A Political Interpretation of O’Neil vs. Somare Political Saga

By Francis Hualupmomi, P.R China 
 
This is a political interpretation of the late recent constitutional crisis underpinning O’Neil and Somare political saga. First, I briefly explain constitutional crisis.
There is a logical mutual relationship between constitutional crisis and the political concepts of constitution, sovereignty, legitimacy, authority and anarchy. The Constitution is a written’ rule of law’, which governs the behaviour of actors and institutions in a given state. Sovereignty is the exclusive right to complete control over an area of governance, people, or oneself. A sovereign is the supreme lawmaking authority, subject to no other. Therefore a state is sovereign. Without a constitution there is no sovereignty (Tim, 1998). This gives the impression that it is the constitution that gives supremacy to the state.
Legitimacy is about having the ‘right to rule’ over a subject by the “rule of law”. Legitimacy sanctions a state to be sovereign. Authority is having the right to exercise power.  Anarchy is non-existence of the ruler over the ruled (non-existence of right to rule by rule of law) (bid, 1998). 
In a political democracy, the state through its apparatus is the legitimate authority to exercise power in all aspects of human relation under the framework of constitution, which in effect gives state a sovereign. The government – a system constituting actors and institutions - is the apparatus of the state. The actors and institutions are elected and appointed into the system as authorities by the people on their behalf to represent ‘common interest’.  This gives legitimacy to government as the process of election and appointment is legally binding. This is also applied to decision making and policy development. 
 
However, if the process is ignored, undermined or violated then the legitimacy of the state and government or its sovereignty is in question. This situation is called a “constitutional crisis” or “legitimacy crisis”. And when this happens this can spark a state of anarchy. A constitutional crisis therefore connotes the concept of legitimacy.  
 
The Case for O’Neil v.s Somare
The O’Neil vs. Somare political saga is a clear cut constitutional crisis where the “right to rule” by the “rule of law” is being undermined, threatened or violated. More precisely, the constitutional crisis was perpetrated: 
·         When factions were created in government over power-play by a certain faction.
·         conflict between the legislature and judiciary, and between national government and East Sepik provincial government 
·         when O’Neil regime subject to the dispute wilfully choose to violate constitution as per Supreme Court’s ruling
·         when both (disputants) disagrees over interpretation of its provision or convention; 
·         because certain aspect of constitution is unclear or ambiguous which sets future precedence.
This political saga brought into question many interpretations which renders clarification. Hence, the reading of which arms of government remains supremacy instructs political and legal interpretations respectively.
In my view as a political scientist, I may argue that this political saga has constructed what I called a “Constitutional dilemma” where there is a stalemate between the two regimes on the question of the legitimacy – who has the right to rule. Both regimes claim the supremacy of parliament and Supreme Court based on the nature of their political and legal readings. 
 
My political interpretation of this constitutional dilemma is that PNG is a constitutional democracy unlike Britain, although it adopts the Westminster system from it. Since our political system is premised on the constitution my understanding is that the constitution creates the three arms of government (Legislature, Executive and Judiciary) as independent institutions. The key word here is constitutional democracy and not parliamentary democracy which many laymen, political analysts and lawers misunderstood.
The constitution explicitly defines their functions. That means the three bodies function within the framework of constitution. Hence one may argue that the constitution assumes supremacy over the conduct of the state, its apparatus, and citizens. This implies that it is the constitution that checks and balances political institutions and political elites’ behaviour under the framework of “rule of people by the people” - without the constitution democracy is dead.
With respect to Parliament, in my view, although one claims it to be supreme over the courts, remains subject to the constitution. The parliament as legislature makes and amends laws, and conduct election of PM, which have to be interpreted by the constitution. The constitution defines the conduct and parameters of the Parliament in a more democratic logic. 
There is nothing wrong with the Parliament as long as it functions within the true spirit of the constitution. If there is a Parliament without a law, we may have reason to expect a “failed state”. Having said that let me correct a clear misinterpretation by Johnson Kewa Remoli of Law/history, University of Chicago, USA, “According to Law, majority forms the government at the floor of Parliament. The disadvantage of MTS regime is that, it does not have the mandate from the floor of Parliament to rule even it was reinstated by the Judiciary. An overwhelming majority supports O'Neill”. Although Johnson was correct in saying that the majority rules by law, he has completely misread the very issue at hand. 
I argue that the fact is that Somare by operation of law was elected by majority on the floor of Parliament on the very day of formation of government. The issue here, though, is the purported hijacking of the right to rule by rule of law by the O’Neil factions, which the Supreme Court has clearly interpreted. Somare was not given that right to rule by rule of law to exercise his mandate as the PM when O’Neil regime illegally prevented his regime from assuming Parliament. 
 
Hence, I may safely conclude that the constitution remains supreme over the Parliament – the operative phrase is that our government or authority must have the “right to rule” by the “rule of law”. If that is the case, then Supreme’s courts ruling on Grand Chief, Sir Michael Somare is legitimate and constitutional. Otherwise a civil crisis is possible, although not likly, leading to anarchy.
 
What should have been done?
Given the constitutional dilemma constructed by Peter O’Neil and Somare regimes, the best available options which should have been done to prevent this stalemate are:
·         The Governor General should have dissolved the Parliament and establish a care-taker government until 2012 election or call for a fresh election
·         Peter O’Neil should have respected and accept the Supreme Court’s decision 
·         Both regimes (O’Neil and Somare) should have formed a grand coalition and either of them through Melanesian culture (consensus) elect a new PM
·         O’Neil should have waited for Somare to Sworn in as PM and vote for a new PM by the logic of majority rules.
·         O’Neil should have sought legal interpretation on Supreme Court’s ruling when unsatisfied
 
Francis Hualupmomi
School of Law
Institute of International Studies, College of Public Administration
Jilin University, P.R China