6 Constitutional Sins of Electoral Commissioner Simon Sinai
by A Concerned Papua New Guinean
Apart from 2022 being the worst election marred by unprecedented violence and i’ll-preparation, the Constitutional Office of the Electoral Commission committed some unforgivable constitutional blunders that throws the entire constitutional process into question. Election is the most important constitutional process that comes once every five years and the organisation mandated to deliver this process got it wrong right from the beginning.
Here are the most notable constitutional sins of the EC:
1. Appointment of ROs and AROs were left to the very last minute. There are actions like validating and updating common rolls that the RO is supposed to do before the elections. Since most of the electoral officials are appointed at the eve of elections, they are normally appointed six months before that to prepare them on how to competently manage the elections well. He left it too late and we’ve seen electoral officials undergoing training on the eve of voting.
2. Extension of Opening of Writs: the Writs were issued on 12 May and given the unexpected death of late Basil, the EC announced that there will be an extension to 26 May. The EC issued a Bulletin No. 18 of 2022 directing all his staff not to accept any nomination until after the 19 May. Under the law, time starts running from the date of issuance of writ and expires after 7 days, which in this case would be 19 May. 7 days is all the candidates have to nominate unless extended under section 177 of the Organic Law on Elections. There is no power under the Organic law or the Constitution for the EC or GG to freeze the time after writs are issued. GG, upon advice can only extend time. The EC appears to have thought that he had the authority to freeze the time hence gave instructions to his staff to delay nominations until 19 May. Upon the advice and pressure from state Lawyers, the EC was directed to properly extend time by way of National Gazette. In doing so, the EC issued a National Gazette under his own name - NG 387 dated 18 May 2022. However, section 177 of the Organic Law gives the authority to the GG to issue a Gazette, not the EC so that purported Gazette was invalid. So those who knew about this blunder frantically rushed to nominate on 19 May. It is understand a proper gazette was issued on 19 May by the GG to extend time to 26 May but we don’t know if it exists. If it doesn’t, it questions all other nominations after the 19 May. This was the biggest blunder that could have deprived the entire elections right from the get go and it still probably does.
3. EC not appointing the Election Advisory Committee. This is the important committee made up of normally independent expert individuals to advise the EC. They’re the only ones authorised by law whether to fail an Election under the Law. We’ve had Dean of Law School and two others used to be appointed. This important committee was not appointed so how is the EC failing elections in Markham and Kabwum in Morobe? Is it constitutionally valid to fail those elections and whose advise is he getting?
5. Removal of Section 153A Powers: Section 153A of the Organic Law gives specific power and authority to the Returning Officer to receive an objection, assess all the evidence and decide whether or not to admit into scrutiny a disputed box. The power is given to the RO (not the EC) because the RO is on the ground and is in the best place to make that decision. The EC simply doesn’t have the resources to independently verify the allegations. There is no appeal process to the EC. Subsection (4) makes in clear that the only way to review the decision of the RO is through the Court of Disputed Returns. On 19 May, it was reported in the National Newspaper that the EC had withdrawn the Section 153A powers. This has caused so much confusion and will create too many expensive election petition cases. In some cases, we’ve witnessed EC overriding RO decision. In some, RO make decision and conflict with EC. This has also added to the delays in the counting because the ROs have to suspend counting and wait for the EC to make decisions whether to set aside the disputed boxes. Knowing all the chaos it could cause, why did the EC really want to centralise the power of section 153A when election itself was delayed by 2 weeks from the date of the issuance of writ? There is a well founded theory that more power corrupts and more power corrupts absolutely. Is it not the case here?
6. Writ of Writs: the EC again was under the misapprehension that he had the authority to extend the date for the return of writs well beyond the 5th anniversary. The Constitution section 105, as explained in the advice by the State Solicitor to the Secretary for PM&NEC dated 27 July 2022 is very clear that the writs have to written on or before the date of the 5th Anniversary. This is yet again another biggest blunder. The Government formed must represent the will of the entire country and that will of the entire country is not determined by 40 MPs. It must be the majority of the 118 Seats and the EC has deprived this. This throws into question the constitutionality of the Government to be formed on August 5th.
The above are the worst failures of the Electoral Commissioner and some have called for a Commission of Inquiry. But we don’t need to have a COI to establish these facts. These are facts we all know. Now, what will the new Government do to this person who single handedly fxxxd up the 2022 elections. Think about the irreparable costs to individuals and the social stress that’s being caused to the society. Think about how many expensive election cases and the associated tensions that will be caused by election petitions like we’ve seen in SHP in 2017?.
I leave it all to the readers imaginations!
By Frustrated Papua New Guinean.