SO WAS THE DECISION TO DISMISS SHP ELECTION PETITION THE CORRECT ONE?

by BRYAN KRAMER

On Thursday (14/6/18) Waigani National Court dismissed an election petition challenging the 2017 General Election result of Southern Highlands Regional Seat.
The petition was filed by the runner up Joseph Kobol challenging Electoral Commissioner's (EC) decision on 28th September 2017 to declare the sitting Member William Powi as the winning candidate.
EC issued press statement on its website explaining that upon legal advice, the Electoral Commissioner Patilias Gamato applied section 175 of the Organic Law on National Elections under “special circumstances” to use the primary count (1 vote) results to confirm the declaration made by the former Provincial Returning Officer Jacob Kurap on Friday, 20 July 2017 at 4:04pm at the Momei Oval in Mendi.
"Tally calculations from counts 1 – 462 showed and justified that William Powi exceeded the required absolute majority with 91,745 primary votes to reclaim the SHP Provincial seat. Absolute majority was set at 86,761 plus one" statement said.
Joseph Kobol was declared the runner up polling 60,131 votes while Jerry Kiwai was third with 40,411 votes.
So was the decision even lawful?
The short answer is No.
The decision exercised by the Electoral Commissioner (EC) Patilias Gamato in declaring Powi the winner is perhaps the worst abuse of power by EC I have ever come across.
I say this based on the following facts:
1) Total ballot-boxes for SHP seat was 650 containing a total of some 420,000+ marked ballot-papers.
2) However, in declaring the Powi the winner the EC only considered ballot-papers contained in 462 ballot-boxes. This means the remaining 188 ballot-boxes were excluded.
3) According to the EC press statement it claimed Powi having secured 91,745 votes had exceeded the absolute majority of 86,761 votes and therefore declared the winner.
An absolute majority of votes is equal to 50% or half of the total number of ballot-papers counted. So when a person secures more than 50% of the votes counted he is declared the winner.
In this case EC is saying the absolute majority was 86,761 votes this means the total ballot papers counted would be equal 86,761 x 2 = 173,522.
4) If this was correct then of 420,000 votes cast 173,522 would only represent 41% with 59% or 247,500 of the votes were ignored.
5) Where it becomes interesting:
On 11 May 2017 the EC commenced counting at Momei Oval.
On 26th July 2017 Counting officials had completed counting boxes 1- 462 boxes. The tally after count 462 was as follows:
1st William Powi – 91,745 votes
2nd Joseph Kobul – 60,131 votes
3rd Jerry Kivai – 40,411 votes
On 27th July 2017 the Returning Officer for SHP Provincial Seat Jacob Kurap abandoned the counting and traveled to Port Moresby with William Powi to ask the Electoral Commissioner to declare William Powi as member elect for Southern Highlands Province on 28th July 2017.
On 1st August 2017 the Electoral Commissioner issued press statement confirming the same and his decision to refuse to declare Powi on the basis he did not achieve the absolute majority of 50% + 1 as required under LPV.
Extracts from his press statement include:
"As such I have NOT recognized William Powi as duly elected Member-elect for Southern Highlands Provincial Seat simply because the counting process has not been completed"
"And as of yesterday, Monday 31 July 2017, I have appointed an Acting Provincial Returning Officer in Michael Ariando who’s the Returning Officer for Ialibu-Pangia Open electorate to continue counting, complete and make declaration."
"I have made the decision that counting for Southern Highlands Provincial Seat will continue and complete all the remaining 188 ballot boxes and those ballot boxes objected to be identified and set aside."
Electoral Commissioner confirmed in his press statement there was 650 boxes and 188 ballot-boxes remain uncounted. He also confirmed that the total number of ballot papers counted in the 462 ballot boxes stood at 306,772 and absolutely Majority calculated was 153,386. (306,772 x 50% = 153,386).
The Electoral Commission also stated he was aware that the Election Manager for Southern Highlands David Wakias has gone outside of Electoral Commissioner’s powers to appoint a new Provincial Returning Officer and they have counted about 33 or 34 boxes.
"I must make it very clear that this is ILLEGAL and so when Michael Ariando takes over the count, he will do quality check on those 33 or 34 boxes and continue to count the balance" EC said.
An interesting point is he announces he has appointed Returning Officer of Ialibu-Pangia Open Seat- the same Returning Officer in charge of Peter O'Neill's election which was also considered to be conducted illegally.
Wait a minute, so on 31st July 2017 EC rejects the request to declare Powi after the counting of same 462 boxes where the total ballot papers counted was said to be 306,772 and the absolute majority was 153,386.
So where did the absolute majority figure of 86,761 the EC used to declare Powi come from?
Why did the EC declare a candidate when they were yet to count another 188 ballot-boxes.
