Section 27 and the powers of Ombudsman

THE subject of constitutional compliance and Maladina amendments is a subject of a long lecture of its own and I have only a limited space in The National to try and explain why I oppose them.
I hope I can do justice in the complicated legal and constitutional issues involved.
I will not go into each proposed amendment.
As I understand it, there are several levels of amendments.
First is the proposed constitutional amendments and this is followed by amendments to the Organic Law on the Duties and Responsibilities of Leaders.
Both have far-reaching consequences.
In this article, I will limit myself to the proposed amendment to section 27 of the Constitution which proposes to take away the power of the Ombudsman Commission to give directions to leaders.
Again, I am not going to discuss the pros and cons of the proposed amendment.
Instead, I will rise above this lower class of discussions which politicians like Moses Maladina want us to focus on so that we lose sight of the real dangerous trend that is taking place in this country.
I have already made my point in earlier discussions that the Constitution is under siege by people who are treating it as if it were just any piece of legislation and not a special document.
Lawyers have taken an oath to protect and uphold the 1975 Constitution.
Any lawyer who brings forth amendments or supports amendments to the 1975 Constitution is breaking his oath as an officer of the Supreme and National courts of this country.
I will explain the issue of amendments later in this article.
At this juncture, I would like to talk about what scientists call “creeping normalcy”.
Scientist and author Jared Diamond wrote in his book Collapse of Societies about how “creeping normalcy” works and gave examples.
In simple terms, it is the effect of making what is “abnormal” normal over a lengthy period of time. 
In application of this scientific theory of “creeping normalcy” to law, it is the effect of breaking the law many times over a lengthy period of time that what is “unlawful” becomes accepted by society as “lawful” over time.
I will provide another example which I learnt at my jurisprudence classes at law school and which, perhaps, Maladina, who professes to know more about the law than me, may have missed.
If 51-99% of the population in a given town are thieves, how does law define a reasonable person in that town, bearing in mind that in a jury trial system, a reasonable man is defined by 12 upstanding citizens of that town who are members of the jury panel?
Yes, you guessed it. The reasonable man will be a thief.
The person who does not steal from his neighbour in the town will be the unreasonable man.
And so it is that, once we begin to allow the breaking of simple rules concerning administrative procedures created to facilitate transparency and accountability and avoid arbitrary actions by government officials as well as politicians, we create for ourselves the process of making what is abnormal all right over a period of time in our society.
Procedural rules and regulations are laws and have the same effect as any substantive laws.
If broken, you create process of arbitrary actions and decision making which in many cases will end up in the denial and breach of the constitutional rights of others.
Our constitutional system places people and institutions in special categories. Politicians do not have any rights when they exercise political functions of the office they hold.
They exercise powers, functions and privileges, which can only be done pursuant to the rules of law known as the rules of natural justice.
This means they cannot act in an arbitrary manner in the exercise of their powers, functions, privileges and duties.
The same responsibility is cast on all constitutional office holders as well as all civil servants.
On the other side of the fence are the citizenry and citizen corporations and entities.
What do they have?
They do not have any powers, functions and privileges that are defined by law.
Instead what the Constitution does is to give them the right to do anything that does not interfere with the rights of others or prohibited by law.
In simple terms, public servants, ministers and politicians in their official capacity have powers, functions, privileges and duties while citizens and registered entities have rights.
The two should never be mixed and the Constitution does not provide for that to take place.
When you become a public servant or a minister or a politician, your personal rights are left at your house when you leave for work in the morning.
You now exercise powers, privileges and functions of the office that you hold.
If you want to be such a person, you forgo your personal rights when exercising your official functions.
If you want rights and no public powers, privileges, duties and functions, you must vacate the office that you hold.
What politicians like Maladina are trying to do is to mix and confuse us into believing that politicians have rights as well.
This is done by giving themselves the right to be micro-managers of funds so as to by-pass the regulatory system that is in place that provides for transparency, accountability and the application of the rules of natural justice.
The decisions concerning distribution of funds will no longer be decided upon by objective criteria but be done arbitrarily based on the whims of the politicians.
I commend the article by John Ruimb titled “Legislators – or finance and project managers” (The National, March 25).
The “creeping normalcy” began in 2006 when Parliament amended section 12 by inserting a new sub-section 4, amended section 127 and inserted a new section 130A to the Constitution.
