EXPLAINING THE INTERGRITY LAW

PROFESSOR JOHN NONGORR

The Supreme Court’s decision on the constitutionality of parts of the Organic Law on the Integrity of Political Parties and Candidates is obvious.
It means that Members of Parliament (MP) now can leave political parties, to which they have been elected, at will. There are no restrictions on how MPs vote in Parliament. That is now law.
The provisions of OLIPPAC that saw stability in government for the last 8 years, which is what the law was designed to do, is now gone. To some people, the result is good. To others, it isn’t good. There is not going to be agreement on this.
To lawyers, the Supreme Court decision has some good parts and some disappointing parts. In the former fall the way the decision has been written and the analysis given to some of the critical issues. For instance, the discussion of the distinction between “regulation”, “restriction” and “prohibition” is clear. The decision is easy to follow given that the questions presented for the court’s opinion were not as concise and clear. Into the latter fall a number of aspects that are disappointing.
First, the Supreme Court ruled unconstitutional provisions of the OLIPPAC that were not raised by the referrors in the reference. This is extraordinary.
While the Supreme Court can refer to these OLIPPAC provisions when ruling on those provisions raised in the reference, the Supreme Court should not have the power to rule unconstitutional provisions not raised by the parties as courts are bound by pleadings and they do not have powers of their own to inquire into matters not raised by parties except issues of human rights under Section 57, Constitution.
Second, while the broad policy issues and considerations on a number of aspects are discussed (and in some cases discussed in detail), the very specific important issues of law appear to have been glossed over. The Supreme Court declared unconstitutional provisions of the OLIPPAC on the basis that they conflicted with Sections 47, 50(2) and Section 114, Constitution.
In discussing Section 47, which is the provision guaranteeing freedom to assemble and associate, a central issue was glossed over. There is no dispute about taking away a MP’s right to belong to a political party. It was more the right to leave a party after having once joined it. The specific words of Section 47 that required clarification were the words “Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties”. Do these words extend and cover a MP who has freely (in exercise of the right) joined a political party but a law prevents him/her from leaving it?
In discussing Section 50, which is the provision guaranteeing the right to vote and stand for public office, there is no issue about the part of this right on right to vote and stand for public office. The specific issue in contention requiring the Supreme Court decision on Section 50 can be understood by paraphrasing Section 50(1), as follows -
“Subject to the express limitations imposed by this Constitution, every citizen ... has the right, and shall be given a reasonable opportunity ... (e) to hold public office and to exercise public functions”.
More specifically, the right to hold public office was not in question because MP’s hold public office. What was in question is the right “to exercise public functions”.
The Supreme Court, while devoting detailed discussion to the right of a MP to vote freely in Parliament, etc., it did not deliberate on the specific issue - what “public functions” mean? Does that include voting in Parliament? The discussion and application of Section 115 Constitution is also lacking in an analysis of the specific parts of Section 115 that OLIPPAC offended.
The court discussed at length MPs’ freedom of speech in Parliament but OLIPPAC did not curb freedom of speech – it only placed restrictions on four areas of voting – appointment of Prime Minister, no confidence vote, vote on budget and vote on constitutional amendments.
The court said OLIPPAC subsections (2) to (7) offended Section 115. All these are about MPs facing court proceedings for what they do on the floor of Parliament and when Parliament is sitting in the Parliament building. The OLIPPAC provisions in issue did not require MPs to be sued, arrested, detained, etc. The only punitive part of OLIPPAC was that a MP was liable to be cited for misconduct in certain circumstances. The court did not discuss if misconduct comes within Section 115(2) to (7).
Apart from this, the decision also had emotive parts and in at least one part the Supreme Court may be accused of either being naive or over simplistic.
The Supreme Court described some provisions as being draconian, an emotive description of a law that was passed by overwhelming majority in response to real issues faced by the country at the time. The Supreme Court’s solution suggested that MPs need to be educated to behave well and not tied down or that voters need to vote good MPs is naive as the reality of PNG politics is presently not attuned to either.
The considerations in support of the OLIPPAC provisions were highlighted but not discussed. Obviously, the Supreme Court dismissed them but, given that this is an important decision, the reasons for rejecting them should have been discussed in full. Regardless, according to PNG’s constitutional system, the Supreme Court has spoken. It was made up by a strong bench with a unanimous decision. The ruling is binding. The court decided to accept one view and reject another. It is unlikely that the same court will change its mind.

What next?

Now that MPs are free to leave the political parties they belong, individual MPs are more powerful. A person who wants to be a PM now has to deal with 108 or so other MPs. We are back to the time before the OLIPPAC. Before OLIPPAC, the government in power used public funds to keep MPs on side while those who wanted to remove the government made promises to give away more public funds if they got into government. Either way, the public loses. PNG cannot afford this.
In the short term, if there is a successful vote of no-confidence, a new government would be immune from being removed as the law prevents another vote of no confidence in the last 12 months of the present Parliament. In the long run, PNG will suffer in instability. Therefore, PNG needs the full OLIPPAC with the aspects rejected by the Supreme Court.
Parliament can reverse the Supreme Court. Amendments to Sections 47, 50 and 115 alone will reverse the Supreme Court decision. But the Parliament must look at improving other aspects of OLLIPPAC as well. In particular, the relationship of OLIPPACC with Standing Orders of the Parliament needs to be synchronised to ensure that Parliament stops being a rubber stamp for the executive government. Also, the role of the Speaker of Parliament needs to be reviewed as part of that package. OLIPPAC should ensure that Parliament remains supreme but provide for stable executive government. A conference is planned to take place in Alotau on OLIPPAC that should prepare an updated OLIPPAC.
The people who think that PNG can do without OLIPPAC are gravely mistaken. We don’t know what government will have been like in the last eight years up to now if OLIPPAC wasn’t there. Things could have been worse. All indications then were that PNG was on that road. We will see a bit of that road in the next few weeks.
Finally, the Prime Minister Sir Michael Somare is right on two things when commenting on the Supreme Court’s decision. First, as a consultant to the Constitutional Development Commission advising that commission at the time, I provided the ideas and the framework for OLIPPAC.
I also provided the ideas and framework for Limited Preferential Voting (LPV). Second, the question of laws being unconstitutional in the PNG constitutional system has more to do with the way the laws are drafted to synchronise with the Constitution. It is never about the policies that underlie the laws.
Therefore, the issues of constitutionality reflect more on drafting than its underlying policies. Sir Michael Somare is wrong on two other fronts. First, he is wrong when he says that I drafted the OLIPPAC. At the time, when proper processes and procedures were observed, the First Legislative Counsel who is responsible for drafting legislation drafted all legislation including OLIPPAC. Drafting legislation requires special skills. I don’t have them. Second, in 2003, Sir Michael Somare’s government promoted the repeal of the original OLIPPAC altogether and the Parliament enacted a new version which has been found to be wanting.
I was not part of that exercise.