Micah reforms hurried in

By FRANK SENGE KOLMA
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NEW Irelander, Ben Micah was a close confidante and colleague of Morobean, the late Utula Samana.
Micah had been invited and had worked with Samana when the latter was first Planner and later Premier of Morobe.
And so when it fell to Micah to undertake the reforms of the Provincial Government system, it was no mistake that certain aspects of his proposals closely resembled the earlier work done by his friend, Samana in Morobe.
The Districts Planning and Budget Priorities Committee, the dedication to five-year planning, and the inclusion of the Local Level Governments in the Provincial Government structure were borrowed straight out of Morobe’s experience.
Had Micah had his way head tax would have been collected at the local level government level borrowing again from Samana’s Morobe but national politics intruded.
He admits today that the reforms were rushed through Parliament and did not quite take the form he anticipated.
Parliament passed the legislation in the full knowledge that there were defects. There were, as I remember, no less than 59 deficiencies in the law and that was pointed out at the time but the Government at the time wanted to pass the law anyway and make amendments later.
The main objects of the reforms, as stated at the time, were:

• Decentralise more powers and responsibilities to the province and districts;
• Improve service delivery right down to the rural areas; and
• Move public servants to districts and local level areas from urban areas.No more generic and ambiguous language could have been spoken. Those were exactly the objects of the original Organic Law on Provincial Government.

Why legislation?
The question that begs asking is frighteningly obvious: Why does it require legislative changes to move goods and services or public servants down to the district level? How much more power needed decentralizing beyond those which already existed. Provincial governments under the previous system could make their own laws, levy taxes, elect their own legislative assembly and change it as it was authorized to do under its Constitution to do. Each province was an autonomous entity within the State of PNG.
The Micah Reforms abolished the provincial government system in its entirety and removed the provisions for each provincial government to operate under its own Constitution.
In removing provincial constitutions, it was thought that uniformity would be introduced to all provinces, operating under the dictates of the Organic Law on Provincial and Local Level Governments.
That was a mistake, common enough and applied in the name of equality, but no two provinces are alike. Each has different land and populations sizes, different resources base and differing development priorities. To force feed equal status to all, however noble the intention, was an impossibility, a fact that has been discovered by the Constitutional an Law Reform Commission (CLRC) and the Department of Provincial and Local Government Affairs (DPLGA) in their latest review into this bothersome system of government.
Proposing yet another reform of the Micah Reforms to be called the Organic Law on Decentralization, the CLRC and DPLGA are proposing a gradual gradative process of devolution of powers, having recognized that “no one size fits all”.
What form this gradative government system takes will be discussed next in this discussion series.
It would take a deeper reading of both the repealed Organic Law on Provincial Governments and the reformed Organic Law on Provincial and Local Level Governments to make any sound comparison.
Generally speaking, the repealed law is organised and better structured, whilst the latter is not.
The latter law was passed by Parliament with the full knowledge that it was defective in no less than 59 areas.
It was considered urgent that the law be passed and that such defects as were known and others that might surface in the course of time would be ironed out in amendments.
No legislature should knowingly pass defective laws which this Parliament did. A defective law ought to be inoperable by the very fact of its defectiveness.
It being a Constitutional law, such an undertaking would require a far greater time and effort and Parliament was giving itself an enormous job in the future.
Just how much work was discovered in no less than 14 amendments between 1996 and 2014.
Each of the 14 amendments do not just cover one area but so many different parts of the law so that the number of amendments stated does not equate to the number of changes done to different parts of the law.
Amendment No. 1 was done taken on Feb 2, 1996 just seven months after the passage of the law covering a broad area of the new law.
Three further amendments were effected in that year and other changes were effected in 1997, 1998, 2003, 2007, 2011 and 2014.
The previous law (repealed OLPG) provided a clear direction and demarcation on the separation of powers and clear responsibilities between the National Government and Provincial Governments. There is no mention of Local Level Governments in that Law.
The Micah Reform now creates two governments of equal rank under the law, that is the Provincial Government and the Local Level Government, and both report to the National Government through the Ministry of Provincial and Local Government Affairs. There is no suggestion as to which is the government of higher ranking and whether one is superior in duties and responsibilities to the other or not.
What is proposed as the powers, functions and responsibilities in one is repeated in the other. If an Act of Parliament is to make provisions for certain areas at the Provincial Level, that too is equally provided for separately at the Local Level Government.
Taxation law
A case in point is in the matter of Taxation.
The law provides at Section 86 (1) that a Provincial Government has power to impose taxes and fees on the following:
Sales and service tax;
Fess for the licensing of places where intoxicating liquor is sold;
Fess for gambling and lotteries;
Developed property tax;
Motor vehicle registration licences; and provincial road-users.
An Act of Parliament is to provide for the manner in which this is done.
The National Government has concurrent powers to impose sales and services tax in the province as well.
Section 87 provides for the power of the Local Level Government to impose taxes and fees for the following:
Community service taxes, fees and charges;
Taxes on places of public entertainment;
Fees for licences for general trading other than banks;
Domestic animal licence fees and
Corporation and personal head tax.
An Act of Parliament is also to make provision for the manner in which this is to be done.
The question is: Does Parliament enact one law covering the matter of taxation for both levels of government or two separate laws?
Another problem arises immediately: The matter of jurisdiction.
The entire province is divided into Local Level Governments and those bigger towns and cities are government by a Urban Area Authority. In this instance, both governments seem empowered by the law to collect taxes and fees twice over from the same eligible tax payers. The case becomes even more convoluted in the case of a Urban Area Authority because much of provincial government taxation revenue is drawn from urban areas.
Which government is superior as to have over riding say over this very important area of internal revenue can only be guessed at. Both Provincial Governments and Local Level Governments appear equal under the law and it is some wonder this has not emerged in court yet.
An urban area authority, by a simple act of passing laws at its legislature, might take upon itself powers to impose taxes for vehicle licensing within its precincts, for instance. That is within its powers and there is nothing that would remove its right to do so under the law or so in so far as I read it, anyway. That might be reading the law beyond its actual meaning and I very much lack the qualifications for that.
Muddled up
The Micah reforms muddled up the entire scheme so that it was now unclear which government was responsible for what across a broader spectrum, from the National Government down to the Provincial Government and further down to the Local Level Government.
One of the clearest cases of this is in the name of the legislation itself: The Organic Law on Provincial and Local Level Governments.
In law, if not in principle and practice, the previous third level Government – the Local Level Government – had been elevated to the second tier. There appears no distinction between the Provincial Government and the Local Level Government.
As with the first Organic Law on Provincial Governments measuring success or not is difficult as success does not depend on the law or a system of government.
It has worked in a few instances but failed in most cases.
One of the better operating provincial governments under the new reformed provincial and local level government system is the Enga Provincial Government. This we examine next.

Does Parliament enact one law covering taxation
for both levels of government or two separate laws?

Next: Enga lifts off