PNG yesterday, today and tomorrow: The Road Ahead

05/01/2012 14:09

Papua New Guinea's 109-seat Parliament in the PNG capital Port Moresby.


By guest blogger Joelson Anere

In Politics, one hopes that Politicians, legal practitioners and political commentators don’t have a forgetful memory. For if they do, we would all be in very serious trouble.

In Papua New Guinea, there has been many letters to the Editors of the country’s two daily newspapers – The National and The Post Courier – commenting the on-going tussle between the O’Neil-Namah Government and the Somare-Agiru Regime.  But let us recount the events of last year and expound a little on why I think Parliament reigns supreme in this ongoing political war of letters.

In 1992 when the Supreme Court ruled that then Prime Minister Paias Wingti had acted unconstitutionally when he resigned and got himself re-elected, the matter came before the Parliament and the Parliament correct its mistake or error by electing Sir Julius Chan as Prime Minister.

In 1999 when then the Supreme Court held that the then Governor of NCD Mr. Philip Taku was unlawfully removed by the then Government led by then Prime Minister Sir Mekere Morauta, Mr. Taku was not allowed to resume office because the Parliament had by then amended the NCDC Act removing the Office of the Governor of NCD.

Section 19 of the Constitutions is provided only for the Supreme Court to give AN OPINION on a question of whether a constitutional law has been breached or error in its application. It is not the same as those proceedings commenced by way of Appeal, Summons or by Application for breaches of Constitutional Rights and Freedom under s.57 of the Constitution.

In the Privy Council, the Highest Court of England, the Privy Council upon completion of its inquiry refers its opinion to the Parliament through the Head of State. No orders for execution of its findings are made because the Courts asked only to give an opinion. This is a similar practice in India which is of same legal tradition as ours which are all based on English practices.

There is no provision in the Constitution for the Court to give an order to the Governor General to act in any particular manner. The Governor General only acts on the advice of the National Executive Council and the Parliament through the Speaker of Parliament. For the Somare Camp to have brought the Supreme Court Orders directly to the Governor General is completely an illegal act as it is outside of the Constitution.

The O’Neill-Namah Government has similarly followed the same spirit and precedent set by the above examples following the Supreme Court decision. The decision and actions of the O’Neill camp are therefore within the confines of the Constitutions and laws of Papua New Guinea. The relevant facts are as follow:

  • On the 2nd of August 2011, the O’Neill camp moved a motion to declare a vacancy in the Office of the Prime Minister using inherent powers under schedule 2.1 of the Constitution and s.142 of the Constitution.
  • Subsequently Parliament voted Hon. Peter O’Neill as Prime Minister of the Country by a vote of 72-24. The Opposition participated in that vote as well.
  • East Sepik Provincial Government using its standing under s.19 of the Constitution referred the matter to the Supreme Court questioning the legality and constitutionality of Parliament’s actions.
  • On the 9th of December 2011, the Parliament passed amendments to the Prime Minister and NEC Act which provided for the following: (a) a Prime Minister who is absent for more than 3 months from office shall be deemed to have vacated Office; (b) That the effected of the amendment be made retrospective or effective to the 1st of January 2011; (c) That the leave granted to former Prime Minister Grand Chief Sir Michael Somare in May 2011 be withdrawn forthwith and (d) That the election of Prime Minister O’Neill on the 2nd of August 2011 be validated.

The effect of these amendments is that it renders the decision of the Supreme Court useless as against the election of Prime Minister O’Neill. This was conceded to by Sir Arnold Amet and report in the National Newspaper on the 12th of December 2011. (see front page of the National Newspaper of the 12th of December 2012). How could he say otherwise now! The Amendment to the Prime Minister and NEC Act was immediately certified by the Speaker of National Parliament as required under the Constitution on the 9th of December 2011. It therefore came into immediate effect. On the 12th of December 2011, when the Supreme Court decision was handed down, Parliament was still in session. When Parliament was advised of the decision of the Supreme Court, the O’Neill camp moved quickly to correct the error by invoking the provision of the Amendment to the Prime Minister and NEC Act, 2011 and re-elected Hon Peter O’Neill as Prime Minister.

As far as the Parliament is concerned it acknowledges decision of the Supreme Court. It acknowledges that a mistake was made on the 2nd of August 2011 and it moved to correct that mistake by invoking the provisions of the Amendment to the Prime Minister and NEC Act 2011. The O’Neill camp has therefore complied with the Supreme Court decision by correcting its errors. That is the procedure that was followed in 1992 when Parliament corrected itself when it made a mistake in re-electing the then Prime Minister Paias Wingti who had resigned and immediately got himself re-elected as a means of defeating the vote of no confidence provisions of the Constitution. 

