This is no ‘small addition’

 THE Government deserves to be commended for responding to calls to defer the debating and voting by Parliament the proposed amendment to the Constitution Section 145 (Motions of No Confidence) and the proposed Organic Law on the Integrity of Political Parties and Candidates (Integrity Law). 

In that context, it is healthy for constructive debate that the Office of the Registrar of Political Parties and Candidates (The National, 02.07.14) and the Constitutional and the Law Reform Commission (Post Courier, 7 and 8 July 2014) have discussed the issues. 

We refer to them as independent offices. No doubt we all agree that we must find ways to bring about political stability in Papua New Guinea. 

It is a question of how this can be achieved. This writer maintains that notwithstanding any view to the contrary the proposed further amendment to Constitution Section 145 has the potential to fundamentally change the democratic style and system of government we now enjoy to an autocratic and potentially leading to dictatorial governments in future. 

The two independent offices describe this proposition as well as the critique on some aspects of the proposed Integrity law as “purely legalistic tunnel” view and “tunnel vision” and “preaching and promoting greater political instability”. 

In this article the writer responds to the combined positions of the two independent offices. 

Comprehensive nationwide consultation needed 

It is useful to revisit the relevant part of the Final Report of the Constitutional Planning Committee (CPC) and appreciate how our Constitution was formulated. 

Before adopting our Constitution the CPC members travelled the width and breadth of the country and to every sub-district to seek the peoples’ views on the proposed Constitution for the country. 

Those who could write were invited to write to the CPC. Thousands of suggestions in writing were sent to the CPC. 

The CPC did so with very little pay, much less financial resources, had fewer kilometres of vehicular roads, fewer seaports and airports, fewer motorised boats and in the era of no mobile phones, no internet and no social media. 

This writer recalls the late Sir Ma­tiabe Yuwi’s story. Sir Mataibe and his colleagues paddled on a boat for days to reach the citizens living on the farthest eastern islands of Milne Bay Province simply to gauge their views about the proposed Constitution and the style of government, etc. Chapter 1 of the Final Report of the CPC at paragraphs 3 and 4 captures in part this piece of history:

“3:  From May to August 1973 we toured the country; we visited almost every sub-district, holding over one hundred public meetings attended by an estimated 60,000 people. Our major deliberations took place at meetings.”

The consultative process: “4: A major part of the work of the committee has been to determine the views of the people of our country on the kind of government they believe will be suitable to their needs. 

In addition to the programme of public meetings already mentioned, our consultations with the people were greatly extended by the formation of discussion groups throughout the country.  

“The submissions, well over 2000 in all, have been based on the committee’s six discussion papers, which were distributed both to the groups and to all interested persons requesting them. 

“Published in Pidgin, Hiri Motu and English, the discussion papers dealt, respectively, with: Citizenship, relations between central government and other levels of government, legislature and executive,  the courts and law officers, and human rights. Full-page advertisements were placed in the Papua New Guinea Post Courier on these subjects, inviting written submissions. Extensive use was made of radio and posters to publicise the committee’s work”.

Almost 40 years later and in the era of more public funds at our disposal, thousands of kilometres of sealed road networks, many airports and sea ports, more government-owned aircraft, motorised ships and boats, multiple radio station coverage, one State-owned TV station, the internet, social media and nationwide mobile phone network coverage, there can be no excuse for not engaging in comprehensive nation-wide citizens’ consultation, particularly if a proposed law has the actual or potential effect of changing the style of government the people desired and entrenched in their Constitution. 

The Government must adequately fund our independent offices to enable nationwide consultations and discussions. 

It is not sufficient that consultations are held with political parties at regional or provincial centres.

The membership of these parties and all other citizens must be engaged as the CPC did. 

Go to the length, the width and the breadth of the nation and go to every sub-district and every council ward. The result of such consultation process must be published so we know the total number of citizens for and against the proposed laws before Parliament debating it.

