Disenfranchised at high price: PNG’s electoral roll woes

Getting feedback from a scrutineer about names missing from a roll (Commonwealth Secretariat/Flickr CC BY-NC 2.0)
Getting feedback from a scrutineer about names missing from a roll (Commonwealth Secretariat/Flickr CC BY-NC 2.0)
Written by Sam Koim

Nine consecutive elections held since independence and yet Papua New Guinea is still struggling to update its common roll on time for elections. As polling gets underway in PNG, complaints of common roll discrepancies are emerging from across the country. In a kneejerk reaction to these complaints, the Electoral Commissioner issued an instruction to revert to an updated version of the 2012 rolls. This is despite earlier assurances that everything was under control.

The opportunity to exercise the voting franchise comes every five years and the Electoral Commission (EC) has that number of years to prepare for the elections. Subject to very limited qualifications, section 50 of the Constitution of PNG confers on the citizens of PNG the inalienable right to stand for public office and vote. The EC is mandated to administer the process of exercising that right in democratically held elections. The EC has the duty to ensure that the practical application of the electoral laws protect and advance the entitlement conferred by the Constitution. It must not be used to defeat that franchise.

The Organic Law on National and Local-Level Government Elections (OLNLLGE) demands in mandatory terms that all persons who are qualified by law to vote must be enrolled prior to polling. Since the last polling, there may have been deaths, movements of people, or voters becoming eligible or ineligible. An updated roll is therefore necessary to capture these demographic changes before the next election.

Whilst the voters may be blamed for failing to verify their names against the roll, that is only possible if the EC’s updated roll is accessible as required by law. It is unclear whether ample opportunity was accorded to the voters to check the roll.

For those who were previously registered as voters in an electorate but had their names omitted on the current roll, the law permits the Returning Officers to make alterations to allow them to vote. However, unregistered voters who do not have their names on the current roll are not allowed to vote. Section 61(a) of the OLNLLGE imposes a cut-off point for claims of new names to be registered or transferred to another roll, and that is 4:00pm of the date of issuance of writs. These new names are not allowed to be registered until after the last day of polling.

Section 214 of the OLNLLGE prohibits the National Court from inquiring into the correctness of the roll. The National Court must assume that the roll is correct. That is shattering news for candidates who had not been registered in a particular electorate but are contesting that seat on the understanding that they were either born there or lived there for more than 5 years. They are disqualified at the threshold and there is no redress from the Courts.

The OLNLLGE gives wide powers to electoral officials to conduct the elections and in most cases the Courts are prohibited from intervening until after the results are out. This is not only to allow the elections to run smoothly without interruptions, but more so to respect the professional judgement of those officials. However, when the judgements of these officials are compromised to favour particular outcomes, it is another story.

Many were asking whether the discrepancies in the common roll constitutes grounds for declaring the elections ‘failed’. Section 97 (2) of the OLNLLGE provides two grounds for the Electoral Commissioner to do that, and electoral roll discrepancies is not one of them. In circumstances where no candidate is nominated, or where no candidate is returned as elected, the Commissioner can make that call. This provision is designed to address instances on an electorate-by-electorate basis, not for blanket decisions covering an entire election, although such was the case in the last local level government elections. So the Electoral Commissioner’s powers are limited to those two determinants.

One other issue I find interesting is that there is no specific date for the close of rolls as is found in section 155 of the Australian Electoral Act. The lack of time limitations had provided a breeding ground for laxity to flourish, resulting in the repeated disorganised elections like the present one.

How much have the taxpayers of PNG paid for the common roll discrepancies? For the failed National Identification Card (NID) project undertaken by the National Statistical Office, the government allocated almost AUD 104 million. The EC was also given millions of dollars to update the rolls. This was a duplication of resources but both agencies failed. It is also understood that technical expertise was provided by Australia and New Zealand. With those resources and the availability of technology to do data-matching, this was a terrible failure.

To cover for the failure, the EC is reverting to an older version of the rolls. Arguably, the law does not restrict that. But it would be another issue if the EC is using the 2012 rolls.

In 1997, the principal common roll was not properly updated, hence the then Electoral Commissioner issued Circular Instruction No 26/97 on the eve of polling to revert to the Preliminary Listings of the years prior. 20 years on and the same problem is recurring unabated.

Dreams are shattered, resources are wasted and decisions are on halt –all because someone has failed to do his job. People’s right to vote and stand for public office is robbed by a supposedly independent government institution’s incompetence.

Whatever the outcome of the election is, it will come at a high price for the country. PNG will definitely come out of this election and things will surely get back to normal as they always have been. But I wonder how much longer PNG will continue to tolerate and pay for the same mistakes over and over.

Sam Koim is the former head of Investigation Task Force Sweep and currently a Visiting Fellow at the Development Policy Centre.

Sam Koim

Sam Koim is a Papua New Guinean lawyer whose career has focused on anti-corruption efforts. He was a Principal Legal Officer at the PNG Department of Justice and Attorney General, before becoming Chairman of Investigation Task Force Sweep, PNG’s multi-agency anti-corruption body. He led this body for five years and was involved in investigating and prosecuting corrupt offenders, penalising and recovering unpaid tax, identifying and recovering proceeds of crime, and working with other agencies. He is also a Council Member of the Papua New Guinea University of Technology. He is currently a Visiting Fellow at the Development Policy Centre.

4 Comments

  • A cancellation of a writ under section 96A(2) of the Organic Law might be incorrectly read together with section 97. Section 96A(2) provides that in circumstances “where the Electoral Commission, acting only on the recommendation of the Electoral Advisory Committee, and between the issue of a writ and the declaration of result, if the circumstances prevailing in an electorate are such that a proper conduct of elections in that electorate is not practicable, the Electoral Commission may advise the Head of State to withdraw the writ.” The cancellation of a writ in the circumstance would have the same effect of not having a candidate elected from that particular electorate but that is not the same as a failed election.

