Proposed amendments will make executive branch unaccountable
By TOBIAS KULUNG MP
We the Opposition, call on all fellow parliamentarians, to stand up and defend the National Constitution from being manipulated and flogged for short term political gains of the Prime Minister and his Government and not allow themselves to be misguided by self-interest.
The further amendments proposed to section 145 of the Constitution in addition to the 30 months amendment, with respect to votes of no confidence and amendment to section 124 which deals with, the callings of Parliament, is nothing more than a selfish and heartless scheme designed to secure them-selves a full five year term in office, by removing or weakening key safeguards of our democracy.
This is not only dictatorial but a dangerous abuse and violation of our National Constitution.
All Members have taken an oath to uphold and protect the Constitution and we call on intellectual MPs and Former Prime Ministers to lead the way in defending the spirit and intentions of the Constitution.
The Constitution is the Supreme Law of our Nation. Power and authority is created by the Constitution. It defines the nature of power and the manner of exercise of power and determines who has authority to exercise such power.
It creates demarcations in the exercise of the three main powers in our system of Government. The law making power is vested with the National Parliament. The Executive power is vested with the Prime Minister and his Council of Ministers, or NEC. And the Judicial power is vested in the Judiciary.
The exercise of power under or pursuant to section 145 of our Constitution is vested with the National Parliament. It means that section 145 is invoked only by Members of Parliament on the floor of Parliament to remove a Prime Minister or a Minister who in the judgment of a certain majority of MPs has failed to perform in the given office or has brought the integrity of that office into disrepute.
In the scheme of the Constitution, the Prime Minister and the Ministers who comprise the NEC wear two hats, one as a lawmaker and the other as the National Executive. Unlike other democratic systems of government where the legislature and the executive are kept apart and do not sit in the same Parliament, so as to avoid compromise or conflict of interest, when exercising the law making power, our system is such that the Executive Government also sits in the same Parliament and virtually takes siege of the Parliament and holds Parliament hostage to pass any new law or change any law, including the Constitution, as long as it has the necessary majority of Members in Government.
The question here is, in whose interest is section 145 being amended and is it being amended for the purpose and intent for which section 145 was thought out and inserted as such?
We believe, that section 145 was not put there to deprive an Executive Government of its security of tenure of office or to deprive it of time and space to implement its policies. A Government comes into office for a full five year term, hence, only loses its tenure or mandate if it fails to live up to the expectations of the law or expectations of the people through their representatives. The power to pass judgment on whether the Government or a part of it has lost the confidence of the people is exercised by their representatives on the floor of Parliament.
We believe that section 145 was put there for a very important purpose, and that is to act as a pressure valve to relieve the people and this country from a hash or oppressive or corrupt or non-performing regime or a part thereof. Section 145 is an inherent power of the National Parliament and cannot be diminished or compromised in any way, shape or form. It is the power that defines the superiority of the legislature and the National Parliament to the Prime Minister and his council of Ministers.
As a matter of fact, section 141, subsection (b) and (c) of the Constitution are very specific about the accountable nature of the Prime Minister and his Ministers to the Parliament and the consequences of not living up to it.
Section 141
(b) The Ministry is collectively answerable to the people through the Parliament for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive Council; and
(c) The Ministry is liable to be dismissed from office either collectively or individually.
Section 145 is about good governance, transparency and accountability. It is not about tenure of office of the executive government. That is why the Opposition vigorously opposed the first amendment to s.145 which extended the grace period from 18 months to 30 months. The 30 months extension and the new proposals to further amend section 145 and 124 is a very serious abuse of the Constitution. It is an unwarranted challenge to democracy and constitutional rule in this country. The amendments are misconceived and mischievous. It is simply designed for Peter O’Neill to stay in Office for the full five year term irrespective of whether his conduct or circumstances he is found to be in, warrant Parliament to remove him as Prime Minister.
Tenure and security of office must be secured through trust and confidence of the Parliament, through performance, transparency and good governance. That is what guarantees tenure of a government. It is absolutely wrong and indeed unconstitutional to try to obtain security of tenure of office by exiling or watering down the power and authority of Parliament to invoke s.145 any time it sees fit. Tenure must not be obtained by building a wall around the Executive Government from being challenged at any time by making it that much harder for the Parliament to exercise its inherent power to keep the collective Ministry in check.
We argue that any amendment to section 145 in particular, can be made only for purposes of improving and enhancing democracy, accountability and good governance. It is clearly wrong and goes against the spirit and intention of section 145 to remove or weaken it so as to escape the fundamental role of the Parliament to keep the executive government accountable.
