Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea [2019] PGSC 109; SC1814 (24 May 2019)

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SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19(1)
SPECIAL REFERENCE BY THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

IN THE MATTER OF CONSTITUTION, SECTIONS, 50 (1), 10 (2)B, 105 (3), 124(1) AND THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS, SECTIONS 80, 81, 97 AND 177

Waigani: Salika CJ, Kandakasi DCJ, Mogish &Manuhu JJ
2018: 28^thFebruary
2019: 24^th May

CONSTITUTIONAL LAW –Interpretation of provisions of the Constitution - Principles governing – Ordinary meaning to be preferred unless the contrary is clearly intended.

CONSTITUTIONAL LAW - National Elections – Dates for return of Writs –Electoral Commission required to fix return dates for Election Writs to a date as is reasonably close to the date fixed for the fifth anniversary for the return of the writs for the previous election – Extension of– Electoral Commission has wide power to extend time as many times as required to ensure a majority of the Writs are returned – Sections 105 (1)(c) and sch 1.2(1) of the Constitution – Sections 177(2) Organic Law on National and Local Level Government Elections (Organic Law on Elections).

COURTS & JUDGES – Member of a Supreme Court bench no longer a Judge and member of the Court – Section 3 of the Supreme Court Act (Chp. 37) applies in the case of Supreme Court appeals – Lack of similar provision for Constitutional reference or other origination processes in the Supreme Court - For purposes of transparency and to maintain the impartiality of the Court, the process under s. 3 of the Supreme Court Act with appropriate modifications applies to Constitutional references and other originating processes – Section 3 Supreme Court Act (Chp.37).

WORDS & PHRASES – “Majority” – Ordinary meaning – More than one half of the total whole number –Use of word in s105 Constitution – Meaning of with 111 total members of Parliament – More than half of that, 56 or more – Section 105 and sch. 1.2(1) of the Constitution and s.177(2) of the Organic Law on Elections.

WORDS & PHRASES – “anniversary” – Ordinary meaning – The date on which an event took place in the previous year and not necessarily the beginning or the end of a calendar year - Section 105 Constitution, s. 177 (2) of the Organic Law Elections .

The 24^th of July 2017 was fixed as the date for the return of writs for the 2017 National General Elections. That date was later extended to 28^th July 2017. The 03^rd of August 2017. By close of business on 27^th July 2017, 30 electorates were yet to complete their election process and counting for these electorates were unlikely to be completed by 28^th July 2017. This caused the Ombudsman Commission to file a Special Constitutional Reference under s. 19 of the Constitution seeking the Supreme Court’s interpretation of s. 105 (1) (a) and (3)(a), Schedule 1.2, s. 124 (1) of the Constitution and ss. 80, 81(3)97, 177(1) (2) of the Organic Law on Elections. The questions mainly were whether:

(1) the provisions of s. 177(2) of the Organic Law is inconsistent with the provisions of s. 105(3) (a) of the Constitution;

(3) there could be further extensions of the return dates and if so, is there are time limit and if not, those writs not returned result in failed elections;

(4) the term majority of writs in s. 177 (2) of the Organic Law means majority of seats per province;

(5) the 7 days fixed under s. 124 (1) of the Constitution for Parliament to meet after National General Elections can be extended and if so how can that be done;

(6) the Electoral Commission can fail elections under s. 97 of the Organic Law; and

(7) there is a time limit for return of writs the subject of extensions for special circumstances under s. 81 (3) of the Organic Law?

Before the judgement could be delivered the former Chief Justice, who was a member of the Court ceased to be a member of the Court.

(1) There being no process and procedure prescribed as to how the Court would proceed following a reduction in the composition of the Court, s.185 of the Constitution applies.

(2) Pursuant to s. 185 of the Constitution, Court decided to adopt the process provided for in s. 3 of the Supreme Court Act but modified in terms of the purpose for that procedure is to enable the Court to:

(a) formally inform the parties of the change in the composition of the Court and most importantly, whether the Court will be able to secure a majority opinion on the questions presented and deliver judgment;

(b) to hear and determine any issue that might adversely affect the Court’s ability to secure a majority decision; and

(c) if any party wishes to raise any issue under (2), that party should immediately file an appropriate application with supporting affidavit evidence well in advance of the date set for the administration of the process by the Court.

(3) By the majority that the provisions of s. 177(2) of the Organic Law are not inconsistent with the provisions of s. 105(3) (a) of the Constitution. Instead they complement each other. Kandakasi DCJ held that the provision was inconsistent only to the extent that it prescribes a time limit.

(4) The Electoral Commission has a wide and unfettered discretion by virtue of Schedule 1.2 (1) of the Constitution to extent the return date for writs as many times as is required provided such extension do not exceed the “fifth anniversary of the day fixed for the return of the writs for the previous general election” and the time periods stipulated under s. 124 (1) of the Constitution for Parliament to convene after the elections. Effectively overruled in part the decision in SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19;Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689.

(5) It is within the unfettered discretion of the Electoral Commissioner to determine what circumstances constitute “special circumstances” for the purposes of s. 81 of the Organic Law on Elections. The Court cannot prescribe what does or does not constitute “special circumstances”. Effectively approved and applied in part the decision in SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19;Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689.

(6) The word “anniversary” as used in s.105 Constitution, s. 177 (2) of the Organic Law on Elections and elsewhere means the date on which an event took place in the previous year and not necessarily the beginning or the end of a calendar year. Applying that to the current Parliament means the fifth anniversary of the date fixed for a return of the writs for the previous Parliament.

(7) For the purposes of s. 105 and sch. 1.2(1) of the Constitution and s.177(2) of the Organic Law on Elections, the word “majority” means more than one half of the whole number. Applying that to the current Parliament with 111 total Members of Parliament means 56 Members of Parliament.

Vele v. Parkop (2013) N5418
SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19;Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689
Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534
Electoral Commission of PNG v. Simon J Solo (2015) SC1467
Nominees Niugini Ltd v. IPBC (2017) SC1646
Honourable Powes Parkop v. Honourable Peter O’Neill (2012) N4741
Reference by DR Allan Marat, In the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC1187
Special Reference by the Attorney General [2002] SC
Christain v.Namaliu [1996] PGSC34; SC1583

Constitution
Organic Law on National and Local-level Government Elections
Supreme Court Act (Chp.37).

Dr. V. L. Narokobi, for the Ombudsman Commissioner
H. Maliso, for the Prime Minister
L.Tangua, for the Attorney General

1. BY THE COURT: At the time of the hearing of this Special Reference the president of the Court was Injia CJ and other members of the Court were, Salika DCJ (as he then was), Kandakasi J., (as he then was) Mogish and Manuhu JJ. Since then, Injia CJ’s term as Chief Justice expired before the decision on the reference could be delivered. Salika DCJ was then appointed Chief Justice while Kandakasi J was appointed Deputy Chief Justice. Consequently, the composition of the Court was reduced by one to four. When this happens in the context of a Supreme Court appeals, s.3 of the Supreme Court Act (Chp.37) provides for what should happen. The provision reads:

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge—

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

2. There is no similar provision in the case of Constitutional References under s.19 of the Constitution and other processes. One view is that the equivalent of s. 3 of the Supreme Court Act does not apply by reason of there being no similar requirement in the Supreme Court Act or the Constitution. This would mean the remaining judges could proceed to deal with the matter and deliver a decision. The other view is that, a process similar to s. 3 of the Supreme Court Act applies or should apply. We invited the parties to assist with submissions on the issue and they ably obliged.

3. The parties agree that a process and procedure similar to s. 3 of the Supreme Court Act should be adopted and applied pursuant to s. 185 of the Constitution. However, such a process should be appropriately modified to reflect the important nature of constitutional references. The modification should be in terms of purpose of the procedure is to enable the Court to:

(1) formally inform the parties of the change in the composition of the Court and most importantly, whether the Court will be able to secure a majority opinion on the questions presented and deliver judgment;

(2) hear and determine any issues that might adversely affect the Court’s ability secure a majority decision; and

(3) if any party wishes to raise any issue under (2), that party should immediately file an appropriate application with supporting affidavit evidence well in advance of the date set for the administration of the process by the Court.

4. We are of the view that the procedure prescribed under s. 3 of the Supreme Court Act should and does apply. This is necessary for two main reasons. Firstly, the Court consists of the number of Judges that constituted the Court when it heard or dealt with the matter at the first instance. When there is a reduction in the Judges, it is not the same Court that dealt with the matter by reason of that reduction. Hence, the remaining Judges could not proceed to deal with the matter unless they have sought and obtained the approval of the parties to do so. The Court needs to be transparent and open about the fact that the Court is not the same as before by reason of one of the Judges not being able to continue to function.

5. Secondly, court case belongs to the parties. Unless it is a matter in which the Court has initiated the proceedings under say s. 57 of the Constitution, the parties have the right to decide what should become of their matter upon one of the Judge’s not being able to discharge his or her duties in respect of the case. The Court has no vested interest in the outcome of any case. If the parties have no issue with the remaining judges providing a majority decision, the remaining Judges should proceed to deliver their decision. If, however,one of the parties is able to successfully make out a case as to why anyone of the remaining members of the Court should not continue to be a member of the Court and that affects the majority, a reconstitution of the Court and a rehearing will be in order. A Court persuaded by good conscious and commitment to transparency and impartiality would make it its business to administer this procedure, whether or not it is required by any written law. Accordingly, we of the view that procedure under s. 3 of the Supreme Court Act with appropriate modification as suggested by the parties is appropriate and should apply to all constitutional references and proceedings other than appeals to the Supreme Court.

6. Having adopted the procedure described above and having obtained the approval of the parties for us to proceed, the remaining Judges have arrived at a decision as set out below.

7. SALIKA CJ: How this Special Reference came to Court has been canvassed by Kandakasi, DCJ and Manuhu, J in their introductory paragraphs and the reference questions have been set out by Manuhu, J in his decision and I do not wish to repeat them, except to say this. After the last National Elections, some electorates did not return their writs before the first sitting of the 9^th Parliament for varying reasons. As a consequence, elected representatives of those electorates were denied participation in the election of the Speaker and the Prime Minister. The Ombudsman Commission filed this Reference on 28^th July 2017 to ask the Supreme Court whether or not it was fair to those who missed out in electing the Speaker and the Prime Minister as the main underlying reasons for this reference.

8. In that regard the referor made special mention and brought into play the importance of giving effect to the National Goals and Directive Principles in interpreting a Constitutional provision. The National Goals and Directive Principles are in the Preamble of the Constitution and therefore are part of the Constitution. The referor urged the Court to give effect to the National Goals and Directive Principles. Relevantly, in Reference by the Ombudsman Commission (2010) SC1058 Gavara-Nanu J said:

“210. The National Goals and Directive Principle No. 2 does not only provide aid to interpreting constitutional provisions, but it also sets objectives which the Government of the day must strive to achieve; see Application by Gabriel Dusava (1998) SC581 and Haiveta v. Wingti (No.3)[1994] PNGLR 197. The courts are also sanctioned by s. 25 (3) of the Constitution to give effect to the National Goals and Directive Principles, or at least not to derogate them. This is an embodiment of CPC recommendation in para 2 of Chapter 10 of its Report; see Premdas -v- The Independent State of Papua New Guinea[1979] PNGLR 329; see also SCR No. 3 of 1986; Reference by Simbu Provincial Executive (supra); SCR No. 12 of 2001; Re Validity of National Capital District Commission Act, 2001 (2001) SC680; SCR No.. 2 of 1995; Reference by Western Highlands Provincial Executive (1995) (supra); SCR No. 2 of 1992; Reference by the Public Prosecutor [1990] PNGLR 336; SCR No. 1 of 1990; Reference by the Executive Council of the Enga Provincial Government [1990] PNGLR 532; The State -v- NTN Pty Ltd and NBN Ltd [1992] PNGLR 1 and Constitution No. 1 of 1977 (1977) PNGLR 362 (SC 122).

211. The line of authorities cited above say that the courts have to give effect to the National Goals and Directive Principles, when interpreting a constitutional provision. Thus where the court in its fair and liberal interpretation of a constitutional provision finds that a law, including an organic law which in this case is s10 of the OLPLLG offends against not only the provision of the Constitution but also the spirit of the Constitution, then it would be imperative for the court to declare the offending law invalid.”

9. With respect, I am in agreement with the above quote. Sections 25 and 63 of the Constitution give clear direction to all governmental bodies to give effect to the National Goals and Directive Principles (NGDP) and the Basic Social Obligations (BSO). Both s.25 and s.63 of the Constitution are in similar terms and so I only reproduce s.25. Section 25 of the Constitution says:

(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.

(2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

(4) Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate.”

10. The Court in Reference by the Ombudsman Commission (2010) SC1058 was simply giving effect to s.25 and s.63 of the Constitution.

11. Similarly, the Supreme Court in the instant case is asked to interpret sections 50, 105 and 124 of the Constitution and s.177(2) of the Organic Law with the National Goals and Directive Principle No 2 in mind, which among other things, calls for equal opportunity for every citizen to take part in the political, economic and religious and cultural life of the country.

13. The principles of Constitutional interpretation as summarised by Injia CJ in Reference by Ombudsman Commission (2010)1058 are relevant and I with respect adopt them. Those principles have been summarised by Kandakasi DCJ in his draft and I agree with those principles and again with respect I adopt them as well.

14. I have had the benefit of reading the draft by Kandakasi DCJ and Manuhu J, with respect generally agree with their observations and the reasons they give in answering the questions. I now go on to answer the questions raised on my own behalf.

