UNDERLYING ISSUES TO MENDI MAYHEM - A WAKE UP CALL FOR THE GOVERNMENT
by MATTHEW P. TAMUTAI
The burning down of the Link PNG Dash 8 Aircraft and properties in Mendi, Southern Highlands Province (“SHP”) on 14th June 2018 as a result of a National Court Decision, dismissing Mr. Joe Kobol’s Election Petition, disputing the declaration of the incumbent Governor for Southern Highlands Province has drawn many comments from the public.
The burning down of the Link PNG Dash 8 Aircraft and properties in Mendi, Southern Highlands Province (“SHP”) on 14th June 2018 as a result of a National Court Decision, dismissing Mr. Joe Kobol’s Election Petition, disputing the declaration of the incumbent Governor for Southern Highlands Province has drawn many comments from the public.
The Opposition and Government have both made their intelligent
remarks which are mere rhetoric and lacking pragmatism promoting their
parochial interest but falling short of achieving a real solution for the
people of Southern Highlands.
Thus, I say the call for the Prime Minster to step down and the
flamboyant meeting of the Prime Minister with Southern Highlands Province
Leaders are entirely off the mark.
Both
sides must realize that there is distinction between pragmatism and rhetoric.
My experience in dealing with the Southern Highlands Province
issues over many years in various capacities and the analysis of the present
circumstances tells me, the mayhem arose as a result of three reasons: -
a)
Anomaly in the Organic Law on Provincial
Government; and
b)
Abuse of Powers by the Electoral
Commission; and
c)
Stringent unconstitutional draconian Election
Petition Rules.
The Organic Law
Southern Highlands Province was a beautiful peaceful Province
when governed by a Premier under the Old Organic Law on Provincial Governments
in the 70’s and 80’s.
It enjoyed all the facets of good Governance like, services
delivery, accountability and presence of Government.
Unfortunately, all these declined after the Old Organic Law was
abolished in 1995 and a new Organic Law came into force triggering a spontaneous
paradigm shift created by anomalies in the new Organic Law. The obvious was
that the Governor was now the head of the Executive and the Legislature
impinging on the cardinal principal of democracy called “Separation of Powers”, coupled
with a phenomenon that the Governor was not obliged to remain in the Province
but can control a Province by remote control.
The precarious situation was compounded by the National
Government amending the Organic Law to remove gross financial mismanagement by
a Provincial Government as a ground for suspension of a Provincial Government.
Simultaneously, the Auditor General’s Office and, the Department
of Finance, and the Department of Provincial Affairs, and the National Fraud
Squad made no attempts to deal proactively with complaints of financial
mismanagement, may be due to underfunding or for security reasons.
Meanwhile, the Southern Highlands Province experienced a rollover
of Governors who blatantly circumvented the normal Government procurement
processes with minority of followers who had sole access to Provincial
Government Funds and thus depriving the
people with the benefit of enjoying the millions of kina from the Royalty and
Equity Dividends that emanated from the Kutubu and Gobe Oil Projects.
This created a cultural phenomenon whereby people began to
perceive a Provincial Government as a cash cow and rewrote the Organic Law to
define in their heart, mind and soul that a Governor is a “Cash Giver”.
Notably, the National MP’s of the Province are somehow connected
to this syndrome either by acquiescence or conduct.
The side-effect of this is the increase of illegal firearms by
Candidates to manipulate the already existing weak and deficient Electoral
System of PNG, comprising of a Government controlled Electoral Commission and
Inflated Common Rolls and unsecured and vulnerable Polling Officials.
Given this backdrop, it would have been understandable if the
National Government and Opposition displayed some pragmatism in suggesting
amending the Organic Law to replace the present form of Government.
The last time when the National Government took serious notice of
the Southern Highlands Province predicament was in year 2000 under Sir Mereke
when Southern Highlands Provincial Government Powers were withdrawn and a
caretaker Administrator and myself as a
Probity Advisor were deployed to rectify maladministration and poor governance
ensuing with the arrest and charging of the then Governor and the Provincial
Administrator by the Fraud Squad.
Nevertheless, ironically the Supreme Court held that the
withdrawal of powers provisions were unconstitutional and the Province went
back to square one till today. The National Government has not revisited this
law since then.
In my respectful view, Southern Highlands Province now
desperately requires a unique form of Government of its own whereby the
Governor’s power to head the Executive and the Legislative must be marginalized
so that illusory expectations are obliterated. Otherwise, the cycle will
continue like a dog chasing its tail.
Integrity of the Electoral
Commission
The law defines the Electoral Commission as the Electoral Commissioner.
