OLIPPAC and the Supreme Court ruling

THERE were two preliminary issues raised by the author in the Supreme Court reference on the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC) which, on Wednesday, was ruled to be unconstitutional.
These were whether there exists a “basic structure” doctrine written into our Constitution and whether the amendments to section 12, 127 and 130A limit the exercise of the powers, privileges and immunities of a Member of Parliament as provided for in section 115 of the Constitution.
The basic structure doctrine
The basic structure doctrine was created by the highest court in India in 1973 to prevent Indira Ghandi from the excesses of her control over parliament and using the parliamentary numbers to amend the constitution to legitimise her otherwise corrupt practices during the elections there.
The author has argued before the Supreme Court that the “basic structure” doctrine is provided for in the PNG constitution.
Where in the Constitution?
It is provided for in the reading of sections 99, 100 and 109 of the Constitution.
It was argued that Parliament does not have unlimited legislative power.
Under section 109(2), it can only make laws that “are not inconsistent with the Constitution” and must be for the purpose of “carrying out and giving effect to THIS Constitution”.
By the use of the word “this” in that section, it was argued, Parliament has no power to amend the Constitution.
By the “basic structure” doctrine, the executive arm of government cannot hold the country to ransom by sheer numbers on the floor of Parliament.
By this doctrine, Members of Parliament exercise powers privileges and have immunities on the floor of Parliament.
They do not have rights as ordinary citizens.
Their powers, privileges and immunities cannot be regulated as any other rights provided for in the Constitution.
By the “basic structure” doctrine, Parliament only has powers to add to the Constitution but cannot take away from the existing Constitution.
All its actions must be consistent with the Constitution and the laws it makes must be such as would give effect to the existing Constitution.
Parliament cannot alter the existing Constitution to acquire for itself more powers than it already has, so as to validate its actions which might otherwise be unconstitutional.
Nevertheless, the Supreme Court has ruled that the “basic structure” doctrine is a foreign concept and has no place in Papua New Guinea.
The Supreme Court stated that the submission by the author was that the basic structure doctrine is founded on section 99(2).
Section 99 provides for the principle of separation of powers.
This summation and ruling by the Supreme Court of the author’s submission is incomplete.
While the principle of separation of powers is non-justifiable, as is correctly stated by the Supreme Court in paragraph 94 of its ruling, section 100 vests legislative power in Parliament and section 109 of the Constitution provides for the exercise of the general power of law making.
With the exceptions provided for in subsection 3, section 109 is otherwise clearly justifiable.
All three sections must be read together to determine the “basic structure” pertaining to Parliament’s power to make laws.
Powers, privileges and immunities Parliament also amended sections 12(4), 127 and 130A of the Constitution to validate the OLIPPAC which would otherwise be unconstitutional.
It was, therefore, argued that the amendments to sections 12(4), 127 and 130A of the Constitution had resulted in the abrogation of the powers, privileges and immunities of Members of Parliament provided for in section 115.
The Supreme Court did not say that the amendments to sections 12(4), 127 and 130A are unconstitutional. Neither did it say that they were constitutional.
Its ruling was not clear-cut.
The Supreme Court took a middle-of-the-road approach and stated that, to the extent that these amendments affected the rights of Members of Parliament to hold public office and exercise public functions provided for under section 50(1)(e) of the Constitution, those sections had no force and effect at law.
Secondly, section 50(2) provides that the rights section 50(1)(e) of the Constitution can be regulated.
The effect of this is that these rights can be regulated but cannot be restricted or prohibited.
The Supreme Court, therefore, held that while the amendments to sections 12(4), 127 and 130A had the effect of restricting and prohibiting the exercise of the rights of Members of Parliament provided for in section 50(1)(e) of the Constitution, they were of no force and effect. 
In other words, the Supreme Court did not make invalid the amendments to sections 12(4), 127 and 130A.
To do so would invalidate the whole of the OLIPPAC.
The court preserved the OLIPPAC but made invalid certain sections.
The Supreme Court considered sections 57, 58, 59, 60, 61, 69, 70, 72, and 73(1)(b) of OLIPPAC in the light of:
*Section 47 of the Constitution (right to belong to political parties, industrial organisations and other associations);
*Section 50 (right to hold public office and exercise public functions); and
*Section 115 (powers, privileges and immunities of Members of Parliament).
It held that all of these sections are unconstitutional as they are prohibitive of the exercise of the rights provided for in section 47 and 50 and powers and privileges of MPs under section 115.
Section 81 of the OLIPPAC permits contributions by foreign entitles and individuals to MPs and political parties.
This section was clearly unconstitutional and this was conceded to by the lawyers for the government.
Foreign entities and individuals are, therefore, prohibited from contributing to any MP or political parties in this country and section 80 of the OLIPPAC is clearly unconstitutional.
Was the Supreme Court correct to reject the persuasive doctrine created by the highest court in India and applied in Bangladesh and considered in some Caribbean countries, all Commonwealth countries, in interpreting sections 99, 100 and 109 of our Constitution, on one hand, and then proceed to look at parliamentary procedures of other Commonwealth countries in considering parliamentary “powers, privileges and immunities”?
Papua New Guinea is at the crossroad in its constitutional development.
Wednesday’s court ruling has laid the foundation for Parliament to further whittle away the “basic structure” created by the 1975 Constitution.
This includes the powers of institutions created by the Constitution, such as the Ombudsman Commission, the police commissioner and the judiciary.
By taking the middle-of-the-road approach, the Supreme Court may be reserving for itself the power to strike down such amendments in future on a case-by-case basis and, in this regard, the ruling is politically astute.

*Peter Donigi is a lawyer and presently consultant to a legal firm in Port Moresby. He has taught at the University of PNG and overseas. He also served as an ambassador for PNG