By Nemo Yalo
ON Wednesday, 25 July 2018 the Government announced on the floor of Parliament that the Local-level Government general elections (hereafter “LLG elections”) will be deferred to April 2019 because it owes K70m in allowances to LLG members. This it said was based on legal advice.
ON Wednesday, 25 July 2018 the Government announced on the floor of Parliament that the Local-level Government general elections (hereafter “LLG elections”) will be deferred to April 2019 because it owes K70m in allowances to LLG members. This it said was based on legal advice.
Does the law allow for such deferral of the LLG elections? What do the Constitution, the Organic Law on National and Local-level Government Elections (hereafter OLNLLGE) and the Organic Law on Provincial Governments and Local-level Governments (hereafter OLPG&LLG) say?
CONSTITUTION
Section 187C(8) of the Constitution states: “Elections to a Local-level Government shall be conducted, in accordance with an Organic Law, by the Electoral Commission”.
CONSTITUTION
Section 187C(8) of the Constitution states: “Elections to a Local-level Government shall be conducted, in accordance with an Organic Law, by the Electoral Commission”.
Section 37 of the OLPG&LLG reiterates: “Elections for the Local-level Governments shall be conducted by the Electoral Commission in accordance with an Organic Law or an Act of the Parliament”. [Note that the two highest laws expressly state that the Electoral Commission and not provincial governments are to conduct LLG elections.] So, in accordance with which Organic Law?
OLNLLGE
The OLNLLGE (under Part XIX) provides for the conduct of LLG elections. But as to the question of when the LLG elections shall be conducted, Section 299 of the OLNLLGE says:
“Wherever practicable, the term of a Local-level Government shall be the same as and run concurrently with the term of the Parliament, but in order to ensure the effective conduct of respective elections, this may be varied, provided that the date for the return of writs in a general election to Local-level Governments is fixed for a date not later than three months after the date fixed for the return of the writs of the general election to the Parliament.”
OLNLLGE
The OLNLLGE (under Part XIX) provides for the conduct of LLG elections. But as to the question of when the LLG elections shall be conducted, Section 299 of the OLNLLGE says:
“Wherever practicable, the term of a Local-level Government shall be the same as and run concurrently with the term of the Parliament, but in order to ensure the effective conduct of respective elections, this may be varied, provided that the date for the return of writs in a general election to Local-level Governments is fixed for a date not later than three months after the date fixed for the return of the writs of the general election to the Parliament.”
(Section 34 of the OLPG&LLG which stated the same thing has been repealed by Section 299 of the OLNLLGE.)
DURATION OF OFFICE OF LLG MEMBERS
According to Section 299 of the OLNLLGE the term of a LLG shall be the same as and run concurrently with the term of the National Parliament. There are two qualifications as to the timing of the conduct of LLG elections. Firstly, this must be done “wherever practicable”. Secondly, in order to ensure effective conduct of respective elections, the conduct of general elections for LLG members may be varied.
DURATION OF OFFICE OF LLG MEMBERS
According to Section 299 of the OLNLLGE the term of a LLG shall be the same as and run concurrently with the term of the National Parliament. There are two qualifications as to the timing of the conduct of LLG elections. Firstly, this must be done “wherever practicable”. Secondly, in order to ensure effective conduct of respective elections, the conduct of general elections for LLG members may be varied.
However, the key word “provided” in Section 299 places a caveat on the two qualifications. That is, “the date for the return of writs in a general election to Local-level Governments is fixed for a date not later than three months after the date fixed for the return of the writs of the general election to the Parliament.” I discuss this below.
APPLYING SECTION 299 TO THE PRESENT SCENARIO
All things considered, including the manner in which the 2017 general elections to Parliament was conducted and how the date for the return of writs for the general elections to Parliament were deferred more than once, have these affected, (1) the date for the issue of writs for LLG elections, (2) the period for conducting LLG elections, and (3) the date for the return of writs for the LLG elections? Note that Friday 28 July 2017 was the date fixed for the return of writs for 2017 general elections for the National Parliament.
APPLYING SECTION 299 TO THE PRESENT SCENARIO
All things considered, including the manner in which the 2017 general elections to Parliament was conducted and how the date for the return of writs for the general elections to Parliament were deferred more than once, have these affected, (1) the date for the issue of writs for LLG elections, (2) the period for conducting LLG elections, and (3) the date for the return of writs for the LLG elections? Note that Friday 28 July 2017 was the date fixed for the return of writs for 2017 general elections for the National Parliament.
(By then the Electoral Commission only returned 81 writs to the Head of State and by 1 August 2017, 105 writs were returned, see www.pngec.gov.pg.) Accordingly, by the dictates of the last limb of Section 299 of the OLNLLGE, the date for the return of writs for the LLGs elections should have been fixed at a date NOT LATER THAN three months after 28 July 2017.
Section 299 only specifies when the LLG election writs shall be returned. This means that the issue of writs, the conduct and conclusion of polling and scrutiny of votes and declaration of results must happen within that three months period. Applying this proposition the date for the return of writs for LLG elections had to be 28 October 2017 or thereabouts.
Is it practicable to defer the elections? No. The date for the return of writs for LLG elections is pre-determined by a Constitutional Law. That in turn offers guide as to the date to be fixed for the issue of writs for the LLG elections.