The EC claimed acting on legal advice, he applied section 175 of the Organic Law on National Elections under “special circumstances” to use the primary count results to confirm the declaration based on the former Provincial Returning Officer Jacob Kurap.
Does the EC even have such powers and what does section 175 of the Organic Law on Elections say?
Section 175(1A) give special powers to the Electoral Commissioner to direct the Returning Officer, following the completion of counting, not to declare a candidate the winner and if the RO after receiving a direction from the Electoral Commissioner ignores his direction and still goes ahead then the declaration is null and void (no legal effect).
Section 175(1A)(b) states in special circumstances Electoral Commission may declare the winner based on information concerning scrutiny (counting) and other information provided by the Returning Officer (RO) or an Assistant Returning Officer (ARO)
It is important to note that this provision (section) in my view was intended to protect the elections in cases where the Returning Officer abused his powers and tried to declare the wrong candidate; or made an error in counting boxes that should not have been counted.
In such circumstances the Electoral Commissioner could invoke powers under Section 175(1A) to direct RO not to declare the winning candidate until he is satisfied the results following the counting are in fact correct.
While Section 175(1A)(b) gives the powers to the Electoral Commissioner in the event the RO refuses to cooperate he may request information from RO or ARO to determine whether the results of the counting was correct and if not then declare the correct candidate himself.
These powers are necessary because the normal practice by law is for the RO to declare the winning candidate and not the Electoral Commission. Thus Section 175 of Organic Law on Elections gives EC special powers to step in.
It is clear that the intent of this law (Section 175(1A) is in circumstances where the counting has been completed and before a declaration of winning candidate is made.
In the case of the SHP election, the counting wasn't anywhere near complete.
Further the EC states he made this decision to declare Powi based on primary votes provided by former Returning Officer Jacob Kurap, results he initially rejected and the RO he also sacked for asking him to declare Powi relying on the same results.
So why did the Electoral Commission declare Powi even though he didn't reach the absolute majority and why did the National Court dismiss Joseph Kobol's petition?

This is part 2 in which I will provide further details of the counting process to explain what exactly happened between the EC decision on 28th July 2017 to initially reject the request by the then Returning Officer Jacob Kurap to declare Powi and the decision two months later on 28th September 2017 declaring him, relying on the same results.
Please note the information I relied on was based on evidence submitted by Petitioner in the National Court ruling - evidence that was never disputed or tested at trial.
Following the decision by the EC on 28th July 2017 he issued an instrument revoking the Returning Officer (RO) Jacob Kurap and appointed Michael Ariando former RO for Ialibu Pangia Open Seat.
On 30th July 2017 counting for the SHP Regional Seat resumed. By 1st August 2017 a further 102 boxes were counted bringing the total to 564 out of 650 ballot-boxes for SHP Seat.
The remaining 88 boxes were disputed set aside by former RO.
On 6th August 2017 due to security reasons the new RO then transferred the candidates ballot-boxes containing the counted ballot-papers to Mt. Hagen.
On 8th August 2017 the EC then directed the EC SHP Regional Manager to transfer the ballot-boxes to Goroka.
However, due to protests by candidates and scrutineers the ballot-boxes remained locked down in Mt. Hagen.
Powi and Kobol then filed court proceedings in the National Court over the decision of the RO not to count the remaining disputed boxes and whether they should be counted.
Powi filed application seeking interim orders to restrain the RO from carrying out quality check of ballot-papers counted from 564 ballot-boxes. He also sought orders that the remaining disputed 88 ballot boxes be moved to Mt Hagen and counted.
On 9th August 2017 the National Court refused the application by Powi. On the same date EC revoked the appointment of new RO Michael Ariando and appointed Steven Kaupa in his place.
On 15th August 2017 National Court granted orders sought by Kobol directing the RO and EC to take meaningful steps to immediately complete the counting process and declare the winner.
Some two weeks later on 26th August 2017, the RO and EC recommence the counting process, excluding 88 uncounted boxes and carrying out quality check of the ballot-papers from the counted 564 boxes.
Following the quality check the tally of the top candidates were as follows:
1st William Powi 105,840
2nd Joseph Kobol 79,052
3rd Jerry Kiwai LLG 50,823
Total formal ballot-papers 378,530 and the absolute majority 189,265 plus 1 = 189,266.
Total formal ballot-papers is equal to total ballot-papers counted less any informal (improper) ballot-papers.
At this stage Powi on 105,840 primary (1) votes had not yet reach the absolute majority of 189,265 required to be declared the winner.
Where a candidate does not reach the absolute majority after counting all the primary votes then the LPV elimination process is carried out - where the candidate who finished last after primary count is first to be eliminated from the counting. The ballot-papers in his box or tray are removed and distributed to the remaining candidates based on the voters second choice candidate - the candidate who secured their number two vote.
