Amendments can be dangerous

SIR Michael T Somare’s unbroken nine years in office were the best in terms of economic gains for the country, but flimsy on translation of gains into tangible benefits for the people.

At the height of its tenure with K6 billion parked in trust accounts outside of consolidated revenue, all the major highways of the country remained in desperate need of maintenance, health facilities were running out of drugs and schools were shutting their doors to students.

So much so that when the O’Neill-Namah regime muscled its way into office in August last year, the PNG public so welcomed the change that it was most willing to forgive the new government its very first and most crucial error – that of violating the Constitution to get into power.

Ever since then, this government has never had any opposition except through its own actions.
Laws were passed to correct the Aug 2 error and new laws were passed to snuff out the ripple effects of those acts and so on and so forth.

One more such act was passed by parliament yesterday, called the Supreme Court (Amendment) Act 2012, and made retrospective to take effect from Dec 9 last year.

Section 41 of the principle act was amended by adding a second paragraph, which reads: “2. The Rules of the Court made pursuant to Section 184 of the Constitution and Section 41(1) of this Act shall not be inconsistent with the following minimum requirements, where any proceeding before the Supreme Court invokes the powers of the Supreme Court to give an opinion under Sections 18(1) and 19 of the Constitution and where the rights, powers and privileges of the referring authority is not in issue, the Court shall not have the power to make

(a) Consequential orders; or
(b) (b) interim injunctive reliefs and orders in the nature of prerogative writs; or
(c) (ca) order for security for costs; or
(d) (d) order in the nature of orders such as are referred to in Section 8(1)(qa), (b), and (c) of the Act.”

Lawyers will know what all the above means. For the layman, all it means is that the order made by the Supreme Court on Dec 12, in relation to Supreme Court reference (SCR) 3 of 2011 in addition to other orders that “Sir Michael Somare is restored to office as prime minister forthwith” is now null and void by the operation of yesterday’s amendment.

This is because the order (no.6) of the Supreme Court is a consequential order and, therefore, violates yesterday’s amendment directly.
The other effect of the act is that Supreme Court originating summonses are now outlawed as there is no form or procedure prescribed or legislative mandate.

Therefore, by operation of the amended act also, the originating summonses which have been the basis for contempt of court proceedings in the current constitutional cases against senior politicians such as Prime Minister Peter O’Neill, Deputy Prime Minister Belden Namah and Attorney-General Dr Allan Marat will now have to be discontinued.

In the words of the prime minister, this is necessary so the court does not make ad hoc changes in future to affect parties to their detriment without proper notice.

Many who heard of this act also heard metaphorically another nail go thud in the coffin of democracy.
A blogger described these moves as the “end of democracy and the beginning of dictatorship” and opined that under the new rules, criticising government could be deemed as treason.

We do not feel dictatorship has descended upon the nation. Some changes are necessary and even institutions, which have been held to be sacrosanct such as the judiciary, need some shake-up from time to time to ensure they do not grow too comfortable and, therefore, careless or too bloated on its own power.
But we caution that toying with the law too much, and particularly without adequate debate, is discourteous of the people and dangerous. Making retrospective laws also puts to shame the very principle itself and opens the door to correct all mistakes or haul off political enemies to court on a whim merely by makings laws take effect retrospectively.

What is to stop the next government, if the present coalition were not returned, reverse all the decisions of this parliament and then some of its own by making the same retrospective laws?
Unless and until that door is closed through legislation, the danger will always be there.


OP/ED