Inconsistency argument 

not rebutted

Last month this writer, in an article titled ‘Strengths and Flaws of the Proposed Laws’, highlighted a number of provisions of the proposed amendment to Constitution Section 145 and the proposed Integrity Law. 

Some of the proposed laws discussed in the article were unconstitutional, at least in this writer’s view. The independent offices are entitled to disagree. 

Their arguments are focused more on the reasons why we must impose restrictions on those certain constitutional rights. 

They attempt to justify why the Constitution must necessarily be al­­tered notwithstanding such restrictions and alterations could be unconstitutional in order to achieve political stability and therefore stability of government. 

The independent offices are not guaranteeing that a government enjoying relative stability and shielded from timely accountability by law will not abuse office. 

“Small addition” to 

Constitution Section 145?

The proposed “small addition” to Section 145 entails inserting a provision which makes a proposal for and support for a notice of motion of no confidence against a government very difficult. 

It proposes that a notice of motion of no confidence must be given three months before it being moved and it must be supported or endorsed by a third of the seats in Parliament, which currently equates to 37 out of 111 seats. This is deliberately intended to make accountability of the executive arm very difficult or less likely. 

Initially the notice required seven days notice with one tenth of seats in Parliament (i.e. 10/109) supporting. In 2013 an amendment to Section 145 increased the notice period to one month with 21 out of 111 seats in Parliament supporting the notice. 

In the event that a motion of no confidence is successful an additional proposed “small addition” to Section 145 ensures that only a MP or MPs from the party that was invited by the Head of State to form government following the last general election shall be nominated to be candidate(s) for the Prime Minister’s post to the exclusion of all other MPs and political parties. 

This is inconsistent to the participatory democracy our Constitution calls for. 

The latter proposed law is based on the flawed proposition that that party was elected by the nation at the general election to be in government. These proposed laws are by any description no “small additions”. They are major draconian additions that redefine our Constitution and our style of government. 

It takes a fool to weaken the centre post of his family house and hoodwinks his family with an assurance that he is merely making minor additions to strengthen it when in fact his action makes the integrity of the structure of the whole building open to the elements. 

In this context we are quite familiar with the frequent political storms and earthquakes as a direct result of selfishness and hunger for power (call it climate change phenomenon, if you like) never seen in the early years of our nationhood.

Political party elected by 

people to be in Government?

The proposition in support of the “small additions” argument that a particular party was chosen by the people at the ballot to be in government is flawed. 

In PNG the majority of citizens do not necessarily vote along party lines. 

Not every voter casts his vote on his choice of merits and qualities of candidates. It has much to do with personal associations or buying and selling of the franchise. 

In the Highlands voters describe general election period as their “coffee season” (season when they sell coffee (i.e. votes) and make money). 

Under the limited preferential voting (LPV) system one voter sells his preferences to three different candidates at varying value for each of the three preferences. 

This is not a criticism of the LPV system.

If one compares the total number of formal votes that were cast to candidates who were endorsed (and were declared elected) by the party invited to form government following general election as against the total number of formal votes nationwide that were cast against the same candidates (i.e. total votes in favour of all other candidates) the latter number will be in the clear majority. 

That is why even the relevant Section of the Integrity Law (at s.63(1)) deliberately uses the words “… greatest number of candidates declared elected…” and avoids using the word “… majority number of candidates…” 

It refers to the greatest number of candidates endorsed and declared elected among the multiple parties who each have endorsed and declared elected less than majority of the seats in Parliament.

Since 2002 when the first Integrity Law was in force we have never had majority number of one political party’s endorsed candidates declared elected out of 109 (recently 111) seats in Parliament. 

Section 63(1) reads: “Subject to Subsection (2), on the date of the return of the writs in a general election, the Electoral Commission shall advise the Head of State of the registered political party which has endorsed the greatest number of candidates declared elected in the election, and the Head of State, … shall invite that … party to form the Government…” 

It is inaccurate proposition both in law and in fact, at least in PNG, to argue that a political party was elected by the people and therefore Section 145 should now be amended to bolster that flawed proposition.