The National – Wednesday, December 22, 2010
By PETER DONIGI
I HAVE not been contributing to The National for a while. The reason is simple.
There have been so many things happening that were legally and philosophically wrong that it was not possible to congeal into an article.
They happened one after another, and so fast.
Also, the wrong reasons were used to justify what was said.
Much of what came from politicians were subjectively driven.
Nothing was based on objective criteria.
Over the last two weeks, we have witnessed another history in the making.
This is the first time, not only in Papua New Guinea but also in the Commonwealth, that we have:
*An acting governor-general;
*An acting speaker of parliament; and
*An acting prime minister.
One would think we are in Hollywood, or Bollywood.
There is one other thing that this country should be lucky to have – it is the constitution and the judiciary.
Otherwise, we would now have anarchy as the country would be ruled by the strong, and the weak would have no place or rights within society.
The country has not fallen apart as some people, including the top leaders of this nation, would like us to believe.
They are claiming that without them, there would be no nation.
What a self-serving statement.
This country does not need leaders who think they are indispensable to the nation.
This country does not need leaders who think that the people are here to serve them.
This country needs leaders who are prepared to serve the people and the nation.
The politicians have just given themselves a hefty pay rise and, then, a six-month holiday.
What about the rest of the workforce in the nation and the farmers who keep exports going?
Can they also increase their wages and take a six-month holiday?
The kina lost its bargaining power 18 years ago when it was devalued, and then floated a few weeks later.
The workers then saw the kina drop by more than 300% in value while the minimum wage remained static.
The government did nothing then to maintain their buying power or to adjust their wages to make sure that they did not lose it.
The cost of living has risen systematically over the years. Still, nothing was done.
Over the last year alone, the cost of housing doubled, yet the salaries and wages remained the same.
The LNG project is pushing up the prices of everything.
The ordinary worker is no longer able to sustain a living.
Is it justifiable for an apartment in this city to go for an K18,000 a week rent when that is not even the annual wage of an office staff in any given company or government institution?
Amid all this, we have politicians who are not prepared to work to right these injustices.
Parliament must be recalled to fix these problems.
These were created by ill-conceived advice and, no doubt, by self-serving advisers to the parliamentary caucus – some of which were lawyers themselves.
The minister for justice and attorney-general has come out to publicly state where he stood in that fiasco, otherwise, the integrity of the office would be tainted with the faulty advice given to the parliamentary caucus.
Nevertheless, they are all collectively responsible for their actions and the failure of parliament to abide by the constitution.
The acting Speaker, Francis Marus, must act independently and be seen to so act.
Forget the lawyers who are only there for their own interests.
The longer this matter is dragged in the courts, the more public money we will spend on lawyers.
This is the opportunity for Marus to stand up and preserve the integrity of the position he is holding albeit temporarily.
All other leaders seem to think that they own the public office they hold.
A public office cannot be owned by any individual.
Politicians think they can own it and use it to bargain their way around in the corridors of power in Waigani.
The people’s offices must be respected as such and the person holding that office must not have any questions as to their integrity – personal or official.
Yet, parliamentarians have warped the true spirit of the constitution and bent it to suit their own ends.
About 20 years ago, the German minister for security took personal responsibility for the failure of the police offices to capture members of the Baader Meinhof terrorist group alive.
They were killed in a shootout so he resigned.
More recently, the South Korean defence minister resigned a few weeks ago to take responsibility for the army’s failure to respond immediately to a bombardment from North Korea.
The South Korean artillery had apparently taken 12 minutes to respond.
In New Zealand, an MP resigned after making some remarks about the origins of the vice-regal (governor-general).
Leadership offences are not criminal in nature, have never been and should never be treated as such.
Yet, our politicians converted the intention of our founding fathers, such as Sir Michael Somare and Sir Julius Chan, to minimise their responsibilities by amending our constitution to insert a criminal standard of proof.
Then, they come to us in their public statements to say that, as they are founding fathers, they have to abide by what they created.
What a farce when they have whittled away the original intention and debased our constitution.
The ruling by the Supreme Court in the Patrick Pruaitch case is also wanting.
The counsel for the Ombudsman Commission and the judges failed to refer to schedule 1.2.9 of the constitution, which states that where there is no time prescribed for the doing of an act, the act must be done “with all convenient speed”.
If the lawyers had referred to the section, or if the judges had taken notice of it, I am confident the Supreme Court would not have specified the relevant date for the leaders to be the date of request to the chief justice to appoint a leadership tribunal.
The effective date would have been the date of referral by the Ombudsman Commission to the public prosecutor.
This would mean that Sir Michael, his son and all other leaders who have been referred to the public prosecutor by the Ombudsman Commission should have been suspended from holding any public office effective on the date of referral.
And, so my heart bleeds for this nation when leaders begin to manipulate the intention of our founding fathers and the spirit of the constitution for their own ends.
I urge the acting speaker to stand up and be counted as a leader of integrity.
Section 108(1) of the constitution provides for the speaker to “uphold the dignity of parliament”.
If there is any dignity left to be upheld, the court has singled him out, by name, and has requested that he, personally, performs the public duty that is entrusted upon him to recall parliament before Jan 20.
I urge him to abide by the ruling of the court and to act speedily in restoring the integrity and dignity of the public offices which have been denigrated by the predecessor.
As to the date for parliament to sit, the Supreme Court said that under section 88(4) of the constitution, parliament must be called “as soon as practicable”.
This provision, read together with schedule 1.2.9 (explained above) which requires the act to be done “with all convenient speed”, would, in my view, tax the court in any review. In my opinion, however, the relevant question would be: Is the period of 40 days set by the court a reasonable period that satisfies the pre-requisites of these phrases in the constitution?
I would provide a positive answer to that question.
I hope we do not have a constitutional crisis on Jan 20.
I call on our citizens to enjoy their Christmas and New Year and to show to our politicians that we do not need them to make our festive season a happy one.
This country can proceed without them so long as we abide by the constitutional principles and the rule of law.
A Merry Christmas to you all and I am confident we can also make 2011 a prosperous one without having to wait for handouts from the politicians.
*Peter Donigi, CBE, is a consulting lawyer to a law firm and was a former senior public servant, founding president of the PNG Law Society, member of the Council of the Commonwealth Lawyers Association, senior lecturer at UPNG and USP (Fiji), Ambassador to Germany, Holy See and United Nations and is a published author