15. On this question, I am of the opinion that s.177(2) of the Organic Law on National and Local Level Government Election (Organic Law on Elections) is not consistent with s.105(3) of the Constitution. Section 105 of the Constitution reads:

(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or

(b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—

(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or

(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or

(2) The Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall fix the first and last days of the period during which polling shall take place and the date by which the writs for a general election shall be returned.

(3) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that—

(a) in a case to which Subsection (1)(a) applies—the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election; and

(b) in a case to which Subsection (1)(b) or (c) applies—the date for the return of the writs is fixed as soon as may reasonably be after the date of the relevant decision of the Parliament.”

16. Section 105(3) in my respectful opinion does not specify any particular time period. The provision ensures flexibility and discretion at each election time for the Electoral Commissioner to advise the Head of State to achieve the best election outcomes under s.105(1)(a), (2) and (3)(a).

17. The scheme under s.105(1)(a), (2) and (3)(a) of the Constitution apply to the facts of this case in that, it provides the best flexible and reasonable approach given PNG’s difficult circumstances such as the country’s difficult terrain, inadequate road infrastructure, customary conflicts, criminal activities and the like. Section 105(1)(a) and (2) of the Constitution in my respectful opinion were successfully completed in the 2017 National election. The return date for all the writs were fixed for 24 July 2017. All writs were not returned that day. On 21 July 2017 the Head of State extended the return date of the writs to 10 am, Friday 28 July 2017. By Friday 28 July 2017, 26 writs remained to be returned.

(1) Notwithstanding any provisions of this Law but subject to this section, the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, may, where special circumstances require and he is of the opinion that it is necessary to do so, extend such time as is necessary: —

(2) In exercising the powers under this section to extend time, the Electoral Commission shall endeavor to ensure that the majority of the writs in a general election are returned at least five days before the anniversary of the term of the current Parliament.

(3) In the case of an extension of time under Subsection (1), public notice of the extension shall be immediately given in the electorate or the portion of the electorate for which the election is to be held.” (underlying is mine)

19. With respect, s.177(2) of the Organic Law on Elections by extending time for the return of the writs at least 5 days before the anniversary of term of the current Parliament is in my respectful opinion consistent with s.105(3)(a) of the Constitution. With respect, the 5 days in my opinion is not restrictive. Therefore, in my respectful opinion, s.177(2) is Constitutional. The Constitutional intention for the return of all writs must be flexible right up to the fifth anniversary of the term of the 2012 Parliament. PNG experience is that, often times some writs are returned at least 4, 3 or2 days before the date of the anniversary of the current Parliament or even 1 day or 2 days after the fifth anniversary of that Parliament. In my respectful opinion, taking into account PNG’s sometimes difficult circumstances it was not possible to have all of the writs returned on 24 July 2017. Hence, the return date was extended to 28 July 2017 for all the outstanding writs to be returned. Still by 28 July 2017, 26 writs remained to be returned but the majority of the writs had by then returned. This enabled the Parliament to sit.

20. The remaining writs needed to be returned and in my respectful opinion, this is where Schedule 1.16 of the Constitution comes in to help the Electoral Commission. It says:

21. In my respectful opinion a further extension was required to have the rest of the yet to be returned writs to be returned. Schedule 1.16 of the Constitution would come into play for further extension or extensions for the return of the unreturned writs.

22. My answer to the question is s.177(2) of Organic Law on Elections is not inconsistent with s.105(3) of the Constitution.

23. Schedule 1.2(1)(a) of the Constitution says the date fixed for the return of the writs for a general election means in the case of general election, when there is no extension of time for the return of any of the time for the return of all writs,but if extended then the day by which writs are to be returned. In this case, the time for the return of the writs was extended from 24 July 2018 to 28 July 2017. There was a need for further extension to ensure all writs were returned even after 28 July 2017. Schedule 1.16 would be invoked to achieve that.

24. My answer to Question 2 is No. Section 177(1) allows for the Head of State, in accordance with the advice of the Electoral Commission to where special circumstance require and he is of the opinion that it is necessary to do so, extend such time as is necessary for returning the writ. Section 177(2) says that in exercising the powers under s.177(1) to extend time, the Electoral Commission is to endeavour to ensure that the majority of the writs in a general election are returned at least 5 days before the anniversary of the term of the current Parliament.

25. I have already said that the words “at least 5 days” in s.177(2) of the Organic Law are not inconsistent with s.105(3) of the Constitution. What is emphasised in s.177(2) is that, the majority of the writs are to be returned before the 5^th anniversary of the current Parliament. In my view, majority of the writs should be returned before the 5^th anniversary of the current Parliament, whether it be before 5 days, 4 days, 3 days, 2 days or 1 day. The return of the majority of the writs must be before the 5^th anniversary of the Parliament is what is important in my respectful opinion. This is so that the new Parliament can have its first meeting to elect the Speaker of the Parliament and the Prime Minister.

26. Where the majority of the writs are not returned on the anniversary of the date fixed for the return of the writs an extension under s.177(1) and s.81(3) of the Organic Law on Elections should be requested and granted. Section 81(3) says that, where special circumstances make it necessary, the Electoral commission may return a writ after the date fixed for the return of the writ. The emphasis again is on the return of the majority of the writs. This again is for the purposes of the new Parliament to have its first sitting. The answer as to whether the Electoral Commission can further extend the date for the return of the writs to another day is “yes”, for the reasons given above.

27. While schedule 1.16 of the Constitution is available to the Electoral Commission to invoke to complete the entire election process of the National Election successfully, the further extensions which are deemed under schedule 1.16 of the Constitution have the potential to affect or hinder the first sitting of Parliament after a general election. This is where Schedule 1.2 (1) of the Constitution and s.124 of the Constitution and the Organic Law on the Calling of Meetings of the Parliament come into play.

“the day fixed for the return of the writs for a general election” means:-

(1) The Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general electionand shall meet not less than 40 days in each period of 12 months.

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.”

30. The extended time to 28 July 2017 was not unconstitutional as the Head of State may grant further extensions to ensure the return of the yet to be returned writs. Moreover Schedule 1.16 could be invoked to extend further the time for the return of the writs.

31. Section 177(2) is valid and not inconsistent with s.105(3) of the Constitution. “Majority of the Writs” means more than one half of the total number of writs which had been issued to be returned. The thrust of s.177(2) of the Organic Law on Elections is to return a majority of the writs at least 5 days before the fifth anniversary of the term of the then Parliament. That majority was achieved and the first sitting of the 9^th Parliament occurred, and the rest is now history as they say. In this case, writs of some 26 seats were not returned by 28 July 2017. Out of 111 total seats the requirement under s.177(2) of the Organic Law on Elections is to return a majority of the writs at least 5 days before the fifth anniversary of the term of the current Parliament by 28 July 2017, 81 of the writs were returned. For the purpose of s.177(2) the “majority of the writs” had been returned. How that was determined at the time is a matter for the Head of State on advice by the Electoral Commission. Upon that advice the Head of State determined the “majority of the Writs” returned. The new 9^th Parliament could commence then because the majority of the writs had been returned.

32. With respect, if the majority of the writs had not been returned at least 5 days before the 5^th anniversary of the 8^th Parliament, the Electoral Commission was at liberty to continue a process for the late return of the writs to ensure that the majority of the writs were returned to enable the new 9^th Parliament to meet. The power to continue the process for the late return of the writs is deemed under Schedule 1.16 of the Constitution. This means in my respectful opinion it is open to the Electoral Commission to invoke the power under Schedule 1.16 which is available to be invoked.

33. This was the view expressed by the National Court in Vele v. Parkop (2013) N5418 when it said:

“I am also of the view that although the Supreme Court did say that the power to extend can only be exercised once under s.177 of the Organic Law, the Supreme Court did also say the EC may rely on schedule 1.16 of the Constitution to deem an appropriate extension of a period or time necessary to enable practical compliance with the requirements to return the writs by the date fixed for the return of the writ....”

34. With respect, I agree with the view expressed by the National Court in that case.

35. In relation to whether this court should define majority of seats by proposing a figure to equate majority, with respect I do not think that is a proper thing for this court to do and, with respect it would not be right. The court should not “legislate” the figure as it were, as to what a “majority of the writs” mean. In my respectful view what amounts to “majority of writs” returned is a matter for the Electoral Commissioner to advise the Head of State under s.177(1) and (2) of the Organic Law on Elections. Once the advice is given to the Head of State that the ‘majority of the writs” had been returned the Head of State after consultation with the outgoing Prime Minister and Speaker fix the date for the first meeting of Parliament after a general election. I am of the view that, the scheme determining what the “majority of the writs” mean is best left to the Constitutional dictate of the Electoral Commission, the body responsible for issuing of the writs, conducting the polling, the scrutiny and the return of the writs should be the body responsible to advise the Head of State whether or not “majority of the writs” have returned. As such this Court should not enter into the domain of the Electoral Commission or the Legislature.

36. This is a matter for the Electoral Commission. The Electoral Commission determines what “majority of the writs returned” equates to and for those writs not yet returned, extensions be sought or extensions are deemed until the writs are returned.

38. Parliament must convene where majority of the seats have been returned. The 5-year term of Parliament is fixed and cannot be extended. After majority of the writs are returned there is no need to delay the fixing of a date for the Parliament to meet. The process to have the writs returned must continue but the business of governing the nation must also go on. Parliament must meet to elect the Speaker and the Prime Minister so that a new government is in place to govern the nation. There should not be any delay so as to create uncertainty. The formation of the government after the elections is very critical and must go on. My answer to this question is No - the date fixed for Parliament to convene must not be extended to another time beyond the fifth anniversary of the previous Parliament when majority of the writs have been returned.

39. The question is confusing in that s.96A to C deals with withdrawal of a writ while s.97 relates to failure of an election.

40. This question is also confusing in that s.96A – C relate to withdrawal of a writ while s.97 relates to failure of an election.

(1) Subject to this section, in the case of a general election, the same day shall be fixed for the commencement of the polling period in each electorate, and all writs shall be made returnable on the same day.

(2) Where special circumstances make it necessary for the Electoral Commission to fix different polling commencement dates for different electorates, the Commission may do so by notice in the National Gazette provided that the date schedules for the return of writs is the same day for all electorates.

(3) Where special circumstances make it necessary, the Electoral Commission may return a writ after the date fixed for the return of writs.”

42. I have discussed s.177 of the Organic Law on Elections already in relation to earlier questions. The thrust of the requirement in s.177 is to return majority of the writs at least 5 days before the fifth anniversary of the current parliament. Section 81(3) of the Organic Law on Elections is consistent with s.177 of the same Organic Law in that there is a common goal, and that is to have the majority of the writs returned at least 5 days before the 5^th anniversary of the current parliament.

43. It is not necessary for me to answer this question in view of my answer to Question 10.

44. Section 177 and s.81 have been discussed in my answer to the earlier questions. The Electoral Commission is in control of the scrutiny process and it is incumbent upon it to ensure that majority of the writs are returned before the 5^th anniversary of the current Parliament. Section 81(3) allows the Electoral Commission, where special circumstances exist, to return a writ after the date fixed for the return of the writs. We saw earlier that schedule 1.16 assists the Electoral Commission to extend time for that purpose, which is to extend the time for a writ not yet returned to another time.

45. Again s.177 and s.81 of the Organic Law on Elections have been discussed in relation to earlier questions. In relation to what are “special circumstances” is referred to in s.177 and s.81 of the Organic Law on Elections. What are “special circumstances” in my respectful opinion is a matter for the Electoral Commission to determine in relation to an electorate. “Special Circumstances” is not defined by the Constitution nor the Organic Law. However, in the normal scheme of things the Electoral Commission has Returning Officers, Assistant Returning Officers, Presiding Officers, Assistant Presiding Officers and others engaged at the polling booths. It is those officers who are on location to report on circumstance that could be detrimental to the smooth conduct of the elections to the Returning Officers who then report to the Electoral Commissioner. Some of the circumstances for instance are natural disasters landslides, flooding, or they could be manmade such as fights erupting caused by different factions. From those reports the Electoral Commissioner is to make an assessment of the circumstances and determine whether special circumstances exist to act in a certain way. What amounts to special circumstances is a determination arrived at by the Electoral Commission after receiving reports from polling and scrutiny teams about the situation on the ground. The Electoral Commission must determine from those reports that special circumstances exist and advise the Head of State accordingly.

46. The other part of the question is that, where special circumstances exist and time is extended for the return of the writs, how can it be exercised fairly to ensure all members participate in the election of the Speaker and the Prime Minister at the first meeting of Parliament after a general election. The Parliament must meet on the day fixed by the Head of State: see s.1 of the Organic Law on calling of Meetings of Parliament. The date for the first sitting of Parliament after a general election is determined after the majority of the writs have been returned. The Speaker and the Prime Minister are therefore elected by the majority of members present in Parliament. There is no specific constitutional requirement, although it would be ideal and good, for all Members of Parliament to elect the Speaker and the Prime Minister.

47. It is untenable for those electorates whose writs have not been returned in time for the first sitting of Parliament after a general election. For whatever reasons the writs are not returned, Parliament will not wait for them to be returned first before it can sit. As long as the majority of the writs have returned, the Parliamentary process must proceed and go on. The law does not say all writs must be returned before Parliament can sit and that all members of Parliament must participate to elect the Speaker and the Prime Minister. It would be good if all the members participated in the election of the Speaker and the Prime Minister but in PNG many factors cause late return of writs and some members cannot take part in the first sitting after a general election and miss out on the very important election of the Speaker and the Prime Minister.

