O’Neill prime ministership is legal & constitutional

By PETER DONIGI

Both the  O’Neill camp and the Somare camp claim that the Constitution must be upheld. There is no question about the desire of both parties to uphold the Constitution. Many other community leaders also expressed similar sentiments.
The problem however, is the nature of the constitutional law. No one has yet expressed what the constitutional law says about this conflict. People use phrases like “uphold constitutional law” or “respect the rule of law” or “respect the ruling of the court” to justify their positions.

What is the constitutional law that must be upheld and respected? I will try to be brief in my explanation.
First, the constitution provides for separation of powers between the three arms of government. This is provided for in Section 99 of the Constitution.
Second, separation of powers means simply that no arm of government must interfere with the workings of the other arm of government.

Third, I have read the orders of the Supreme Court. I have a fundamental problem with the nature of the orders. The Supreme Court’s power under a Section 19 reference is a limited reserve power only. Here the court’s power can be invoked only for an opinion as to the state of the law.
The court has no power under Section 19 to make permanent orders in the nature of those made on 12 December 2011 and especially order No 6 which states emphatically that Sir Michael Somare is restored to the office as Prime Minister.

These orders are not opinions for the purposes of Section 19 of the Constitution. The effect of order no. 6 is to assume the powers of the National Parliament and to infringe the principles of the separation of powers. In doing so the court has acted beyond its powers under section 19 of the constitution and infringed the principle of separation of powers.

Fourth, is it possible to come up with a reading of the ruling of the Supreme Court to avoid that conclusion? My answer would be that yes, it is possible to do so. The court orders numbered 1 through to 5 were opinions of the court. Court order No. 6 that directed restoration of Sir Michael Somare to the office of the Prime Minister is a nullity and is ineffectual for the reasons to be outlined below.

Fifth, leaving aside the issue of court acting beyond its powers under Section 19 of the Constitution, my reading is that the court has clearly interpreted the law as it stands on 2 August and 6th of September 2011.
It should be stressed that the Court has not considered and dealt with the factual situation of what happened after 2 August or 6 September. Clearly much has taken place after that date. The world goes around twenty four hours a day. The clock cannot be turned back. It cannot come to a standstill. We cannot live in the past.
We must now interpret the ruling of the Court based on events that took place after 2 August 2011. It is also important to note that the Court did not make invalid anything that happened between those dates and 12 December 2011.

Sixth, we all know what happened after 2 August 2011. Most importantly two important events did take place. On 9 December 2011, Parliament rescinded its earlier decision in May to grant leave of absence to Sir Michael Somare for the May sittings of parliament.
Is this decision wrong in law? No, it is not wrong. Parliament is clearly empowered in law to do that. The authority for this statement is to be found in Schedule 1.10(3) of the Constitution which states:
“(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.”
So parliament has the power to alter its decision to grant leave of absence to Sir Michael for the May sittings of parliament.

When that decision was taken, it clearly meant that Sir Michael is automatically terminated as a member of Parliament by virtue of Section 104(2)(d) of the Constitution. Is parliament interfering with the workings of the judiciary? My answer would be no, because parliament is empowered by law to do what it has done.
The correct position for the lawyers, of both sides in the Constitutional Reference before the Supreme Court, to take on Monday 12 December was to bring this fact to the attention of the Supreme Court and as Sir Michael ceases to be a member of parliament on 9 December 2011, the questions before the Supreme Court are no longer valid, are then moot and the court must be asked to vacate further conduct of the proceedings and not to deliver its opinion on the question of reinstating Sir Michael as the Prime Minister.
Obviously, the lawyers in the Supreme Court Reference did not see the obvious solution and proceeded to fuel the situation further by not bringing the decision of parliament on 9 December 2011 to the attention of the Court and ask the court to vacate further conduct of that case.

Seventh, is the decision of parliament on 9 December 2011 sub-judice or does it amount to contempt of court? This appears to be the position of Arnold Amet and the Somare camp. I do not hold the view that this argument is valid at law.

My view is that members of parliament and proceedings of Parliament are not subject to this rule of law which is to be found in Section 160(2) in respect to Supreme Court and Section 163(2) in respect to National Court. This is because of the principle of separation of powers contained in Section 99 of the Constitution and especially Section 115 (1), (2), (3) and (4) of the Constitution.

