05/08/2022
"What will happen after Today's 4pm Deadline for the Return of Writs"
By Madang MP Brain Kramer.
On 28 July 2022, the Electoral Commission extended the return of writs from the 29 July 2022 to 5 August 2022. The deadline for return of writs will expire at 4pm this afternoon.
28 seats, excluding Markam, Kabwum and Lagaip Open seats, have yet to be declared.
So, if they are not returned by 4pm, will it mean those 28 seats are deemed failed? Or the election as a whole?
Short answer is NO.
The Electoral Commission will simply identify which seats are unlikely to be declared by 4pm this afternoon and issue a Notice of Gazettal to extend their return date to 8 August 2022, or a date that the Electoral Commission expects is reasonable to secure a declaration.
Why 8 August?
Of the 28 seats yet to be declared, it is expected that 24 seats will be declared before the first sitting of Parliament on 9 August 2022. The two seats that are NOT likely to declared before Parliament sits are Simbu and NCD, and Madang Regional seats, as either yet to complete their primary counts or just commenced quality checks.
As of 4pm this afternoon, those seats that have been declared will not have their writs extended. The seats whose writs are extended and declared before 9 August 2022 may still attend Parliament.
The seats that are not returned by 9 August 2022 will simply continue counting until a declaration is made. Their Members will miss out on the first sitting of Parliament, but they will be sworn into office by the Speaker on a later date and will then assume their duties as Members of Parliament. This happened for both NCD and Simbu seats in the 2017 National Elections.
Is the extension of the return of writs unconstitutional as earlier reported?
Short answer is NO.
While I note the legal interpretation offered by the former Chief Justice, Sir Arnold Amet, State Solicitor and Solicitor General suggesting any extension of the return of writs past the five-year anniversary of Parliament is unconstitutional, I respectfully believe this view is misplaced.
I also note many are confused given the convoluted and complex legal issues raised, but let me simplify the issue.
Section 105 of the Constitution provides for General Elections to be held every five years. It states that general elections shall be held within a period of three months before the fifth anniversary of the date fixed for the return of the writs for the previous election.
So five years from the date that was fixed for the return of writs in 2017 General election which ended up being on 31 July 2017.
Section 105 goes on to state that the Governor General, acting on advice of Electoral Commission, shall fix the first and last days of the polling period and the date by which the writs for the general election shall be returned.
In 2022, in accordance with Section 105 of the Constitution, the Electoral Commission advised the Governor General to fix the issue of writs on 19 May 2022. The polling period and date for return of writs was fixed at 29 July 2022.
These dates were all within three months before the fifth anniversary, and therefore complied with Section 105 of the Constitution.
Following polling it became apparent that the that majority of writs (one per seat) would not be returned (declared) by the fixed date of 29 July 2022.
On 27 July, the Electoral Commissioner, acting on advice, advised the Governor General to extend the date for the return of writs to 5 August 2022.
At this point, Sir Arnold Amet and the State Solicitor stated that the date could not be extended past the fifth anniversary of the sitting of Parliament as it would be in breach of Section 105 of the Constitution.
Was it in breach of Section 105?
Short answer is NO.
The Electoral Commission did in fact comply with Section 105 by fixing the date for the General Election, including the date for the issue of writs, polling period and return of writs, before the fifth anniversary of the tenth Parliament.
But during the course of the election it became clear that the majority of seats would not be declared before 29 July and would need to extended.
What happens when a deadline is fixed by constitutional law and that deadline is not able to be met?
The founders of our constitution were smart enough to anticipate such circumstances and provided provisions in the Constitution (Schedule 1.6) that states where a constitutional law imposes a time limit for an act and in a particular case it is not practicable to comply with the limitation, then the period shall be deemed to be extended by whatever period is necessary to comply.
The specific issue of extending the date for writs was also provided under Section 81(2) of the Organic Law on Elections. It states that, where special circumstances make it necessary, the Electoral Commissioner may return a writ after the date fixed for the return writs.
In 2019 the Ombudsman Commission filed a Supreme Court reference asking the High Court to provide an interpretation on whether or not the Electoral Commissioner may invoke powers provided under Organic Law on Elections to extend issue of writs past the fifth year anniversary, so that 20 seats that were yet to be declared could attend the first sitting of Parliament. The Ombudsman Commission also asked the Court to interpret whether the Electoral Commission may extend the date for return of writs for those seats yet to be declared after the fifth anniversary.
The Supreme Court ruled that the Electoral Commission should not extend the date for the issue of writs for all seats where a majority of seats were declared before the fifth anniversary. However, it may extend the date for individual seats who had not concluded counting.
In 2017, the date fixed for all writs to be returned was 24 July 2017, which was extended to 28 July 2017, and then to 31 July 2017, a date within the fifth anniversary. By that date over 80 seats were declared. Therefore there Supreme Court ruled that there was no need to extend the date for all writs past the fifth anniversary just so the final 20 seats could be declared. The Court ruled that the Electoral Commissioner may invoke powers under Schedule 1.16 to extend the dates for individual seats yet to be declared.
In 2022 the circumstances were different because, even by the date initially fixed for return of writs, 29 July, the majority of seats had not been declared. The Electoral Commissioner was forced to extend the date for all writs to 5 August, rather than just those that were yet to declared.
Why is the date of the return of writs important?
Section 112 of the Constitution (Calling of Parliament) states that the first sitting of Parliament shall be no later than seven days after the date fixed for return of writs. This is to ensure that Parliament sits as soon as possible after return of writs to avoid a vacuum in the Government.
The Constitution (Schedule 1.2) defines the date fixed for return of writs to be the dated fixed by the Electoral Commission where there is no extension โ in this case, that date was 29 July 2022. However, it goes on to state in any other case (in other words, in the event of an extension), or should all writs be returned (declared) before the date (29 July 2022), the date shall be the date when the majority of writs are returned (seats declared).
On 29 July, the majority (50% of 118 seats ie 60) were not declared, therefore the Electoral Commission was forced to extend the date to 5 August 2022. As of 5 August, 81 seats (the majority) have been declared, triggering the sitting of Parliament on 9 August 2022.
By 9 August I expected 113 seats to be declared, the exceptions being Markham and Kabwum Open, and Simbu and NCD Regional.
I hope this clears up any confusion on the issue of the return of writs and whether the decision by the Electoral Commission to extend the date to 5 August 2022, past the fifth anniversary, was unconstitutional, and the likely extension of those seats not declared by 4pm today.
