The National, Tuesday 10th January 2012
IT is so easy for us to point our fingers at parliament for the current constitutional crisis and leave it at that.
However, it is also clear that members of the legal profession involved in providing politicians legal advice on important constitutional provisions relative to the exercise of parliament’s legislative powers are equally answerable for this.
Politics generally and politics for power particularly is a harlot – luring, seductive and dangerous.
In this scenario, even the Constitution is not safe.
Lawyers must guard themselves from this harlot, not bed her.
The present crisis is, to some extent, attributable to lawyers’ incompetence, or knowing it to be incorrect advice or that correct advice was ignored.
I doubt the latter to be the case.
Lawyers’ paramount duty is to the court; to assist the court reach constitutionally and legally defendable decisions, and only consequentially to their clients.
Generally, one suspects that many members of the legal profession are guilty of colluding with their clients to mislead courts to reach incorrect decisions about law generally and the Constitution in particular.
Many suffer prejudices and biases with links to the harlot.
These ultimately influence their opinions on what the law is on important matters under consideration.
So, rather than drawing conclusions as to what the law is, law, to them, is what it ought to be so that they too can benefit.
Courts also suffer.
Rather than relying on lawyers, courts have to guard themselves against lawyers who are incompetent and legal counsel who have no trouble deliberately misleading courts to earn their pay.
While lawyers make their fortunes, the courts are deprived of professional counsel assistance, and the Constitution haemorrhages.
However, the extent to which lawyers are in fact complicit in creating the present crisis may never be known.
For many, the constitutional government of the country is in self-imposed exile in the country.
There are claims and counter-claims by each competing group of parliamentarians that it has the prime minister of the country.
It must be recognised that the present crisis is more than simply a matter involving only politicians, lawyers, lawyers-cum-politicians, or power.
All are involved and all are dangerous.
It must therefore be everyone’s business because it concerns the most important building block for nationhood.
It is too important to leave it to just politicians and their colluding partners.
What is happening advises us again, as in many situations previously, that politicians cannot always be trusted to operate within the boundaries set by the Constitution.
There is indeed no greater folly than investing in and for ourselves, for our descendants and our economy if we will not first invest in our Constitution.
So, there is no higher duty upon citizens than to invest in our constitution by defending it from those who might be tempted to use it for purposes inconsistent with constitutional principles and the rule of law.
It is unlikely that the constitutional gulf between the two groups of politicians will be resolved any time soon.
A number of legal options may have to be considered by both groups to end the issue of the competing claim of constitutional legitimacy as government.
First, the O’Neill-Namah or Somare-Agiru group could seek appropriate Supreme Court declarations that it is the legitimate government of Papua New Guinea.
Second, Peter O’Neill could seek declaratory orders that Sir Michael Somare and his “cabinet” were wrongly sworn in and that this was subsequently corrected when he was sworn in as prime minister.
Third, Sir Michael could seek appropriate declarations from the Supreme Court that:
qHe is still the prime minister and, if a declaration is obtained in his favour, to also seek consequential orders;
qThat O’Neill’s election as prime minister on Dec 9 is void;
qRestrains O’Neill from continuing to hold himself out as, and from him performing the functions and duties of, prime minister; and
qWould enable O’Neill to continue (if he so wishes) as minister for finance and treasury and Namah returns to the opposition benches.
The Constitution also requires the Ombudsman Commission to ensure that parliament and all its subordinates comply with the Constitution when they exercise their powers.
So far, it has more than acted as a pedestrian or a disinterested onlooker or passerby.
There is nothing preventing it from seeking appropriate Supreme Court directions on any or all of the possibilities indicated above
|including, in particular, seeking an opinion on the constitutionality of the amendments to the Prime Minister and National Executive Council Act.
Indeed, it would have been preferred if the reference by the East Sepik Provincial Government had been initiated by the Ombudsman Commission.
A decision on this issue and the other issues will inform us where the country’s parliament is right now, or has been since Aug 2.
Is it at Parliament House or in self-imposed exile somewhere in Port Moresby?
However, since the adversarial litigation process always produces a winner and a loser, an outcome which can and should be avoided, the preferred route might be for O’Neill and his government to invite Sir Michael and his group to return to the government side of parliament and take up their
On returning as government, Sir Michael will still have to run this country with a minority government unless he can fully restore his pre-August 2011 government.
However, if he is unable to be effective as the legislative and executive government, he has to surrender to the dictates of yet another principle of parliamentary democracy and resign, making way for a new prime minister to be elected soon thereafter.
This way, the constitutional crisis will be resolved.
The outcome of the election process might, as may be predicted, not deviate much from what happened last August but at least the
constitutional crisis will have disappeared.