Age limits for prime ministers

THE power of parliament to make, amend and replace laws is total and complete.
Parliament is omnicompetent to exercise the people’s legislative power.
This power includes the power to make laws having retrospective effect. This is specifically allowed by section 110(2) of the Constitution.
However, this power is restricted only by the Constitution.
In relation to making retrospective laws in the criminal law area, this power is limited by section 37(7). This says that a law which criminalises a particular conduct must not have retrospective effect to criminalise conduct which, prior
to the law being enacted, was not criminal.
In the civil law area, Parliament can and has enacted retrospective legislation. One example is the Customs Tariff (Amendment) Act 1989.
There is however a common law presumption against enacting laws having retrospective effect.
It is founded on a presumption of common sense that in a well-ordered and civilised society, the legislature would not intend what is unjust.
However, not all retrospective legislation is objectionable, especially if they confer benefits and privileges.
Retrospective laws which take away rights or impose liabilities should not have retrospective effect as a matter of course.
In PNG, the common law presumption against retrospectivity has been reinforced by statutory recognition by section 76(2) of the Interpretation Act Ch 1.
This provides that a regulation or rule which has a prejudicial effect on a person’s right or imposes liabilities “shall not be expressed to take effect from a date before the date of (Gazettal)”.
The question here is, is the amendment to the Prime Minister and National Executive Council Act on Dec 9 last year, retrospectively withdrawing parliament’s leave approval prejudicial to Sir Michael Somare’s right to be on leave and therefore be absent for two consecutive meetings of parliament without penalty valid?
There is no doubt that if the retrospective withdrawal of approval is valid, it would be prejudicial to Sir Michael’s rights to first, be on leave and be absent for two consecutive meetings of parliament without penalty and second, to continue as the regional member for East Sepik in Parliament.
Relying on that approval, Sir Michael turned up in parliament on Sept 6, thereby avoiding being penalised for being absent for three consecutive meetings.
The speaker’s action against Sir Michael on that day is impeachable and the courts will not countenance it.
It is beyond doubt that the purported retrospective withdrawal of Sir Michael’s rights is fundamental, serious, flawed and a flagrant abuse of parliament’s legislative power. It is unjust.
The culprit amendment, as its predecessor of Sept 6, is invalid because it is unconstitutional.
Still not satisfied that Sir Michael’s constitutional claim had been effectively brought to an end by legislative fiat on Dec 9, parliament legislated yet another amendment to the Prime Minister and National Executive Council Act on Dec 21, setting an age limit for anyone wishing to be prime minister.
It decided that 72 years would be appropriate – and Sir Michael is currently 72.
On the face of it, setting an age limit for the position is not necessarily a bad thing.
In this instance, it is.
The circumstances which precipitated parliament to act in this way is preposterous, despicable and revealing.
Laws are passed to deal with evils confronting society, a pathological situation such as lawlessness and other crimes, corruption and abuse of power etc or to facilitate cooperative action and or in development, create choices and opportunities, empower people and protect and provide for the welfare of the less or underprivileged.
There is no medical or scientific research confirming that people reaching the age of 72 years are a threat to society or are unfit to hold the public office of the prime minister of Papua New Guinea.
The intentions of parliament are clear – not only to remove him, but to prevent Sir Michael from becoming prime minister again.
The amendment targeted a person, not an issue of common social or community concern or relevance.
That Sir Michael was the target of the amendment is confirmed by the unprecedented naming of O’Neill as prime minister.
It is a fundamental principle of law that a person is accountable for his conduct, not because of his name, status, age, colour, who his parents are, or provincial origin.
This is unconstitutional and must be rejected by everyone who believes that the Constitution, which prohibits discrimination of any form, reigns supreme over parliament.
On reflection, New Ireland Governor Sir Julius Chan’s opposition to the amendment is expected, because for him, the setting of the age limit also significantly reduces his chances of becoming prime minister again in the near future.
The amendment is also dangerous.
It means that because it is a statute, any subsequent parliament can amend the Act by a simple majority to specifically include or exclude certain categories of citizens who otherwise should be eligible to be prime minister.
For example, and unless this amendment is declared unconstitutional, a subsequent MP can reserve the prime minister’s position for automatic citizens only, or for citizens whose parents are automatic citizens, or for citizens who have reached a certain age or are within certain ages.