48. Sections 80, 81 and 177 of the Organic Law on Elections are not inconsistent with s.105 of the Constitution. In fact, these provisions complement each other. The Organic Law provisions enlarge on the Constitutional provisions.

49. In relation to this question, I refuse to answer the question because I already answered these questions when I answered the last question.

51. KANDAKASI DCJ: This is a Special Reference that concerns the interpretation of s 105(3) and 124 (1) of the Constitution and s 177 (2) of the Organic Law on Elections. These provisions deal with extension of time for the return of writs and the convening of Parliament following a national general election. Related matters of failing elections and the role of the Electoral Advisory Committee as well as returning a writ after the date fixed for its return whether extended or not which are the subjects of ss.97, 97A, 81(3) and 80(1) of the OLNLLGE are also part of the reference. The Ombudsman Commission (the OC) filed this Special Reference following the conduct of the National General Elections for the Ninth National Parliament in 2017,which saw several extensions which has given rise to several Constitutional law questions.

52. The questions presented are in the reference, which I will restate as I come to each of them.

53. The relevant factual background from which the questions arise are straight forward. Pursuant to s.105 (2) of the Constitution, acting in accordance with the advice of the Electoral Commission, fixed 24^thJuly 2017 for the return of the writs.On 21 July 2017 the Head of State, pursuant to advice by the Electoral Commissioner under Section 177 of the Organic Law on Elections extended the return of the writs to 10.00am Friday 28^thJuly 2017.

54. In the case of SCR 4 of 2002; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689, the court ruled that there can only be one extension under Section 177 of the Organic Law on Elections.

55. Section 97 of the Organic Law on Elections states that an election shall be deemed to have failed if no candidate is nominated or returned as elected. The question arises as to whether the writs for those electorates that are not returned by 28 July 2017 are considered to have failed and therefore a supplementary election must be conducted.

56. Section 177(2) of the Organic Law on Elections also provides that the extension of the return of writs shall be extended to a date at least five (5) days before the anniversary of the current Parliament. The anniversary of the Parliament was on 3^rd August 2017. As at close of business on Thursday 27^thJuly 2017, there were still at least 30 electorates that were yet to complete their elections. These were the following:

57. It was considered unlikely that counting for these electorates will be completed by 28 July 2017, being the first extended date for the return of the writs.

58. Section 124(1) of the Constitution is in mandatory terms that Parliament must be called to meet before the lapse of seven (7) days after the return of the writs. This meant that Parliament had to be called to meet before 4^thAugust 2017.This would have meant that all the writs had to be returned by 28^thJuly 2017.

59. Section 105(3)(a) of the Constitution states that the date fixed for the return of the writs should be fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general elections.The question arises as to whether Section 177(2) of the Organic Law on Elections is unconstitutional as against s.105(3)(a) of the Constitution, in limiting the exercise of the discretion of the Electoral Commissioner in determining the date fixed for the return of the writs to be as fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election.

60. Before proceeding to interpret the provisions in question, it is important that the Court should remind itself and be guided by the principles governing the interpretation of any provision of the Constitution. The relevant principles gathered from the various case law can be summarised as follows:

(1) The Court must not lose sight of the fact that it is interpreting provisions of Constitutional Laws, which requires a special and careful approach;^[1]

(2) In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice as dictated by s.158 (2) of the Constitution;

(3) The Constitution is a living document, dynamic in character and it speaks from time to time as noted and provided for by Constitution, Sch 1.4.

(4) Each Constitutional Law is intended to be read as a whole going by the dictates of Constitution, Sch 1.5(1).

(5) The Courts should be taking a more liberal and purposive approach when it comes to interpreting and applying the provisions of the Constitution and other statutory provisions in our country to do justice and to give meaning and effect to the spirit and intent of the provision in question, except in the case of tax legislation and where the word used is so plain and clear.^[2]

(6) Where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning without doing any mischief, then the Court should accord that meaning and apply it to the circumstances of the case before it.^[3]

(7) The judges are urged to use “judicial ingenuity” in appropriate cases, to do justice^[4] provided they restrict themselves to interpreting and applying the law enacted by Parliament and do not get into the sphere of legislating which is within the province of Parliament;^[5]

(8) In a case where there are several possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results;^[6]

(9) The National Goals and Directive Principles and the Basic Social Obligations set out in the Constitution are statements of political vision and developmental aspirations on which our country is founded. They also spell out the basic principles of good governance but are non-justiciable. Hence, except where the Constitution itself provides for them to be used as an aid to the interpretation of specific statutes, they cannot be used as a ground to strike down legislation;^[7]

(10) The philosophical and ideological underpinnings of democratic governments and constitutional democracies embodied in the basic structures and doctrines developed by Courts in other countries are inapplicable to the interpretation of our Constitution. Instead, the relevant principles and materials to be used for interpreting the Constitution are those found in Constitution s 24 and Schedule 2 and the ample case law already developed by this Court. Hence, there is no need for any foreign doctrine or principle to apply.^[8]

61. With these principles in mind I now turn to each of the questions in the order in which they are presented. The first question is as follows:

“Whether Section 177(2) of the Organic Law on Elections is inconsistent with Section 105 (3) of the Constitution?

(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or

(b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—

(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or

(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or

(3) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that—

(b) in a case to which Subsection (1)(b) or (c) applies—the date for the return of the writs is fixed as soon as may reasonably be after the date of the relevant decision of the Parliament.”

63. A close and careful reading of the provisions of s. 105 of the Constitution as a whole, makes the purpose of that provision and the purpose of s. 105(3) very clear so much so that no art of interpretation is required to work out its meaning and purpose. The only exception here would be the phrase, “fifth anniversary”. The term anniversary ordinarily means the date on which an event took place in the previous year, such as a couple’s wedding date, or someone’s passing away or the commencement of a business or such other events. Sometimes, this is referred to as the birth date. Hence, the phrase first anniversary will signify the first 12 months, while the second, third, fourth and fifth and so on anniversaries will signify each lot of 12 months that have passed since the date when the event first occurred. This cannot be the same as the beginning or the end of each calendar or other years unless the event’s date coincides with such dates. What this means in the context of s. 105 (3) and the case before this Court is this. The fifth year in which the date fixed for the return of the writs in the previous election occurs. In this instance, the anniversary date was 03^rd August 2017, working from the date fixed for the return of writs in the previous election. Hence, the date set for the return of the writs would have to be before 03^rd August 2017.

64. Having dealt with the meaning of the phrase “fifth anniversary” I return to what s. 105 of the Constitution is doing. Subsection (1) states that a general election to Parliament must be held under any of the following settings:

(1) Within 3 months before the fifth anniversary of the day fixed for the return of writs for the previous general elections; or

(2) If before the time factor in (1) above is reached but during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election there is:

(a) a successful vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145; or

65. Once a national general election is called under any one of the circumstances under s. 105(1), the next provision s. 105(2) provides for the fixing of the first and last days of polling and the date when the writs must return. Section 105 (3) then requires the Electoral Commission to “do its best” when advising the Head of State under s. 105 (2) and when conducting the elections. Thereafter, by s. 105(3)(a), where the election is under the first of the categories, namely under s.105 (1)(a), which is the normal or usual circumstances in which elections are called, the Electoral Commission is required to ensure that:

“...the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election.”

66. Relevantly, Constitution Schedule 1.2(1) defines the phrase “the day fixed for the return of the writs for a general election” in the following terms:

(a) in the case of a general election where there is no extension of the time for the return of any writ or the time for the return of all writs is extended—the day by which the writs are to be returned; and

(b) in any other case—the day by which the majority of the writs are to be returned.”

67. Considering this definition and the clear wording in s. 105 (1) and (3),the intention behind these provisions is very clear as to when an election writ should return. Without any doubt, the Electoral Commission is required to fix a return date for normal election writs to a date as is reasonably possible before the expiry of the date fixed for the fifth anniversary for the return of the writs for or under the previous election. This is important because, by the fifth anniversary of the previous election, all members elected in the previous election will cease to be members of Parliament pursuant to s. 104(2)(b) of the Constitution. Of course, the same applies to those in the care taker government. This is workable in an ideal setting where all the electoral systems and processes work according to the set systems and processes.

68. What happens in cases, where for very good reason and for matters beyond the control of the Electoral Commission with the best of intends is not able to come within the dictates of s.105(3) of the Constitution? The answer is in Schedule 1.16, which stipulates:

(1) Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.”

69. In my view this is a most important provision. For various good reasons, the strictures of a time limit imposed by the Constitution may not be achieved, despite all best efforts and reasonable steps being taken to meet the time limits. Rather than allowing only the time factor to defeat what is done, this provision deems the relevant time limit “extended by whatever period is necessary to make compliance practicable.” Given the importance of what is provided for in subsection (1), subsection (2) states in no uncertain terms that the “operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.”

70. When one reads s.105 (3) of the Constitution and sch. 1.16 of the Constitution together, it becomes clearer that the Electoral Commission is vested with a wide discretion in two respects. Firstly, it is vested with a wide power to extend time for the return of writs by whatever time is necessary as long as the extended time does not exceed the date fixed for a return of the writ for the previous election. As noted already, this is critical because all members of Parliament returned in the previous election cease to be members of Parliament by virtue of s. 104 (2)(b) of the Constitutionon the fifth anniversary date of the previous election. Consequently, the caretaker government also ceases to exist by the same fifth anniversary date. Secondly, if despite the best efforts of the Electoral Commissioner “it is not practicable to comply with” the requirement to return all the writs by or before the last elections anniversary date, sch. 1.16 of the Constitution will deem the time “extended by whatever period is necessary to make compliance practicable.”

71. The importance of this flexibility cannot be explained enough. Running elections and returning the results in a timely manner is an important and onerous Constitutional duty imposed on the Electoral Commission. For it is through the elections, the peoples’ representatives to Parliament get elected by the people. The right and or power of the people to exercise that right comes every 5 years. Unless they are re-elected, the people expect their previously elected members to cease to represent them beyond the 5 years term. Hence, they expect the Electoral Commission to have all the writs returned well before the date set for the fifth anniversary of the previous election. The Electoral Commission is thus under an onerous duty and responsibility to ensure the writs are returned well before the fifth anniversary of the date set for a return of writs in the previous election.

72. It is by no means an easy task to undertake and complete on time a national general election by the Electoral Commission. It is one of the costliest exercises which run into millions of Kina. Elections require a lot of planning and implementation of election programs with a lot of people involved putting in a lot of man hours into the conduct and return of the results. This has in the past and most certainly in the recently concluded elections, caused human lives and properties of substantial value. But delays in conduct of elections and elections results is not peculiar to PNG. It is a worldwide phenomenon. It happens all over the world though varying in degree and sometimes, even in the well to do countries, because even the well-intended and planned cannot possibly foretell and cover for every conceivable intervening event that might adversely affect a well-set election program. Whilst the aim is to run and deliver election outcomes on time and within budget, sometimes, certain intervening events well beyond the control of the Electoral Commission occur. In a less, developed place or country like PNG, it is important to appreciate our difficulties and make allowances for them. In my view therefore, the founding fathers of our Constitution and our system of government did appreciate the possible difficulties the Electoral Commission would face when it sets out to discharge its onerous duties and responsibilities in running national general elections each election year, which could make a return of the election results on the original set return dates difficult. Repeating the whole election exercise whether in whole or in part, no doubt doubles the expenses and risks. It makes sense therefore, in cases where “it is not practicable to comply with” time limits, to treat such time limits “deemed to be extended by whatever period is necessary to make compliance practicable.”

73. In the past including the 2017 national general elections, saw a majority of the writs returned before the date fixed for the fifth anniversary of the pervious general elections. However, a minority of the writs have been extended to return after their original return dates. In most cases, the delays in the return of the writs were in the counting of the votes or ballot papers and declaring a winner. In such a case, it makes no economic and logical sense to either fail the elections under s. 97(1) of the Organic Law on Elections or have the writs cancelled under s. 96A also of the Organic Law.

74. Having regard to these provisions and the interpretation I have just given, the question then is, what is the effect of the provisions of s. 177(2) of the Organic Law on Elections? This question must be answered by reference to the wording in the provision and by reference to the purpose or functions of Organic Law on Elections. Section 177 within which is s.177(2) reads:

75. The phrase “at least five days before the anniversary of the term of the current Parliament” in s. 177(2) of the Organic Law on Elections is the basis for the whole reference and the first question. The OC argues that, the Electoral Commission has a wider discretion under s. 105 (3) of the Constitution. Hence, this phrase is an unauthorised fetter on the provisions of s.105 (3) of the Constitution and the wide discretion this provision vests in the Electoral Commission. On the other hand, the Prime Minister, who is one of the intervenors argues to the contrary and submits that this phrase is only directory. The other intervenors including the Attorney General agree with the OC.

