Regime ruins democracy, rule of law

By JOHN NONGGORR
THE O’Neill-Namah regime has destroyed Papua New Guinea’s young constitutional democracy and the rule of law.
The last 16 hours have been a sad number of hours for this country which has been built on the backs of many hardworking Papua New Guineans, past and present. No regime in the past 36 years has done this.
PNG now faces uncertainty only because of the actions of the O’Neill-Namah regime. To many of us, the previous Somare regime was bad. But, the actions by the O’Neill-Namah government are the worst.
There will be confusion as to who is PNG’s government today.
The Supreme Court’s decision made yesterday must be respected. Late yesterday afternoon, it decided that the election of Peter O’Neill as prime minister on Aug 2 was a nullity after deciding that there was no vacancy in the office of the prime minister.
Sir Michael Somare remains prime minister. He is the legitimate prime minister.
For thinking Papua New Guineans, and in respect for the rule of law and for PNG’s young democracy, Papua New Guineans must accept and support the Supreme Court decision.
Parliament’s decision made after the Supreme Court decision to elect O’Neill as prime minister again must be rejected by all Papua New Guineans. This election was done after a breach, again, of important provisions of the Constitution.
The O’Neill-Namah regime acted illegitimately in many respects. It has broken some of the most fundamental principles of constitutional democracy. It cannot be allowed to continue.
qThe O’Neill-Namah regime used parliament to pass an amendment to the Prime Minister & National Executive Council Act to circumvent the Supreme Court decision. This amendment was passed to defeat the effect of a Supreme Court decision even before the decision was made. It is clearly contemptuous. That Act is unconstitutional and it was passed deliberately to confuse everyone.
qLate yesterday, the O’Neill-Namah regime purported to have itself re-elected shortly after the Supreme Court decision. It swept important issues under the carpet. For instance, after the Supreme Court declared that Sir Michael was still prime minister, how could there then be a vacancy 20 minutes later for parliament to elect O’Neill as prime minister?
qDuring the week, the O’Neill-Namah regime used parliament to rescind leave granted to Sir Michael due to illness. This was done when the issue was clearly before the court. It was a contemptuous action. It was a blatant disregard for the Supreme Court.
qThe O’Neill-Namah regime passed the amendment to the Prime Minister & NEC Act to validate the actions of parliament on Aug 2 even before the Supreme Court had made its decision. This type of action only happens in dictatorships where there is no rule of law – it is improper and it is contemptuous and in breach of basic constitutional principles.
The amendment is a nullity. It has no effect – because it is clearly unconstitutional.
The Supreme Court’s decision must be respected, not the unconstitutional actions of parliament in enacting the amendment and, subsequently, conducting an election. The contemptuous actions of the O’Neill-Namah regime to pass legislation to save what the Supreme Court has declared unconstitutional cannot be allowed to remain.
The MPs who voted in support of the passage of the Prime Minister & NEC Act have deliberately broken the Constitution, and have acted to circumvent the rule of law and hold onto power by unconstitutional and unlawful means. This is dangerous.
The parliament sitting yesterday on a Monday is unusual. This is a break with tradition and Standing Orders.
But, passing the amendment yesterday was done deliberately to directly and blatantly confront and contradict the decision of the Supreme Court looking at the validity of the election of the O’Neill-Namah government on Aug 2 before the decision was handed down.
This type of action is unheard of in any country that is governed under the rule of law – a parliament passing a law to directly decide a constitutional dispute that is before a court of law.
qSection 6 of the amendment, under paragraphs (a) and (b), states that the speaker’s and parliament’s decisions made on  Aug 2, creating a vacancy in the office of the prime minister, is not unlawful but valid. This was the very issue before the Supreme Court. Parliament took over and made the decision for the Supreme Court. The Supreme Court has now declared, under Order #1, that “Sir Michael was not lawfully removed from office as prime minister by parliament on Aug 2”. How could parliament, through this amendment, say the opposite?
qSection 6 of the amendment, under paragraph (c), specifically states that the election of O’Neill as prime minister on Aug 2 is valid. This issue was also before the Supreme Court. Parliament took over the decision of the Supreme Court. How does one reconcile this with the order made by the Supreme Court made later under Order #6 – to the effect that “Sir Michael is restored to office as prime minister forthwith” or under Order #2 – “O’Neill was not lawfully appointed as prime minister by parliament on Aug 2, 2011”?
