(2) of the Organic Law. Insofar as to confirm the particulars of the returns/journals.
(i) to confirm the security seal tag serial numbers
(ii) to authenticate the presiding officers initials or signature on the back of the ballot-papers.
(iii) to disclose the serial number range of the ballot-papers
(iv) to provide explanation to the ballot-papers disputed by scrutineers that were marked in the same handwriting and pen that appeared in almost every ballot-box and numbering in the thousands.
(v) to provide explanation to the ballot-papers disputed by scrutineers of having the same signatures or initials on the back of the ballot-paper that appeared in almost every ballot-box and numbering in the thousands.

(d) The Returning Officer and Assist Returning Officer failed to declare the disputed ballot-papers marked in up to four sets of the same handing writing that were marked in favour of Duban estimated to be 12,000 in total. as informal and unlawful.

(e) Assistant Returning Officer who was charged with the conduct of polling in the Ambenob Local-Level Government area and scrutiny over the ballot-papers, her appointment was irregular and improper.
She displayed serious apprehension of bias during;

(i) the scrutiny of disputed ballot-papers marked in favour of the Duban that were disputed by the candidates scrutineers.
(ii) accepting disputed ballot-papers printed without serial numbers that were marked in favour of Duban.
(iii) On 7th December 2013 ordering the Mobile 6 Police Commander to stamp down the scrutineers objections over the irregularities of the scrutiny process, namely ballot-papers with same handing writing. The Commander in turned threatened and intimidated the scrutineers to throw them over the fence.
(iv) Her continued refusal to provide any explanation to the scrutineers’ disputes or objections.
(v) The unused ballot-papers were uncovered in her vehicle which she could not provide an explanation for.

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So the issue will come down to whether the recount ordered by the Court will be conducted properly providing open inspection to the candidates scrutineers and disclosing the serial numbers to put to rest the validity of the thousands of disputed ballot-papers. If set aside would likely affect the result of the election.

By law Section 171 of the Organic Law on National & Local Level Government Elections "The officer conducting a re-count may, and at the request of a scrutineer shall, reserve any ballot-paper for the decision of the Electoral Commission"

This will also provide confirmation on whether the 6,116 ballot-papers discovered Yama are also legitimate. If illegitimate then the recount process will detect a duplication of ballot-papers with the same serial numbers. Although ordered by the Court to be included they are still subject to the scrutiny process and if disputed by law can be set aside.

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There are those that form the opinion Duban was mandated by an overwhelming majority of the people of Madang and should be allowed to continue in office.

So why would anyone in their right mind believe the Madang By-Election results were anything but legitimate. To set aside the allegations of vote rigging and errors and ommissions against the PNG Electoral Commission let's look at the historic data.

Madang Open is on record as being the most marginal seat in the Country. Meaning it is the most heavily contested and divided seat to win. The percent of votes to win is 23% of the total votes polled. The average winning margin in other seats is around 40-50%.

In 2007 General Elections when the Limited Preferential Voting (LPV) system was introduced the former MP Buka Malai won the seat polling 8,512 votes (4,579 primary or 1st votes & 3,933 preference or 2's & 3's votes) out of 35,111 people who voted. The marginal percentage being 24%. (8,512 winning margin divided by 35,111 formal votes = 24%). Duban was was the runner-up polling 7,239 votes. (3,587 primary votes & 3,635 preference votes).

In 2012 General Elections, Duban won the seat polling 8,483 (4,592 primary votes & 3,891 preference votes) or 23% margin of the total formal votes (36,404). I was the runner up polling 7,939 votes. (2,498 primary + 5,441 preference)

Prior to the LPV system the former Member Alois Kingsley and before him Jacob Wama won the election on 3000+ The wining margin being as low as only 10%, because back then it was first past the post a candidate who scored the highest primary vote (1st vote) was declared the winner.

Based on 2007 and 2012 elections the average winning result for the Madang Open Electorate is around 8,500 votes or 23% of the total formal votes cast. Average of 4,000 primary and 4,000 preference votes.

In 2013 By-Election, after only nine months in office before being found guilty of bribery and undue influence and his election voided, Duban polled a record 15,373 primary votes. This result was more than three times what he polled in 2012 General Elections (4,653). His total votes of 18,226 was 47% of the total formal votes and more than double what he polled in 2012 (8,483).

These results are unprecedented. Even veteran or seasoned MP's in parliament serving three or four terms fail to secure such a convincing win.

So the question remains did the people of Madang actually vote for Duban or was the entire Madang Open By-Election rigged?? Hopefully the Court ordered recount will provide the answer.