Lack of consistency among judges

 Moresby Northeast MP Labi Amaiu can heave a big sigh of relief after beating the second petition contesting his election win.

Justice Don Sawong yesterday dismissed the petition by John Kaupa on grounds of competency, the same grounds used to dismiss an earlier case against Amaiu.

While Amaiu can proceed uninterrupted with his electoral and parliamentary duties now, we are compelled to use this case in point to comment on the manner in which the court has handled election petitions.

There appears to be no uniformity at all over all the decisions.

For some, like that of Kaupa yesterday, the matter has been dismissed on technical grounds before the substance of the matter has been discussed before the court to the satisfaction of petitioners, res­pondents and the voters.

Other presiding jud­ges have pointed out various technical errors and omissions in petitions but allowed  the matter to proceed to trial so that all matters, the substantive arguments as well as technical matters, can be discussed.

So which rule is it? 

We must be told.

The Kaupa versus Amaiu and the Electoral Commission case provides an inte­resting case in point.

The whole case has been bundled out because of an offending paragraph (15). 

The paragraph begins with the word “alternatively” … and that unfortunately put paid to the entire exercise.

A petitioner is not permitted to plead “alternative grounds” in a petition. 

Justice Sawong was also powerless to strike down the offending paragraph be­-

cause to do so would amount to an amendment to the petition and the time for amendments to petitions had long passed.

So deciding, he judged the whole petition to be incompetent and dismissed it with the comment it was “unne­cessary to consider the other issues”.

The other issues are, to our mind, most significant and call for closer scrutiny.

The election winner, Amaiu on 8,673 votes was only 14 votes ahead of the runner-up, petitioner Kaupa who polled 8,659.

Kaupa petitioned alle­ging that 12 ballot boxes were not counted which contained 9,748 votes. 

The petitioner claimed the votes could have made a difference to the final result. 

It might and it might not have but that ultimate test was never arrived at.

Scores of petitioners have suffered the same fate. 

Their cases, some meticulously put together at great cost – and this immediately following the major expense of an election – to put together a petition because they have felt the election was fundamentally corrupted in certain areas, sufficient to affect election outcomes. 

This is no secret and va­rious reports have pointed to anomalies, errors, omissions and downright fraudulent behaviour.

Some of those issues should be discussed in open court, if not for anything then at least to expose the fraud, so that it is not repeated.

We can appreciate the anxiety of the courts which are limited by manpower and there were more than 100 petitions after the last elections.

But if a court rule must be applied, it must be applied uniformly right across the board affecting all petitions.  

The greatest danger we see is this: Nobody will be scared of foul play in future elections, including in the forthcoming local level go­vernment elections. 

In fact, political aspirants would be encouraged and emboldened to engage in foul play. And why?

You guessed it: Win at all cost and the rest can be sorted out in the court of disputed returns later  with the most likely outcome being that the petition would be thrown out on technical grounds.

Electoral officers who have aided and abetted in foul play will be also embolden­ed, rather than be scared out of their wits, to repeat their devious work.