Legislation does not refer to individuals by name. No legislation is enacted for the benefit of an individual. Parliament passed a law specifically naming O’Neill as being prime minister. Appointments are done by motions, which are not laws. For the first time, PNG’s parliament has passed a law referring to an individual as being prime minister.
Both these provisions are a nullity – they are ineffective. They clearly contravene the Constitution. Lawyers who have given advice and drafted this piece of legislation are either incompetent and do not understand PNG’s legal system or they are pushing the political agenda.
Furthermore, the amendment is made retrospective – to Jan 1, 2011. Section 3 of the amendment contains provisions that are clearly unconstitutional. This provision seeks to create a vacancy in the office of the prime minister if a prime minister is absent. It is contrary to section 142 of the Constitution which does not recognise this type of vacancy.
What are the MPs doing misusing the legislative powers of the people of Papua New Guinea?
Parliament is not supreme. Many MPs and their advisers behave as if parliament is supreme. It is not. In England, parliament is supreme. In PNG, parliament is not supreme.
In PNG, the Constitution is supreme. Parliament must act within the Constitution. Parliament (like all other bodies) must follow what the Constitution says.
The Constitution says that parliament must respect the separation of powers – section 99(3). Everyone, especially government bodies including parliament, must respect and heed decisions of the courts – section 155(6), Constitution. The executive and parliament must not interfere with the judiciary as the latter must not interfere with parliament and the executive.
But, the Constitution gives the Supreme Court express and specific power to decide constitutional disputes and parliament and the executive must not interfere in this task.
By enacting legislation and taking over and making decisions on important constitutional questions before the Supreme Court, parliament deliberately and directly broke the fundamental principle of separation of powers. Parliament took over the role of the judiciary.
The O’Neill-Namah government appears to believe that if parliament makes a decision or passes a law or motion with a big majority of MPs voting and supporting it, this gives the decision, law or motion legitimacy. It does not. If the Constitution prohibits something, no number of votes can permit what is prohibited.
Parliament can make a decision or pass an Act with all 109 MPs supporting it – however, if the Constitution says that cannot be done, it cannot be done – full stop.
Two weeks ago, the National Executive Council – the executive arm of government – suspended the chief  justice and later rescinded that decision. Now, parliament is being used to interfere in the judiciary.
We, Papua New Guineans, cannot accept this misuse of power by parliamentarians. The speaker and prime minister must not misuse the legislative power of the people given by the Constitution. We must reject this. If MPs misuse the powers and pass legislation and elect themselves to abuse power in this way, we must stop them. These are few MPs acting in their own interests – they want to hang onto power for the remaining term of this parliament – less than six months! The interests of the seven million people must override the interests of a handful of MPs abusing the people’s power and resources.
It is critical that ordinary people and public institutions stand firm and reject this type of abuse. The police and other disciplinary forces must put the interests of the people of PNG before the interests of the few MPs who are now hellbent on destroying the country.
Police must stand firm with the judicial and other institutions. Individual politicians will come and go. Institutions must protect institutions. Police are a part of the judicial and legal system. They must uphold and follow the decisions of the courts – for the sake of the people of PNG, the rule of law and the country’s democracy.
The recent actions in parliament, instigated by the O’Neill-Namah government, were designed to confuse everyone. The O’Neill-Namah regime knows that it will take time to bring another court challenge. The regime knows that what they are doing, using parliament in the way they did, is unconstitutional and unlawful.
They have nevertheless done it so that they can hold onto power, a short-term gain. They know that they have been on shaky ground all along and, in their desperation, they have tried to do everything conceivable including acting unlawfully.
The O’Neill-Namah regime has done irreparable damage to the country.
To the many hardworking and honest Papua New Guineans, who worked hard daily to contribute to the country’s development, this type of action is a slap in their faces – Papua New Guineans deserve better.
The O’Neill-Namah regime must do the right thing, for the sake of the country, to respect the decision of the Supreme Court and allow a transition back to a government under Sir Michael Somare.