The National,Friday23 December 2011
THE constitutional crisis that Papua New Guinea is facing today has far deeper implications that it appears.
Even if the impasse is settled politically, either in favour of Sir Michael Somare or Peter O’Neill, the outcome will have far-reaching constitutional consequences that will affect future issues of similar nature and questions of good governance according to law.
Both camps are claiming to be “abiding by the rule of law”.
That is a big statement and it is confusing the people.
Most people do not seem to care, all they want is normalcy while many more are simply emotional and they want a government that delivers what they want.
These emotions and sentiments aside, the question of which side is right is a constitutional issue which can be authoritatively answered by the Supreme Court.
Parliament is the ultimate authority but it is also bound by the Constitution and it has to carry out its business according to the meaning and spirit of the Constitution.
It does not necessarily mean a majority decision of the parliament carries. It could be wrong.
The Supreme Court is the custodian and interpreter of the Constitution.
Regardless of how hard both sides try to convince the people and what legal advice they may be getting, there will still be confusing questions in the minds of many educated people.
In my view, which some may share, the following issues need to settled for the sake of good governance of this country under the rule of law which we all so deeply desire.
Foremost, of course, is Sir Michael the rightful legal prime minister or O’Neill?
Whoever, how and why?
Did parliament rightly rescind its previous resolution granting leave of absence to Sir Michael?
The question of his absence was one of the very issues before the Supreme Court.
For the dignity and integrity of the parliament and government, how far can parliament go back to rescind a resolution it had made in a previous meeting, assuming that it was properly constituted and followed proper procedures?
If the answer is yes, what would stop it from going back even a year or another session to rescind a decision properly made then?
Can the Dec 12 parliamentary meeting be considered legal when there was technically no prime minister at the time?
Can the Dec 9 amendment by parliament which was effected retrospectively be legal in view of the court’s Dec 12 decision?
The Supreme Court only handed down its ruling that day, declaring that Sir Michael was illegally removed on Aug 2.
What constitutes a parliament – just a group of members of when there is a government and an opposition?
For the sake of natural justice under the Constitution and good government according to law, was it right for parliament to make a law (the amendment law to the Prime Minister and NEC Act) just to disqualify a particular individual?
Can parliament make an ordinary law to overrule or by-pass a Supreme Court restatement of a Constitutional law position?
Were the questions of separation of powers and functions of the judiciary and the legislature abused?
There may be many other questions and issues that need proper consideration and deliberation.
There could be other pertinent questions to be posed for answers by the Supreme Court.
The answers to the above questions of course would lead to the question of legitimacy of O’Neill’s election as prime ministry on Dec 12.
Let us forget that we all want changes for the development of this country.
O’Neill’s team has done a lot and promised a lot of improvements where Sir Michael’s previous team seems to have lacked.
It is also clear that the O’Neill team is prepared to do anything to gain power and hold onto it. That could also backfire on their stance on corruption with voters in the coming general election.
I must emphasise that
majority decision does not necessarily equate with legality or constitutionality.
It is very dangerous to play into the emotions of the people and stir them up on issues of corruption, free education and majority rule which are issues close to the peoples’ heart.
Also, the people should not be confused with the issues of who has the majority and
who is in the minority.
The current issues are strictly legal and constitutional.
In the long term, it would of course be difficult for a prime minister to get decisions made in parliament without a majority but there is nothing in the Constitution or any other law in our system to stop an MP from being appointed prime minister, regardless of whether he is an independent or from a minority group.
In fact in our true Melanesian system, all the MPs could form a single forum to run the country with consensus decisions without the notions of “government and opposition” which are foreign.
The Constitution was specifically framed with that sort of scenario in mind.
A lot has transpired in the last few days and the lawyers are obviously biased one way or another.
In fact it seems that the lawyers advising the two factions are the real cause of all the trouble.
We need to go back to the Supreme Court.
Even if the MPs do not trust the Supreme Court and make public statements about it which itself is a very dangerous trend, we need to have a system in place. Otherwise, the alternative is to go back to the stone ages.
What we have is a matter of grave national importance and a reference should be made and a Supreme Court of at least seven judges be convened even in their recess period to determine such issues and put the people at ease before they go into the elections.
lThe writer has been a legal practitioner for more than 20 years and wishes to remain anonymous.