BLUNDER ON OPEN ELECTORATES & POTENTIAL CRISES IF ELECTIONS GO ON SCHEDULE

Parliament in 2002 under Sir Mekere Government amended the Organic Law on National and Local Level Government. Among the amendments, the Provincial Seats were made to cease existence by 2012 whilst the Open seats were anticipated to be more than 110 and less than 120 by year 2012. The Provincial Governors protested over the issue and their term was retained by an appropriate amendment in Parliament.

It was anticipated that the Boundaries Commission would carry out the necessary inquiry and ensure that at least one electorate was added to each Province by or before 2012. It is understood the Boundaries Commission did carryout the inquiries and compiled the report. Unfortunately, the Government under the leadership of Grand Chief Sir Michael Somare refused or failed to accept, table and implement the Boundaries Commission Report. The O’Neill/Namah Government was left with no option but to do the necessary changes to revert to the original position.

Whilst the O’Neill/Namah Team was in haste in trying to do the necessary amendments to the Constitutional Laws to allow the Open Seats to remain as they are, a very fundamental constitutional blunder appears to have been committed when passing that very crucial amendment in Parliament when Parliament last set.

Parliament is understood to have passed the motion to amend the Organic Law, particularly section 35 of the Organic Law on National and Local Level Government with a two thirds majority of at least 73 votes. Parliament may have committed an error which goes the heart of whether or not the relevant amendment was done and whether or not this country can go to elections with the existing open electorate seats. Let us consider the relevant laws that provide for this process and see whether such an error was committed.

The Organic Law on National and Local-level Government Elections, is an organic law created under Part VI.2 (The National Parliament) of Constitution. Part VI.2 accommodates sections 100 – 137. The Determination of Electorates is provided by section 125 of Constitution.
Section 17 of Constitution provides for Prescribed Majority of Votes needed to amend certain provisions of the Constitution. Subsection (3) provides that “For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 35, 36, 50, 57, 105, 106, 109, 113, 125, 126, 155, 157, 160, 163, 217, 235, 239, 243, 244, 245 and 269 is a three-quarters absolute majority.”
Section 17(5)(a)(i) of Constitution essentially provides that in a case of amending an Organic Law where the making of that Organic Law is prescribed by the Constitution, the majority of the votes is the majority provided under the relevant constitutional provision.

Since the Organic Law on National and Local-level Government Elections is an organic law prescribed by the Constitution under Part VI.2 of Constitution, the majority of the votes to amend the Organic Law would be as prescribed by the Constitution. In the case of Section 125 and 126, section 17(3) of Constitution is clear that it needs a three-quarters absolute majority which is at least 82 votes.

The Constitution also makes provisions under Section 15 for urgent alterations to the Constitutional Laws in instances whereby the requirements for prescribed absolute majority of votes can be waived under the circumstances. However, subsection (5) (i) qualifies that by stating that section 15 does not apply to proposed laws to alter the provisions of the Constitution and Organic Laws made for the purposes Division VI.2. (The National Parliament).
In order to amend the Constitution and any Organic Laws, Section 14 of Constitution states that the prescribed majority of votes should be expressed on at least two occasions after opportunity for debate on the merits. That should be during different meetings of Parliament and separated by at least two months.

The amendment to retain the original open seats is an amendment that needs at least 82 (3/4 absolute majority) votes on the floor of Parliament and Section 15(5)(i) of Constitution prohibits any attempt to treat it as an urgent alteration. It has to go through compulsory two readings, separated by two sittings and at least two months.

Looking at the relevant Organic Law on National and Local-level Government Elections provision for open electorates in 2012, it provides under section 35 that:
35. OPEN ELECTORATES .
(1)The number of open electorates shall be as determined by the Boundaries Commission but in no case shall the number of open electorates be less than 110 or more than 120.
(2) There shall be at least one open electorate in each Province.

The word “shall” in that provision makes it mandatory for the open electorates to be more than 110 and less than 120 by 2012. Parliament had the mandatory obligation to follow that or amend it in accordance with the due process.

The purported amendment in the last sitting did not meeting the required votes and is illegal and void. It can be seen as no amendment at all, which means that Section 35 still is effective and will render the entire election existing in Constitutional vacuum. It would be a constitutional crises and any process of national election should first get the boundaries sorted out. Elections are run on predetermined electorates, not the other way around. If the foundations upon which the elections can be run are affected, it affects the whole process.

I am wondering whether this was another “hot cake legislation cooked up and bulldozed in a day just like they do with simple Acts of Parliament. Can someone measure the level of stupidity this would be?

Over to you thinking PNGeans


STEVEN ANDRE