Is it practicable to defer the elections? No. The date for the return of writs for LLG elections is pre-determined by a Constitutional Law. That in turn offers guide as to the date to be fixed for the issue of writs for the LLG elections.
Is it constitutional to defer the LLG elections? No. The Government breached the Organic Law by the end of October 2017 when it failed to conduct LLG elections and the serious breach of the Constitution is still continuing.
The Government’s lack of funds to pay accrued allowances for LLG members used as an excuse to disregard the highest law of the land is tyrannical behavior. Why? The Constitution at Section 187C(8) commands the Government to conduct LLG elections in accordance with an Organic Law.
That Organic Law as we know is the OLNLLGE, in particular Section 299 which by specifying when the date for the return of writs for LLG elections is to be fixed has determined when the writs are to be issued, the period within which polling and scrutiny are to be conducted and by when the results are to be declared.
LEGAL IMPLICATIONS FOR LLGS, DDAs AND PROV. ASSEMBLIES
Firstly, the fact that the LLG members’ term of office expired in 2017 means that they no longer continue to hold office. They cannot hold out as ward councilors and LLG Presidents as such thereafter. This applies to nominated members of both the rural LLGs and Urban LLGs. As it is, it is questionable if there is any LLGs functioning at all in Papua New Guinea. There is no provision in law which allows LLG members to continue under this scenario.
Secondly, since their term of office lapsed, LLG Presidents can no longer remain members of their respective District Development Authorities and their respective Provincial Assemblies. In some cases LLG Presidents’ absences may affect the quorum and the sittings of Provincial Assemblies or DDAs. If they are present, the resolutions taken with their participation may be questionable. Where an LLG President was a Deputy Governor he or she should no longer hold such office.
CONDUCT OF 2013 LLG GENERAL ELECTIONS
The last LLG elections were conducted in 2013 and not 2012. The date for the return of writs for 2012 general elections for the National Parliament was 27 July 2012. So according to Constitution Section 187C(8) and Section 299 of the OLNLLGE read together, the date for the return of writs for the last LLG elections ought to have been on a date no later than three months after 27 July 2012 and the elections conducted prior. However, the date for the issue of writs for the LLG elections was fixed for 6 June 2013. That is after almost a year had passed.
LEGAL IMPLICATIONS FOR LLGS, DDAs AND PROV. ASSEMBLIES
Firstly, the fact that the LLG members’ term of office expired in 2017 means that they no longer continue to hold office. They cannot hold out as ward councilors and LLG Presidents as such thereafter. This applies to nominated members of both the rural LLGs and Urban LLGs. As it is, it is questionable if there is any LLGs functioning at all in Papua New Guinea. There is no provision in law which allows LLG members to continue under this scenario.
Secondly, since their term of office lapsed, LLG Presidents can no longer remain members of their respective District Development Authorities and their respective Provincial Assemblies. In some cases LLG Presidents’ absences may affect the quorum and the sittings of Provincial Assemblies or DDAs. If they are present, the resolutions taken with their participation may be questionable. Where an LLG President was a Deputy Governor he or she should no longer hold such office.
CONDUCT OF 2013 LLG GENERAL ELECTIONS
The last LLG elections were conducted in 2013 and not 2012. The date for the return of writs for 2012 general elections for the National Parliament was 27 July 2012. So according to Constitution Section 187C(8) and Section 299 of the OLNLLGE read together, the date for the return of writs for the last LLG elections ought to have been on a date no later than three months after 27 July 2012 and the elections conducted prior. However, the date for the issue of writs for the LLG elections was fixed for 6 June 2013. That is after almost a year had passed.
The date for the return of writs was fixed on 6 September 2013: source, www.pngec.gov.pg. The fact that LLG elections were conducted one year later in 2013 and thereby breaching the Constitution and the Organic Law does not justify further breach of the same laws when LLG elections are deferred to 2019. Two wrongs do not make it right.
SERIOUS DENIAL OF CONSTITUTIONAL RIGHTS OF LLG MEMBERS
The intent and spirit embedded in Section 299 is the protection of Constitutional rights of LLG members guaranteed by Section 50 of the Constitution. Namely, citizens of full capacity and who have reached the voting age have the right, and shall be given a reasonable opportunity to be elected to, elective public office at genuine, periodic, free elections; AND to hold public office and to exercise public functions.
SERIOUS DENIAL OF CONSTITUTIONAL RIGHTS OF LLG MEMBERS
The intent and spirit embedded in Section 299 is the protection of Constitutional rights of LLG members guaranteed by Section 50 of the Constitution. Namely, citizens of full capacity and who have reached the voting age have the right, and shall be given a reasonable opportunity to be elected to, elective public office at genuine, periodic, free elections; AND to hold public office and to exercise public functions.
The deferral and the continuing breach of law continues to deny these Constitutional rights. It is a typical hallmark characteristic of a dictatorial government to not only ignore the clearest command of the Constitution, but also to deny the inherent political rights of its citizens which is fundamental to democratic system of government entrenched in our Constitution – and feel no shame about it! It is a fallacy for the government to convince itself that its feeble excuse has the effect of amending or altering the Constitution and the Constitutional Law.
Constitutional Laws are not amended by the whims of one or a few. They have their own prescribed stringent, democratic and Parliamentary processes to amend or alter them. For now, the Constitution’s command remains; the dictatorial reckless regard for the Constitution continues; and the denial of rights continues.
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