    If the Electoral Commissioner, with the advise of the Advisory Committee, is of the view that it is not predictable to have a fair and just outcome of an election in a particular electorate due to the process being subverted etc, he can cancel the writ using section 96A(2) prior to the declaration of results. The grounds for cancelling may vary and the Electoral Commission and the Advisory Committee are not restricted to a particular set of circumstances.

    On the other hand, a failed election under section 97(2) is one where the election is successfully held and writs are returned without having someone elected. The Supreme Court was dealing with a case where the Electoral Commissioner inappropriately invoked section 97 (failure of elections). The Electoral Commissioner did not cancel the writs of LLGs that he considered to have been rigged or corrupted etc. He instead declared all (blanket) elections as failed when there were candidates including councillors and LLG presidents duly elected. That resulted in many parts of the affected areas having two councillors and two presidents as of this date. The electoral commission had created this mess in the LLG elections. In the Western Highlands for instance, you go to a community and call for the councillor and the former councillor and the elected councillor would compete to be recognised.

    The appropriate measure would have been for the electoral commissioner to cancel the writs of individual wards or LLGs prior to the declaration of results if it warranted such a measure. After the results were out, the Commissioner could not have used section 197 which he inappropriately did so in that case. And the Supreme Court proceeded on that wrong premise as well. That is why I hold the view that the Supreme Court erred by reading too much into the law itself. (The full text of the Supreme Court judgement is however not available so this view is based on the excerpts used in a National Court judgement hyperlinked in this article.)

    In the present scenario, if the evidence warrants it, and based on the advice of the Electoral Advisory Committee, the Electoral Commissioner may cancel some of the writs of certain electorates before the declaration of results. That would prompt by-elections which is a very costly exercise and hence such a decision must be justified and made sparingly.

  • Hi Sam
    Thanks for another excellent piece. I’d be interested in a more specific comment on the Supreme Court’s ruling on the ‘failed’ local level government elections as this seems to set a fairly wide precedent. The judgement, while insisting on the equivalent of an “electorate by electorate” basis, indicates that the Electoral Commission’s power to fail an election is “indeed widespread and over-arching”.
    It then gives some examples “For instance, it would be reasonable to fail an election on the ground that a return of a candidate cannot be made for a LLG ward because the election has been totally subverted. Similarly, it would be reasonable to fail an election if it is impossible to make a declaration or return because a substantial number of ballot papers for a particular ward cannot be found or despite reasonable steps taken to find those missing ballot papers, such that a full and proper scrutiny of the votes for the ward in question is impossible. Another example is in a situation where there is widespread violence in a council ward or in a large number of wards which prevents an overwhelming majority of voters from voting for their Councillors or Council Presidents respectively.”
    With potentially 50% of voters not being able to cast a ballot, could that be interpreted as an election being ‘subverted’, especially if there was a political pattern of shortages of ballot papers in certain areas. There would some tools to analyse the degree of “subversion” between the number of ballot papers distributed in certain LLGs or Wards relative to the number distributed in 2012, or the numbers of ballot papers distributed relative to the electoral rolls or the 2011 population census. And possibly a “missing” ballot paper could be considered sufficiently similar to a “non-delivered” ballot paper in a subsequent court judgement – or equivalent to violence preventing voting.
    Hope the 2017 experience doesn’t harm too greatly PNG’s democratic principles which have been broadly up-held, in its own unique ways, since Independence.
    Cheers
    Paul Flanagan

    • Hi Paul,

      Instinctively, the Electoral Commissioner will not fail the election for EC’s own failure. He will attribute the failure to someone else.

      Section 97(2) of the OLNLLGE states that “An election shall be deemed to have failed if no candidate is nominated or returned as elected.” If no candidate is nominated, failing an election is a straightforward result. In the case of no candidate returned as elected, one instance that comes to mind is in circumstances where there is tier of total votes –two last candidates getting equal number of votes which would make it impossible for one to be returned.

      From my limited reading of the Organic Law, I have not found the grounds such as those outlined by the Supreme Court, where the Electoral Commissioner could use to determine that a candidate has not been returned as elected, which would in turn be the ground to fail the elections pursuant to section 97(2). If my reading of the Organic Law is correct, I am of the view that the Supreme Court had delved into judicial legislating. Now that is dangerous for two reasons. Firstly, it offends the principles of separation of powers; and secondly, it opens the floodgates for abuse. In a country like PNG where electoral corruption is rife, the powers of the Electoral Commissioner must be clearly constrained and defined by law which is the case here. The Supreme Court decision however attempts to somewhat acknowledge an unfettered power vested in the Electoral Commissioner by the Organic Law and that can be used conveniently to fail elections arbitrarily and cover up with some lame reasons.

      It is my considered view that the Supreme Court was correct in holding that section 97 can be invoked on electorate-by-electorate basis, but overstepped its bounds by adding grounds that were not provisioned by the law itself.

      The balance of the election discrepancies or ill practises can be taken up in the National Court of Disputed Returns. I understand it is an expensive exercise for many Papua New Guineans but that is how the legislation is designed. In the last elections (2012), 106 out of 111 results of the entire election was disputed in court. That number might increase this time

      The people who will be left without any form of redress are the candidates who have not been registered in an electorate before but contested on the understanding that they were born there or lived there for more than 5 years. Even if the Electoral Officials allow him/her to vote, that is still invalid. The Court cannot assist also because the law prevents the court from questioning the correctness of the roll. Imagine those who may have spent their resources and time campaigning the last 8 weeks only to discover on polling day that their names were not on the roll.

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