WE KNOW that Kelly Naru, the Morobe governor, is a lawyer as well as a high-profile politician and that in the no confidence motion of Friday 22 July he supported prime minister Peter O’Neill.
In his speech before the vote, Naru (pictured) called on the executive and legislative arms of national government to launch a judicial review because in, his professional view, important provisions of our mama law (the national constitution) had been breached.
These provisions are sections 99 (structure of government), 115 (parliamentary privileges and immunities) and 37 (protection of the law). The media widely reported his statement.
Naru's professional view of the essence of each of these provisions, and particularly their respective scope, shows his ignorance of the law on which these provisions are based. Here is why.
Naru argues that the recent decision by a three-person supreme court directing the speaker to recall parliament to debate the no confidence motion in the prime minister was in breach of the separation of powers principle incorporated into sections 99 and 115 of the Mama Law. Was it really?
Section 99 adopts the separation of powers principle by dividing the structure of government into three separate principal arms, namely, the legislature, the executive, and the judiciary (subsection 2).
But it makes it quite clear that this is merely a description of the structure of government, meaning it does not create any legal rights or obligations and therefore cannot be challenged in court (subsection 4).
To that extent, you can't go to court and challenge section 99 purely on structural grounds, for instance, that it is unconstitutional to house the personnel of the three arms of government under one roof.
A good example of this is the fact that O'Neill is both the real constitutional and therefore political head of the executive arm of government (the Queen is the formal head) who sits in the legislature.
But you can't go to the supreme court and get it to kick him out just because he happens to be a member of the executive and therefore he shouldn't be sitting there.
The supreme court's decision on recall of parliament is in no way concerned with restructuring the structure of government as presently provided under section 99. So, the court has not breached the separation of powers principle under section 99 on that point.
Section 99 goes further and says the "power... of the people shall be exercised by the national government", but then it adds two very important limits to this power:
The first and a general one, is that the exercise of that power is subject to the constitution (subsection 1) meaning any subsequent amendment to the constitution can permit other public authorities such as subnational governments to share that power.
This is the basis on which the validity of provincial and local-level government lies. The second limit the provision imposes is that the powers and functions of the three principal arms are "in principle" to be kept separate from each other (subsection 3).
The second important limit contained in the term "in principle" spelt out in subsection 3 of section 99 is a very important limitation in the context of this article because it is the one Naru is struggling with largely because he does not appear to understand its meaning and scope.
The term "in principle" is an acknowledgement by the constitutional drafter that the separation of powers is a good idea which has been adopted but because of the needs of the particular society which the constitution as the fundamental law is going to govern, the idea has been adapted to meet those needs, and therefore it may not be applied either in full form or to its full extent. That is, in practice, there may not be a separation of powers in some areas of the governmental system.
At UPNG Law School law students studying constitutional law unit (a compulsory unit) are taught two general reasons why this important limit contained in the term "in principle" is imposed on the application of separation of powers principle in section 99:
The first reason is that in a Westminster system of parliamentary government (which PNG has) there is no full separation of powers because the ministry headed by a prime minister (the political head of the executive arm) comes from parliament (the legislative arm).
It is a partial fusion of two the legislative and executive arms. And secondly, in a country with a written constitution that contains a bill of rights (such as PNG) the judicial arm in which the judicial power to interpret the law is conferred, has the constitutional obligation to ensure that these rights are protected by all agents of the state, including the legislature.
After all the national parliament is a creature of the mama law, and therefore its exercise of power is limited by that Law.
Among the 19 fundamental rights contained in our mama law, is the right of a citizen to an elective public office guaranteed by section 56, and the office of the prime minister is an elective public office in that the member of parliament occupying it is elected by the parliament.
If the leader of the opposition as a citizen is denied his right to access that office because the parliament refuses to allow him by refusing to make a decision on his motion of no confidence in the prime minister, and that refusal is due to the prime minister using his numerical strength to adjourn the parliament, which lawyer true to his colour as such, cannot see a breach of section 56 and thereby justifying the intervention of the supreme court? Naru doesn't see it.
This raises the critical question of what criteria do judges in other Westminster systems use to determine when and to what extent courts should intervene in the legislative process in order to maintain the respect section 99 demands that they show to the separation of powers principle.
Again, law students at UPNG Law School are taught that the general criterion is that courts can't intervene in the normal processes of parliamentary procedure.