76. It is generally accepted that Organic Laws are supposed to elaborate on what is already provided for in brief or generally in the Constitution. However, Organic Laws do not have a life of their own except as granted to them by the Constitution and must be consistent at all times, with what the Constitution says. The most pertinent provision on point is s. 12 of the Constitution, which stipulates:

(1) Subject to Subsection (4), for the purposes of this Constitution, an Organic Law is a law made by the Parliament that is—

(a) for or in respect of a matter provision for which by way of an Organic Law is authorized by this Constitution; and

(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(4) Where this Constitution authorizes an Organic Law to make provision for any matter, the Organic Law may—

(a) make full provision for all aspects of that matter notwithstanding that all such aspects have not been expressly referred to in the provision authorizing the Organic Law except where this Constitution expressly limits the aspects of that matter for which provision may be made in an Organic Law; and

(b) may impose conditions, restrictions or modifications in respect of that matter or any aspect of it, except where this Constitution expressly states that conditions, restrictions or modifications shall not be imposed in respect of that matter.”
(Underlining mine)

77. In the present case, the Organic Law on Elections is the relevant Organic Law. It almost exhaustively provides for national and local-level government elections. The provisions made in this Constitutional law covers all matters concerning national and local level government elections from the issue of writs to return of writs and everything in between for the purposes of running a successful election and return of duly elected members of Parliament for the next Parliament in the case of national general elections. In that context, we have s. 177 of the Organic Law on Elections.

78. Section 177 (2) of the Organic Law on Elections uses the word “shall” to obligate the Electoral Commission to ensure that any extension of time it gives is at the least 5 days before the date set for the fifth anniversary for the pervious election. The preponderance of judicial view in PNG where the word ‘shall” is used is clear. It is mandatory or obligatory. In Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534 when considering the phrase “In principle” as used in s. 255 of the Constitution, I noted that, other Constitutional Law provisions as for example, s. 115 (1) of the Organic Law on Elections provides for consultation in specific terms and uses the word “shall” instead of the term “may” or the phrase “in principle.”

“They are not one and the same thing. The consultation provided for in s. 255 is “in principle” while the requirement for consultation is in mandatory terms by the use of the word “shall” in s.115 of the [Organic Law]. There is a long line of cases which make it clear that the use of the word “shall” in any legislation signals a mandatory requirement.”

80. Thereafter, I referred to several cases on point including the decision in Electoral Commission of PNG v. Simon J Solo (2015) SC1467, where the Supreme Court expressed a similar view in the context of s. 38 of the Organic Law. I then concluded that the law was as good as settled. Recent decisions, such as the one in Nominees Niugini Ltd v. IPBC (2017) SC1646, though in the context of Court Rules, confirms this position of the law.

81. The provisions of s. 177(2) of Organic Law in my view,obligates the Electoral Commission to extend return dates for writs as long as such extension is “at least five days before the anniversary of the term of the current Parliament.” This clearly imposes a time limit for extension of dates for the return of writs for the purposes of returning a majority of the writs. This is inconsistent with the combined provisions of s. 105(3) and Schedule 1.16 of the Constitution, which vests in the Electoral Commission a wider discretion to conduct the elections in such a manner so as to ensure all writs get returned by or before date fixed for the return of writs in the previous election as is practically possible. Accordingly, I find the provisions of s.177(2) unconstitutional only to the extent of the inconsistency with s. 105(3) and sch. 1.16 of the Constitution and answer the first question with a “Yes”.

“If the answer to the first question is “Yes”, can the Electoral Commissioner further extend the date for the return of the writs to another date by advising the Head of State accordingly and such new date be fixed as nearly as reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election?”

83. This question is before us because of the Supreme Court decision in SCR No. 4 of 2002; Special Reference pursuant to the Constitution, Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (supra) (the Reference by Francis Damem). There the Supreme Court held:

“Apart from supplementary elections resultant on declarations of failure of elections for particular electorates, because there has already been an extension as provided by s. 177 of the Organic Law there can be no further extension of the time limit prescribed by the return of the writs on 29th July 2002.”

84. This view runs contrary to the import of the provisions of s.105 (3) and Sch. 1.16 of the Constitution as discussed above. With respect, the Supreme Court did not give any reason for its view. In my view, that decision is not only contrary to the clear provisions of s. 105(3) and Sch. 1.16 of the Constitution as discussed above but is also an unauthorised fetter on the wide discretion vested in the Electoral Commission. Accordingly, I decide against following that decision. Having arrived at that view, I answer the second question with a “Yes”.

“If the extended date of 28 July 2017 is unconstitutional and invalid whether the Electoral Commissioner can advice the Head of State pursuant to s177(1)of the OLNLLGE to extend the date to a new date which will allow the counting of the remaining electorates to be completed?”

86. Given my discussions and my answer to the first question, the answer to this question is obvious. The extension was a proper exercise of the wide discretion vested in the Electoral Commission by Constitution s. 105(3) and sch.1.16. Hence, the extension in question was Constitutional.

“If however, s 177(2) if the OLNLLGE is valid, what does “majority of the writs” in that provision and Schedule 1.2 of the Constitution mean?”

88. The Ombudsman argues that the term “majority” as provided for in Sch.1.2(1) of the Constitution has not been considered and defined by the Supreme Court before. Learned Counsel for the Ombudsman, refers to the National Court decision in Honourable Powes Parkop v. Honourable Peter O’Neill (2012) N4741, where the Court left the question of determining the issue of majority writs returned, to the Head of State to decide after having consulted the outgoing Prime Minister and Speaker under s. 1 of the Organic Law on the calling of Meetings of the Parliament. The suggestion there is for this Court to define the word “majority”.

89. The OC argues the term should be interpreted to mean a majority of the seats in each of the Provinces in the country. Going by that definition, the majority of returned writs should be 72 so as to allow each of the Provinces to be represented in Parliament when it first meets following the election and the important elections of the Speaker and the Prime Minister takes place. The basis for this suggested interpretation is in the NGDP & BSO, which call for equal participation. Against that argument is that of the Prime Minister. His argument is “majority” means more than one half of the number of seats in Parliament to be filled through elections. At the same time, counsel for the Prime Minister submits there is no need for the Court to have this word interpreted because the Organic Law on the Calling of Parliament already provides for it.

90. I already concluded that s. 177(2) of the Organic Law on Elections is unconstitutional only to the extent that it is inconsistent with s. 105(3) and sch. 1.16 of the Constitution. That was in answer to the first question. Proceeding on that basis, one view would be that, in the light of that decision, it would be unnecessary for me to consider this question. However, s.177(2) of the Organic Law on Elections and sch.1.2 are two difference provisions in two different Constitutional Laws. The word “majority” appears in both s. 177(2) of the Organic Law on Elections and Sch.1.2(1) of the Constitution. I will thus consider this question and will endeavour to have it answered.

91. Quoting again the provisions of sch. 1.2(1) of the Constitution, I note it says:

(b) in any other case—the day by which the majority of the writs are to be returned.”
(Underlining mine)

92. I first remind myself of the principles governing the interpretation of Constitutional Law provisions I earlier set out in this judgment. The most pertinent principles for the purposes of answering the question under consideration is this. The Courts should take a more liberal and purposive approach when it comes to interpreting and applying the provisions of the Constitution and other statutory provisions in our country to do justice and to give meaning and effect to the spirit and intent of the provision in questions. There are however, two exceptions to that principle. These are first in the cases of tax legislation where the strict interpretation rule applies and secondly in cases where the word used in the legislation under consideration is so plain and clear that no art of interpretation is required. In the case of the latter, where the word or expression used in the legislation is clear and capable of being accorded its plain or ordinary meaning without doing any mischief, then the Court should accord that meaning and apply it to the circumstances of the case before it. It is also settled law that no Court or Judge in the guise of statutory interpretation as any power or right to legislate which power belongs to and is vested in the legislature.

93. In present case, the word “majority” is not a complicated word. It is used often in almost everyday communication when someone wants to or is talking about more than one half of the whatever it is. Given that, it does not require any art of interpretation to apply to give meaning to it, unless the context in which the word is used suggested otherwise. In this case, the context does not suggest a meaning other than its ordinary meaning to be given. A quick search for its ordinary meaning in a few dictionaries provide the same meaning. The meaning that is most relevant for our purposes is this. The “greater number of something” that is “more than one half of the total”.^[9]A good example is the greater number of votes in the case of elections where the winner must score more than one half of the votes to win by a majority vote. A majority in that context would mean one half of the whole total plus one, or sometimes referred to as the simple majority.

94. The ordinary meaning of the word “majority is carried through in the Constitution’s definition of the phrase “absolute majority vote” in Sch. 1.2(1) which reads as follows:

“’absolute majority vote’, in relation to proceedings in the Parliament, means—

(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; or

(b) if not so qualified, affirmative votes equal to more than one half of the total number of those seats...”

95. As can be apparent from the above, the Constitution through Parliament is no stranger to applying qualifications to the word “majority” to take the meaning away from the ordinary and plain meaning. One instance where this becomes more obvious is when the Constitution provides in s. 17 for “prescribe majority votes” that are required for alterations of various provisions of the Constitution. Here, we have for instance “two-thirds absolute majority vote”^[10] or a “three-quarters absolute majority.”^[11]The Chief Justice acknowledged this position in Reference by DR Allan Marat, In the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC1187, in the following terms:

“The Constitution provides elaborate and stringent procedures and processes for altering its provisions, to ensure that an overwhelming majority of the people favour the alteration: see Constitution, Part II Division 1, Subdivision C (Constitutional Alteration and Organic Laws) (ss 13 – 17). For instance, Section 17 of the Constitution provides for a prescribed majority vote in favour to alter the Constitution, those being by two-thirds majority, three-quarters majority or absolute majority.”

96. Another example of the Constitution putting a qualification to the word “majority” is in respect of the majority of votes required by s. 87(5). This section provides that no person is eligible for appointment as the Governor General more than once unless the Parliament, by “two-thirds absolute majority vote”, approves the appointment for a second term.^[12]There are many other provisions in the Constitution which also provide for a “two-thirds absolute majority vote”. These are for example, s. 15(2) for urgent alterations to the Constitution, s.104, concerning nominated members of Parliament, ss.345(4)(b)(i) and 346, concerning amendments to the Part XIV dealing with Bougainville Government and the Bougainville Referendum. Various Organic Laws do likewise for example, s.41 (8) and (9) and s. 20 (1) and 125(5A) of the Organic Law on Elections. Even some Acts of Parliament do provide for the two-third majority votes. Examples of these are Article 16(1), 29(2), 31 (1)(b)(ii) in the Schedule to the Asian Development Bank Act (Chp 82), s.32(2) of the Associations Incorporations Act (Chp.142) and s.5(4) and (7)(c) of the Christian Health Services of Papua New Guinea Act 2007.

97. It should be abundantly clear from the foregoing discussions that, if indeed the intention of the legislature and the Constitution was to have the word “majority” have a meaning other than its ordinary meaning, the Constitution itself or the legislature could have provided for that as it has done in the other settings briefly noted above. What we have is what we find in the wording in Sch.1.2(1). This Court’s duty is neither to read into it nor add to that which the legislature deliberately decided not to. The arguments based on the NGDP& BSO are sound. However, this Court’s duty is to interpret the law as it is without adding or subtracting from what is expressly provided. Besides, the NGDP& BSO are statements of political vision and developmental aspirations on which the State is founded and the basic principles of good governance. They are non-justiciable and as such, they cannot be used to introduce a concept that is not in the Constitution, except where the Constitution itself permits. The Ombudsman’s submission is indeed asking this Court to enter the sphere of legislating, which is the province of Parliament, something this Court must recognise, respect and stay out of.

98. It is very clear to me as to the purpose or object behind Parliament in the exercise of its legislative power and function after having considered all things, settled for the wording in sch.1.2(1) of the Constitution. Putting in a qualification like two thirds absolute majority or any qualification closer to it could easily create a problem for the nation. If for example, a two thirds absolute majority was put in, it would mean Parliament would not be called to sit within the 7 days requirement under s. 124 (1) of the Constitution or 21 days under s. 80(1) of the Organic Law on Elections until the prescribe two thirds absolute majority of the writs are returned. In number terms, this might come down to 74 writs given the current number of seats in Parliament at 111. As I discussed in my dealing with the first of the questions in this reference, running a successful election in PNG is an onerous and difficult task. Given that, reaching a number beyond the simple majority of 56 to anything like 74 may be impossible. That would force the election process to go past the date fixed for the return of the writs for the current Parliament. This would in turn create problems for the country in two respects. Firstly, after the expiry of the date fixed for the fifth anniversary of date fixed for a return of the writs under the previous election, all the members of Parliament including those in the care taker government will cease to be members of Parliament. This would clearly lead to the first mischief for the country in terms of leaving the country with no political leadership. Secondly, having such a high numbers requirement and failing to meet it could lead to an inability for Parliament “to meet not more than seven days after the day fixed for the return of the writs for a general election”and hence breach s. 124 of the Constitution. No doubt our founding fathers in their wisdom and foresight decided to settle for the words we find in sch. 1.2(1) of the Constitution and in particular the word “majority” to have its ordinary meaning, to safeguard against the kinds of mischief mentioned.

99. In short, my short answer to part of question 4 concerning the meaning of the word “majority as used in sch. 1.2(1) of the Constitution is this. The term “majority” means one half of the total writs to be returned plus one. Given that the current Parliament has 111 members, the majority would have to be more than one half of that number. One half of that comes to 55.5, which needs to be rounded up since we cannot divide a human being into two. A round up figure comes to 56, which is more than one half of 111.

“If the majority of the writs mean 56 members of the parliament and such number of members of parliament or more have been returned by the date fixed for the return of writs can further extension of the writs be issued specifically for those electorates not yet returned under s 177(1) of the OLNLLGE?”

101. Based on my foregoing discussions and my answer to question 1, I answer this question in the affirmative.

“Whether electorates which have not completed counting and have not declared a result by or before the date for the return of writs can be considered valid where the Electoral Commissioner has not declared a failed election?”

103. Again, based on my reasoning in the foregoing and answer to question 1, I answer this question “Yes” provided a declaration of a winner is eventually made.

