WITH the recent controversies surrounding the 2017 general elections, many people are suggesting they should be declared failed.
So what does the law say about failing an election?
The laws governing our elections are provided under Organic Law on National and Local-Level Government Elections.
An organic law is a special type of law established by our constitution. The term organic comes from the fact is originated from our constitution that is unique to PNG and not adopted from other countries - most of our laws camed from Australia. For instance our criminal code was adopted from the Queensland code.
Section 126 of the constitution states that an organic law shall make provision (procedures) for appointment and procedures of the electoral commission. It includes making provisions for safeguarding the independence and integrity of the of electoral system, conducting of elections and right to dispute elections.
So in accordance with Section 126 of the constitution, parliament passed the Organic Law on National and Local-Level Elections.
It provides detailed laws (legal procedures and processes) on the appointment and powers of the electoral commission and how elections for National and Local-Level Governments (LLG presidents and ward councillors) are to be conducted.
Section 96A of the Organic Law on National & Local-Level Elections provides for the cancellation of an election.
It states that the Head of State (Governor General) may, acting on the advice of the Electoral Commissioner cancel or fail an election. However the Electoral Commissioner may only give such advice if acting on the recommendation of Election Advisory Committee.
This recommendation can only be based on circumstances where the Advisory Committee is of opinion that the proper conduct of elections in that electorate is not practical (possible).
So what happens if an election is declared failed?
Where an election for a particular seat or seats are failed or cancelled then the Electoral Commissioner must conduct a fresh election as soon as possible or in the opinion of Electoral Commissioner a time that is is practicable to do so.
So what happens to the sitting Member?
His/her terms expires after the date for the return of writ - this being 24th July 2017.
If the election is failed and writ is cancelled then their term expires on the 5 year anniversary of the date set for the return of writ for the previous elections (2012) 1st August 2012.
So by virtue of Section 104 of Constitution a Member of Parliament takes office the day after the date set for return of writ and his or her term expires on the day fixed for the return of writs for next election.
So this confirms that all Members of Parliament contesting elections as candidates are technically still Members of Parliament. They assumed office on 2nd August 2012 the day after the writ for 2012 General Elections was returned (1st August 2012) and their term will expire on the date set for return of writ for 2017 General Elections being 24th July 2017.
So what happens if an election is failed and date set for the return of writs is cancelled?
Well the date set for the return of writ is on 24th July 2017 so irrespective whether the writ is cancelled the sitting members term in office expires on the date consistent with 5 year anniversary of his/her term in office. The seat would be declared vacant pending supplementary election (By-Election).
So an election can only be failed by the Governor General acting on the advice of the Electoral Commissioner who is acting on the recommendation of the Election Advisory Committee and that recommendation can only be based on circumstances where it is not possible to conduct proper elections.
What would constitute circumstances that would not be possible to conduct proper elections?
Well in my opinion if the integrity of an entire election was completely compromised or materially affected - that is to say evidence of wide scale illegal practices, errors or irregularities that would significantly effect the outcome resulting a corrupt candidate being elected.
Examples may include:
- destruction or hi-jacking of a large number of boxes that would favor particular candidate:
- major natural disaster or civil unrest in the electorate preventing a third or half of the registered voting population from voting:
- many people (20%) not registered on the common roll would not be circumstances that would prevent a proper conduct of an election.
While it is an issue of concern the Organic Law also states no person may challenge an election based on the correctness of the Common Roll. This because the Common Roll will always be subject to human error and never be completely correct.
So who are the Election Advisory Committee?
Section 96C of Organic Law on Elections provides for establishment of Election Advisory Committee made up of three members:
1) Chief Ombudsman Commissioner (or his nominee)
2) A person nominated by Board of the Transparency International (PNG) Inc.
3) A retired judge or lawyer appointed by Electoral Commissioner after consulting Chief Ombudsman Commission and Chairman of Transparency International (PNG) Inc.
If there is one positive thing the Electoral Commissioner Gamato has done it was to re-establish the Committee to provide him advice in conducting the 2017 Elections.
The three members include:
1) Richard Pagen -Ombudsman Commissioner
2) Richard Kassman founding director of Transparency International PNG
3) Professor John Luluaki a lecturer at UPNG Faculty of Law
All three persons are prominent Papua New Guineans with impeccable standing and reputations in their professions.
While the it is beyond doubt the 2017 election has been poorly organised it does not yet warrant or justify failing the entire elections.
It is my view there is still hope that good and honest candidates will be elected.
Candidates still have the right to petition the Returning Officers and Advisory Committee to set aside boxes that have been comprised during the conduct of polling.
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| Unitech ballot papers burning in Lae during the Papua New Guinea general election. Image: PSK/PMC. |
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