Invoking the Constitution’s ‘spirit’

Editorial, Normal

ON Sept 23, 1993, then prime minister Paias Wingti announced to a stunned Parliament as the first matter of Government business that day that he intended to resign as head of Government.
Parliament rose in an uproar but, within minutes, Government MPs were rounded up and spirited away to the Mirigini State House where they were to spend the rest of that day and the night under lock and key.
While this was happening, a copy of the resignation was rushed to Government House for ratification.
The next day when Parliament met, there being a vacancy in the post of prime minister, the Speaker called for nominations, whereupon Mr Wingti’s name was advanced, was voted upon and he was voted back in as prime minister. The ruse had worked. He gained another 18 months in office as prime minister and stopped an imminent vote of no-confidence being moved against him.
Crying foul, the Opposition led by then Member for Gulf Chris Haiveta and Wewak MP Bernard Narakobi brought the matter before the Supreme Court for an interpretation.
Arguments by counsel for the two parties ranged back and forth but, in the end, it boiled down to a provision in the law which called for 24 hours to have elapsed between the Governor-General receiving the resignation and the fresh election on the floor of Parliament.
Counsel ticked off the seconds and hours on the clock and tried to retrace every step taken between the announcement on the floor and at what point the resignation was deemed to be in the hands of the Governor-General.
The full bench of the Supreme Court sat to hear the matter and, in the end, the then chief justice, Sir Arnold Amet, announced the verdict.
The matter of the “clock” could not be decided conclusively so the court had visited an area called the “spirit” of the Constitution.
Mr Wingti’s actions had run foul of the spirit of the Constitution, it was declared.
It was an astounding decision particularly because the “spirit” of the Constitution, whatever it is, might have given rise to the Constitution and all the subordinate laws, but is itself not a provision of any law.
Still, the Supreme Court being that body which can visit outside the law into areas such as moral principles on matters of public policy and undefined areas of the law, this visit to the “spirit of the Constitution” was binding and removed a reigning prime minister, never to return in that capacity again.
Today, the former chief justice is himself, now as a politician, faced with a dilemma not dissimilar to that which faced Mr Wingti in 1993.
Sir Arnold’s election as Regional Member for Madang was quashed by the Court of Disputed Returns in September last year and fresh elections called for.
Sir Arnold appealed and the process is still on foot. While it is, however, Sir Arnold continues to hold the office of the Governor of Madang, carrying out all duties and responsibilities required of a governor, except representation in Parliament.
The same privilege is enjoyed by Western Highlands Governor Tom Olga, who interestingly defeated Mr Wingti in the 2007 elections. Mr Olga’s election was also quashed and he is moving through a similar appeal process.
Both Sir Arnold and Mr Olga remain as governors apparently based on a “grey area of the law” on advice given by the Justice Department.
Were the litmus test of the “spirit” of the Organic Law on Provincial and Local Level Governments to be applied to these two cases, we might see an interesting scenario unfold.
The legal niceties aside, we are given to understand that the position of governor is attained automatically upon election by the Regional Member of any province.
If the Regional Member were to become a State minister, prime minister, resigned from the post, or was removed from the post, the position of governor would fall vacant.
At this juncture, an election would be taken at the provincial assembly to select a suitable replacement.
The intent of the law (or its spirit) is that the incumbent would first have to be Regional Member. If the position of MP falls vacant for any reason such as by a court of disputed returns, then it follows that the position of governor ought to fall vacant.
As to whether or not provincial government might be leaderless, elections can be held by the provincial assembly or deputy governors can fill in the post.