“Whether the seven (7) days fixed for Parliament to convene under s124(1) of the Constitution can be extended under Sch 1.16 of the Constitution in circumstances where the remaining electorates in a general election have not been declared failed, but are still continuing their counting?”

105. Having regard to my reason in respect of question 1 and 4, I answer this question No. Parliament must convene if the majority as I have discussed and defined is reached. The remaining minority electorates’ election process can continue to completion unless they have been declared failed.

“If the seven days can be extended, what and how can the period of extension be determined?”

107. This is a follow-on question from question 7. In view of my answer to question 7, it is not necessary for me to answer this question. Hence, I decline to answer the question.

“Can the Electoral commissioner fail an election under s 97 of the OLNLLGE without the advice of the Electoral Advisory Committee under s 97A of the same law?”

110. I will decline to answer this question for two reasons. First there is no factual context upon which this question arises. There is no fact stated in the statement of facts filed in this reference. Also, there is not even a mention in any of the two affidavits that have been filed in support of the reference.

111. Secondly, the question of failing an election was the subject of the Supreme Court decision in the Reference by Francis Damem. Hence, the question necessarily arises as to how there can be a reference on the same question. Has there been a change in the law or the circumstances that warrants a repeat reference? How, is this reference different to the earlier reference? What is it that is not clear from the decision in the earlier reference that a further reference is warranted? There is no answer to any of these questions. Hence, my decision to decline to answer this question.

“If Section 177 of the OLNLLGE is valid, does it override Section 81(3) of the same law, so that no further writs can be returned after the extended date for the return of the writs?”

113. In answer to question 1, I came to the view that s. 177(2) is invalid only to the extent of its inconsistency with the combined provisions of s. 105(3) and sch.1.16 of the Constitution. Given that, s.177(2) minus the offending part remains valid. Proceeding then to consider s. 81, I first note that the provision reads:

(1) In the case of a general election, the same day shall be fixed for the commencement of the polling period in each electorate, and all writs shall be made returnable on the same day.

(2) Where special circumstances make it necessary for the Electoral Commission to fix different polling commencement dates for different electorates, the Commission may do so by notice in the National Gazette provided that the date scheduled for the return of writs is the same day for all electorates.

(3) Where special circumstances make it necessary, the Electoral Commission may return a writ after the date fixed for the return of writs.”

114. This provision clearly calls for all electorates to have the same commencement, polling and completion or the dates for the return of the writs. At the same time, it makes allowances for differences in the relevant dates where special circumstances exist, including a return of writs passed the dates set for the return of writs. On the other hand, s. 177 provides for extension of time for the return of writs. That being the case, they complement each other for the purposes of having all the writs returned by or before the date set for a return of the writs and in any event before the expiry of the fifth anniversary of the date fixed for a return of the writs for the previous general election. Indeed, none of the parties argue for a contrary view. For these reasons, I answer this question in the negative.

“If Section 177 overrides Section 81(3) of the OLNLLGE, should those unreturned electorates not returned by the return date become automatically failed elections, requiring a supplementary election?”

“If Section 177 of the OLNLLGE is valid and does not override Section 81(3) of the same law, is there a time limitation on the date for return of writs for special circumstances under Section 81(3) after the date fixed for return of the writs for those writs not returned by the date fixed for the return of writs including any extensions so granted under Section 177 of the OLNLLGE?”

118. In answer to question 1, I determined that, s. 177(2) of the Organic Law on Elections is invalid to the extend that it is inconsistent with the provisions of s. 105(3) and sch.1.16 of the Constitution. It would thus be unnecessary for me to answer this question. But for clarity I repeat the effect of my view in answer to question 1 here. It is open for extension of the dates fixed for a return of writs as many times as are necessary. But their return dates must be as“nearly as may reasonably be”close to the “fifth anniversary of the date fixed for the return of the writs for the previous general election.”

“If Section 81(3) of the OLNLLGE allows for return of a writ after the date specified for the return of writs for special circumstances, including after exhaustion of any extensions under Section 177 of the OLNLLGE, what are the special circumstances and how can it be exercised fairly to ensure that all members participate in the election of the Speaker and the Prime Minister at the first sitting of Parliament after the general elections?”

120. If anything should be clear from the foregoing discussions and those especially under the first question,is this. The Electoral Commission is vested with a wide discretion and power to conduct elections and return the writs before the expiry of the date fixed for the fifth anniversary of the previous election. Section 81(3) is part of the discretionary power the Electoral Commission has. It should follow therefore that, what constitutes “special circumstances”, is a matter for the Electoral Commission. The parties failed to assist the Court with submissions identifying the kind of circumstances that would constitute “special circumstances”.

121. In the Reference by Francis Damem, the Supreme Court was asked to circumscribe the circumstances in which the Electoral Commission could fail an election under s. 97. The Court said:

“It is our opinion that the questions as framed do not so much focus on the power and discretion that s 97 the Court provides to declare failure of election, as asking the Court to prescribe and even circumscribe the circumstances in which that power may be exercised. We do not consider that an appropriate course for the Court to take. Although such determination could and may in future be the subject of a National Court petition or review, it is not for this Court to set the circumstances in which the Electoral Commission can or cannot determine that an election has failed. Such would intrude on a power given solely to the Electoral Commission. It would also turn to put limits on the openness of the section.”

122. No convincing argument has been presented in this reference as to why this Court should depart from its earlier decision in the above matter. The Court cannot circumscribe the kinds of circumstances that would fall under “special circumstance” because neither this court nor any one else can exhaustively articulate all the possible circumstances. It is best left to the Electoral Commission to determine whether a special circumstance has arisen or exists in each case, rather than limiting him in his discretion. Accordingly, I decline to do what the question is asking this Court to do.

123. Question 14, which is the second last question, is the next question I turn to and the question reads:

“Under Section 80(1) of the OLNLLGE, the date fixed for the return of the writs shall not be no more than 21 days after the end of the polling period. Is that period limited by Section 105(1)(a) and (3)(a) of the Constitution and the period of extension provided for under Section 177 of the OLNLLGE?”

124. I have already set out in the earlier part of this judgment the provisions of s. 105(1)(a) and (3) together with the provisions of sch.1.16. of the Constitution and the provisions of s. 177 of the Organic Law on Elections. I need not repeat that here. Hence, I will only set out the provisions of s. 80 of the Organic Law on Elections. That provision reads:

(1) The date fixed for the return of the writ shall not be more than 21 days after the end of the polling period.

(2) Where special circumstances require, the Electoral Commission may, by notice in the National Gazette, extend the period specified in Subsection (1).”

125. The OC argued that the time limit of 21 days within which the writs are to be returned after the end of polling is restricted by Constitution s. 105(1)(a) and (3)(a). The Prime Minister argued that the time limit is subject to the extension under Organic Law on Elections, ss. 177(1)(d), s 81(3) and Constitution ss. 105(1)(a), 124 and sch. 1.16. The Attorney General submitted the Court should decline to answer the question because it is vague.

126. My discussions in the earlier part of this judgment centred on the provisions of s. 105 (3) an sch. 1.16 of the Constitution and s. 177(2) and the discussion under some of the earlier questions make it clear that the Electoral Commission as a wide discretion to run and return elections. Within that discretion is the power to extend the time for the return of writs. The aim is to return all of the writs before the expiry of the date fixed for the fifth anniversary for the return of writs for the previous general election. However, there will be instances in which it may not be possible to strictly comply with the time limits. Schedule 1.16 applies to allow for the extension of time limitations “to make compliance practicable” in particular, in cases where “it is not practicable to comply with [time] limitations”. It should follow therefore that, whether it is the 21 days under s. 80(1) of the Organic Law on Elections or the period stipulated under s. 105(3) of the Constitution, the provisions of sch. 1.16 of the Constitution applies to deem the time periods extended as are necessary in appropriate cases to make compliance practicable. Thus, my answer to the question is negative.

“In the alternative, is Section 105(1)(a) and (3) of the Constitution in mandatory terms, such that there must be a return of writs of the majority of seats before or on the fifth anniversary, and any seats left undeclared by then would automatically be considered as failed elections notwithstanding the provisions of ss. 80(1), 81(3) and 177 of the OLNLLGE?

128. Having answered question 14, it would be unnecessary for me to answer this question. However, for clarity I answer the question in the negative in view of my answer to questions, 1, 4 and 14.

129. MOGISH,J: This Reference is brought by the Ombudsman Commission authorised under Section 19(3)(e) of the Constitution to seek the opinion of the Supreme Court on questions relating to the interpretation or application of various provisions of the Constitution and Organic Law on Elections.

131. This Court has been asked to interpret the following Constitutional Law provisions.

(3) In advising the Head of State under Subsection (2), and conducting the elections, the Electoral Commissioner shall do its best to ensure that-

(a) in a case to which Subsection (1)(a) applies- the date for the return of the writs is fixed nearly as may be reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general elections; and

“the day fixed for the return of the writs for the general elections” means-

138. Time lines have been placed in the Constitutional Laws to ensure that general elections are generally conducted in an orderly manner. The intention and direction of the Constitution and purpose of the Organic Law on Elections is that there be an election for the Parliament...of PNG every five (5) years. The constitutional provisions and those in the Organic Law on Elections also have the intent and purpose of ensuring that such elections are successfully accomplished within reasonable and determinant time span, where special circumstances require and he is of the opinion that it is necessary to do so, and after consultation with the Head of State, extend such time as is necessary to complete the relevant electoral process.

139. It is the prime function of the Electoral Commission to organise and conduct all elections for the Parliament (s. 4 ). The responsibility is vested in the Electoral Commission, who shall be appointed by the Head of State, acting with and in accordance with, the Electoral Commission Appointment Committee (s.5).

140. Before the Electoral Commissioner can effectively perform his prime function, he is required to comply with certain Constitutional requirements.Within a period of three months before the fifth anniversary of the day fixed for the return of the writs from the previous general elections, he must advice the Head of State on all the electoral processes stipulated in the Constitution and the Organic Law on Elections. The powers of the Electoral Commission are extensive, as will be demonstrated in this opinion, but subject to the dictates of the Constitution and Organic Law on Elections.

141. The following electoral process can be discerned from the above Constitutional Law.

142. In preparation of a general election the Electoral Commissioner must attend to six constitutional requirements, and these are as follows:

143. The Electoral Commission is given three months to conduct the general elections and return all writs issued before the fifth anniversary of the term of the current Parliament. Maintaining compliance to time lines is critical to the outcome of a general election. At the same times it makes the task of the EC more difficult and onerous. Within these time lines he must:

144. Adhering to this time lines is a daunting task and not practical, as experience in previous elections and the recent 2017 election has shown. Each electorate has its own unique problems. The Constitution recognises problems faced by the EC in the conduct of general elections given the circumstances of the country as a whole or in respect to individual electorates. The difficulties commonly encountered relate to the geography and vastness of the country, logistical, manpower, financial and law and order problems.

145. In 2002, the Attorney General, in SCR 4 of 2002; Special Reference Pursuant to Constitution Section 9 (2002) SC689 brought a Reference arising out of the conduct of the general National and Local Level Government Elections in the Provinces of Enga and Southern Highlands, and in particular, the effect upon the fairness of such elections of actual serious and widespread criminal activities involving violence, intimidation, threats, destruction of ballot boxes and papers, sacking of polling booths and holding of hostages. We have been asked to review and overrule that decision.

146. In addressing these problems, the Constitution has vested on the Electoral Commissioner a wide discretion to extend time for the specific electoral processes to complete. Before exercising any discretion to extend time, the Electoral Commissioner must be satisfied the presence of “special circumstances” making it necessary to fix different polling commencement dates for different electorates. And he does so by notice in the National Gazette provided that the date scheduled for the return of writs is the same day for all electorates. Where special circumstances make it necessary, the Electoral Commission may return a writ after the date fixed for the return of writs.

147. The exercise of discretion becomes relevant where the Electoral Commissioner is considering extension of an election process. Of course, any extension of time to complete one electoral process will affect the time allocated to the commencement and completion of the next electoral process. Whatever time extended, the EC must ensure “the date for the return of the writs is fixed as nearly as may be reasonably be in the fifth anniversary of the date fixed for the return of the writs for the previous general elections.” (s.105(3)(a) Constitution).

148. Where an extension is done, “public notice of the extension shall be immediately given in the electorate or the portion of the electorate for which the election is to be held.” (s. 177(3) Organic Law on Elections).

149. The above scenario applies where the original time stipulated is adhered to or if extended is within the fifth anniversary of the date fixed for the return of the writs for the previous general elections. Within this period, the Electoral Commissioner can extend time on those electoral processes to complete on more than one occasion after the return date of extension. The purpose and intent of the Constitution and Organic Law on Elections is to secure the return of all the writs.

150. As happened in this reference, not all the 111 writs issued were returned as of the 27^th July 2017. Only 81 writs were returned, the other writs for 30 electorates remained outstanding. They could not be returned before the fifth anniversary of Parliament due to circumstances beyond the control of the EC.

151. The question then arises as to what then happens to those unreturned writs? The answer in my opinion lies in s 177(2) of theOrganic Law on Elections and Sch 1.16 of the Constitution and that is the “Electoral Commission shall” next “endeavour to ensure that the majority of the writs in a general election are returned at least five days before the anniversary of the term of Parliament.” The fifth anniversary of Parliament, being the 4^th August is fixed by constitutional law. The intent and purpose of this provision is for the EC to secure “the majority of writs in a general election are returned.”

