Gurbrinder Aulakh
Auckland, August 16, 2020
Extraordinary times always require extraordinary measures.
The uncertainty created by the second wave of Covid-19 in New Zealand has raised some important electoral and constitutional issues.
Whereas the opposition parties have been urging postponement of general election 2020, the government may seem reluctant to heed to such a call. It may not wish to let the popularity gains made by it in the first wave, to be washed away in the second one.
Advantage and disadvantage
But if we are to look at a free and fair election, then certainly most of the political parties in the opposition have been at a disadvantage. They have bee unable to campaign or reach out to the electors with their policies, whereas the government has had the advantage of continued coverage with the press briefings during the first, and to some extent in the second lockdown.
Any election encompasses and requires the informed decisions of the electors. If the parties have been unable to campaign and inform the electors of their policies, and programmes, then it is questionable whether it can be termed as a free and fair election.
Unless dissolved earlier, the term of the Parliament, in terms of s 17(1) of the Constitution Act 1993, expires three years from the day fixed for the return of writs issued for the last preceding general election. That we are informed, turns out to be October 12, 2020.
Not mandatory
Now, the Prime Minister is not bound to postpone the elections, but if she were to be seen to be fair, and to accede to the genuine demand of the opposition, she could simply not dissolve the Parliament, and let it expire.
One argument being put forward against postponing the elections, beyond October 12, 2020 is that it extends a government’s term beyond the period mandated under the law, and that Parliament would have to be summoned to amend s17(1), which would require 75% of all MPs to be carried.
This provision safeguards democracy and prevents Prime Ministers and governments keeping themselves in office indefinitely.
Safeguarding indefinite continuity
However, if the Prime Minister were to let the term of the Parliament expire, rather than dissolve, without fixing a date for the election, then this fear of indefinite continuity would automatically be safeguarded by s125 of the Electoral Act 1993.
The Governor General may not be bound by the advice of a caretaker Executive Council.
Therefore, by October 12, 2020, the term of Parliament having expired, it would be incumbent upon the Governor General to, with in 7 days, issue the writ to the Electoral Commission, in terms of s125 of the Electoral Act.
This would require the Electoral Commission to make all necessary arrangements for the conduct of the general election. It will be the Electoral Commission that would then be deciding the date of polling, having assessed the Covid caused uncertainty, and the situation prevalent by that time.
In such an event, no amendment to s17 would be required, as s10(3) of the Constitution Act 1993 allows the House of Representatives to be regarded as always in existence, notwithstanding that Parliament has been dissolved or has expired.
Similarly, s54(1) (b) of the Electoral Act 1993, allows the term of office of member of parliament to be up to the polling day of the next general election.
Role of Electoral Commission
By letting the Parliament expire, in due course, and letting the Electoral Commission to set the date of polling, the Prime Minister would actually be seen to have taken a very reasonable and just course, and stepping aside from the electoral process.
It would also take away all the criticism currently being hurled by some of the political parties, of uneven playing field.
The world is at war with the virus, and these are unprecedent times. However, there are precedents when previously, during actual war times, the elections were delayed.
These times, clouded by uncertainty, require a fair and balanced approach to safeguard the faith of the public in the democratic process.
It is hoped that as in the past, the Prime Minister will come out stronger and popular with her Judgment call.
Gurbrinder Aulakh is a Barrister & Solicitor of the High Court of New Zealand. The views expressed above are his own.
