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Separation of powers. Why do Powes & Theo worry now?

Powes ParkopPAUL OATES

IT WAS an interesting development when Friday’s vote of no confidence in prime minister Peter O'Neill was postponed for seven days.

Now the vote will be taken next Friday – putting it even closer to the end of the July when the ability to move no confidence expires because of the provision it cannot be done within one year of a national election.

In the meantime, Ben Micah and his People’s Progress Party (six MPs in all) have moved to the opposition benches as have three Next Generation Party members.

According to former opposition leader Belden Namah, many others are about to jump ship.

It was my understanding that, when consulted by current opposition leader Don Polye, the supreme court, made up of three eminent judges including the chief justice, ruled that in June’s adjournment of parliament, sections of the PNG Constitution had been overlooked in an ‘unlawful’ manner.

On Thursday, Governor Powes Parkop (pictured) of the Social Democratic Party, came out and stated that he felt the supreme court’s determination breached the principle of separation of powers. It was reported that parliamentary speaker Theo Zurenuoc said the same thing.

The separation of powers, as both politicians observed, is an immutable pillar of a modern democracy -  providing, within their own roles, independence of determination between judiciary, legislature and executive.

But it was remarkable that the doctrine of ‘separation of powers’ was suddenly raised by Mr Parkop as his voice had been absent on the many occasions the principle was breached in the past.

The PNG legislature (parliament) frequently assumes the role of the executive (public service) by commonly making decisions in an arbitrary manner without reference to policy or legally binding official procedure.

Stories abound of local MPs walking around with government cheque books in their hip pockets and offering government funds to their supporters. These funds are supposed to be for deserving local projects but appear to have become re-election ‘gris moni’.

Of course this money is only made available to MPs who demonstrate their loyalty to the governing coalition. Opposition members need not apply.

If the principle of separation of powers was to be followed faithfully, then surely any member of parliament making decisions and dispensing public funds outside established and lawful policy and procedure would be guilty of breaching this principle.

There was a particularly glaring example when the Health Minister, supported by the prime minister, chose to go outside the properly constituted Tender Board to approve a vastly more expensive bid to supply and distribute pharmaceuticals in PNG.

I can’t remember Mr Parkop remonstrating then about the principle of separation of powers.

As it happened, this contract was never effectively discharged but still cost PNG taxpayers K70 million.

A chagrined Australian government, angered by the way in which the tender was handled, refused to pay for the deal and ordinary Papua New Guineans were the big losers.

If I were Powes Parkop, I would be very careful about how I expressed views about the chief justice’s observations about what is lawful.

It may be that Mr Parkop (and the Speaker) is telegraphing Peter O’Neill’s intent to move the no confidence matter from parliament and into the courts as has been the case in many previous tussles.

Even a short delay of slightly over a week will take the no confidence vote into the period when the constitution prescribes it cannot be held.


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Peter Sandery

In addition, Anonymous as I have pointed out in comments on another blog site, taken to its nth degree, Powes' argument would mean that an MP, disgruntled with a commercial decision could, if he managed to garnish the numbers, change the nature of the agreement to assuage that disgruntlement.

In fact, parliament has actually set a precedent here wherein, some years ago, it passed a law which effectively changed the ownership of a piece of alienated land without the authorisation of the then lease holder.

This law remains on the books, has not been challenged and has been used as the basis for further developing the land.

At the moment, no one is prepared to fund a challenge to its authenticity - I suggest that will not always be the case.

Paul Oates

In reference to the pharmaceutical contract mentioned, here in part is a report by the ABC at the time.


The ‘Borneo Pacific bid of $31 million (71 million kina) was $9 million more than the bid from International Dispensary Association, which successfully delivered the kits for the past two years.‘

The extra cost possibly helped cover certain ‘incentive’ payments and ‘overseas training trips’ offered by the company concerned to those who made and accepted this decision?

Anonymous | Accepted by Editor

Parkop has no idea of constitutional law. Separation of powers would be breached if the Supreme Court assumed the powers of Parliament and determined the motion of no confidence.

Merely directing Parliament to meet as it is legally required to do show is upholding the law, not breaching separation of powers.

If that was the case the Supreme Court could never rule that a law passed by parliament was unconstitutional as it would, in Parkop's mistaken view, breach separation of powers.

In this case the Supreme Court is quite rightly fulfilling it's legal mandate to interpret the constitutional functions of Parliament.

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