As far as Parliament is concerned, there is and was no crisis or impasse and that there is only one executive government. If there is confusion this is also the fault of the Supreme Court. The Supreme Court contributed to the confusion via:

  • Just as much as the National Parliament cannot direct the Court as to what is should do and how its should reach its decision, the Court likewise cannot order the Parliament as to what it should do, how it reaches its decision and what sort of decision it makes. This is the principle of separation of powers. Some Lawyers out there confuse these two constitutional powers because they are taught to appreciate only the doctrine of Independence of the Judiciary, which they jealously guard but they don’t appreciate that just as much as the Judiciary must be independent, the Legislature must also be independent. It was therefore mischievous for the Supreme Court to have ordered the reinstatement of former Prime Minister Grand Chief Sir Michael Somare, especially when he does not have the confidence of the Parliament.
  • In their haste to pass judgement the Supreme Court made some very serious error of law and facts in its finding. For example by finding that only the National Court has “exclusive powers to dismiss members of parliament from office”, the Supreme Court has rendered the Leadership Tribunal almost ineffective and useless. Unless that decision is corrected or overturned, Members of Parliament can never be dismissed from office even if they are guilty of breaches of the Leadership Code because the National Court has no powers to hear breaches of the code by Members of Parliament.
  • The Court made that finding when it ruled that the Speaker of Parliament had no powers to dismiss Members of Parliament during their term. This finding is also an error by operation of s.104 of the Constitution as a Member of Parliament can lose his seat without the National Courts intervention. This mistake by the Supreme Court was not just a minor mistake but a major mistake that affected the judgment of the majority of the Bench.
  • In its haste too the Supreme Court made a finding that the leave granted to Grand Chief Sir Michael Somare in May was for three sessions and not just one session. This finding was clear a mistake as the record of the Parliament was before the Court in the form of the certified copy of Hansard records which confirms that leave was for only one session.  The Court should have just taken judicial notice of the fact. Instead, it went on to make its own conclusion. Again this was not a minor mistake. It was a major mistake that effected the decision of the majority of the bench on the Supreme Court.
  • At the end of the day the Supreme Court caused the confusion for the nation by exceeding its powers into making an order to restore Grand Chief Sir Michael Somare as Prime Minister. Had it limited itself to just giving its opinion on the issues before the Court, there would not be any confusion as we have witnessed.
  • The Members of Parliament supporting Grand Chief Sir Michael Somare also contributed to the confusion by getting the Governor General to act on a Order of the Court instead of waiting for the proper instrumentalities of the State to advice the Governor General as to what he should do. They knew that there is no provision under the Constitution for any Court of the Land to order the Governor General to perform a certain function yet they went ahead and misled the Governor General after subjecting Government House to a siege courtesy of rogue elements of the Police Force.
  • The dismissal of Grand Chief Sir Michael Somare as a Memebr of Parliament by virtue of the Amendment to the Prime Minister and NEC Act has also been gazetted in the National Gazette on the 12th of December 2011. He is therefore no longer a Member of Parliament and therefore cannot be the Prime Minister of the country as that is a post only open to Members of Parliament.
  • All those Ministers that were sworn in by Governor General have since been voted out of Office by Vote of No Confidence by Parliament on the 12th of December 2011 under s. 145 of the Constitution. They have since been de-commissioned by notice published in the National Gazette on the 14th of December 2011.
  • The election of Prime Minister O’Neill and Deputy Prime Minister Namah and all the Ministers appointed by Prime Minister O’Neill have been gazetted and the instruments to these effects remains to this day.

Parliament Reigns Supreme

In lieu of all the above, I would say that Parliament has operated within the ambit of the Constitution. Parliament amended the Prime Minister and NEC Act, which paved the way for the re-election of Hon. Peter O’Neil as Prime Minister on the floor of Parliament.

Parliament by virtue of its powers under the Constitution of Papua New Guinea is the only political meeting place by which political principles can be tossed around, political views built upon, and legislative decisions made. Parliament is the only place in which a Prime Minister can be elected to office with an absolute two-thirds majority vote carried forward.

In this respect, no other arm of government can exceed its jurisdiction or letter or spirit of that jurisdiction by giving “orders” to another arm of government to re-instate a Prime Minister who is not a Member of Parliament. However, much there is an elastic pull and inelastic pull on the terminology of such legal terms as “Opinion” by the Courts and continuously stretched to the limit in the legal context.

The same spirit could not be carried forward into the political pitch at Parliament. Why, because Parliament carries a more overtly political fibre to that of the Courts. How would an “Opinion” in the legal ambit be translated in the political context? Of course it will be interpreted for what it is – a legal opinion - but then, what are the political effects, impact, repercussions, consequences and butter-fly effects such a legal “Opinion” will have on the floor of Parliament? Well, the events of December 9th 2011 clearly mean that political considerations will take precedents over all other considerations.

One Government, One Country

Parliament as the only legislative body in the land and the only one I know where a Prime Minister is elected to Office. The O’Neil-Namah government isn’t popular because of its “Free Education” policy, although, many will attest to that but rather that the O’Neil-Namah government is popular because they acknowledge that it is men’s interpretation of politics and or religion that restricted women’s opportunities in this country and not politics or religion itself.

The O’Neil-Namah government is popular with the electorate base voter because for a long time now, past governments have failed miserably to address corruption in government, in the community, in the private sector and at all levels of society.

As far as the electorate base voter is concerned, what is wrong with a government saying what it has promised to the people of Papua New Guinea and actually implementing it while in Power. What’s wrong with that? The O’Neil-Namah government is performing to expectations and is answerable to the people of Papua New Guinea.

Having said that, let there be no doubt in the minds of everyone that there is only one government and that is O’Neil-Namah government in one country and that is Papua New Guinea.