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The Papua New Guinea constitution's fatal flaw

Christine StewartDR CHRISTINE STEWART | Outrigger Blog, Pacific Institute

THOSE WHO CRAFTED The PNG Constitution of 1975, the members of the Constitutional Planning Committee, did their best to ensure that power should belong to the people, as a group, to be exercised in accordance with the Constitution.[1] 

They wanted to ensure that the rights of the people were respected and could be enforced. They wanted to establish a Parliament which would be truly representative of the people.[2] 

They wanted to spread power evenly over the three arms of government — the legislature, the executive and the judiciary — so that each is supreme in its own sphere (Constitution Section 99), and the Constitution is supreme over all of them (Constitution Section 11).

The Constitution provides for powers, but those powers have limits.  The power of the people cannot override the human rights of minorities. The National Parliament represents the people and has almost unlimited powers of law-making, but they cannot conflict with the Constitution (Constitution Section 99(2)(a)).

The National Executive has executive power to govern, but that executive power is not vested in any one person, a king, chief, president or even prime minister, but collectively in the Governor-General and the Ministers who are selected by Parliament to constitute the National Executive Council (Constitution Sections 138-41).

The National Judicial System has the responsibility of upholding the Constitution, so it has a very special power over the other two branches of government, ensuring that they obey the Constitution.

It acts as the check on the (almost) unlimited power of the Parliament to make laws, by reviewing those laws and deciding whether or not they conflict with the Constitution, and this is why it is wrong to say that Parliament is supreme in PNG. Similarly, the Judiciary acts as a check on the National Executive.[3]

This is how it is supposed to work in theory — a system of finely balanced powers and checks, which respects and is governed by the Constitution.  But does it work out in practice?

The Speaker is chosen from among the elected Members to preside over Parliament, to be its principal representative and to uphold its dignity, to regulate its proceedings and administer its affairs and to perform certain executive functions (Constitution Sections 107-108, 110).

Among other things, the Speaker has the power to set sitting days, to hear or not to hear Members, to allow or not to allow motions, votes of no confidence and so on.

Recent events have demonstrated how the Speaker has exercised these powers to their fullest extent in recent years.  In July 2010, following the decision in the OLIPPAC Case,[4] the Speaker controlled Parliament on behalf of the National Alliance-led government by refusing to entertain the then Opposition’s proposed vote of no confidence, and instead recognising only the adjournment motion of the leader of government business.[5]

Despite a Supreme Court finding that the Speaker had breached the Constitution at the material time,[6] the situation remained unchanged for a year, until he used this tactic again in August 2011, but this time in favour of the Opposition.

He refused to hear the Leader of Government Business, instead allowing the Opposition to move a motion declaring a vacancy in the office of Prime Minister (who was hospitalised in Singapore at the time) and proceeding to elect a new Prime Minister.[7]

It was an open secret that a deal had been struck with the Opposition for the execution of this manoeuvre — it seems that whoever gets the Speaker on side gets to be the government.

In theory, what Parliament and the Executive do are controlled by the Constitution.  In theory, they cannot go too far in the exercise of their respective powers.  In theory, Acts of the Parliament and actions of the Executive can be challenged in the courts for constitutionality, and struck down if they exceed what is constitutional (Constitution Sections 11, 18 and 19).

The courts are the referee between the Parliament and the Constitution, between the Executive and the Constitution.  Accordingly, this action of Parliament was successfully challenged in the Supreme Court in December,[8] but it made little difference to the political situation.

The new government retained control of the Parliament and moved to impugn the Chief Justice, on the grounds of his lack of impartiality in continuing to sit on cases including a further case designed to remove any doubts as to the election of the new Prime Minister. 

Part of this process involved the passing of a series of laws designed to give the Government greater control over the judiciary: the Judicial Conduct Act 2012, the Supreme Court (Amendment) Act 2012, plus amendments to the Parliamentary Powers and Privileges Act and the Criminal Code.

These laws, the passage of which through Parliament was ensured by the Speaker over all protest, stripped the courts of much of their power and their independence.  Under them, any judge who gave an unfavourable decision could be suspended and sacked by Parliament — which was controlled by the Speaker.

It is hard to see how the Supreme Court could continue to exercise its power to declare any law unconstitutional in these circumstances.

When the new government was first installed in 2011, it had gained widespread support.  The PNG public was largely fed up with the entrenchment of the Somare-led government for nearly two terms of Parliament, secure in the protection of OLIPPAC which had prevented any MP from voting against his party on any matter whatsoever, including a vote of no confidence in the Prime Minister.

But events early in 2012 saw this support start to dissipate.  There seemed to be no remaining constitutional checks on Parliament.  Twice, the Supreme Court constitutional rulings had been ignored with impunity.

How could this Parliament be controlled or eliminated?  The new government had only a few months left to hold office before fresh elections were scheduled.  But some in government were even starting to threaten to defer these elections.

The people, those constitutional repositories of power, were growing uneasy.  It was through the ballot box that their power could be exercised.  What if the elections were deferred, or worse, not held at all?

