Testing time ahead for PNG laws

IN a move that pre-empts the Supreme Court decision due today, parliament last Friday voted to rescind the leave of absence granted to Grand Chief Sir Michael Somare in May this year.
This move effectively negates any decision of the court in that it now effectively creates a vacancy in the position of Sir Michael as prime minister.
If the courts determine the O’Neill government was illegally elected, Sir Michael is no longer MP and, therefore, is deemed ineligible to hold the post. There is a vacancy in the post and, in obedience to the law, it will become the first business of parliament to elect a new prime minister.
Parliament effectively showed how it will
vote if that eventuality arose by voting 64-0 in
support of the O’Neill-Namah regime last Friday.
The interesting question, of course, is whether or not the vote to rescind the leave of absence for Sir Michael might be held to be in contempt of proceedings before the courts.
The so-called government in limbo, pending the court decision, is adamant that the decisions by parliament are absolute.
Its reasons stem from the fact that Sir Michael has been ousted as the member for East Sepik once before.
Friday’s motion was the second time Sir Michael has been removed as member for East Sepik. The first was on Sept 6 when Speaker Jeffrey Nape summarily dismissed Sir Michael, alleging that he had missed three consecutive sittings of parliament.
He included in his statement the opinion that the leave of absence granted to Sir Michael in May was defective.
He said the leave should have covered three sittings of parliament and not just one.
The speaker’s actions of Sept 6 directly contradicted the position of his own principle adviser in parliament, clerk Don Pandan, who had advised the Grand Chief in writing earlier the same day that he had only missed two sittings of parliament and was quite safe.
Armed with the clerk’s letter and the questionable interpretation by the speaker of the leave of absence, Sir Michael went to court challenging his removal as member for East Sepik.
Although this was a separate matter, it had a direct bearing on the special reference by the East Sepik provincial executive council challenging the validity of the O’Neill government and, so, it was lumped together and Sir Michael joined the reference as an intervener.
Excepting the question of contempt, the motion last Friday now removes any questions about Sir Michael missing out on three sittings of parliament. With the leave of absence rescinded, he now has missed three consecutive sittings of parliament.
This also affects his eligibility to remain prime minister should the court decide so.
The ministry, including the position of prime minister, is a parliamentary executive post according to section 141 of the Constitution and, therefore, no person who is not an MP is eligible to be appointed a minister and a minister who ceases to be a member of parliament also ceases to hold office as a minister which includes the prime minister.
Another important question now, and into the future, is whether the actions of parliament can be put on trial in a court of law.
Both the judiciary and the executive are independent and equal arms of government with none superior to the other. Each has its own important duty.
Parliament makes laws. The courts interpret the laws.
Did parliament break the law when it elected Peter O’Neill prime minister on Aug 2? That is clearly a question the courts can deal with. It is a simple matter of interpreting section 142 of the Constitution.
But, has parliament invited contempt of the courts by its motions, votes and decisions resulting in the removal of Sir Michael as member for East Sepik? That is not so clear-cut.
Section 115, which confers parliamentary privileges, states explicitly that no member of parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities except for the operation of the leadership code.
No member of parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise or has said before or submitted to the parliament or a committee of the parliament.
It will be interesting to see how this is tested in the days ahead.
For now, we repeat our own appeal and echo the prime minister’s and Sir Michael’s call for peace, level-headedness and calm.