THE legal advice provided to the prime minister on the appointment of the governor-general is seriously flawed.
The actions of Parliament in the recent controversial re-appointment of the governor-general were contrary to the explicit directions provided by the Constitution.
The appointment of Grand Chief Sir Paulias Matane for a second term as governor-general, therefore, cannot be held to be legal.
The legal advice or, as it turned out, the legal position adopted by the government and Parliament, is a clear misreading of section 87 of the Constitution and should not stand any serious contest of it in a court of law.
The part of the Constitution cited as the basis for the advice is section 87(5).
Clearly, and in plain English, that entire section deals only with “qualifications for appointment” to the post of governor-general.
It makes no mention of the process for the “appointment of the GG” which is, again, very clearly spelled out in the following section.
Section 88 of the Constitution provides for “appointment to office” of the governor-general.
The proper and legal process for “appointment to the office of governor-general” is via an “exhaustive secret ballot” in accordance with an Organic Law.
The relevant part of section 88(2) reads: “A decision of the Parliament to nominate a person for appointment as governor-general shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.
An examination of the said Organic Law on “nomination of the governor-general” makes it clear that two things must happen: First, there must be an exhaustive secret ballot – even in the event where there is only one candidate for the post.
And, two, following such an exhaustive secret ballot, Parliament’s choice of a new governor-general must be declared by a simple majority.
These did not happen last Friday, June 25.
There was no secret ballot.
There was, however, an open ballot.
The open ballot was itself not illegal. This open ballot is provided for under section 87(5) of the Constitution to determine the eligibility of any incumbent governor-general, in this instance, Sir Paulias, to serve a second term in office.
The relevant part reads: “(5) No person is eligible for appointment as governor-general more than once unless the Parliament, by a two-third absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term.” Reading the above statement on its own would make it appear as if Parliament’s action of last Friday not to conduct a secret ballot is in order. That was what the prime minister’s legal counsel asserted was the proper reading of that sub-section.
But, when you read sub-section (5) along with, or in the context of, the heading of section (87), as it should be read, an entirely different proposition unfolds.
The law then reads: “Section 87: QUALIFICATIONS FOR APPOINTMENT . . . (5) No person is eligible for appointment as governor-general more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term . . .”
It becomes abundantly clear here that the open ballot of last Friday was actually the beginning of the process, and, not the final outcome.
Via that open ballot, Parliament registered beyond any reasonable doubt, by a vote of 84-13, that Sir Paulias was qualified and eligible for appointment to serve a second term as governor-general.
Parliament only needed then to move on to the actual appointment process via “an exhaustive secret ballot”. That never happened.
The Organic Law on the “nomination of the governor-general” provides guidelines on how the exhaustive secret ballot ought to be carried out. There are no other procedures stipulated in the Constitution, and in the Organic Law, by which a governor-general can be appointed except via an exhaustive secret ballot.
Sir Paulias was not the only candidate.
In this case, there were three other contenders – former auditor-general Sir Makena Geno, a former contender for the post Sir Pato Kakaraya and former Enga deputy premier Ronald Rimbao.
The Organic Law stipulates that the speaker will announce all candidates and distribute ballot papers for Members of Parliament to write their choices. The candidate with the least number of votes would be dropped and the process would be repeated until only one emerges as Parliament’s choice.
Last Friday, there would need to have been three secret ballots after which the winner would have been declared.
It is clear that Sir Paulias, as the government’s candidate, had the biggest support and had it been subjected to the secret ballot, he would have emerged the eventual winner.
The fact that this process was thwarted denied the other three contenders their right to due process, justice and fair play by the highest law-making authority in the country – Parliament itself.
This is disgraceful.
The decision by Parliament, following only the open (eligibility) ballot, that Sir Paulias is duly appointed as governor-general of Papua New Guinea for a second term cannot be held to have been legally conducted.
It has to be void and of no effect.
Section 87(5), which has been relied upon as the basis for that decision, has been wrongly interpreted and the government wrongly advised. How such an advice could have been concocted for the Head of Government is mischievous, to say the least, and has made a mockery of the democratic and parliamentary processes and procedures.
Sir Paulias is himself a stickler for the law and all things proper.
We note that he has not taken the Oath of Allegiance or made the Declaration of Loyalty and Declaration Office before the chief justice as he is compelled to do by section 90 of the Constitution. He cannot take office or perform duties until this compulsory requirement is met.
It would only be proper if he were to refuse to do so until due process has been followed and the law complied with to the letter.
Parliament should be recalled so that a governor-general can properly be appointed in accordance with the law.
Of Sir Paulias’ re-appointment, we have little doubt.
Of Parliament’s conduct in this specific instance, and the kind of professional advisers the government keeps, we are very much in doubt.