For instance, the leader of the opposition cannot expect the justices of supreme court to support him if he goes crying to them that O'Neill has denied the leader of the opposition the opportunity to debate a motion of censure against the prime minister because that type of motion is part of the internal procedures of parliament, which the Constitution does not deal with.
By that yardstick, there is a fundamental distinction between a breach of any internal process rules of Parliament and a breach of section 56 Constitutional Right. Again, Naru fails to see this fundamental distinction.
This question of the extent to which the separation powers principle protects parliament from judicial scrutiny in regulating its own internal affairs again arises under section 115 because the section confers certain power, privileges and immunities on the parliament and its members (MPs).
The power of parliament in the context of the provision the section points to and makes clear, relates to the power to regulate internal matters of parliament. It does not include the law-making power of parliament on broad policy matters such as national security or education and so forth.
The power well known among lawyers here which is not stated in the section, is the power of parliament to commit anyone for the offence of contempt of parliament. But even then, the section makes it quite clear in subsection 9 that the power does not include the power to impose punishment of a criminal nature.
That main privilege the section confers is that members have the freedom of speech, debate and proceeding in parliament and are immune from being sued in court if, for instance, they say anything on the floor of parliament that would otherwise be defamatory if it is said outside the parliament.
That is why this particular freedom is a privilege and not a right, for instance, in the sense of freedom contained in the right to freedom of expression section 46 of the mama law confers on an individual. A privilege is a limited legal entitlement law grants to a particular person or class of persons and not generally to all people.
The main immunity the section confers on the MPs is protection against legal processes being served on MPs within the precincts of parliament. And the reason for this is to ensure that MPs are not restricted from performing their function as people's representatives in parliament.
The freedom of proceeding of parliament the section protects covers the workings of internal procedures and processes of parliament.
But none of these privileges and immunities are relevant in the context of motions of no confidence because it is not part of the internal proceeding of parliament. It is an external procedure specifically directed by the mama law to be used to provide access to MPs to exercise their right to hold a particular public office, namely, that of the prime minister.
This renders the whole of section 115 irrelevant and therefore inapplicable to the question of judicial intervention in this case involving a motion of no confidence. Again, to argue that the judicial intervention breaches section 115 is to express an ignorance of the law on which the provision is based.
Section 37 confers the right to protection of the law on everyone. That protection includes the presumption of innocence. That is, anyone charged with an offence is presumed to be innocent until proven guilty. And so Naru has gone to the media and argued that O'Neill has the right to be presumed innocent until proven guilty.
But the issue involving the prime minister is not one of his guilt or innocence because up to now he has not been formally charged with any offence. So, for anyone to claim that O'Neill is innocent until proven guilty is misleading, a red herring, because it assumes that he has been charged.
The real issue the prime minister faces is whether he has the right to challenge the basis on which the first court issued a warrant for his arrest. He does have the right, and he has exercised his right successfully, in getting a second court to stop the execution of the warrant on him.
It is not clear, however, on what basis the second court ordered the stay of execution of the warrant, leaving one to speculate that it could be that the second court was not satisfied with the quality of information the police had submitted on which the charge was formulated, and on which the first court ordered a warrant for the arrest of the PM. The matter is before the courts and therefore justice should be allowed to take its due course through to completion.
But it is quite misleading for the prime minister and his lawyers to take this defect in the police information, that they have submitted to the first court, as evidence and argue that there is no evidence on which he could be charged with any offence, and on that basis he is entitled to refuse to be served the warrant of arrest.
The prime minister's lawyers should know surely that this police information at this stage of the proceeding is not evidence. It is only information and information becomes evidence only after its authenticity is established by the rules of evidence in a formal court proceeding.
So, to claim that there is no evidence to warrant a charge for an offence and using that as the basis for resisting the service of warrant of arrest on him, the prime minister and his lawyers not only fail to understand the vital distinction between police information and evidence, but they have put the prime minister above the rule of law, not under it, because the rule of law requires guilt or innocence to be proved beyond reasonable doubt on the credibility of evidence, not on the strength of information.
This is hardly a good example to the nation from a person holding the highest political office in the land, and is unhealthy for the future of the Rule of Law in the land of the unexpected.
The separation of powers principle is an example of a principle of the rule of law.
As originally defined by A V Dicey, a famous English constitutional lawyer, in his constitutional law text, 'Introduction to the Study of the Law of the Constitution’ first published in 1885, one of the essential components of the concept of rule of law is that breaches of legal rights of the individual are enforceable through the courts.
Our mama law ensures this by giving our courts the power to intervene and guard David against Goliath when the latter tries to avoid the rule of law.