PNG Constitution’s fatal flaw

 By CHRISTINE STEWART

WHEN the O’Neill-led government was first installed in 2011, it had gained widespread support.

The people were largely fed up with the entrenchment of the Somare-led government for nearly two terms of parliament, secure in the protection of the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC) which had prevented any MP from voting against his party on any matter whatsoever, including a vote of no confidence in the prime minister.

But events early last year saw this support start to dissipate.

There seemed to be no remaining constitutional checks on Parliament.

Twice, Supreme Court constitutional rulings were ignored with impunity. 

How could this Parliament be controlled or eliminated? 

The new government had only a few months left to hold office before fresh elections were scheduled. 

Some in government were even starting to threaten to defer these elections. 

The people, those constitutional repositories of power, were growing uneasy.

It was through the ballot box that their power could be exercised. 

What if the elections were deferred, or worse, not held at all?

The three ways a fresh election can take place (Section 105 of the Constitution) are: 

• Expiration of time; 
• Some form of a vote of no confidence in the last 12 months of its term;
• Parliament resolves to dissolve itself.

It seemed highly unlikely that the government would dissolve itself, or entertain a vote of no confidence against itself, so long as it held together. 

That only left the expiration of time. 

The government began to pursue many look-good options, such as blaming defective common rolls, ousting the Electoral Commissioner and so on, to enable the ignoring of the time limit.

What would happen, if so? 

It was suggested that once the five-year time limit passed, there would be no Parliament. 

But would that make any difference in reality? 

What could the nation do if the Parliament simply continued to operate, passing laws and controlling the money?

Fortunately, these questions did not require an answer. 

The elections were held, Peter O’Neill’s team was returned and was joined in a “grand coalition” which included former prime ministers and other prominent party leaders.

O’Neill’s former deputy, who was prominent in spearheading many of the moves designed to secure the supremacy of Parliament contrary to the Constitution, moved to head the opposition, where he remains for the time being. 

But this is not the end of the story, nor does it answer the questions these events have raised.

Are there any legal means of getting rid of a Parliament? 

There are no explicit provisions in PNG’s Constitution for the dissolution of Parliament by any other body but Parliament itself, under Section 105.

The Constitution places severe limits on the powers and functions of the governor-general in relation to Parliament and the formation of government. 

The only head-of-state functions in relation to elections are to fix the period of elections (Section 105(2)) and issue the writ for a general election (Organic Law on National Election Section 72).

It is just arguable that the governor-general has a residual power to dissolve Parliament providing he is acting in accordance with the Constitution. 

Section 86(2) provides that the head of state shall act only with, and in accordance with, the advice of the National Executive Council (NEC).

However, this provision is declared by subsection (4) to be non-justiciable. 

This means that the court cannot decide whether or not advice was given.

It can only enquire into the constitutionality of the action taken.

If the governor-general were to decide he is not acting unconstitutionally in dissolving Parliament, then the issue of advice cannot be questioned. 

Nevertheless, the question of the constitutionality of his action is still open to challenge in the courts.

However, even if a governor-general were to try to dissolve Parliament, the practical consequences must be considered. 

The Government had already proved itself capable of exercising suspension and sacking powers over the judiciary by the simple expedient of passing a law to that effect.

In the case of the governor-general, it would not even need to pass a new law. 

Sections 94 and 95 of the Constitution provide that the governor-general may be suspended by the NEC, whereupon the Speaker becomes the acting governor-general.

Then Section 93 comes into play, providing that the governor-general may be dismissed from office by the NEC or by a decision of Parliament.

So the Speaker, provided he remains complicit with the government, controls the governor-general as well.

In effect, all it takes to maintain constitutional control of the country is three people: one person in the government to move the necessary motions, one to second them — and the Speaker to orchestrate their acceptance. 

The prime minister is chosen by members of Parliament, the collective representatives of the people, and may be removed by various means (Section 142(5)).

The governor-general has virtually no powers at all, he is merely a rubber stamp, and he may be removed by the executive or Parliament. 

But there is no constitutional provision providing a means of removing the Speaker, or limiting his powers.

The Constitution has carefully avoided concentrating power in any of those positions but everybody forgot about the Speaker. 

Nobody realised how much power they were handing to him in the name of “the people”.

This is the fatal flaw in PNG’s constitutional system.

• Dr Christine Stewart is a law graduate from the University of PNG, and a post-doctoral Visiting Fellow in the School of Culture, History and Language, College of Asia and the Pacific, Australian National University.