The general implication of these amendments:-
1. Earlier amendment to Section 145 (4) has increased the grace period to 30 months. The constitution restricts vote of no confidence in the last 12 months of the parliamentary term. Effectively it is now reduced to a 18 month window to hold the government to account through the vote of no confidence clause.
2. Current proposed change to Section 124 will effectively reduce the minimum sitting days from 63 days to 40 days. Furthermore, the amendment seeks to remove the current require for parliament to convene on a quarterly basis by only allowing for a not less than 40 days in each period of 12 months. The parliament has to meet frequently to maintain the scrutiny over the performance of the Executive arm of government. These cunning maneuvering may see parliament convene for the proposed 40 days in the earlier part of the year and may need convene any further. You may have long adjournment like what happened during late PM Bill Skate days.
3. Current proposed additional changes to Section 145 (1) to increase notice period from one week to three months and from one tenth to one third of the signatures of Members of Parliament to move a propose a vote of no confidence is indirectly removing this clause entirely and making it completely redundant.
In light of these treats against the National Constitution and National interest, we the opposition would like to strongly recommended the following steps to be taken immediately:-
1. There must be urgent amendment to the Constitution to ensure that any amendment to the Constitution would require a National Referendum where more than 75% of the population must vote in favor of the proposed change. Otherwise we will butcher the Constitution up with these piece meal alterations to serve momentous selfish interests.
2. We must consider introduction of second chamber of parliament where the current parliament can become the lower house and the provincial governors can form the senate or upper house. All laws or amendments passed by the lower house had to be passed by the upper house for that law or amendment to take effect or vice versa.
3. There must be serious consideration to containing the powers of the Executive Government. What we have currently where the Executive Government sits in with the Legislative arm of Government do not provide for clear separation of power. Most times the Executive appears to overpower the Legislative arm of government. For this to happen, we need to consider a presidential style of Government where the President who heads the Executive arm of Government is not part of the Senate of Congress. This is to prevent the re-occurrence of the Kitchen Cabinet syndrome.
If the Government is serious about governance in this country and would like to establish a very transparent environment, it must have the guts to introduce the wholesale and meaningful changes instead of wimpy, reckless, short sighted, piece meal changes.
We will seek a Supreme Court Preventive Order against the Parliament from debating and voting on these additional proposed amendments to s.145 and s.124, as our Supreme Court Reference on the 30 months Grace Period extension is already before the Court.
We take this time to also call on the Ombudsman Commission to be an intervener in this matter which is of significant National importance. The Ombudsman cannot stand by and watch democracy and the Parliamentary responsibility threatened for selfish and short term political gain.
The further amendments proposed to section 145 of the Constitution in addition to the 30 months amendment, with respect to votes of no confidence and amendment to section 124 which deals with, the callings of Parliament, is nothing more than a selfish and heartless scheme designed to secure them-selves a full five year term in office, by removing or weakening key safeguards of our democracy.
This is not only dictatorial but a dangerous abuse and violation of our National Constitution.
All Members have taken an oath to uphold and protect the Constitution and we call on intellectual MPs and Former Prime Ministers to lead the way in defending the spirit and intentions of the Constitution.
The Constitution is the Supreme Law of our Nation. Power and authority is created by the Constitution. It defines the nature of power and the manner of exercise of power and determines who has authority to exercise such power.
It creates demarcations in the exercise of the three main powers in our system of Government. The law making power is vested with the National Parliament. The Executive power is vested with the Prime Minister and his Council of Ministers, or NEC. And the Judicial power is vested in the Judiciary.
The exercise of power under or pursuant to section 145 of our Constitution is vested with the National Parliament. It means that section 145 is invoked only by Members of Parliament on the floor of Parliament to remove a Prime Minister or a Minister who in the judgment of a certain majority of MPs has failed to perform in the given office or has brought the integrity of that office into disrepute.
In the scheme of the Constitution, the Prime Minister and the Ministers who comprise the NEC wear two hats, one as a lawmaker and the other as the National Executive. Unlike other democratic systems of government where the legislature and the executive are kept apart and do not sit in the same Parliament, so as to avoid compromise or conflict of interest, when exercising the law making power, our system is such that the Executive Government also sits in the same Parliament and virtually takes siege of the Parliament and holds Parliament hostage to pass any new law or change any law, including the Constitution, as long as it has the necessary majority of Members in Government.
The question here is, in whose interest is section 145 being amended and is it being amended for the purpose and intent for which section 145 was thought out and inserted as such?
We believe, that section 145 was not put there to deprive an Executive Government of its security of tenure of office or to deprive it of time and space to implement its policies. A Government comes into office for a full five year term, hence, only loses its tenure or mandate if it fails to live up to the expectations of the law or expectations of the people through their representatives. The power to pass judgment on whether the Government or a part of it has lost the confidence of the people is exercised by their representatives on the floor of Parliament.