In this case of the 25 candidates who contested the 2017 SHP Regional or Provincial Seat, the last place candidate following the primary (1) vote was Ruben Kunjap on 117 votes.
117 ballot-papers in his tray would have been distributed among the other candidates who finished above him - then the next candidate who is second last is then eliminated and so forth.
This process is repeated until the a candidate reaches the absolute majority. So whether or not Powi or Kobol won, would have come down to the which one of them secured the highest number of preference votes (2's or 3's) to reach the absolute majority and declared the winner.
At this stage Powi was leading Kobol by the margin of 26,788 votes. (105,840 - 79,052) this is certainly a commanding lead, whether or not Powi would have still won had the proper process been completed I will discuss in part 3.
On 13th September 2017 RO called for a meeting of all candidates, their scrutineers and election offices at Mt Hagen Highlander Hotel to provide an update following the quality check and discuss the disputed 88 boxes that were set aside by former RO Jacob Kurap.
It is claimed that the majority of the candidates who attended the meeting agreed the boxes should not be counted. RO said he would take up the issue with EC to confirm an answer and they would meet again on 25th September 2017.
However, no response was provided, the Petitioner claimed when he followed up with the Electoral Commission he was told the Commissioner was on recreational (stress) leave.
On 27th September 2017 the RO and William Powi were in Port Moresby, RO and EC declared Powi as the member elect for SHP Seat relying on the results provided by the sacked Returning Officer Jacob Kurap.
So what was the EC position about the 564 ballot-boxes?
Following the declaration of the Powi the EC released a press statement that he had rejected results of counts 463-564 on grounds that the electoral process was hijacked and the 102 ballot boxes counted were tampered with and the figures and people’s choices were altered. He ordered that a total of 65,058 votes be removed from the tallies of candidates.
Extracts from his press statement include:
"The 84 remaining ballot boxes which were not counted and locked up at the Mendi police station approximately contain 130,135 ballot papers are now considered as informal ballots."
"Total eligible voters for the Southern Highlands, as per the number of ballot papers issued for 650 ballot boxes for the province, is 436,907."
"Meanwhile, Mr. Gamato has expressed grave concern that the long delay in completing the counting process for Southern Highlands Provincial seat has resulted in the province not having a legitimate head of the Provincial Government or Governor."
“Southern Highlands is now experiencing some law and order problems, governance issues and service delivery difficulties.”
“Basic social services such as health, education, and the public service machinery are now being affected and soon will come to a complete standstill which is bad for one of the most important provinces in PNG.”
“As Electoral Commission, we have the responsibility to put in place a legitimate government for SHP through the electoral process,” Gamato said.
"He pointed out that since the appointment of Steven Gore Kaupa as the PRO for Southern Highlands in August and transfer of funds to retrieve, scrutinize and count the 84 ballot boxes locked up in Mendi, there has been further delays."
“I am informed that attempts to retrieve the 84 ballot boxes in Mendi have failed after the National Court ordered them to be included for count in Mt. Hagen as a direct result of actions by some candidates to stop the retrieval.”
"Commissioner Gamato confirmed that there are new information and photographs coming out showing strong resistance by supporters of some provincial candidates not to retrieve the 84 boxes."
“This is extremely serious and I am concerned that it will only further delay the process of counting.”
End of press statement ////
So why didn't the RO just complete the elimination process to determine the winner based on 564 counted ballot-boxes?
I suspect Powi took issue with the fact the 88 disputed boxes came from his strong hold and he was concerned if excluded he would lose.
There are six contentious issues at this stage:
1) Whether Powi had ever reached the absolute majority to be declared the winner.
Evidence of the EC's own press statement on 1st August 2017 confirms after counting 462 ballot-boxes the total formal ballot-papers was 306,772 and the absolute majority was 153,386.
This is also supported by the evidence submitted by Kobol in the election petition court proceedings. There is no evidence to support the EC decision to declare Powi on 91,745 by claiming he exceeded the absolute majority of of 86,761.
2) Was the decision to exclude the 88 ballot-boxes lawful? - If not what is the lawful process to set aside ballot-boxes during the counting process?
3) Would Powi have still won even if the elimination process was completed?
4) Was it the correct decision in law for the National Court to dismiss the petition?
5) Does Kobol have stong grounds to have the Surpeme Court reinstate his petition?
6) Was the decision by the EC amount to election fraud and should he be investigated and charged?
While I've provided the answer to the first issue, issues 2-6 I will explain in the next series of articles.
Picture of Powi and Jacob Kurap in Port Moresby at the initial attempt to declare him - a decision the EC rejected.