Will the 2012 General Election breach the Constitution?

By Barry Holloway and James Macpherson

The Danger

The next Parliament risks unconstitutional membership.  Elections for provincial and open electorates could breach the Constitution. 

Such a breach would undercut a national strength: our Parliament.

This Parliament needs to make informed decisions quickly so that elections to the next Parliament are constitutional.

Achievements of this Parliament

Parliament has enacted the first changes to its electorates since Independence.  

Provision for Jiwaka and Hela provincial electorates is the first change to boundaries of any electorate since before Independence. 

Amendment of the Constitution to provide for women’s electorates shows willingness to consider radical changes by the overwhelmingly male majority.

These achievements can form a foundation for a stronger Parliament.

Unconstitutional Elections for Provincial Electorates

Elections to provincial electorates will breach the Constitution.  Section 126 of the Constitution requires electoral procedures defined by an Organic Law.  Parliament has repealed provisions in the Organic Law on National and Local-level Government Elections for electoral procedures for Provincial MPs.  Election of Provincial MPs could be challenged in Court. 

Will Parliament amend the Organic Law on National and Local-level Government Elections to provide for election of Provincial MPs? 

Or

Will Parliament go into the next General Election in breach of Constitutional requirements for elections to provincial electorates?

Unconstitutional Number of Open Electorates

The number of open electorates in the present Parliament and for the next Parliament breaches the Constitution.  The Organic Law on National and Local-level Government Elections requires between 110 and 120 open electorates.  There are 89 open electorates. 

It is too late for a Boundaries Commission during this Parliament to recommend new electorates for the 2012 General Election.  To prevent constitutional crisis the Organic Law should be amended to provide a range of Open Electorates which includes 89 open electorates.

Will Parliament amend the Organic Law on National and Local-level Government Elections to make constitutional the number of Open Electorates?

Or

Will Parliament go into the 2012 General Election in breach of Constitutional requirements for the number of Open Electorates?

Women’s Electorates

Parliament has enacted amendments to the Constitution to provide for women’s reserved electorates. 

The gap in legislation parallels that for provincial and open electorates.  The Organic Law on National and Local-level Government Elections should be amended to provide for definition of the electorates and elections to them.

Will Parliament use the gap in the Organic Law on National and Local-level Government Elections to prevent elections for women’s reserved electorates in 2012? 

Will Parliament use parallel gaps in the Organic Law on National and Local-level Government Elections for elections to provincial electorates and number of open electorates to prevent elections to provincial and open electorates in 2012?

Timelines and the 2012 General Election

Constitutional laws require one month notice and two months opportunity for debate.  Parliament’s Constitutional Laws and Acts Committee must recommend on legislation before the first opportunity for debate.  Amendments to the Organic Law on National and Local-level Government Elections require a three quarters absolute majority. 

The Legislative Working Group, appointed by NEC, has drafted amendments to the Organic Law required to make constitutional:

• Elections to provincial electorates;
• The number of open electorates; and
• Elections to women’s reserved electorates.

If these amendments are not enacted, the next Parliament will be unconstitutional. 

The legislative program to create a constitutional Parliament must start now.