We believe that section 145 was put there for a very important purpose, and that is to act as a pressure valve to relieve the people and this country from a hash or oppressive or corrupt or non-performing regime or a part thereof. Section 145 is an inherent power of the National Parliament and cannot be diminished or compromised in any way, shape or form. It is the power that defines the superiority of the legislature and the National Parliament to the Prime Minister and his council of Ministers.
As a matter of fact, section 141, subsection (b) and (c) of the Constitution are very specific about the accountable nature of the Prime Minister and his Ministers to the Parliament and the consequences of not living up to it.
Section 141
(b) The Ministry is collectively answerable to the people through the Parliament for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive Council; and
(c) The Ministry is liable to be dismissed from office either collectively or individually.
Section 145 is about good governance, transparency and accountability. It is not about tenure of office of the executive government. That is why the Opposition vigorously opposed the first amendment to s.145 which extended the grace period from 18 months to 30 months. The 30 months extension and the new proposals to further amend section 145 and 124 is a very serious abuse of the Constitution. It is an unwarranted challenge to democracy and constitutional rule in this country. The amendments are misconceived and mischievous. It is simply designed for Peter O’Neill to stay in Office for the full five year term irrespective of whether his conduct or circumstances he is found to be in, warrant Parliament to remove him as Prime Minister.
Tenure and security of office must be secured through trust and confidence of the Parliament, through performance, transparency and good governance. That is what guarantees tenure of a government. It is absolutely wrong and indeed unconstitutional to try to obtain security of tenure of office by exiling or watering down the power and authority of Parliament to invoke s.145 any time it sees fit. Tenure must not be obtained by building a wall around the Executive Government from being challenged at any time by making it that much harder for the Parliament to exercise its inherent power to keep the collective Ministry in check.
We argue that any amendment to section 145 in particular, can be made only for purposes of improving and enhancing democracy, accountability and good governance. It is clearly wrong and goes against the spirit and intention of section 145 to remove or weaken it so as to escape the fundamental role of the Parliament to keep the executive government accountable.
The general implication of these amendments:-
1. Earlier amendment to Section 145 (4) has increased the grace period to 30 months. The constitution restricts vote of no confidence in the last 12 months of the parliamentary term. Effectively it is now reduced to a 18 month window to hold the government to account through the vote of no confidence clause.
2. Current proposed change to Section 124 will effectively reduce the minimum sitting days from 63 days to 40 days. Furthermore, the amendment seeks to remove the current require for parliament to convene on a quarterly basis by only allowing for a not less than 40 days in each period of 12 months. The parliament has to meet frequently to maintain the scrutiny over the performance of the Executive arm of government. These cunning maneuvering may see parliament convene for the proposed 40 days in the earlier part of the year and may need convene any further. You may have long adjournment like what happened during late PM Bill Skate days.
3. Current proposed additional changes to Section 145 (1) to increase notice period from one week to three months and from one tenth to one third of the signatures of Members of Parliament to move a propose a vote of no confidence is indirectly removing this clause entirely and making it completely redundant.
In light of these treats against the National Constitution and National interest, we the opposition would like to strongly recommended the following steps to be taken immediately:-
1. There must be urgent amendment to the Constitution to ensure that any amendment to the Constitution would require a National Referendum where more than 75% of the population must vote in favor of the proposed change. Otherwise we will butcher the Constitution up with these piece meal alterations to serve momentous selfish interests.
2. We must consider introduction of second chamber of parliament where the current parliament can become the lower house and the provincial governors can form the senate or upper house. All laws or amendments passed by the lower house had to be passed by the upper house for that law or amendment to take effect or vice versa.
3. There must be serious consideration to containing the powers of the Executive Government. What we have currently where the Executive Government sits in with the Legislative arm of Government do not provide for clear separation of power. Most times the Executive appears to overpower the Legislative arm of government. For this to happen, we need to consider a presidential style of Government where the President who heads the Executive arm of Government is not part of the Senate of Congress. This is to prevent the re-occurrence of the Kitchen Cabinet syndrome.
If the Government is serious about governance in this country and would like to establish a very transparent environment, it must have the guts to introduce the wholesale and meaningful changes instead of wimpy, reckless, short sighted, piece meal changes.
We will seek a Supreme Court Preventive Order against the Parliament from debating and voting on these additional proposed amendments to s.145 and s.124, as our Supreme Court Reference on the 30 months Grace Period extension is already before the Court.
We take this time to also call on the Ombudsman Commission to be an intervener in this matter which is of significant National importance. The Ombudsman cannot stand by and watch democracy and the Parliamentary responsibility threatened for selfish and short term political gain.
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