Can parliament exclude or include citizens for this position for political expediency?
Is this constitutional or desirable?
Citizens in positions to influence and shape this country’s future must know that it is easy to establish a nationality but significantly more difficult, and takes considerably longer, to create a nationhood especially in a country that boasts a record breaking bouquet of cultures and traditions. 
What Sir Michael said in what has been described as his final New Year’s Message that “we must trust our own” is, I think, a deliberately loaded combination of words.
Is there or has there, at any time, been a vacancy in the position of prime minister of PNG?
The important issue of constitutional importance relating to the issue of a vacancy in the position arises because of four major decisions taken by the O’Neill-Namah parliament.
The first took place Aug 2 which saw the election of O’Neill as prime minister and Namah as deputy prime minister.
The second took place on Sept 6 when the parliamentary speaker (Jeffrey Nape) dismissed Sir Michael as a member of parliament.
The third decision took place on Dec 9 when parliament retrospectively withdrew its decision in May to approve leave for Sir Michael.
The fourth decision also took place that same day when parliament amended the Prime Minister and National Executive Council Act to retrospectively validate:
lThe creation of a vacancy in the position of prime minister as from, and election of O’Neill as prime minister on Aug 2;
lThe dismissal of Sir Michael as an MP by the speaker on Sept 6; and
lParliament’s decision on Dec 9 to retrospectively withdraw the House’s approval in May to grant leave to Sir Michael.
Then, on Dec 12, riding on the legitimacy of the legislative amendment of Dec 9 which created a vacancy in the position of prime minister, parliament re-elected O’Neill.
Whether this is a constitutional crisis or not depends therefore on the constitutionality of the O’Neill-Namah group as constituting parliament and whether the legislative amendments can be supported or justified constitutionally.
It is clear from the Supreme Court’s decision on Dec 12 that there was no vacancy in the prime minister’s position on Aug 2.
It is also clear that the speaker’s decision on Sept 6 to dismiss Sir Michael as an MP and the decision of the O’Neill-Namah parliament on Dec 9 to retrospectively withdraw the approval for leave granted to Sir Michael were in essence unconstitutional attempts to force a vacancy in order to maintain the unconstitutional status quo of their parliament.
The underlying unconstitutional motive of parliament’s previous attempts is confirmed by the enactment of the controversial amendments to the Prime Minister and National Executive Council Act on that day. The passing of this law was really a pre-emptive action to legislate away the legal consequences of the Supreme Court’s Dec 12 decision that the O’Neill-Namah camp knew would be against them.
Let me put it another way:
lThe election of O’Neill in August is unconstitutional;
lThe speaker’s decision in September to dismiss Sir Michael is unconstitutional;
lThe decision by the O’Neill-Namah government on Dec 9 to retrospectively validate the unconstitutional event of September is unconstitutional;
lThe translation into statute form on Dec 9 the decisions to retrospectively withdraw leave and to create a vacancy is unconstitutional; and
lThe purported re-election of O’Neill as prime minister on Dec 12 is unconstitutional.
At no time was a vacancy created in the office of the prime minister between Aug 2 and Dec 12.
That being the case, the parliament that thought it had the constitutional status to legitimately re-elect O’Neill as the prime minister lacked the capacity to perform duties qua parliament.
A group of parliamentarians who unconstitutionally wrestled power from the legitimate government cannot claim to have the authority of parliament or legislature to pass a simple Act to retrospectively validate what is clearly unconstitutional conduct.
The Constitution says there is no vacancy, but an ordinary Act of parliament now says a vacancy has existed since August 2011.
An ordinary enactment cannot change constitutional provisions which is what parliament tried to do on Dec 9.
To think that this is constitutional is to accept that an unconstitutional legislature can enact an unconstitutional law to retrospectively amend the Constitution and validate breaches of the Constitution.
No, there is not, and has not been, since Sir Michael’s election as prime minister in 2007, a vacancy in the position.
If an appropriate judicial determination confirms this interpretation, there are legal principles which can be applied to avoid creating instability and to maintain the status quo of government, especially to protect important decisions made by the executive government and NEC during the period of the O’Neill-Namah parliament.
qTomorrow: Part Four