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Not leaving it up to chance

Government must embrace notion of separation of powers

LawBOMAI D WITNE

IN Papua New Guinea, as in any democracy, accountability and transparency are determined by many factors including the government’s understanding and nurturing of the notion of separation of powers.

Over the years, successive governments of PNG including the current government have not understood or appreciated the rationale and intrinsic values for separation of powers between legislature, executive and judiciary – the politicians, the public servants and the judges.

The concept of separation of powers and how it works in a democracy embodies fundamental right and responsibilities within the rule of law.

It exists to nurture and promote a system of ‘checks and balances’ and impose accountability and transparency on the three arms of government.

The legislative arm, which rises to power through elections and secret ballots, and the executive and judiciary, who occupy positions as a result of educational qualification, experience and merit.

The independence and working relationship between these three arms should be guided by legally prescribed roles and mutual respect for the limitation of their functions.

The relationship must be transparent and accountable amongst themselves and to the people.

In PNG, however, a pattern has been established where the demarcation between the arms of government has been muddied.

The relationship between the legislature and executive arm of the government can be described as one of political convenience.

The executive arm is almost always subject to the ruling government. Regardless of how competent and capable (and ethical) public servants may be, individuals serve at the whim of their political masters.

Functions that public servants ought to perform ‘without fear or favour’ are compromised.

The executive arm does not care about the separation of powers. It does not care whether individual public servants worked hard to acquire knowledge, skills and experience. It doesn’t care whether there is logic, continuity and consistency in implementing government policy.

The assumption of PNG government’s over the years has been that the job the politician wants, no matter how much it may divert from proper and established norms of public service, will be done in the way the politician dictates.

Such practices have created a culture of obedience to the executive arm based on fear and career uncertainty.

If a tally had ever been kept on the turnover of CEOs and departmental secretaries, the statistics would be overwhelmingly high.

Let me now turn to the other arm of government.

The judiciary in PNG has been struggling for a long time to maintain its independence under trying circumstance.

We saw the judiciary attacked by the previous O’Neill-Namah government using parliamentary privilege.

The last thing any right-thinking government in a democratic society would do is bluntly attack the court, which is the custodian of the constitution and the laws.

The National Court has also maintained its independence by intervening in the PNG-Australia asylum seeker arrangement. The court used a provision in the Constitution which empowered it to intervene and set the human rights record straight for PNG.

This was something both the legislative and executive arms of the government seemed willing to ignore and were prepared to go to the court to stop. They mutually agree to maintain a relationship of political convenience without much attention to the muddied boundaries.

The current fiasco between the prime minister, the police and the court is nothing new for us.

It represents an uncultured and unprincipled power play on the part of the government to maintain its position and prolong its lifespan.

The undermining of the executive arm as seen in the sacking or forceful retirement of police commissioner Kulunga, his deputy Kauba and a number of other senior police officers - who were faithfully executing the law of the land - brings to fore a kind of unchecked power.

The court was under great pressure to prolong a decision to stay the warrant against PM O’Neill. But, as things worked out on Tuesday, the court did not want to get in the way of police performing their lawful and constitutional duties and granted them the liberty to make the call themselves.

We watch with interest to see whether the police, under their new O’Neill appointed administration, will act “without fear or favour”.

Comments

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Robin Lillicrapp

I think Bomai has not only explained the status quo in PNG but has also highlighted a travesty of similar nature that has befallen Australia.

There was prior to Independence, as Chris rightly pointed out on another post, a robust and reliable legacy of systems left to PNG to work with.

During the years following Independence, Australia too experienced the winds of change that shook the underpinnings of historic conduct of governance under the well defined models that developed over centuries out of the UK Common Law.

The passing of the Australia Act allowed the erosion of former notions of stability in the arena of Separation of Powers to evolve into the current estate where International law often takes precedence over national law.

The resulting conflict of laws is often dealt with by further legislation arising to counter the conflicts that traditionally were dealt with by courts availing themselves of the procedures explained by Chris in this post that gave enablement to jurisprudence that was not overridden by the legislature.

It wouldn't surprise me to find that the more recent products of electoral choice in PNG are themselves vassals or victims of the lassitude that has descended upon "democracies" the world over who now find themselves given over to globalist ideology.

Chris Overland

Bomai Witne has pointed to a major flaw in how PNG's political institutions currently work.

Those of us born into mature and stable democracies typically do not understand much less care how the political system really works.

We just take it for granted that is does and will continue to do so.

Concepts like the separation of powers are not usually discussed over dinner or at the footy.

If discussed at all, the underlying constitutional and legal basis of democracy will only arise as a topic during a university lecture or, very occasionally, when an academic or lawyer goes on radio or TV to explain the fundamental "rules of the game".

It is a disheartening fact that, in Australia, at least one Queensland Premier, who governed for an uninterrupted period of over 20 years, expressed complete ignorance of the concept of the separation of powers.

Unsurprisingly, his government was, for a long time at least, regarded as the most corrupt in the history of this country, although the recently dumped Labour administration in New South Wales may yet be proved to have been even more corrupt.

What this brief history shows is that, to work properly for the greater good, democracy relies upon people adhering to both the written and unwritten "rules of the game", with the latter probably being the more important.

In fact, the "mother of parliaments" in the UK does not operate according to a written constitution at all. Rather, it relies for guidance upon following a series of legal principles and precedents that have been established over many centuries.

Most importantly, it relies upon the politicians, bureaucracy and the judiciary each playing their respective roles according to the well established concept of the separation of powers.

Without very disciplined adherence to this concept, inconvenient as it sometimes is to politicians, then the risk of what might politely be termed "role confusion" or, less politely, outright corruption, rapidly escalates.

As Mr Witne points out, PNG's fledgling democracy is in mortal danger right now because of an abject failure by politicians to obey inconvenient rules.

How the current imbroglio over Peter O'Neil plays out will provide a good guide as to whether PNG is a country where the rule of law prevails or if the country will inevitably become just another "failed state".

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