According to paragraph 219 of the National Court Decision, His
Honour Salika, DCJ found that “there is a indeed
some merit in the arguments put forward by the Petitioner that the scrutiny process under s. 168 of the Organic Law and s. 175 of the Organic
Law were not complied with.
Thus, there may have been a breach of the Organic
Law by the Electoral Commission and the Returning Officer”.
In paragraph 227, the Court emphasized the breach and said “In
my respectful opinion, to not
allegedly exhaust the scrutiny process
required under s. 168 of the Organic
Law and to go ahead
and make a premature declaration without the
winner scoring an absolute majority plus one is a serious breach of the
Organic Law”.
Under Section 126(1) of the Constitution, the
Electoral Commission is bestowed the duty to conduct an Election in accordance
with an Organic Law.
Under Section 126(7)(c), the prime purpose of the Organic
Law inter alia is to safeguard the integrity of the Elections.
An Organic Law is a Constitutional Law enacted by Parliament and
cloaked with invulnerability of an Organic Law provided by the Constitution.
The Electoral Commissioner derives his powers from the
Constitution and the Organic Law. Thus, he has the paramount duty to safeguard
the integrity of elections.
There is judicial precedent where cases have decided that where a
Candidate does not satisfy a residency test to stand for election or where time
is prescribed for the issue of Writs, the Electoral Commission does not have
power to abridge those provisions.
From the precepts derived from the Judgment, it is obvious that
the breach of Section 168 and 175 of the Organic Law by the
Electoral Commission in perpetrating a premature declaration may have impugned
the Constitutional rights to stand for public Office of the Southern Highlands
Province Candidates who contested the Southern Highlands Province elections
that warrants enforcement in the Human Rights Court and seeking penalty of
imprisonment of the Electoral Commissioner under Sections 22 and 23 of
the Constitution.
Further, the Electoral Commission may have also infringed Section
27 of the Constitution to come under the scrutiny of Ombudsman
Commission for demeaning the Office.
In my view, the blatant abuse of power by the Electoral
Commission in this case attacks the integrity of the Office of the Electoral
Commission which our fore fathers of the Constitution would entirely disapprove
as evil toward the fundamental principles of democracy for the
Nation
and therefore, requires urgent attention from the Legislature.
Election Petition Rules
The Election
Petition Rules in my view are stringent and draconian and contain elements of
unconstitutionality enacted for the sake of case management and not for
dispensation of justice.
A classic example
is the rule prohibiting a Petitioner not to amend his Petition after the 40 day
period of filing a Petition.
In contrast, in
ordinary civil cases the National Court Rules allow a party to amend his
pleading at any stage of the proceeding.
The rule against
amendment obviously shuts out a litigant and confines him to the pleading and therefore
effectively he is not given the opportunity to be heard, which is the golden
rule under the principles of Natural Justice adopted by Section 59 of
the Constitution whose minimum requirement is the duty to act fairly, and in principle to be seen to act
fairly.
Under Section
158(2) of the Constitution the Court’s paramount consideration
interpreting laws is to dispense justice. The question is, did the Organic Law
on election contemplate a stringent litigation process in respect of Election
Petition? The Election Petition Rules are supposed to be the byproduct of the
Interpretation of the provisions of the Organic Law but they appear to be
inconsistent with the spirit of the Organic Law.
Even the Organic
Law on Elections at this stage requires major revamp to rationalize with the prevailing abuse of powers by the
Electoral Commission Officials so that appropriate penalties and reliefs are
applied rather than the conventional relief of declaring an election null and
void and ordering a by election and getting the people to go on a
merry-go-around again.
Thus, it is
imperative that the Legislature (both Government and Opposition) apply
ingenuity to curtail the Courts implementing paradoxical justice in the light
of the vagaries in law when the Court’s paramount duty is to be the guardian of
the peoples’ rights under the Constitution.
Conclusion
On the final
analysis, while I do not condone illegal acts, one can see that the challenge
is on the National Government to address these issues of dissipation of
Governance in Southern Highlands Province, the integrity of the Electoral
Commission and the Electoral Laws, in a very astute manner and not apply
superficial remedies with elements of dissimulation that lack substance to heal
and harness the fabrics of our nations vibrant democracy.
I have seen some
actions being taken but with a little bit of Southern Highlands blood in me, I
am always skeptical, unless it is proven otherwise that these are not mere
dissimulations and dissuasions to avert peoples’ attention momentarily and move
on leaving them stranded.
MATTHEW P. TAMUTAI ML is a former Lawyer with the Southern Highlands Provincial Government and is the Principal and
Consultant TAMUTAI LAWYERS.
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