The National,Thursday 22nd December 2011
PAPUA New Guinea’s political crisis may be perplexing, but there are several straightforward ways out of the impasse.
The route being chosen by one of the leaders of one of the two factions, Peter O’Neill, entails simply ignoring the verdict of the country’s Supreme Court, which on Dec 12 ruled by three to two that Sir Michael Somare remains the legitimate head of government.
Many have rallied to O’Neill, including the country’s top civil servants, the police chief, and, after some hesitation, the governor-general.
Importantly, the head of the defence force has refused to become involved.
But these actions, in defiance of the rule of law, may have serious long-term repercussions for PNG, a country where until now the courts have sustained a strong reputation.
There are several ways through which O’Neill’s government could acquire acceptance by the courts.
The first is that Sir Michael, PNG’s longstanding prime minister, could resign.
It was his serious illness that sparked the current political crisis.
Sir Michael left PNG in April to receive heart surgery in Singapore.
There were complications.
In the meantime, Somare’s supporters in PNG fretted about the succession, aware that their leaders’ departure from the political scene would inevitably spark a bitter power struggle.
That power struggle initially began in Somare’s own National Alliance.
In August, Parliament Speaker Jeffery Nape declared a vacancy in the office of prime minister, and O’Neill was elected as prime minister by 74 votes to 24.
PNG’s Constitution specifies that a prime minister can only be removed for illness on the advice of two doctors appointed by the governor-general.
Those procedures were not properly followed in August. This was the justification used by three of the judges on the Supreme Court bench on Dec 12 to declare O’Neill’s government illegal.
There is plenty of scope for legitimate debate about the Supreme Court’s ruling.
The two dissenting judges, Justices Gibbs Salika and Bernard Sakora, found that the events of Aug 2 were governed by the “internal procedures of parliament and are not subject to the scrutiny of the court”.
In any case, judges have no part in any decision about whether or not a prime minister should resign.
They simply determine whether legal provisions exist that provide for his removal.
The case for Sir Michael to resign is not simply based on the severity of his medical condition: reports suggest three successive heart operations in Singapore.
More importantly, he has lost the support of parliament, and there are clear signs that O’Neill’s government enjoys considerable popular backing.
Sir Michael still has an opportunity to step back from the precipice but he runs the risk – if he continues the confrontation – of joining that ugly global gallery of leaders who hang on regardless of popular opposition.
But, why have so few of PNG’s political leaders publicly urged Sir Michael to resign?
Where are the voices of reason?
What are the opinions of respected political figures able to stand above the fray?
The country’s political elites have become accustomed to using the law, or procedural detail, to defy majorities in parliament.
Sir Michael is a past master at such manoeuvres, which were once undertaken at the behest of Nape, who has now switched across to the O’Neill camp.
During 2004-11, Nape regularly shut down parliamentary sittings, or avoided them altogether, whenever there was a threat of a no-confidence motion.
Usage of such devices goes back still earlier.
In the early 1990s, the parliamentary “grace period”, during which there cannot be a vote of no-confidence, was extended to 18 months.
Sir Michael unsuccessfully tried to extend this to 36 months.
A 2003 Organic Law on Political Parties and Candidates sought to tie members of parliament behind their initial post-election choice of prime minister, threatening forfeit of seats by disloyal MPs.
The Supreme Court ruled those provisions unconstitutional in mid-2010.
Nevertheless, there are many amongst the elite in PNG who regard it as legitimate to use the law as an instrument through which the incumbents can defy the majority in parliament.
If Sir Michael refuses to resign, another option is for the O’Neill camp to force through a “no-confidence” motion.
A successful “no confidence” motion in the last year of a parliamentary term entails the dissolution of parliament.
Yet, politicians in Papua New Guinea are reluctant to use a no-confidence vote in such circumstances.
There never has been such a vote in that final year, though attempted no-confidence votes are exceptionally frequent in earlier years.
The reason is that large numbers of incumbent MPs generally lose their seats at PNG elections: usually around half but up to 70% in 2002.
MPs want to extend their periods in office as long as possible rather than face the electorate early.
Secondly, incumbent governments greatly cherish their advantages of access to state
funds which are used to bankroll campaigns, and in this respect the O’Neill group is no
Thirdly, opponents of an early dissolution will point to the unpreparedness of the Electoral Commission of Papua New Guinea, although this is a permanent problem.
The O’Neill camp has here (if they play their cards well) a unique opportunity to ride a wave of popular dissatisfaction with the Somare government and obtain a sizeable mandate.
Another option is to go back, yet again, to the Supreme Court and contest the earlier verdict on various grounds (including parliament’s right to pass retrospective legislation to legalise the change of government in August).
On Monday, the Supreme Court ruling entailed a showdown with the legislature.
A wiser approach would have been to avoid this at all costs, but also to avoid a ruling contrary to the constitution, for example by delay, prevarication, or some kind of orders that entail a combined caretaker administration before the June elections next year.
So far, there has been much admirable restraint during PNG’s crisis.
The PNG Defence Force has declined to take sides, and a rebel faction in the police force has been disarmed.
Politicians have avoided dangerously inflaming public sentiment. But for this to last, PNG now needs a lawful way out of its political impasse.
lJon Fraenkel is a Senior Research Fellow at the Australian National University. The article was first published in Canberra Times.