These sections provide for the inviolability of the person of a member of parliament in respect to his statements, debate and proceedings including decisions taken by parliament. As such it is not possible to haul any member of parliament, who voted for the decision to rescind the leave of absence granted to Sir Michael in May, before the Supreme Court on a charge of contempt of court.
This section has a long legal and constitutional law history that is founded on the Cromwell wars with the King of England which ultimately resulted in the transfer of much of the royal powers to the House of Commons.

More importantly also is the principle of law that says that when a matter is specifically provided for in legislation, it overrides a general power. The power of court to punish someone for contempt of court is a general power that is negatived by the specific privileges of members of parliament provided for in Section 115 of the Constitution. The Somare camp will have to find some other reason to challenge the validity of the decisions taken by Parliament.

Accordingly, upon the taking of that decision on 9 December, the East Sepik Regional seat in parliament automatically falls vacant. Sir Michael Somare is now a stranger in parliament and if he tries to step inside the chamber, he will be removed by the Sergeant-at-Arms.
Sir Michael is no longer eligible to hold the office of the Prime Minister as Section 141(a) of the Constitution defines and provides for the nature of the Ministry. It says simply that no person who is not a member of parliament is eligible to be appointed as a minister and this also applies to the Prime Minister as he is one amongst equals.

The court therefore cannot appoint a person who is not a member of parliament into the office of the Prime Minister as at 12 December 2011.
Members of the judiciary must also know that they cannot bring parliament before them. The principle of separation of powers must never be compromised. I would urge them not test the law making power of the people exercised through their duly elected representatives. The judiciary would be wrong to think otherwise.

Eighth, the court ruling is effective on 13 December 2011. The Court did not invalidate any decision of Parliament that took place on 9 December 2011. As such, the decisions taken by Parliament on 9 December are valid at law. The ruling to reinstate Sir Michael Somare as at 13 December 2011 is therefore a nullity and ineffective at law.

Ninth, also on 9 December 2011, parliament passed the Prime Minister and NEC (Amendment) Act. This law however was not certified by the Speaker until after the ruling of the Court on Monday 12 December 2011. Laws come into force on certification by the Speaker of Parliament (Section 110 of the Constitution).
This law has the effect of stating that a Prime Minister who is absent from Papua New Guinea (not Parliament) for a period of more than three months ceases to hold office as the Prime Minister and created the occasion under Section 142(2) of the Constitution for the election of a Prime Minister.

The question now is when was the position of Prime Minister vacant? Did it become vacant on 9 December or on the certification of this law on the 12 of December? In view of what I have said above, it would be correct to conclude that the position became vacant by operation of law on 9 December 2011 before the certification of this law.

This law did not create the vacancy in the office of the Prime Minister. It was the decision in parliament to rescind leave of absence in May sittings granted to Sir Michael that has the effect of making the East Sepik Regional seat in parliament vacant. Because the position of the Prime Minister was occupied by the Member of Parliament for East Sepik Regional seat and the seat had become vacant by operation of law through the decision of parliament, the office of the Prime Minister also became vacant by operation of law. Parliament then proceeded to elect a new Prime Minister at the earliest opportunity which was on 12 December 2011.
My view therefore is that Parliament did not require the operation of or the validity of the Prime Minister and NEC (Amendment) Act to firstly create a vacancy and secondly to validate the election of the Mr O’Neill as the new Prime Minister.

What then is the utility of this legislation? I would say that this new legislation is there to guide future conduct of Prime Ministers of this nation so that they do not absent themselves from the country for more than three months at any one time.

Tenth, given such new sets of facts, especially the decision taken by parliament on 9 December 2011, it became extremely important that the lawyers in the Supreme Court Reference should have asked the court to vacate the handing down of its ruling on Monday 12 December 2011 as the questions before the court had become moot by Friday 9 December 2011. The lawyers having failed to do so have contributed to the raising of tensions between the judiciary and parliament which should not have occurred.

I conclude that the a vacancy in the office of the Prime Minister was created by operation of law following the decision taken by parliament on 9 December 2011 to rescind its grant of leave of absence to Sir Michael Somare for the May sittings of parliament. This would appear to be the correct legal and constitutional position.

Peter Donigi is a leading PNG constitutional lawyer and former diplomat