The purpose of making those constitutional amendments was to validate the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), which would otherwise be unconstitutional if these amendments were not made.
The effect of these 2006 amendments and OLIPPAC are more far-reaching than politicians realised at that time.
If they knew the potential consequences when they voted for the 2006 amendments, then they must be condemned for it.
I was not in the country at that time and was not aware of those amendments until the OLIPPAC case.
The outcome of those amendments is that a Member of Parliament who voted the Prime Minister into office after the general election is prohibited from voting against the proposals concerning:
*Motions of no-confidence;
*National budget; and
*Any constitutional amendment.
If the Maladina amendments are passed, it would mean that the Prime Minister and his Government can move to do all sorts of things to our Constitution.
I will give you some disturbing examples of what they can do.
They can for instance move to take away the independence of the police commissioner in investigating and prosecuting criminal offences.
They can take away the independence of the commander of the PNG Defence Force so as to give themselves the power to direct him to perform functions that may not be recognised at law or by the Geneva Conventions on rules of war.
They can take away and destroy the independence and impartiality of the constitutional office holders such as the Ombudsman Commission, the public prosecutor, and the public solicitor.
What is most scary is that these amendments give the Prime Minister and his supporters the power to even abrogate the Constitution altogether and rule by decree – turning our democracy into a dictatorship or a police State.
They can do all these things because no MP who voted for the Prime Minister can vote against these amendments.
They are locked in to support the constitutional amendments.
And for lawyers generally, what is most disturbing is they can even take away or reduce the powers of the Supreme and National courts.
Jared Diamond gave an example of “creeping normalcy” by directing readers to consider the example of Easter Island in the Pacific where the population cut down all trees to move the Moa Statues into place only to find that they have no more trees left to use to build the homes.
By allowing the amendments, we would be allowing “creeping normalcy” to take root in this country.
We should not be drawn by the Maladinas of the world to argue about the reasons for each amendment.
We should look at the bigger picture of whether Parliament should be allowed to even tinker with the existing Constitution.
Those who want you to argue about each amendment are distracting you from the bigger and ultimate goal – in this case the vesting of absolute power in a few greedy hands.
I am only sorry that we have been directed not to debate the issues involved by the Supreme Court so I will explain.
In his Constitutional reference challenging the validity of the OLIPPAC, Western Governor Bob Danaya has raised the question of whether Parliament has the power to amend or alter the Constitution.
I argued before the Supreme Court that Parliament only has power to alter the Constitution but has no power to amend it.
I explained the difference between an alteration and an amendment by using a metaphor of a two-bedroom house.
In this sense, consider the Constitution as a two-bedroom house.
To amend is to tear down the existing structure and convert the existing two-bedroom house into a three-bedroom house.
To alter is to add the third bedroom by external extension to the existing structure.
In effect, what I said in open court was that Parliament has no power to amend the Constitution.
It only has the power to alter the Constitution by making alterations that are consistent with the tenor and spirit of the provisions.
The extension of the logic of my argument is that the Maladina amendments which are aimed at taking away the powers of the Ombudsman Commission would be unconstitutional.
Parliament can only add to the powers of the Ombudsman Commission in such a way as to enhance the work or powers of the watchdog.
This would be consistent with the existing Constitution.
The Supreme Court has yet to give its opinion on the question of whether or not Parliament has the power to amend or only the power to alter the Constitution.
In any event, the court did ask me in open court for my opinion on whether there are provisions in the Constitution that could facilitate an amendment to it.
I said no.
The court wanted to know, if I am correct, what can be done to amend the Constitution to change to a presidential system of government much like what Australia and New Zealand are currently debating.
My answer was two-fold.
First, Australia and New Zealand have provisions in their Constitutions for referendum – we do not.
Second, we can add a room to our house for that would be an alteration to the Constitution and not an amendment.
 It is, therefore, perfectly all right for Parliament to alter the Constitution by adding provisions concerning a plebiscite or referendum on important constitutional issues.
It would provide a procedure for amendment of the Constitution.
All constitutional amendments can then be put to the people of this nation by way of a referendum.
This is a historical case before the Supreme Court and all five judges would like to be given the freedom to express their opinion.
I hope Maladina will respect the Supreme Court and not push to the next reading of his proposed amendments until after a ruling is handed down.
nPeter 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