152. What does “majority of the writs in Organic Law on Elections s177(2) and Sch 1.2 of the Constitution mean?

153. The Referrer invited this Court to take a broad and purposive interpretation of what the term “majority” should entail in the election of the Speaker followed by the election of the Prime Minister. It was strongly contended that the court take into account the Preamble of the Constitution, the National Goals and Directive Principles and Basic Social Obligation to ensure equality and participation in the election of the Prime Minister. Noting in particular the Preamble of the Constitution that states that “all powers belong to the people” acting through their duly elected representatives. It was submitted a situation of unfairness would prevail, if there was only some members who participated in the election of the Speaker and the Prime Minister.

154. Counsel for the Prime Minister urged this court to apply a fair and liberal interpretation.

155. The principles to apply in interpretation of a constitutional provision are settled with many case precedents and have been adequately stated by Kandakasi DCJ in his draft judgment which I have read and apply in this case.

156. The word “absolute majority” is defined in sch. 1.2(1) of the Constitution in the context of a vote in relation to proceedings in the Parliament as follows. It “means—(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; or (b) if not so qualified, affirmative votes equal to more than one half of the total number of those seats...”

157. The word “majority” is not defined in any Constitutional Law and there is no need for this Court to assign any special meaning to it. It should be interpreted in its natural form and not glossed over. It must be interpreted to give effect to its intention and purpose. If Parliament had intended to apply a special definition to this word, then it would have expressly stated so in the Constitution. In the absence of a special definition for the word “majority”, then the ordinary English meaning of the word “majority” is preferred...the greater than the equal or by analogy to the phrase absolute majority, equal to more than one half of the total number of those seats...” In the context of this reference, the “majority” of the writs returned means more than the number of half of the total number of writs issued, which is based on the number of seats in Parliament. A total of 111 writs were issued. More than one half of the total number of writs issued would equal 56+.

158. I accept the concerns and rationale raised by the Referrer. Unfortunately, the law does not favour their contentions. As discussed above, the relevant consideration here is that a majority of writs have been returned. Once that is achieved, it activates the next constitutional process and that is the Calling of Parliament.

159. What then happens after a majority of writs are returned? Does the EC have any discretion to extend time for those writs yet to be returned?

160. As soon as the majority of writs have been secured, Parliament must be called to meet. And this must occur before the lapse of seven (7) days after the return of the writs. This process is stated in mandatory terms and must be observed. In the context of the Reference, this means that Parliament will be called to meet before 4 August 2017. What happens in Parliament is a matter for those members to deliberate on. It should not be the function of this court to stop Parliament from sitting and electing the Speaker and Prime Minister just because a majority of members, and not all the members or some of the electorate are not fairly represented in Parliament. To interpret s. 177(2) of the Organic Law on Elections in the manner suggested by the Referrer would be tantamount to judicial legislation. What is being proposed is for this court to legislate, something that should be resisted to give prominence to the principles of separation of powers between the Judiciary and the Legislature.

161. The Referrer accepts the wide discretion by the EC. However, they contended the phrase “....at least five days before the anniversary of the term of the current Parliament” are an unauthorised fetter on the provisions of s 105(3) of the Constitution read in light of schedule 1.2 and 1.16 of the Constitution. It was submitted that the offending part of s.117(2) of the Organic Law on Elections is unconstitutional, in that, it restricts extension of the writs to five days before the date fixed for the return of the writs for the previous election.

162. So what does the phrase “....at least five days before the anniversary of the term of the current Parliament” mean. The five days duration is plain in its meaning, purpose and intent. This can be discerned from the provisions itself and does not need any further interpretation. In its simplest sense it means within at least five days before the 5^th Anniversary of Parliament, the EC must secure a majority of returned writs. In the context of this Reference, the phrase refers to any dates between the 29^th July 2017 and 3^rdAugust 2017. That is the purpose and intent of s. 177(2) of the Organic Law on Elections, and that is to secure a majority of returned writs. This is an obvious distinction from the purpose and intent of extending time up to the 28^th July where the emphasis is to secure the return of all the writs.

163. The five days may appear to put a restriction of the discretion of the EC, but not to the extent that it is unconstitutional. The restriction is necessary to ensure that the EC does not extend time beyond the fifth anniversary. If the EC is contemplating any extensions to secure the majority of returned writs, then it should be done at least 5 days or within five days before the fifth anniversary of Parliament. It has no application after the fifth anniversary of Parliament. Put it the other way, EC must secure a majority of writs returned between the 29^th July 2017 and 3^rd August, 2017. Up to this point in time, the discretion of the EC is derived from s. 105, 124 sch 1.2, etc of the Constitution and s. 124 and s. 177(2) of the Organic Law. His discretion to extend lapses on the 5^th Anniversary, in this case on the fifth anniversary of Parliament. The EC cannot purport to exercise his discretionary powers that he does not possess. That in my opinion would be unconstitutional.

164. To that extent therefore, there is merits to the Referrers arguments if the Constitution did not offer a way out. Fortunately, sch 1.16 of the Constitution provides the constitutional means for the EC to continue to retain his discretionary powers even after the 5^th anniversary. This provision saves an election from being declared a failure because the counting process has not been completed. In my opinion, it makes no sense to fail an election because the counting process has not been completed bearing in mind that it is an expensive exercise to conduct election. There has to be lawful reasons to fail an election. It should not be the function of this court to list those circumstances sufficient to fail an election. That is a matter for the EC to determine taking into account the circumstances of the electorate concerned.

165. The EC power to extend time on or after the fifth anniversary of Parliament is by operation of the law. The EC is not precluded in setting the return for the unreturned writs for individual electorates based on its own “special circumstances.” What constitutes “special circumstances” is a matter for the EC to determine. This court should not attempt to set down what those circumstances are. That is a matter for the EC to determine taking into account the circumstances of the electorate concerned.

166. There is no set procedure on how he should go about exercising his discretion. In my opinion he should consult the Head of State and at the same publish the dates when the writs should be returned.

167. For those unreturned writs, time shall be extended as per sch 1.16 of the Constitution until the results are returned or the election deemed a failure. The extension is by operation of the law. The EC shall decide when those writs should be returned bearing in mind the peculiar circumstances of individual electorates and the need to have an elected member in Parliament to effectively participate in the electoral processes. What-ever return date should be as nearly as may be reasonably be the anniversary of the term of Parliament.” The returned date must be reasonable bearing in mind that the electors are entitled to have a member in Parliament to represent their views and effectively participate in parliamentary process. Again, it is not for this court to prescribe how long the extension should be. That is a matter for the EC to determine taking into account the circumstances of the electorate concerned.

168. This court was asked by the Referrer to overrule the decision of Reference made to the case of Special Reference by the Attorney General [2002] SC689. In that case the Supreme Court held that the EC, when exercising his powers under s. 177 of the Organic Law on Elections to extend the date for the return of the writs, can only do so once. Since the Reference requires consideration of the Supreme Court decision; sch 2.9 of the Constitution should be borne in mind.

169. Schedule 2.9 provides that all decision of the Supreme Court are binding on all other courts except on itself. In Christain v.Namaliu [1996] PGSC34; SC1583, the Supreme Court held that it can only depart from an earlier statement of law it made in the most exceptional circumstances. Instances such as “when the Chief Justice is presiding, unless the Chief Justice is being asked to reverse one of his own decisions; after careful scrutiny of the precedent authority in question after a full consideration of what may be the consequences of doing so; where the earlier decision can be said to be clearly and manifestly wrong, or in conflict with some decision of the Court or well established principle, and that its maintenance is injurious to the public interest.”

171. It is significant to note that the Supreme Court was not invited to consider the application of sch 1.16 of the Constitution in the above reference. Having had the benefit of full argument, with respect, I agree that EC has the discretion to extend time for more than one occasion between the date fixed for the return of writs to the 5^th anniversary and after the 5^th anniversary by operation of the law.

172. A practical dilemma faced by this Court in overruling this case is that since hearing the Reference, Chief Justice Sir Salamo Injia’s term of appointment as Chief Justice lapsed. I would be reluctant to expressly overrule the case present given this fact.

174. Whether s 177(2) of the OLNLLGE is inconsistent with s 105(3)(a) of the Constitution.

175. Except for the meaning of the phrase “at least 5 days before....etc”, I agree with the views expressed by Justice Kandakasi concerning the application, interpretation and intent/purpose of sections 105, schedule 1.12 and 1.16 of the Constitution and s. 177 (2) of the OL and their relation to each other in terms of the conduct of general elections to Parliament.

176. My answer to this question is NO. Section 177(2) of the Organic Law compliments s. 105(3)(a) of the Constitution.

177. If the answer to the first question is Yes, can the Electoral Commissioner further extend the date for the return of the writs to another date by advising the Head of State accordingly and such new date be fixed as nearly as reasonable bet the fifth anniversary of the date fixed for the return of writs for the General previous elections?

179. If the extended date of 28 July is unconstitutional and invalid, whether the Electoral Commissioner can advise the Head of State put it to s 177 (1) of the Organic Law on Elections to extend the date to a new date which will allow the counting of the remaining electorates to be completed.

180. I would answer the question as follows. “Majority of the writs in a general election” in s 177(2) of the Organic Law on Elections, and “majority of writs returned” in sch 1.2(1)(b) of the Constitution means more than the number of half of the total number of writs issued, which is based on the number of seats in Parliament; that is more than 56 returned writs.

181. If the majority of the writs means 56 members of the Parliament and such number of members of Parliament or more have been returned by the date fixed for the return of writs, can further extension of the writs be issued specifically for those electorates not yet returned under s 177(1) of the Organic Law on Elections?

182. The answer to this question can be found in sch 1.16 of the Constitution. Where, as in this reference,it is not practicable to comply with that limitation of 28 July 2017, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable. Each case will be determined on its own circumstance bearing in mind the interest of the electorates to have a representative participating in Parliament as soon as possible.

183. My answer to this question is Yes. So long as the extension is not unreasonable. What-ever return date should be as nearly as may be reasonably be the anniversary of the term of Parliament.” That is a matter for the Electoral Commission to decide. This court should refrain from prescribing the duration of the return of those writs.

184. Whether electorate which have not completed counting and have not declared a result by or before the due date for the return of writs can be considered valid where the Electoral Commissioner has not declared a failed election?

186. Whether the seven (7) days fixed for Parliament to convene under s 124 (1) of the Constitution can be extended under sch 1.16 of the Constitution in circumstances where the remaining electorates in a general election have not been declared failed, but still counting.

187. My answer is No. The business of Parliament cannot be put on hold because counting is still continuing in the remaining electorates. Parliament must convene once the majority of writs in a general election are returned. That is the important consideration. The remaining unreturned writs from other electorates can continue to completion unless they have been declared failed.

188. If the seven (7) days can be extended, what and how can the period of extension be determined?

189. I decline to answer this question in the light of my answer to question 7. In my view it would be inappropriate for this court to set the circumstances which the EC should exercise his discretion. Such would be to intrude upon a power given solely to the EC. It would also tend to put limits on the openness of the section.

190. Can the Electoral Commissioner fail an election under s. 97 of the OL without the advice of the Electoral advisory Committee?

191. I decline to answer this question. The situation envisaged does not form a part of the statement of facts.

192. If s.177 of the Organic Law on Elections is valid, does it override s.81 (3) of the same law, so that no further writs can be returned after the extended date for the return of the writs?

193. Section 85 of the Constitution prescribed a general provision for the General Election and the electoral processes to be held on the same day. Specifically, it provides for that all writs shall be returnable on the same day. Subsection (3) allows for extension.

194. Section 177 (2) of the Organic Law on Elections allows for extension where circumstances make it impractical to complete the Electoral process including return of writs. The discretion to extend time is stipulated in s.83(2)(3) of the Constitution.

195. My answer to this question is no. Both provisions complement each other on the issue of extension of time. Section 177(2) of the Organic Law on Elections does not override s. 81(3) of the Constitution.

196. If s.177 of the Organic Law on Elections override s.85 (3) of the Constitution, should those unreturned electorates not returned by the return date become automatically failed elections requiring a supplementary election?

198. If s. 177 of the Organic Law on Elections is valid and does not override s.81 (3) of the Constitution, is there a limitation on the return of writs for special circumstances under s. 81 (3) after the date fixed for the return of writs including any extensions so granted under s.177 of the Organic Law on Elections.

199. The EC can exercise his discretion to extend time on many occasions for the return of writs. But in my opinion it must as nearly as may be reasonably be the 5^th anniversary of the term of Parliament.

200. Again, it is not for this court to prescribe how long the extension should be. That is a matter for the EC to determine taking into account the circumstances of the electorate concerned.

201. “If Section 81(3) of the Organic Law on Elections allows for return of a writ after the date specified for the return of writs for special circumstances, including after exhaustion of any extensions under Section 177 of the Organic Law on Elections, what are the special circumstances and how can it be exercised fairly to ensure that all members participate in the election of the Speaker and the Prime Minister at the first sitting of Parliament after the general elections?”

202. Again, it is not for this court to prescribe how long the extension should be. That is a matter for the EC to determine taking into account the circumstances of the electorate concerned.

203. This court also resist the submission to prescribe what constitutes special circumstances on how it can be exercised fairly to ensure that all members participate in the election of the Speaker and the Prime Minister at the first sitting of Parliament after the general elections.

204. The consequence of not securing the return of all the writs up to the 3^rd August, 2017... denies equal participation in the election of the Speaker and the Prime Minister. It behoves everyone involved in the election processes to conduct the general election efficiently and not engaged in any activities that would jeopardize securing the return of all the writs.

