Separate politics from rule of law

Editorial, Normal

THE judiciary has spoken loudly and clearly.
Parts of the Organic Law on the Integrity of Political Parties and Candidates have been found to be in clear breach of the Constitution and have been rendered obsolete.
Parliament passed the law with its offending provisions almost unanimously in 2001 when the then government of Sir Mekere Morauta was in executive power. The current Prime Minister, Sir Michael Somare, famously absented himself from voting on this law and then benefited almost exclusively from its application in the last eight years.
A further amendment was made to the law under the Somare regime in 2003 so, really, the one leader cannot blame the other for introducing legislation that had run amok of the Constitution. Both must bear some blame.
The question that now begs asking is whether the judiciary has spoken too loudly, whether it had intruded into an area of lawmaking that is the precinct of the legislature alone; whether it had, in effect, stayed the hand of Parliament as the highest lawmaking body in the land to make laws.
This is a fundamental question and one that will have been foremost in the minds of his honours on the Supreme Court bench when they sat down to deliberate the reference before it.
Without deliberating on the finer points of law, it would seem clear to us that the Judiciary has been careful enough to have performed its laws and not intrude into the powers, functions, duties and responsibilities of Parliament.
The entire system of government – the executive, legislature and judiciary and their functionaries in the civil service are creatures of the Constitution.
The Constitution establishes each body and sets out their functions and responsibilities. It is the foundation upon which all else in the nation is established.
None can rise above the Constitution without creating a crisis of such magnitude that the future of parliamentary democracy such as has been adopted and established in PNG is called into question.
If Parliament has made laws that are inconsistent with the Constitution, then, it is the rightful role of the courts to interpret as such and to throw the offending law out.
If, in so doing, the courts were to go further and tell what Parliament should and should not do in future, there would be an intrusion into the sacrosanct confines of Parliament’s duties and responsibilities and should invite censure of some sort.
This, the court did not do and had not done so in past decisions. In this, the court had done its duties very well and must be commended.
It is Parliament that requires censure.
We have raised the issue time and again in this space that far too many laws have been passed by Parliament that cannot pass muster.
Far too many laws are being struck down and, we fear, that there are very many more laws that fall into the same category, which only exist because they have not been challenged in the courts.
To this very grave issue, every Member of Parliament, and every legal counsel of Parliament and parliamentarians, must address themselves.
There is a first legislative counsel who must scrutinise every law that is to be presented in Parliament to ensure the provisions of the bill are consistent with the Constitution and with all other Organic Laws and Acts of Parliament.
We wonder whether all the laws are being made to pass the test of the first legislative council and the draftsmen employed for the explicit purpose in that division.
Parliamentary counsel are also employed to ensure proper processes and procedures are followed in making laws and that all bills to be presented meet the draftsmen’s requirements.
Parliament has abrogated its primary duties to make laws and is now becoming nothing more than a meeting place to play political games and to lobby to get goods and services back to the people – which, by rights, are the job of civil servants.
Unless Parliament checks itself, laws will continue to be passed only to be struck down by the courts. In frustration, Parliament will try to legislate to curtail the role of the courts and that would most certainly be courting disaster.
The fault lies, not with the courts, but with the politicians in Parliament.