The deferral of the return of writs for the 2022 National General Elections from this Friday 29th July, to Friday 12th August, has posed a constitutional dilemma and much public debate on its legality.
Former Chief Justice and statesman Sir Arnold Amet said this decision from the PNG Electoral Commissioner was wrong, pointing to the Constitutional law as reference.
“The 5th anniversary of the return of the writs refers to the previous elections that are principally provided for in section 105 of the constitution, which provides for the General Elections. Section 104 provides for the normal term of office.”
“The date fixed for the return of writs is critical for the taking of office for members of Parliament.”
Sir Arnold further said that the normal term of office for a Member of Parliament is 5 years from the date fixed for the return of writs from previous election to the date fixed for return of writs in the current elections.
“In section 105, this provides for the general elections to be held within 3 months before the 5th anniversary of the date fixed for return of writs for previous general elections and it cannot go beyond that.”
Sir Arnold added that in the original date when return of writs was fixed to July 29th this Friday, it was within 7 days of the date fixed for the return of writs in previous elections which was 3rd of August 2017.
“The date fixed for the return of the writs is critically tied to the 5th anniversary of the date fixed for return of the writs from previous elections.”
“Because of all circumstances and advice given, extended dates of returns of writs from 29th July to 12th August, now exceeds considerably dates fixed for return of writs from the previous general elections which was 3rd August.”
Sir Arnold further stated that the calling of Parliament would then need to be within 7 days which would be 18th August for Parliament to meet for the first time which is already considerably outside of the 5th anniversary of current Parliament.
“Going beyond that you’re into a constitutional vacuum when members of Parliament term have expired after the 5 years.”
“I’ve not gone into organic law in calling of Parliament but this is as per the Constitution section 104 and 105 which is explicit about dates of returns of writs should be fixed by reference of return of writs date of the previous general elections.”
“You go outside of that and you go into unconstitutional territory.”
Meanwhile, Sir Arnold further added that there is a power in the Head of State upon advice of the PNGEC and recommendation from Electoral Advisory Committee who can advise if it is not practical to conclude counting by date fixed for the return of the writs.
“The constitutional provision is the withdrawal of writs by the Head of State in a case by case electorate by electorate circumstance.”
“There is a small window of time only that the return of writs can be extended from 29th to 3rd August next week.”
Sir Arnold said failing that and electorates not able to declare a result, the Head of State can be advised to withdraw the writs and supplementary elections are held when circumstances permit.”
“That’s the process of what is generally described as failed elections when writs are withdrawn by the Head of State upon advice.”