205. It is perhaps relevant to observe the remarks by the Supreme Court in the Reference by Francis Damem, the Supreme Court was asked to circumscribe the circumstances in which the Electoral Commission could fail an election. The Court said:

207. Under Section 80(1) of theOrganic Law on Elections, the date fixed for the return of the writs shall not be no more than 21 days after the end of the polling period. Is that period limited by Section 105(1)(a) and (3)(a) of the Constitution and the period of extension provided for under Section 177 of the Organic Law on Elections?”

208. The Referrer contended that the time limit of 21 days within which the writs are to be returned after the end of polling is restricted by Constitution s.105(1)(a) and (3)(a). The Prime Minister argued that the time limit is subject to the extension under Organic Law on Elections, ss. 177(1)(d), s 81(3) and Constitution ss. 105(1)(a), 124 and sch. 1.16. The Attorney General submitted the Court should decline to answer the question because it is vague.

209. Maintaining strict compliance with time lines is critical to the outcome of a general election. The no more than 21 days does not exclude the EC, in special circumstances to extend that period. His discretion is expressly provided for in subsection (2) and s. 105(3) and sch 1.16 of the Constitution and s. 177(2) of the Organic Law on Elections. These provisions complement each other by asserting the discretionary powers of the EC.

211. In the alternative, is Section 105(1)(a) and (3) of the Constitution in mandatory terms, such that there must be a return of writs of the majority of seats before or on the fifth anniversary, and any seats left undeclared by then would automatically be considered as failed elections notwithstanding the provisions of ss. 80(1) , 81(3) and 177 of the Organic Law on Elections?

212. It is mandatory that there must be a return of writs of the majority of seats before or on the fifth anniversary. Those unreturned writs from those electorates does not constitute a failed election, Constitutional Law allows the counting processes to complete by operation of sch. 1.16 of the Constitution, even past the fifth anniversary of Parliament. Completion of the election process does not make these unreturned writs as failed.

214. MANUHU, J.: The Ombudsman Commission of Papua New Guinea, an authority referred to in section 19 (3) (e) of the Constitution has asked this Court for an opinion on questions relating to interpretation or application of Constitutional Laws in relation to extension of time for the return of the writs in the context of the 2017 general election.

215. The circumstances giving rise to the Reference is that the Head of State, acting in accordance with the advice of the Electoral Commission fixed 24 July 2017 as the date for the return of the writs in the 2017 general election. On 21 July 2017, the Head of State, pursuant to the advice by the Electoral Commissioner under Section 177 of the Organic Law on Elections extended the date for the return of the writs to 10:00am Friday 28 July 2017.

216. As at close of business on Thursday 27July 2017, there were still at least 30 electorates that were still counting, which included Sandaun Regional, Madang Regional, Rai Coast Open, Madang Province, Ramu Open, Madang Province, UsinoBundi Open, Madang Province, Morobe Regional, Chimbu Regional, Gumine Open, Chimbu Province, Enga Regional, Wabag Open, LagaipPogera Open, Wapenamanda Open, Kandep Open, Jiwaka Open, Western Provincial Regional, South Fly Open, National Capital District Regional, Port Moresby North East Open, Western Highlands Regional, Eastern HighlandsRegional, Lufa Open, OburaWonenara Open, Southern Highlands Regional, Mendi Open, Kagua Erave Open, and Nipa Kutubu Open.

217. Section 124 (1) of the Constitution is in mandatory terms that Parliament must be called to meet before the lapse of seven days after the return of the writs. This means that Parliament should have been called to meet before 4August 2017. This further means that the writs had to be returned by 28 July 2017.

218. In the case of SCR 4 of 2002, Special Reference Pursuant to Constitution Section 19; Referred by Francis Damem, Attorney General, for the Independent State of Papua New Guinea (supra), this Court ruled that there can only be one extension under Section 177 of the Organic Law on Elections. Section 97 of the Organic Law on Elections states that an election shall be deemed to have failed if no candidate is nominated or returned as elected.

219. The question arises as to whether the writs for those electorates that were not returned by 28 July 2017 can be considered to have failed and therefore a supplementary election should have been conducted. Section 177 (2) of the Organic Law on Elections also provides that the extension of the return of writs shall be extended to a date at least five days before the anniversary of the current parliament. The anniversary of the Parliament was on 3 August 2017.

220. Section 105 (3) (a) of the Constitution states that the date for the return of the writ should be fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election. The question arises also as to whether section 177 (2) of the Organic Law on Elections is unconstitutional as against section 105 (3) (a) of the Constitution, in that it limited the exercise of the discretion of the Electoral Commissioner in determining the date fixed for the return of the writs to be fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general elections.

221. The relevant Constitutional Law provisions are the Constitution: Section 50, Right to Vote and Stand for Public Office; Section 105, General Elections; Section 124, Calling, etc.; the Organic Law on Elections:Section 80, Date of Return of Writ; Section 81, General Election to be held on same day; and Section 177, Extension of Time.

QUESTION ONE: Whether Section 177 (2) of the OLNLLGE is inconsistent with Section 105 (3) (a) of the Constitution?

224. It was submitted by the Referrer that the answer to the question should be in the affirmative. Section 177 (2), it was argued, is unconstitutional as against section 105 (3) (a) in that it limited the exercise of the discretion of the Electoral Commissioner in determining the date for the return of the writs to be fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election. It was argued that “at least five days before the anniversary of the current Parliament” under section 177 (2) is an unauthorised fetter of section 105 (3) (a) and is therefore unconstitutional. The Attorney General supported the Referrer.

(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or

“(3) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that -

(a) in a case to which Subsection (1)(a) applies -the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election; and

226. The Electoral Commission is constitutionally responsible for organising and conducting a general election every five years (section 15 (Organic Law on Elections)). Under section 105 (Constitution), a general election is required to be held within three months before the fifth anniversary of the day fixed for the return of the writs for the previous election. A general election commences when the Head of State on advice of the Electoral Commission fixes the date for the holding of an election generally and specifically for the issuance of the writ; for the taking of nominations; for campaigning; for polling and for the return of the writs.

227. Section 105 is complemented by sections 80 and 81 of the Organic Law on Elections as follows. Under section 80 (1), the date fixed for the return of the writ shall not be more than 21 days after the end of the polling period. Under section 81 (1), the same day shall be fixed for the commencement of polling in each electorate and the return of the writs should also be on the same day. Under section 81 (2), where special circumstances make it necessary, different days may be fixed for polling in the electorates but return of the writs should be fixed on the same day.

228. Election dates and deadlines are fixed by the Head of State on advice of the Electoral Commission in accordance with these Constitutional Law requirements.

229. What does “the date fixed for the return of the writs for the previous election” in section 105 (1) (a) and (3 (a) mean? Schedule 1.2 defines “the day fixed for the return of the writs for a general election” as:

“(a) in the case of a general election where there is no extension of time for the return of any writ or the time for the return of all writs is extended – the day by which the writs are to be returned; and

“(b) in any other case – the day by which the majority of the writs are to be returned”

230. There are three parts in this definition. The first part is the day by which the writs are to be returned. This description falls within the scope of section 105 (2) and (3) (a). The second part is the day by which the writs are to be returned after an extension is given. This description is in line with section 80 (2) and 177 (1) (d). The third part is the day by which the majority of the writs are to be returned. The only provision that relates to return of the majority of the writs is section 177 (2).

231. For the purpose of fixing the date for the return of the writs for a general election, I am of the view that “the date fixed for the return of the writs for the previous general election” in section 105 (1) (a) and (3 (a) means the date that was fixed for the return of the writs by the Head of State under the same provision for the previous general election. This is to ensure that general elections are held at a “reasonably frequent intervals” (CPC Report Ch. 6 p. 13 para. 91) and for sufficient time to be allowed for other election-related processes to be completed. It is counter-productive to align the date for the return of the writs with the extension dates for the previous election.

232. In the 2012 general election, for instance, the date fixed by the Head of State for the return of the writs was 27 July 2012. It was extended to 1 August and then to 8 August. See Parkop v. O’Neill (supra). In the 2017 general election, the Head of State fixed 24 July 2017 as the date for the return of the writs. This means that 27 July 2012 was “the date fixed for the return of the writs for the previous general election”.

233. The distinction between the act of fixing the date for the return of the writs and the act of returning the writs on the fixed date has to be understood. Section 105, complemented by the provisions of the Organic Law on Elections, relates to fixing of dates for various processes, including fixing the date for the return of the writs. The Head of State is responsible for fixing those dates. The Electoral Commission then conducts the election in accordance with those dates and concludes the election with the return of the writs.

234. Ideally, a general election commences and ends within the dates and deadlines so fixed by the Head of State. Where the writs are not returned on time or are unlikely to be returned on the fixed date, the Electoral Commissioner’s next course of action is to invoke the provisions on extension of time in order to return the writs.

235. The only relevant provision under the Constitution is Schedule 1.16, which is as follows:

“(1) Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

“(2) The operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.”

236. Schedule 1.16 is, however, a general provision on time limitation. It does not adequately guide the Electoral Commission on how to manage extension of time in a general election. Fortunately, there are three provisions under the Organic Law on Elections on extension of time.

“(1) The date fixed for the return of the writ shall not be more than 21 days after the end of the polling period.

“(2) Where special circumstances require, the Electoral Commission may, by notice in the National Gazette, extend the period specified in Subsection (1).” (my underlining)

“(1) Subject to this section, in the case of a general election, the same day shall be fixed for the commencement of the polling period in each electorate, and all writs shall be made returnable on the same day.

“(2) Where special circumstances make it necessary for the Electoral Commission to fix different polling commencement dates for different electorates, the Commission may do so by notice in the National Gazette provided that the date schedules for the return of writs is the same day for all electorates.

“(3) Where special circumstances make it necessary, the Electoral Commission may return a writ after the date fixed for the return of writs.” (my underlining)

“(1) Notwithstanding any provisions of this Law but subject to this section, the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, may, where special circumstances require and he is of the opinion that it is necessary to do so, extend such time as is necessary:

“(2) In exercising the powers under this section to extend time, the Electoral Commission shall endeavour to ensure that the majority of the writs in a general election are returned at least five days before the anniversary of the term of the current Parliament.

“(3) In the case of an extension of time under Subsection (1), public notice of the extension shall be immediately given in the electorate or the portion of the electorate for which the election is to be held.” (my underlining).

240. Section 177 was invoked during the 2017 general election on 21 July and was the basis for the return of the majority of the writs on 28 July. My views on this provision is that firstly, there is no limitation on the number of times and the period of each extension for the return of the writs. The Head of State on advice of the Electoral Commission has the discretion to “extend such time as is necessary” for any number of times to enable him to return the writs.

241. In the 2017 general election, the Head of State acting on advice of the Electoral Commission invoked section 177 (1) to extend time for the return of the writs from 24 July to 28 July. A further extension could have been sought under section 177 (1) as was the case in the 2012 general election but the Electoral Commission decided otherwise.

242. I note that on application by the Referrer, there was a court-ordered extension of time from 28 July to 31 July, despite the ruling in SCR 4 of 2002, Special Reference Pursuant to Constitution Section 19; Referred by Francis Damem, Attorney General, for the Independent State of Papua New Guinea (supra). The court-ordered extension and multiple extensions in 2012 validates my respectful view that an extension under section 177 (1) (d) may be sought for any number of times until all the writs are returned.

243. Secondly, notwithstanding any extension under section 177 (1), section 177 (2) provides that “the Electoral Commission shall endeavour to ensure that the majority of the writs in a general election are returned at least five days before the anniversary of the term of the current Parliament.” This provision splits the writs into two categories: the majority of the writs and, by necessary implication, the minority of the writs.

244. The reason is apparent from the subsection itself. The “anniversary of the current Parliament”, which is the same as the fifth anniversary of the outgoing Parliament, is a very important date in all general elections. This is the day when terms of office of old members of Parliament would have expired (see section 104 (2) (b) (Constitution)) and when the country would be without a legislative body unless the writs are returned. While the date for the return of the writs may be extended to whatever date that is necessary for the writs to be returned, section 177 (2) is a diversion provision that is intended to prevent a constitutional vacuum.

245. A constitutional vacuum is when there is no body or authority in existence to oversee or manage the affairs of a country. The absence of a Prime Minister or the Parliament as a result of delayed return of writs could create such a vacuum. In some countries, a constitutional vacuum presents a condition which could fuel political chaos and social unrest. It is flawless when all the writs are returned on time. It is critical when the writs are not returned before the fifth anniversary of the outgoing Parliament.

246. The five days requirement under section 177 (2) is, in my view, absolutely necessary. Firstly, it allows for consultation between the Electoral Commissioner and the Head of State especially, on the question of calling of the first meeting of Parliament after a general election. It also allows for the Head of State to consult the outgoing Prime Minister and Speaker before Parliament is called to meet: section 1 (Organic Law on the calling of Meetings of the Parliament). Where only the majority of the writs are returned, any formation of a (good) government also depends on meaningful consultation between the newly elected members and political parties. The nature and importance of the consultation process to be undertaken within the said five days should not be taken lightly.

247. Secondly, the five days requirement is consistent with the seven days requirement under section 124 (Constitution). I am of the view that seven days commences upon return of the writs or the majority of the writs. Thus, upon return of the majority of the writs pursuant to section 177 (2), the five days requirement is in reality subsumed by the seven days requirement and, for that reason, is virtually ineffective.

