Our Constitution reigns supreme

THE National’s editorial on June 8 was, as usual, excellent.
The questions posed in paragraph five are to the point and Parliament should note them with keen interest.
I quote: “How many laws will be found to be unconstitutional in the weeks and months to come? Worse, how many more laws today go unchallenged but are unconstitutional?”
Law is partly about common sense.
The recent laws which have been passed by Parliament and have attracted much public debate are clearly the agenda of the government.
No ordinary Papua New Guinean needs to be a rocket scientist, or learned in law such as those who advise the government and they need not be intelligent like their elected representatives, particularly those who are staunch proponents of these controversial laws.
When the public reads and understands these laws and apply their average sane person’s common sense, they will conclude that the laws are bad and they are entitled to speak out like they have done many times before.
They speak out not because they are lunatics but because they are mad at their Constitution being tampered with and trampled upon by the weight of politics to serve political interests of a few under the guise of serving “public interest”.
Parliament has a long history of passing laws that have been declared unconstitutional by the Supreme Court.
For example, in 1981, Parliament amended the Organic Law on National Elections (amendment) Act 1981, requiring parliamentary candidates to validate his or her nomination with a deposit of K1,000.
The following year, the Supreme Court held, among others, that the law was unconstitutional because it was contrary to section 50(1) of the Constitution.
In 1992, the Supreme Court also ruled unconstitutional Parliament’s amendment to the same Organic Law compelling citizens to have identification cards to cast vote.
In 1994, the Supreme Court held that parts of the Internal Security Act 1993 breached numerous basic rights provisions of the Constitution, including rights of full protection of the law guaranteed to persons charged with an offence; to personal liberty; freedom from arbitrary search and entry; freedom of assembly and association; freedom of movement; etc.
In 1999, Parliament resolved to take an unjustified seven months and 11 days’ leave adjournment) out of a 12-month parliamentary year and the Supreme Court ruled it unconstitutional.
When Parliament mucked up the nomination of the governor-general in 2003-04 not once, but twice, the Supreme Court declared the nominations of Sir Pato Kakaraya and Sir Albert Kipalan invalid on each occasion.
In 2006, Parliament amended the Organic Law on Provincial Government & LLG, removing heads of local level government from provincial assemblies and this too was declared unconstitutional last week (June 4).
The examples are too numerous to list.
In all these cases, the people’s Constitution, through their Supreme Court, has spoken out loudly that the laws passed by Parliament in these regard were unconstitutional.
When is Parliament going to learn?
Or is there a Parliament?
Is the people’s Parliament merely a rubber stamp of the Executive arm?
Does Parliament receive proper legal advice?
If it is given proper legal advice, does it take heed?
Do Parliamentarians read and understand the bills before they pass them and come out and explain to the masses?
In a very short period of our history, Parliament has on many occasions passed laws that have been declared unconstitutional and invalid by the people exercising their inherent judicial power through their Supreme Court.
Neither the weight of politics and political convenience nor personal interests and the interests of a few can trample on the Constitution under the dirt.
Neither the weight of politics nor personal interests can make the multitude voiceless.
No attempt should be made to silence the people because the Constitution grants them the fundamental right to freedom of expression.
The people have a right to keep the government in check.
Our Parliamentarians seem to be living under this misconceived illusion that they can only be held accountable at the ballot at the end of their five-year Parliamentary term.
There is no law that says that the people have to wait for the elections to keep their representatives in check.
Under the Constitution, the government can be kept in check any time and the people are, by no means “lunatics”, and they need not be voted by the people to keep the government in check.
The manner in which the public understands the recent laws passed by Parliament is no different to how they have always understood issues of similar nature before.
No Member of Parliament should assume that simply because he or she is an elected leader, he or she is more intelligent or wiser than the voter. 
We were neither “lunatics nor sadangs” then, and we certainly are neither now nor will we be in future.
Time will tell and our Constitution will continue to speak again and again on these issues in the future.
The Constitution itself states that it speaks from time to time.
Yes we know what its voice will be – that Parliament has got it wrong again.
One cannot understand how the government’s lawyers can defend the recent amendments to the Environment Act, that they are not unconstitutional when the opposite is so glaring even to the lay person.
What about the fact that the law removes the resource owners’ rights to seek legal recourse when they suffer from environmental damages caused by resource developments?
That simply means that the inherent supervisory power of both the National Court and the Supreme Court conferred by the Constitution under section 155(4) are removed without actually having to repeal that provision.
Are these government lawyers talking about the same law or something else?
It is very clear that our parliamentarians, starting with the prime minister, do not understand the Constitution.
If they did, they would not be passing laws that are seriously unconstitutional.
With the greatest respect, no one member of the constitutional planning committee wrote the Constitution so he should not mislead the nation.
The Constitution is the product of a very comprehensive time-consuming nationwide consultation process and the whole nation had a hand in formulating it.
The Constitution is not just an ordinary Act of Parliament.
Altering it requires proper understanding, and any attempt to do so requires a special respect it deserves.
If the government is serious about good governance it should enable Parliament to employ qualified lawyers to counsel it and for MPs to have access to the best advice possible so that they can fully understand any bill tabled.
Lawyers have a professional duty to offer the best possible advice.
It is more onerous duty to this nation should they be called to offer legal advice to decision-makers and legislators.
They must never offer advice that is contrary to the Constitution, the practical application of which will weaken it and eventually could lead to the fragmentation of this one people, one nation, one country.

*Nemo Yalo was the head counsel for the Ombudsman Commission before being appointed as a National and Supreme Court judge. He stepped down from the bench recently and is now a private consultant