Thursday, 15 December 2011

Backdated - Papua New Guinea 2011

Sir Michael Somare was replaced by Mr Peter O'Neill as Prime Minister of PNG, with just under 68% support of the parliament (74 seats out of 109). Somare was incapacitated at the time. O'Neill then requested the Governor-General, Michael Oglio, to attend parliament to designate him as the rightful Prime Minister. However, the Papua New Guinean Supreme Court ruled the ousting of the PM was unconstitutional, and Somare's ministers were sworn in by Oglio on Wednesday.

Normally, that would be the end of things and Somare would retain the Prime Ministership.

The parliament refused to accept the Supreme Court verdict, however, and O'Neill's supporters voted to suspend Governor-General Oglio and promote the pro-O'Neill Speaker, Jeffrey Nape, to Governor-General. Nape then swore in O'Neill and his Ministers.

This leaves PNG with two Governor-Generals, two Prime Ministers and two sets of incumbent ministers. Just to balance things off, Somare then appointed a second police commissioner. All of this leaves PNG with one hell of a constitutional mine-field, two governments that refuse to accept the other's legitimacy, a civil service unsure who to obey and, to top the day off, a 7.1 magnitude earthquake striking seconds after a politician stated that the PNG parliament was cursed

So, who is legitimate?

My money is on Somare for three reasons. 1) He has lead the country, despite his unpopularity, for almost half of PNG's independence. 2) He is a political survivor, not to be underestimated. 3) The opposition to Somare is ignoring the rulings of the Supreme Court, who ultimately will decide the matter if it isn't left to run until the next election (2012). Even if the Supreme Court isn't inherently pro-Somare, it will al the very least look unfavourably on the O'Neill camp for their lack of respect for Supreme Court rulings.

Constitutionally, leaving aside personalities, contacts and influence, this is how I read the PNG Constitutional Crisis 2011:

The parliamentary Speaker, Nape may have been ineligible for the role of Governor-General under Part V, Division 3, Section 87, Subsection (3) - "The Governor-General must not hold any office or position ... except with the consent of the Head of State [etc. etc.]"

However, though I cannot find my source, I think I read somewhere Nape was only standing in as Acting Governor-General. This is constitutionally sound under Part V, Division 3, Section 95, Subsection (2), Paragraph (b) - "If— ... (b) the Governor-General is suspended from office ... the Speaker is, subject to Subsection (3), the Acting Governor-General."

This question is academic, however, as it assumes "the Governor-General is suspended from office". The Governor-General can only be dismissed by the Head of State (Queen Elizabeth II) under Part V, Division 3, Section 93, but might be suspended by the National Executive Council (i.e.the ministers) under Part V, Division 3, Section 94 given one of two conditions. These conditions are:

(Part V, Division 3, Section 94, Subsection (1), Paragraph (a)) "if he refuses or fails to act in accordance with the advice of the National Executive Council" where legally required,


(Part V, Division 3, Section 94, Subsection (1), Paragraph (b)) "in accordance with an Act of the Parliament pending an investigation for the purposes of Section 93(2) (dismissal and removal from office)".

To the best of my knowledge, there is no investigation for dismissal of Governor-General Oglio. If the O'Neill camp had been smart about it, they might have caught him out on the other condition (if he "refuses or fails to act" on their instructions) but no such instructions were issued prior to his dismissal.

This question is also academic, however, as O'Neill's cabinet would not be recognised as the "National Executive Council" following the Supreme Court ruling that their takeover was unconstitutional. It's a vicious cycle, where Nape cannot appoint O'Neill's cabinet as ministers until he is the Governor-General, and O'Neill's cabinet cannot even attempt to install Nape as Governor-General until they are ministers. All they have done is solidify Speaker Jeffrey Nape's position on the issue, which will probably cost him his role, and thus cost O'Neill a powerful ally, if and when Somare secures power.

The parliamentary majority wish to trump the Supreme Court, but the rulings of the Supreme Court is the final say on all matters of interpretation of the constitution (Part II, Division 2, Subdivision C., Section 18). That said, it would seem to me that if the PM was deposed by a motion of no confidence, this is constitutionally sound (Part VI, Division 4, Subdivision B., Section 145). Whether or not this was the case I do not know, but assuming sufficient support for O'Neill can be raised while Somare is not incapacitated, this route is still open. The government could, of course, simply rewrite the constitution.

The sections pertaining to the appointment of a Prime Minister, appointment and dismissal of a Governor-General and no-confidence motions require 66% majority to rewrite (Part II, Division 2, Subdivision B., Section 17, Subsection (1)). Given that only 68% supported replacing Somare when he was incapacitated (and thus probably less now), I doubt they could get 66% for a rewriting of the most fundamental law of the land simply to replace him. Coincidentally, the sections pertaining to the majorities needed to rewrite sections of the constitution also requires a 66% majority to rewrite (Part II, Division 2, Subdivision B., Section 17, Subsection (1)).

So, in the end, the Supreme Court ruling trumps all, thus O'Neill's role is not legitimate, thus Nape is not Governor-General and O'Neill's cabinet have not been sworn in as ministers. Somare thus holds the role of PM, Oglio is GG, and Somare's cabinet form the legitimate "National Executive Council". The Supreme Court may be called in, and will rule in Somare's favour, unless O'Neill can stall by refusing to accept Somare's legitimacy until the next election and win by popular vote.

NOTE: None of this commentary should be read as an endorsement of Somare or O'Neill, nor used as the basis for any constitutional ruling, either in PNG or elsewhere.

1 comment:

  1. PsephologyKid, 23 Feb 2012:

    Based on international opinion and Speaker Jeffrey Nape's claim that Somare is no longer recognised as a member of parliament, O'Neill's position is looking more solid each time I check. Somare still claims he is PM, of course, so we can still expect all kinds of crazy hijinks from PNG, and a heck of a headache for the general populace.