O’Neill is now a step ahead

Editorial, Normal

The National, Monday 23rd January 2012

THE ball was really in the Somare camp for some time but it has opted to drag its feet and to dilly-dally so that, now, the O’Neill camp has decided to take the bull by the horns and wrestle it to the ground.
We speak of the impasse and a judicial remedy for it.
Up to now, we have been wondering why the Somare side has been loath to go back to the courts to protect its decision or adjudicate on the happenings of parliament.
That both sides have valid arguments is without question.
The Somare government was restored by the Supreme Court in its Dec 12 decision. Six orders were given which served to nullify the election of Peter O’Neill on Aug 2, which further declared that the prime ministerial post was vested in Sir Michael Somare, that he also remained Member for East Sepik and declared that the National Court alone had the authority to declare who was MP. The court decision is unambiguous and understood by both sides. No issue there.
Now, while the Somare side has decided to stick by that court decision, the O’Neill side has been busy. Anticipating that the court might nullify the election of O’Neill, his team used its numerical strength in parliament to institute a number of unprecedented moves.
It rescinded a leave of absence granted to Sir Michael in May which then had the effect of absenting Sir Michael from three parliamentary sessions and, therefore, incurred automatic dismissal from parliament as stipulated by the Constitution. To make absolutely certain that it left no loopholes, the O’Neill camp also amended the Prime Minister and National Executive Council Act to provide a clause to the effect that any incumbent prime minister who absented himself from duty for three months would be dismissed as Prime Minister. This also applied directly to Sir Michael who had been absent from  duty from May to September. Unfortunately, there would appear to be no official record kept by parliament or with the governor-general stating that Sir Michael was on sick leave. Not satisfied with that, parliament later amended the law prohibiting all who were older than 72 from holding office as prime minister. This also applied to Sir Michael who is 73.
Except for the age limit, which came much later, the rescinding of the leave of absence and the amendment to the prime minister’s law were already in place by the time the court decision was handed down. If there were any problems with the various actions of the O’Neill team – in law, in principle, on moral grounds or whatever else, – this issue has never been raised by the Somare camp in any competent tribunal or court.
On the same evening the court decision was handed down, parliament sitting beyond 5pm for precisely that reason took delivery of the decision, accepted it and then declared that its own decisions which served to invalidate Somare’s tenure as MP for East Sepik and as prime minister, there then existed a vacancy in the office of the prime minister. Nominations were called for and parliament proceeded to elect O’Neill back as prime minister.
An issue arose at the time about whether or not having declared a vacancy the election ought to have been held the very next day as conclusively decided by the case of Paias Wingti. But that did not happen and, more importantly, it was never raised as an issue by any aggrieved party.
Whether the actions of parliament, prior to and after the court decision could be held to be contemptuous of the proceedings on foot before the court or of the decision once it was handed down, has also never been raised by any aggrieved party.
Whether there can be presumed a conflict between the amended act of parliament and the constitutional law which was violated on Aug 2 can only be decided by the court and that has never been raised with it.
The Somare camp could have gone to court but it did not, seeking instead to wait for the court cases of Somare appointees Fred Yakasa and Gabriel Yer to be decided to settle the question of its legitimacy.
That has given O’Neill time to come back and, last Friday, it announced in parliament that it would go to court to have it validate parliament’s decisions in removing Sir Michael as member for East Sepik and as prime minister.
It will just tie up the courts which come back in February and elections will be only three months away then.
Precious time has been wasted by the Somare side which will count against it in due course.