The amendment, integrity law

 By NEMO YALO

THE Office of the Registrar of Political Parties must be commended for its effort in taking steps to strengthen political party system and therefore stability in government in Papua New Guinea (PNG). It has conducted a number of consultations with stakeholders, mostly political parties regarding proposed amendments to parts of the Constitution and has proposed a new Integrity Law. It has just completed a three-day training workshop in Lae for political party executives. Early this month this writer gave an analysis of the proposed amendments to the Constitution and the Integrity Law. The Registrar is reported to have assured the political parties during the workshop that the proposed “small amendments’ to Constitution Section 145 are designed for political stability. That it is not meant to keep one person or his party in power for longer period. Further that the proposed amendment to Section 145 is to ensure that the peoples’ wish and votes through the ballot are protected (The National, 20.06.14). Section 145 relates to motions of no confidence against the Prime Minister and or his Minister(s). Early this month this writer commented extensively on the proposed amendments to the Constitution and the Integrity Law and highlighted those provisions which are clearly unconstitutional and will be declared so by the Court should a challenge on their constitutional validity be mounted. 

Whilst the intention may be noble it is necessary to appreciate the flip side of the proposed law. Legislative drafting on its own is a complex field of law. It is an art of its own. The legislative syntax of each provision of a proposed law must not only make sense but must attempt to address all possible mischiefs both at present and in future when the law applies in circumstances that may be presented. A drafter must consider both the possible and potential unintended consequences of a proposed law and how it will be used or abused once passed as a law. For these reasons the Legislative Counsel must have a hand in the drafting of any proposed law.

Is the present government truly the Peoples’ choice the proposed laws must protect? Section 63 of the current Integrity Law states that on the date of the return of the writs in a general election, the Head of State acting upon advice of the Electoral Commission invites the political party which has endorsed the greatest number of candidates declared elected in the election to form the Government. This provision does not say that a registered political party that endorsed and had declared elected in the election 50% plus one or more of the number of seats in Parliament (i.e. 111) in order to be invited to form government. A party simply has to have endorsed and declared elected more candidates than the others. In a multi-party system like ours one political party has ever  had endorsed and declared elected 50 percent plus one or more candidates out of the previous 109seats or the present 111 seats in Parliament. A party with 15 or 20 declared candidates may be invited to form the government. The question is, is it accurate to describe this party as the majority of the Peoples’ choice to form government. In other words have the majority of citizens preferred this party and any one of its members to be the Prime Minister? We do not think so. But that is what the law says for now. 

It is more appropriate to say that a party that had endorsed and had declared elected in an election 50 percent plus one or more candidates out of a 111 seats as the Peoples’ choice to run government. Both the National Alliance in the 2007 general elections and the Peoples’ National Congress (PNC) in 2012 general elections did not reach that percentage. According to the Electoral Commission website the PNC had under 30 candidates or about 26 percent of its endorsed candidates declared elected in the 2012 general election. Strictly speaking it is not accurate to say that these parties were the Peoples’ choice to run government although each returned most declared candidates than other parties following the respective general elections.

It appears that by trimming down on the number of political parties and strengthening those that remain, the Office of the Registrar is attempting to bring the nation to a stage where the electorate may vote a party into government by electing 50 percent plus one or more candidates endorsed by that party. A party with less than 50 percent candidates elected and which has formed government by adding coalition partners are referred to as minority government. But this cannot be achieved solely by altering the fundamental structure of the Constitution and thereby the system of government the People following comprehensive consultation process.

Genuine and lasting mature political system and therefore stability can be best brought about by a gradual process that addresses political behavior of MPs, political parties and their executives and the voters. The bulk of the electorate needs to be educated so that they are politically literate. The government must allocate adequate resources each year so that the Registrar’s Office can plan programs and implement them to achieve this long term goal. Maturity in political party system and therefore stability cannot be achieved overnight by the miraculous stroke of a legislative draftsman’s pen.

The objective of the proposed amendment to Section 145 and the related part of the proposed Integrity Law may be noble but they are unconstitutional. Assume for arguments sake that a party is chosen by the People to form government. The proposition that party and its Parliamentary wing leader who is the Prime Minister should remain in government until the end of the Parliamentary term presupposes that that government and any government from now on will not be  weak and corrupt and will be forever fit to hold office. What if it is the opposite? Well the proposed law makes it very tough to keep that government accountable as and when necessary. It protects that kind of government for a prolonged period and restricts or prohibits for that same period any steps to keep it accountable. It is a basic tenet of a democracy that a government must be kept accountable at all times and at any time. The democratic principle of accountability and its application must not be made difficult or restricted or prohibited for any period of time for the lame justification of stability. The fact that a party was elected into government by the People and therefore the argument that the same Peoples’ right to keep it accountable at any time should be restricted and or prohibited by law is contrary to the basic principles of democracy. This is what some aspects of the proposed laws are intended to do. The same people have the right to remove their government through their elected representatives on the floor of Parliament at any time as and when necessary. Restrictions may lead to frustrations and lack of regard for the Constitution as happened on 2 August 2011 although that event occurred for different reasons.

The proposed amendment to Constitution Section 114 stipulates that voting by members present in Parliament shall be in accordance with political party resolutions. Section 61 of the proposed Integrity Law states that a Member of Parliament can be expelled from his party if he does not vote in accordance with his party resolution.  These proposed laws dictate that all debates and discussions must happen in the party rooms. These proposed laws are unconstitutional. The Constitution Section 115 provides for freedom of speech, debate and proceedings in Parliament. The MPs must debate freely and hear from the rest of their colleagues arguments for and against the issues prior to taking a position on the resolution. The electorates must see their representatives debating in Parliament. They must see their Parliament at work in an open forum. Political parties exist in abstract. They do not take physical form and walk into the Chamber and engage in debate. It is the MPs who debate issue on the Floor. Their freedom to debate cannot be restricted behind a party room. Compelling MPs to discuss, debate and take resolutions on issues in a closed door not open to the electorate offends Section 115 of the Constitution.

The proposed laws should be reviewed by the Office of the Legislative Counsel prior to the first reading. MPs should not continue to pass laws that the Supreme Court will eventually declare unconstitutional and invalid. It is about time we save ourselves embarrassment. 

• Nemo Yalo is a former judge of the National and Supreme Court and a former Ombudsman Commission counsel