On the road to Bomana

At a time when the 3 arms of government are in serious discord, I want to address in very simple language 2 key foundations on which Peter O'Neill and Belden Namah appear to base their legitimacy to rule, and especially as it relates to their power to suspend the Chief Justice.

The 2 key foundations are therefore:

1. The basic assertion of parliament's supremacy in the laws that were passed prior to and immediately after the 12th December 2011 Supreme Court Decision. Those laws and decisions  included the election of Peter O'Neill as Prime Minister, laws relating to the tenure and age limits on the Office of Prime Minister, and the recession of the earlier Medical  leave granted to Sir Michael.The question is whether these actions and laws were legitimate, and or adequate to grant Peter O'Neill legitimate title and mandate as Prime Minister of Papua New Guinea.

Reader beware that in the course of outlining my thoughts, I may digress into repetition of previous statements. I seek your forbearance as it will become evident why I do so as you read on.

In an earlier article I have outlined that Parliament is not superior to the Constitution. In that Article I knocked on the head the notion purveyed by many on this site that somehow parliament is a superior institution overriding all other institutions, including the judiciary and the Constitution. That is a fallacy and I outlined the Constitution's supremacy by the very fact that it existed before parliament did, and it established and empowered Parliament. The Constitution is self executing by its own terms, and it stipulates its supremacy over all other laws. Its inception or conception is almost biblical, in that in the beginning,at one second past midnight on the 16th of September 1975, there was the Constitution. It spoke parliament, the executive and the Judiciary into being. It breathed life into them by vesting them respectively with the legislative, executive and judicial power of the people. Without the power of the people, these institutions are lifeless. Democracy, as invented by the Greeks and perfected by the Romans, passed down through the Westminster traditions as we know, is always by the people and for the people. The 3 arms of government , especially the Parliament derives its power through the people.

So the question arises, how and when does Parliament, as the legislature derive its powers?

The answer is clearly at the Polls, during a General Election, the people vest Parliament with their legislative power. The process of derivation of this power is provided by the Constitution and an Organic Law on Elections. It is through this process that a government derives its legitimacy and its mandate to rule the people that voted it into being. The Constitution also provided narrow and limited grounds on which a government so mandated can be changed, but in providing for mechanisms like the Vote of No Confidence, the Constitution recognizes and carefully balances human factors against the sacred inviolability of the mandate of the people.

Once Parliament is constituted, and government is formed, it cannot be easily rendered asunder. However, even a parliament with 100% votes cannot assert any superiority over the Constitution and the mandated processes of devolving legitimate exercise of legislative and executive powers of the people. In the beginning, there was the word, and the word was with God, the word was God, and in similar progeny, we find our Constitution. Parliament has no reserve or magical powers outside of the Constitution, and it is subject to the Constitution that conceived and birthed it.

You will recall that the judiciary is the protector and custodian of the Constitution in the sense that it has the power to interpret and make rulings and make orders.

On 12th December last year it decided the question of whether the Prime Minister's seat was vacant on the 2nd of August 2011? Whether the duly elected and mandated Prime Minister of Papua New Guinea Sir Michael Somare had lost the mandate of the people through lawful processes on 2nd of August 2011?

The Court heard arguments from very experienced Barristers and Queens Counsels, wherein Peter O'Neill and Belden Namah were represented. O'Neill & Namah by their representation in effect agreed to abide by the ruling of the Court. The Court ruled that there was no vacancy in that office of the PM prior to or on the 2nd of August 2011. That Sir Michael was and continued to be prime Minister in an unbroken line to the day of decision of the Court, and that he be re-installed as such.

To comply with the ruling of the Court, the minimum that was required of O'Neill Namah and Nape was to clear the government benches, allow Sir Michael to assume his position as Prime Minister. What happened thereafter is Parliaments business, but until then the Courts orders were to be complied with. That is the cut and thrust of the balance of powers in a vibrant democracy that works well. A vote of no confidence after installing Somare as PM would have triggered other provisions of the Constitution, but again that is the cut and thrust of democracy where you play within the time honoured rules.

