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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 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.