SUPREME COURT BASHING UN-CALLED FOR

People blame the Supreme Court (SC), by ordering that Sir Mike "is restored forthwith", for this Constitutional mess. I disagree...

Apart from being concerned about the Constitution, as an officer of the court, having a high duty to the Court, I believe it's my duty to correct a misconceived negative perception towards the court, which has unfortunately been compounded by fellow officers of the court.

You see folks, the SC has a duty to the dispensation of justice and to provide clarity where there is obviously an area of uncertainty about the Constitution, and to avoid confusion.

Let me ask us all this: WHAT IF SC HAD NOT MADE SUCH AN ORDER? Would we still have this fiasco?? My answer:

YES!!!

You see if SC said "no vacancy" and left it there. ALL PARTIES would say... "NOW WHAT?????!"

Then Tiff and co would advise ONamah while Kua and co would advise Team Somare on next moves. (And bush lawyers would thresh it out on the streets and on Sharp Talk). Thus ordinary lawyers would play "higher court" in interpreting and applying the decision of the Supreme Court...and the Constitution.

Sir Mike would say "well then I'm still PM!" and would run off to Konedobu to get his cabinet sworn in. ONamah would then say “then there’s a vacancy NOW so let’s go re-elect a PM!” and would rush to Parliament to vote O’Neil back in, and hold the fort till they got what they wanted.

Aha!! But isn't that EXACTLY what happened?!  

Somare and O’Neil both claimed the PM’s seat. Lawyers became the invisible, unofficial, unauthorised “SUPREMEST court”, and the Constitution continued to be abused. Obviously the argument that the SC should not have made that last order, is redundant as it would not have made a difference.

You see folks. Read the judgments. Not just the SCR 2011 but previous SCR matters. The court is allowed to make declaratory orders to avoid further confusion (that may arise out of its initial interpretation of the Constitution), in order that justice is done and the nation doesn't get thrown into further chaos. In addition, parties should know exactly what to do in a particular case (i.e. if the matter related to a particular case).

So when SC said "no vacancy"; in order to avoid the "now what?" moment, it invoked its inherent powers to make a further declaratory order so that parties know what the SPECIFIC LEGAL CONSEQUENCE of its ruling is. Ergo, for clarity sake it said "Somare is still the legal PM" (restored forthwith)...a very NATURAL, LEGAL EFFECT of the "no vacancy" order.

Now please don't believe the lies that the Court cannot issue an order for Parliament. That's not what happened in this case. But it has happened before when Sir Paulias' re-election as GG was declared invalid. The Court told Speaker (Acting) to recall parliament ASAP to vote a GG because there was no GG. In giving that order the actual words were "in view of a vacancy". In this case there was no vacancy that required court to send the question back to Parliament to settle. It just declared WHAT IS.

Please remember it was a DECLARATORY ORDER. Not a substantial order. As in like "I now appoint/re-instate Sir Mike as PM", which is what current Supreme Court bashers are saying the court did! No. It was just declaring what the legal effect of the Constitution was in the case before it. Every lawyer (well maybe not every) knows that Constitutional laws speak "from time to time" and are "self-executing". How? Through its letter and application by an authorized person (e.g. EC) and, where there's confusion, through the courts when they interpret the law.

So it was in fact the self-executing Constitution that said "Somare is still PM"...savvy? Now it's up to the parties to respect the ruling of the court which is the MOUTH-PIECE of the Constitution at any given time, especially when there's a major confusion.

If the SC said "no vacancy" and left it to our own pollies to sort out what comes next, we'd still have EXACTLY THE SAME MESS (starting with ONamah and Somare running in opposite directions!)...or worse! And the Court would have definitely failed us and failed itself. And failed the Constitution.

If it said "no vacancy" and then ordered Parliament to go back to sort it out, it would have contradicted itself, making a mockery of itself. How can you say there was no vacancy (which would mean there STILL ISN'T) but then say "oh but please go ahead and elect someone". The glass is full, It doesn’t need to be refilled.

So the Supreme Court made the most logical and reasonable declaration it could under the Constitution.

Obviously, one party didn't like it....

Folks, the rule of law, and fundamentals of justice, demand that the law has a certain degree of CERTAINTY to it. That is, it should not be such that ordinary people cannot "TRUST THE LAW". THE LAW CANNOT MEAN TWO OPPOSING THINGS AND BE RIGHT BOTH WAYS! And it must be clearly applied and clearly articulated. Leaving it open to people's own devices is very dangerous (as we have recently witnessed). So the court, as a responsible custodian and dispenser of justice, mandated by the People of PNG through the Constitution, tried to prevent such uncertainty with an explicit order as to who is the proper Constitutionally-correct PM... But of course, people chose to ignore/reject it with the backing of mercenary lawyers and mercenary cops.

You see folks the reason we're in this mess is that one party REFUSED to SUBMIT to the NATURAL effect of the Constitution, as interpreted by the SC.

NOT because SC "appointed" or "reinstated" one person as PM. Coz it didn't! It ensured there was a clear outcome to its decision.

IT'S NOT THE COURT'S FAULT WE'RE IN THIS MESS...it's people's egos...

God Bless PNG

 

Ganjiki D Wayne