248. Clearly, therefore, five days has no bearing in law and in fact on the exercise of discretion under section 105 (3) (a). The argument that five days is an unauthorised fetter of section 105 (3) (a) is, with due respect, misconceived. Therefore, I will answer the first question in the negative.

249. My opinion in relation to extension of time for the return of the writs under section 177 (1) (d) and (2) is not necessarily applicable to extension of time for holding an election, or for taking of nominations, or for polling under section 177 (1) (a) (b) and (c) respectively. Extension of time for the holding of an election, for instance, is effectively a deferral of an election which may be inconsistent with section 105 (1) and (2).

QUESTION TWO: If the answer to the first question is “Yes”, was the extension of the return of the writs by the Head of State on advice of the Electoral Commissioner to 28 July 2017 unconstitutional and invalid?

250. The extension of the return of the writs by the Head of State on advice of the Electoral Commissioner to 28 July 2017 is not unconstitutional.

QUESTION THREE: If the extended date of 28 July 2017 is unconstitutional and invalid, whether the Electoral Commissioner can advise the Head of State pursuant to Section 177 (1) of the OLNLLGE to extend the date to a new date which would allow the counting of the remaining electorates to be completed?

251. The extended date of 28 July 2017 is not unconstitutional. The Electoral Commissioner can advise the Head of State pursuant to Section 177 (1) to extend the date to a new date which would allow the counting for the remaining electorates to be completed.

QUESTION FOUR: If Section 177 (2) of the OLNLLGE is valid, what does “majority of the writs” in that provision and in Schedule 1.2 of the Constitution mean?

252. It was argued that in the 2017 general elections, the remaining undeclared seats resulted in a number of Members of Parliament not participating in the election of the Speaker and Prime Minister. Therefore, “majority of writs” should be construed as “majority of writs” in each Province. Where a Province has three electorates, the majority is two. On that formula, “majority of writs” should be 72.

253. I respectfully disagree. There is no legal basis for the suggested formula. It is noteworthy that the quorum for any sitting of Parliament is one-third of the number of seats in the Parliament. See section 113 of the Constitution and Standing Order 35. In a 111-member Parliament, one-third is 37 members. Literally, “majority” means a greater number than half of the total or 50 per cent of the total plus one. In my view, therefore, “majority of the writs” means 56 writs.

QUESTION FIVE: If the majority of the writs means 56 members and such number has been returned by the date fixed for the return of writs, can extension of the writs be issued specifically for those electorates not yet returned under Section 177 (1) of the OLNLLGE?

254. Yes. The Electoral Commissioner can extend time under section 177 (1) for undeclared seats until the remaining writs are returned.

QUESTION SIX: Whether electorates which have not completed counting and have not declared a result by or before the return of the writs, can be considered valid, where the Electoral Commissioner has not declared a failed election?

255. Writs which were not returned by or before the date for the return of the writs (including extended date) are saved by Schedule 1.16 of the Constitution and can be returned subsequently. See also section 81 (3).

QUESTION SEVEN: Whether the seven days fixed for Parliament to convene under Section 124 (1) of the Constitution, can be extended under Sch 1.16 of the Constitution in circumstances where the remaining electorates in a general election have not been declared failed, but are still continuing their counting?

256. The operation of section 124 hinges on return of writs. Where the writs are returned on the day fixed for the return of the writs under section 105 (3), seven days run from that date. Where the writs are returned on an extension date under section 177 (1), seven days run from that date. Where the majority of the writs are returned pursuant to section 177 (2), seven days run from that date. Section 124 is activated only when the writs or the majority of the writs are returned. It cannot be extended in the absence of return of writs.

QUESTION EIGHT: If the seven days can be extended, what and how can the period of extension be determined?

QUESTION NINE: Can the Electoral Commissioner fail an election under Section 97 of the OLNLLGE without the advice of the Electoral Advisory Committee under Section 97A of the same law?

“(1) Subject to this Law, whenever an election fails a new writ shall be issued for a supplementary election by the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, as soon as practicable after the failure occurs.

(2) An election shall be deemed to have failed if no candidate is nominated or returned as elected.”

259. Subsection (1) prescribes the next process following a failed election. Subsection (2) is the substantive provision on what is a failed election. An election shall be deemed to have failed if no candidate is nominated or returned as elected.

260. In my view, this means that an election is deemed to have failed if the election process itself is unable to produce a winner or there is a winner, but he dies, for instance, before the return of the writs. Otherwise, there is no prescribed discretion or power in the Electoral Commissioner to fail an election. It is his primary responsibility to return the writs. For the Electoral Commissioner to fail an election is the opposite of his primary responsibility. I am of the view, therefore, that the Electoral Commissioner cannot fail an election for any reason.

261. Section 97A does not exist so I am not able to proceed any further with the question.

QUESTION TEN: If Section 177 of the OLNLLGE is valid, does it override Section 81 (3) of the same law, so that no further writs can be returned after the extended date for the return of the writs?

262. Section 177 is valid. It overrides section 81 (3) only if it is invoked by the Head of State on advice of the Electoral Commission. If section 177 (1) (d) is not invoked, section 81 (3) is available to the Electoral Commission to utilise. Writs that were not returned after the extension date can be returned subsequently by virtue of section 81 (3) and Schedule 1.16.

QUESTION ELEVEN: If Section 177 overrides Section 81 (3) of the OLNLLGE, should those unreturned electorates not returned by the return date become automatically failed elections, requiring a supplementary election?

263. A supplementary election would not be necessary. See discussion under Question Ten.

QUESTION TWELVE: If Section 177 of the OLNLLGE is valid and does not override Section 81 (3) of the same law, is there a time limitation on the date for return of writs for special circumstances under Section 81 (3) after the date fixed for the return of the writs for those writs not returned by the date fixed for the return of writs including any extensions so granted under Section 177 of the OLNLLGE?

264. Section 177 (1) (d) overrides section 81 (3) only if it is invoked. Where it is not invoked, the Electoral Commission may resort to section 81 (3). See also Schedule 1.16. There is no prescribed time limitation under section 81 (3) and section 177. In my view, it is implied that it is the Electoral Commissioner’s prerogative to determine time limits and deadlines on the return of all or individual writs.

QUESTION THIRTEEN: If Section 81 (3) of the OLNLLGE allows for return of a writ after the date specified for the return of writs for special circumstances, including after exhaustion of any extension under Section 177 of the OLNLLGE, what are the special circumstance and how can it be exercise fairly to ensure that all members participate in the election of the Speaker and the Prime Minister at the first sitting of Parliament after the general elections?

265. Parliament convened on 2 August 2017 when about 30 writs had not been returned. The incumbent Speaker and Prime Minister were elected on the same day. A number of Members of Parliament did not participate in the election of the Speaker and Prime Minister. This, it was argued, was unfair and an infringement of a constitutional right.

266. The right to stand for public office and be given a reasonable opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives is provided for under section 50 of the Constitution as follows:

“(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who –

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

267. The Electoral Commissioner’s primary responsibility is to return the writs and expedite the calling of Parliament before the fifth anniversary of the outgoing Parliament. Prevention of a constitutional vacuum is an important feature of Constitutional Law. Fair participation in the election of the Speaker and the Prime Minister should be viewed in that context.

268. In any case, the elections of the Speaker and Prime Minister are matters for the legislature to deal with. Under Standing Order 6, Parliament“may be adjourned, if the Parliament so resolves, for up to three sitting days at a time before a motion for the election of a Prime Minister is moved.”Thus, Parliament may decide either to proceed with the election or delay the election of Prime Minister until such time all or sufficient number of writs are returned.

269. As to what constitutes special circumstances: it is obvious that the Electoral Commissioner would ensure that an election process when commenced must be completed and the writs returned so that the electorates can have their representatives in Parliament. The converse is that it is not open to the Electoral Commission to fail an election. What is a special circumstance should be viewed in that context. Fortunately, with all the extension provisions under the Constitution and the Organic Law on Elections, the Electoral Commissioner is well equipped to prevent an election from failing.

QUESTION FOURTEEN: Under Section 80 (1) of the OLNLLGE, the date fixed for the return of the writs shall not be more than 21 days after the end of the polling period. Is that period limited by Section 105 (1) (a) and (3) (a) of the Constitution and the period of extension provided for under Section 177 of the OLNLLGE?

270. An election is required to be held within a period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous election: section 105 (1) (a). The Head of State, acting on advice, fixes the first and last days of polling: section 105 (2).

271. The period between the last day of polling and the date for the return of the writs under section 105 (2) and (3) (a) is not prescribed. Section 80 fills that vacuum and nominates a limit of 21 days as the maximum number of days between the last day of polling and the date for the return of the writs. Section 177 does not feature at all when the Head of State proceeds to fix these election dates.

QUESTION FIFTEEN: In the alternative, is Section 105 (1) (a) and (3) of the Constitution in mandatory terms, such that there must be a return of writs of the majority of seats before or on the fifth anniversary, and any seats left undeclared by then would automatically be considered as failed elections notwithstanding the provisions of ss. 80 (1), 81 (3) and 177 of the OLNLLGE?
273. Section 105 is mandatory for the purpose of fixing the dates and deadlines for the holding of election, for polling and for the return of writs. The act of returning the writs on such fixed date is a separate matter. The Head of State is responsible for fixing dates and deadlines. The Electoral Commission is responsible for returning the writs. Whether the writs are actually returned on the fixed date is an issue that arises much later in time after the Head of State fixes the dates and deadlines under section 105.

274. In any case, any undeclared seats cannot be considered as failed elections because they are saved by Schedule 1.16 and the extension provisions of the Organic Law on Elections, as discussed above.

Question	Answer
1.	Majority’s answer is no. Kandakasi DCJ answering yes only to the extent of inconsistency in the prescription of time limit when under the Constitution the Electoral Commission as a wide discretion to extend time.
2.	Salika CJ and Manuhu J., have answered the question with a no, while Mogish J has declined to answer the question. Kandakasi DCJ answered the question with a yes, based on his answer to the first question.
3.	The extension in this case was Constitutional as the Electoral Commission has a wide discretion to extend the return dates for writ.
4.	The majority’s view is that the term “majority” should be given its ordinary meaning. An application of that meaning means more than half of the total seats in Parliament which or 56 writs returned. Salika CJ, expressed the view whether the majority has been reached is within the Electoral Commission’s discretion.
5.	The Court answered this question with a yes, while Salika CJ, expressed the view that it is a matter within the discretion of the Electoral Commission.
6.	The majority answered the question with a yes, while Salika CJ, declined to answer the question.
7.	The Court answered this question with in the negative.
8.	The Court found this question confusing (Salika CJ) or already answered in question 7 (Manuhu J.) and declined to answer the question (Kandakasi DCJ and Mogish J).
9.	The Court found this question confusing (Salika CJ) or unnecessary and declined to answer the question (Kandakasi DCJ and Mogish and Manuhu JJ).
10.	The majority answered this question in the negative, with the remaining not answering the question.
11.	The Court found this question unnecessary and declined to answer it.
12.	Salika CJ and Mogish J, decided to leave the subject matter to the discretion of the Electoral Commission. Kandakasi DCJ found the question unnecessary and decline to give an answer. Manuhu J, expressed the view that an overriding could occur only if the provision in question was invoked.
13.	The majority decided to leave the subject matter to the discretion of the Electoral Commission who has a duty not to fail elections but has a wide discretion to extend time to allow for return of writs. Mogish J. declined to answer the question.
14.	The majority answered the question in the negative, while the Salika CJ was of the view that the question was confusing and declined to answer the question.
15.	The majority answered the question in the negative, while the Salika CJ declined to answer the question.

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Ombudsman Commission Legal Counsel: Lawyers for the Referor
Baniyamai Lawyers: Lawyers for the First Intervenor
Twivey Lawyers: Lawyers for the Second Intervenor

^[1]For these and the next three principles see SCR No 1 of 2008, Reference by the Ombudsman Commission re the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Law 2006 (2010) SC1058;Alleged Improper Borrowing of AUD1.239 Billion Loan, In Re (2017) SC1580;
^[2]Ibid for this and the next; PLAR No 1 of 1980 [1980] PNGLR 326, per Wilson J;SCR No 2 of 1992, Special Reference by the Public Prosecutor [1992] PNGLR 336; SCR No 3 of 1986, Reference by Simbu Provincial Executive [1987] PNGLR 151;Haiveta v Wingti (No 3) [1994] PNGLR 192; Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuant to Constitution Section 19 by Morobe Provincial Government for and on behalf of The Morobe Provincial Executive Council (2002) SC693 and PNG Power Ltd v. Ian Augerea (2013) SC1335.
^[3]Ibid.
^[4] Per Kearney J in The State v Independent Tribunal, Ex Parte Moses Sasakila [1976] PNGLR 491; Injis CJ in SCR No 1 of 2008, Reference by the Ombudsman Commission re the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Law 2006 (2010) SC1058
^[5]The State v Thomas Elu (2016) SC1599; Timothy Neville v. IPBC (2012) SC1193 and SCR No 2 of 1976; Re Motion of No Confidence [1976] PNGLR 228.
^[6] Ibid.
^[7]See ss. 25 (1) and (3), 38, (63(1) and (2) of the Constitution and Re Forestry (Amendment) Act 2005; Reference by the Ombudsman Commission of PNG (2010) SC1088.
^[8]Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC1057.
^[9] Reader’s Digest Wordpower Dictionary, Sydney 2007
^[10] S. 17(1)
^[11] S.17(3)
^[12]Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC1085

Supreme Court of Papua New Guinea

Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea [2019] PGSC 109; SC1814 (24 May 2019)