The National, Friday 06th January 2012
IT CAN be argued that there has been too much focus on the Supreme Court’s Dec 12 order to “restore” Sir Michael Somare as the rightful prime minister.
The principal determination or finding that the prime minister’s position was not vacant on Aug 2 last year means that the order is otiose (futile) or irrelevant.
The outcome is the same with or without the consequential court order.
Since Sir Michael was ruled to be still the substantive prime minister, it is self-demolishing to proceed to order his reinstatement.
He never resigned or vacated the position so do you restore Sir Michael to the position? It is verbiage.
The finding therefore means that the status quo is endorsed and Sir Michael continues, not restored, as prime minister and Peter O’Neill continues as minister for finance and treasury while Belden Namah remains in the opposition.
The word “restore” is perhaps also responsible for Sir Michael’s subsequent swearing-in by the governor-general.
Again, his swearing-in was totally unnecessary.
He was sworn in after the 2007 general election and that is current, as confirmed by the Supreme Court finding.
Perhaps, the uniqueness of the “special” circumstances in Papua New Guinea might justify this procedure. It seems that in this country, a person claiming a position or an office must assert his claim by doing something more, something official, something physical, even repeating procedures than simply waiting for the law to take its normal course.
It is perhaps in this context that stories of public servants “breaking into” offices or “preventing” competitors from moving into an office, or engaging wantoks or tribesmen to chase an occupant out of an office can be appreciated.
Not to do so is to play into the hands of the challenger.
Unfortunately, in this country especially, we have to help the law before it can help us.
It might be thought, even by people with law degrees and practising lawyers, that the separation of powers doctrine means that the Supreme Court cannot make orders against the legislature.
This is clearly erroneous!
In the same way that parliament can be taken to court, the Supreme Court can make orders against it either through the speaker or clerk of parliament, or both.
The Supreme Court has the power to do so both under its “original interpretative” jurisdiction under Section 18 of the Constitution and by way of a “Special reference’ under section 19.
These two cases will be used as examples.
First, in 2003, the Ombudsman Commission took parliament, clerk and the speaker to the Supreme Court, seeking declarations under Section 18(1) on a number of matters relating to the nomination of candidates for the position of governor-general (GG)
The court declared parliament’s nominee null and void and ordered the clerk to cause and supervise a new election process for determining parliament’s nominee for the vacant GG position.
In 2010, the Morobe provincial government filed a special reference under Section 19 seeking declarations regarding the reappointment of Sir Paulias Matane as GG.
The Supreme Court found that the speaker had breached important constitutional provisions and ruled the election null and void.
It also ordered that parliament be “called to meet as soon as practicable … to nominate the next GG”.
The important points from this discussion are that, yes, the Supreme Court has the power to make consequential orders against parliament to correct breaches of the Constitution.
Its powers are not limited to only making declarations, findings, or giving (advisory) opinions regarding the constitutionality or otherwise of parliament’s conduct.
It also has the power to order parliament to take appropriate steps to ensure compliance with the Constitution.
This is what the Supreme Court had intended when it ordered parliament to “restore” Sir Michael to the position of prime minister.
In fact, the Supreme Court could also have made an order restraining O’Neill and Namah from continuing to hold themselves out, and from performing duties, as prime minister and deputy prime minister respectively.
Whether the order would have resolved the issue or not remains unknown.
The second point is that the Supreme Court’s power to make such orders can be based on either Section 18 or 19 of the Constitution.
Now let us look at the amendments to the Prime Minister and National Executive Council Act.
The Act was amended in two major ways: one involved the retrospective validation of the election of O’Neill as prime minister in August, the dismissal of Sir Michael by the speaker in September, and parliament’s decision earlier in the day to retrospectively withdraw the approval for leave that the House had granted to the Grand Chief in May.
The other major component was the age limit on those eligible to be prime minister. This was set at 72 years.
The implications of these amendments (if legally valid) on Sir Michael’s future as a member of the current Parliament and therefore as prime minister and the creation of a vacancy are easy to see.
It is understandable that people should feel strongly against the way Sir Michael has been targeted and how the O’Neill-Namah camp has twisted constitutional provisions and processes to their advantage.
These objections do not however render the amendments invalid.
Law is what it is, not what it ought to be.
So, if the O’Neill-Namah group is parliament and if the legislative enactments it has made are valid, there can be no constitutional crisis. Are they?
There are three issues raised by these amendments.
The first relates to the legal validity of the amendments, the second to the validity of the retrospective withdrawal of parliament’s leave approval and the third, to the wisdom of setting an age limit on the position of prime minister.
The Supreme Court’s verdict on O’Neill’s election as prime minister on Aug 2 is unambiguous.
The validity of Sir Michael’s dismissal by the speaker is not supported by the Constitution.
Also, parliament’s move on Dec 9 to retrospectively withdraw its May decision to grant approval for leave to Sir Michael amounts to an unjustified denial of his rights hence contrary to law.
Crucially, what this means is that if those decisions and actions by parliament are unconstitutional or otherwise legally invalid, can an ordinary Act of parliament retrospectively validate them especially if the House is unconstitutionally or invalidly constituted?
The retrospective effect of the amendments is invalid.
In law, it is not possible for an invalid law to validate itself and also retrospectively validate previous invalid and unconstitutional acts and decisions of parliament.
Even though parliament has the exclusive power to make laws, it cannot use this power to pass invalid laws to validate its own past invalid decisions and actions.
Also of critical importance is whether the O’Neill-Namah government has constitutional legitimacy.
If it has, then they constitute parliament; if not, they lack the constitutional legitimacy and therefore authority to make binding decisions and pass laws as if they constituted parliament.
This means, and to the extent that is illegitimate, all decisions and actions purporting to have the force of law, hence binding, would enjoy a status no higher than that of the purported emitter.
However, as the Supreme Court did not indicate if its decisions, insofar as they are relevant to decisions and actions taken by the O’Neill-Namah group acting as parliament, had retrospective effect to Aug 2 last year.
It therefore leaves one to speculate that any decision or action taken by the O’Neill-Namah parliament from Aug 2 that are, or have the potential of being, prejudicial to any existing rights of any person, including citizens like Sir Michael, have no force of law.
It naturally follows then that the decision by the O’ Neill-Namah parliament lacked the legitimacy to displace the Somare-Abal parliament’s decision in May to grant leave to Sir Michael.
On this basis, it means that any other action or decision by the O’Neill-Namah parliament not having this effect would be both administratively and constitutionally less objectionable.