Time to stick strictly by rule of law

FOR a time now, as the fuel crisis deepened, a feeling of foreboding doom and gloom has crept up and settled over the nation.
Everywhere we have turned, we have been greeted with ever more instances of social, economic and political turmoil.
Even Prime Minister James Marape has toned down his usual upbeat tone of late. All is not well on the national front and it would be a blind man who did not recognize that.
Yesterday, following cabinet, Marape announced to the media that the Government was evoking the Essential Services Act (2002) to deal with the fuel crisis now disrupting essential services right across the country.
This law effectively authorizes the Government to take over certain essential services, in this instance fuel supplies, that it deems to be in imminent danger of termination or catastrophic failure.
Indeed, the PM has announced that Puma Energy’s Napa Napa refinery and certain storage facilities around the country would be affected.
Note we say “affected”, not “seized” and for a good reason.
That is meant to be good news for the nation but it also invokes other aspects too ugly to contemplate.
Nationalization or expropriation, for instance, will be on the lips of some commentators.
Puma Energy is a foreign investor. It has serviced the country’s fuel needs almost exclusively for decades. Since January 2005, its refinery has processed up to 32,500 barrels of oil per day. Under various aliases, it has acquired all of BP (PNG) distribution assets (2004) and Shell Overseas Holdings retain and distribution assets (2006).
As Puma Energy, the company controls exclusively 14 aviation refueling facilities, one marine refueling facility, almost 100 service stations, three large fuel depots and terminals. The company also has exploration licences covering about 8 million acres.
It has a large footprint and presence in PNG.
It is, therefore, important to see what powers the Prime Minister and his cabinet has invoked and where the limits of those powers lie and, further, to caution judicious execution of them.
First, invoking of the Essential Services Act requires a State of Emergency to be declared.
Where it appears to the Government “that any essential service is or is likely to be significantly interrupted, dislocated or materially diminished by a natural disaster, public emergency or shortage of any goods or services; and where the health or safety or welfare of the public or any section of the public; or the maintenance or restoration of peace and good order in Papua New Guinea, is prejudiced or threatened, the Head of State may, by proclamation published in the National Gazette, declare that a period of emergency exists in relation to that essential service”.
Such a proclamation made “in relation to any essential service may be limited as to time, place and circumstance”.
Such a proclamation may not be in force for more than one month and, if found necessary, it may be extended.
The emergency may be revoked at any time by the Head of State, acting on advice or by a resolution of the National Parliament.
The law is further clear (5) that if a petition, signed by 20 MPs, is addressed to the Speaker, Parliament “shall be summoned” to meet as soon as practicable” to deal with the State of Emergency and matters arising.
Although another committee, headed by Deputy Prime Minister John Rosso, has been named, the law is specific that it is the “minister”, in this instance the Minister for Petroleum Jimmy Maladina, who is the man in the hot chair at present.
All power now rests with him. Maladina “may provide, operate or control, regulate or direct the provision or operation of any proclaimed essential service during a period of emergency”.
He may “requisition the use of property of any kind which is used or may be used for or in connection with the operation or maintenance of fuel supplies”.
The minister may also direct the terms and conditions upon which fuel supplies may be maintained.
He is also empowered to stop persons’ or classes of persons’ use of fuel supplies except with his consent.
The Government is duty-bound to make clear exactly what it intends here, who its agents are who will carry out its actions, and whether or not Puma Energy assets will be returned to it upon expiry on the State of Emergency or that it will be compensated on commercial terms upon negotiation.
Any other way will spell disaster for PNG’s reputation as an investment destination.