You may ask at this juncture, what is the Status of the legislation passed and actions Parliament took against Somare to remove him as Prime Minister, as an MP and other obstacles in similar vein put in Somares way prior to the Court ruling to prevent him returning?

The answer is very simple, Parliament or the Executive government dealing with any matter that was subjudice meant that the decision or act was void by operation of law.

The next critical question is, what about the status of the laws passed and decisions made immediately after  the 12th December 2011 decision of the Supreme Court?

For those who are not aware Parliament purportedly voted in Peter O'Neill as PM uncontested, laws were passed and decisions made to remove Sir Michael as an MP, and amendments made to laws to cap the age limit on a Prime Minister to 72.

The answer is very simple. Those decisions and laws passed are void. The election of Peter O'Neill as Prime Minister is also void.

How is that so? Well, here is how. By the terms of the ruling of the Supreme Court, Peter O'Neill as Prime Minister and his purported government did not vacate the government benches. They not only did not install Somare as Prime Minister, but remained in the Government benches, with Peter O'Neill sitting as Prime Minister dealing with Executive government business of planned legislation and decisions, which includes his own elevation as Prime Minister once again. The Speaker who makes the sitting arrangements with the aid of the Sargent At Arms also had other ideas. Therein lies the nub of our problem. It is a problem of open defiance, without understanding the rub.

The Supreme Court principally interpreted the Constitutional provisions dealing with vacancy in Office of Prime Minister and its ruling was binding on the Speaker in his role as Speaker of Parliament, Peter O'Neill as purported Prime Minister, and Belden Namah as purported DPM. They submitted themselves in all their glory to the Supreme Court, and the court ruled on them. Then, they all ran away and regrouped in Parliament and decided to become contrary. Deliberate, open defiance.

With Somare having been ruled as the legitimate Prime Minister, Peter O'Neill sitting in the Prime Minister's seat tabling government business and debating issues as government was acting illegitimately. Hence all laws passed and decisions made so far are illegitimate, and in contempt of Court by these men who submitted to the Jurisdiction of the Supreme Court.

Peter O'Neill continues to act illegitimately as Prime Minister because in the last General Elections, Sir Michael Somare was mandated as Prime Minister. That has not been changed by any Constitutionally recognised process under our laws such as by a Vote of No Confidence. Even the the overwhelming majority vote of O'Neill in parliament is void, as he sat as Prime Minister in the Prime Minister's chair in the government benches. Parliament is not supreme over the Constitution. Once the Constitution has been interpreted, its binding on and over all. There are no magical or reserve powers of Parliament.

It is clear that Peter O'Neill was ill advised on these matters. If he was properly advised, he would have cleared the decks and still come home from the Opposition benches with the superior numbers.

This leads me to the second question: Whether the O'Neill-Namah executive government have the necessary power and authority to deal with the Chief justice, and suspend him, as they have purported to do?

The answer is a definite NO for the reasons expressed above.

This also means the O'Neill-Namah government lack the legitimacy to appoint a Tribunal to inquire into the Chief Justice. Just on this point, the very appointment of this tribunal is contemptuous of the Supreme Court which is seized of Neill's own contempt charges. His contempt charges stem from his absence of legitimacy to be Prime Minister. The tribunal itself, and the consequent appointment of judges in various acting positions in a celebrated nullity. O'Neill is simply compounding his own illegitimacy.

Having said all that, even though contempt charges have been filed against him and his cohorts, its not too late to mitigate his position. He needs to demonstrate that he is not above the law, and that he is not above the Courts and the Constitution. He still has an opportunity to fix it. The question is, will he? Can he?

As it is, Peter O'Neill and the key players should be jailed for contempt. That is where they are heading. They have broken the law, and they are compounding the issues in the hope of getting away.

I have always thought Peter O'Neill was a smart young man. I have always thought that he would see his way clear very quickly. It appears he is in the grips of someone who wants to destroy both O'Neill, Namah and Polye in one go. I often wonder where these young leaders get their advice from to do all the crazy stuff they do.

So will it be Bomana or not Gentlemen? Its up to you.

OneCountry