The three ways a fresh election can take place (Constitution Section 105) are:

expiration of time

some form of a vote of no confidence in the last 12 months of its term

Parliament resolves to dissolve itself

It seemed highly unlikely that the government would dissolve itself, or entertain a vote of no confidence against itself, so long as it held together. That only left the expiration of time.

The government began to pursue many look-good options, such as blaming defective common rolls, ousting the Electoral Commissioner and so on, to enable the ignoring of the time limit.

What would happen, if so?  It was suggested that once the five-year time limit passed, there would be no Parliament. But would that make any difference in reality? What could the nation do if the Parliament simply continued to operate, passing laws and controlling the money?

Fortunately, these questions did not require an answer.  The elections were held, Prime Minister O’Neill was returned and was joined in a ‘grand coalition’ which included former Prime Ministers and other prominent party leaders.

O’Neill’s former deputy, who was prominent in spearheading many of the moves designed to secure the supremacy of Parliament contrary to the Constitution, moved to head the Opposition, where he remains for the time being.  But this is not the end of the story, nor does it answer the questions these events have raised.

Is there any legal means of getting rid of a Parliament?  In many common law jurisdictions, Parliament may be dissolved by the Governor-General. The most notable example which comes to mind is the double dissolution of the Australian Commonwealth parliament in 1975, which saw the toppling of the Whitlam government. 

But this, and the other double dissolutions which took place in the 1970s and 1980s, were all expressly permitted by the terms of the Australian Constitution.  But there are no explicit provisions in PNG’s Constitution for the dissolution of the National Parliament by any other body but Parliament itself, under Section 105. 

The Constitution places severe limits on the powers and functions of the Governor-General in relation to Parliament and the formation of government.  The only Head of State functions in relation to elections are to fix the period of elections (Constitution Section 105(2)) and issue the writ for a general election (Organic Law on National Elections Section 72).

It is just arguable that the Governor-General has a residual power to do so, providing he is acting in accordance with the Constitution.  Section 86(2) provides that the Head of State shall act only with, and in accordance with, the advice of the National Executive Council.  

However, this provision is declared by Subsection (4) to be non-justiciable.  This means that the court cannot decide whether or not advice was given.  It can only enquire into the constitutionality of the action taken. 

If the Governor-General were to decide he is not acting unconstitutionally in dissolving Parliament, then the issue of advice cannot be questioned.  Nevertheless, the question of the constitutionality of his action is still open to challenge in the courts.

However, even if a Governor-General were to try to dissolve Parliament, the practical consequences must be considered.  The government had already proved itself capable of exercising suspension and sacking powers over the judiciary, by the simple expedient of passing a law to that effect. 

In the case of the Governor-General, it would not even need to pass a new law.  Sections 94 and 95 of the Constitution provide that the Governor-General may be suspended by the National Executive Council, whereupon the Speaker becomes the Acting Governor-General.  

Then Section 93 comes into play, providing that the Governor-General may be dismissed from office by the National Executive Council or by a decision of Parliament.  So the Speaker, provided he remains complicit with the government, controls the Governor-General as well.

In effect, all it takes to maintain constitutional control of the country is three people: one person in the government to move the necessary motions, one to second them — and the Speaker to orchestrate their acceptance.  

Yes, the Constitution implements the CPC wish not to concentrate power in one person.  There is no President.  The Prime Minister is chosen by the Members of Parliament, the collective representatives of the people, and may be removed by various means (Constitution Section 142(5)).  

The Governor-General has virtually no powers at all, he is merely a rubber stamp,[9] and he may be removed by the Executive or the Parliament.  But there is no constitutional provision providing a means of removing the Speaker, or limiting his powers.

The Constitution has carefully avoided concentrating power in any of those positions.  But everybody forgot about the Speaker.  Nobody realised how much power they were handing to him in the name of ‘the people’.  This is the fatal flaw in PNG’s constitutional system.

Christine Stewart is a law graduate from the University of Papua New Guinea, and a post-doctoral Visiting Fellow in the School of Culture, History and Language, College of Asia and the Pacific, Australian National University.

[1] {Constitutional Planning Committee, 1974 #113} 7/1 – 1 (the CPC Report) and see the Preamble to the Constitution.
[2] CPC Report 6/1 – 1.
[3] CPC Report 8/1-8/2.
[4] Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates SC1057 (7 July 2010).
[5] The National and the Post-Courier online 22 July 2010.
[6] In re Re-election of the Governor General [2010] SC1089 (22 December 2010).
[7] The National and Post-Courier online 3 August 2011.
[8] In re Reference to Constitution Section 19(1) by East Sepik Provincial Executive SC1154 (12 December 2011).
[9] See Wari v Ramoi and Dibela [1986] PNGLR 112.

Access here the latest version of The Constitution of the Independent State of Papua New Guinea at PacLII


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Ian Fraser

I had got as far, some years ago, as noticing that the office of Speaker was becoming a stepping-stone to the Prime Ministership in Melanesia (PNG plus Solomons & Vanuatu).

This is a significant development from the distant Westminster model.

But Ms Stewart's point is good: it's more than just a development.

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