Law-makers need to understand their role
24 November 2020
WAIGANI - The events that transpired on the floor of Papua New Guinea’s parliament on Friday 13 November again exposed the deep-seated defects in our politics.
These defects have little to do with the constitution and the system of government.
The instability in PNG’s parliament is behavioural, not institutional.
Individual members of parliament (MPs), in calculating their prospects for grabbing or holding on to power, stretch interpretations of the law, or twist the application of the law.
Every parliamentary drama over the last decade or so brings about a sense of déjà vu, raising questions about the Westminster system.
So what is the likely outcome of this latest episode?
The issues that emerged from the 13 November session are constitutional in nature, and the competent authority to interpret laws is the supreme court.
PNG MPs have developed the habit of bungling the conduct of their activities in parliament then promptly running to the supreme court to seek legal clarification, even remedial measures.
The supreme court seems to find itself doing the house-cleaning chore of parliament. This is now a common trend.
If it continues, it will diminish the apolitical functions of our judiciary as the courts become entangled in resolving parliament-related antics.
That said, parliamentary instability will remain a problem for the foreseeable future.
When MPs jostle for power, it is a sad indication of where PNG stands with its use of the Westminster system.
The most convenient scapegoat in a constitutional crisis has always been the institutional design of our system of government.
A cornerstone feature of the Westminster system of government is ‘parliamentary sovereignty’.
The parliamentary system and the doctrine of parliamentary sovereignty originated with what is known as the “Glorious Revolution” of 1688-89 where sovereign power was removed from the monarch and bestowed upon parliament.
In the British tradition, parliament’s sovereignty was the outcome of hard-won victories.
The British are overly protective of their parliament’s sovereignty. They know how it attained that independence and sovereignty in the first place.
We saw this in the rhetoric surrounding the Brexit vote of 2016, where UK voters voted to take back control of their parliament’s sovereign law-making powers from the European Union.
So what does this tradition in the British system of parliamentary politics demonstrate?
The legislature is overprotective of its powers, and will at all cost minimise intrusions by the other two arms of the government – the executive and the judiciary.
But we in PNG know full well, the chaos that happens on the floor of parliament usually spills over.
The supreme court becomes unnecessarily embroiled in interpreting basically every letter of the law. The supreme court is always expected to correct legislators’ incompetence in resolving parliamentary intrigue.
One would think that law-makers, the elected representatives of the people, would seek to minimise the role of the courts in parliament’s affairs.
This is not the case with PNG’s parliamentary system.
But how long will the courts remain apolitical and independent given the barrage of cases relating to parliamentary power plays?
If law-makers in PNG are not in the business of even understanding their roles as law-makers and working within the rule of law in the conduct of their work, what are they doing for the best part of their time in parliament?
It is not unusual to hear members of parliament describing themselves as the “deliverers of goods and services” to their voters.
MPs in PNG are mistakenly of the opinion that their primary role includes “delivering goods and services” to voters.
This ‘service delivery’ role substitutes their primary roles of understanding how legislation works and how their profession is at the heart of socially engineering society, for better or worse.
Procedures like the standing orders of parliament, even laws that are basic to the conduct of parliamentary business, are too bothersome for MPs to understand.
We end up with parliament increasingly contracting out its powers of law-making to the courts.
Almost every aspect in the conduct of PNG’s parliament seems to be written down in statute or in the standing orders. There is this obsession with spelling out virtually everything that must observed in parliamentary proceedings.
Yet this written aspect of parliamentary procedure is not enough to prevent the reckless debacles coming out of parliament.
Jack Straw, the British statesman, once observed that "the constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law”.
If convention and practice are routinely part of the British experience with its parliamentary system, in PNG everything is written down.
But even where it is spelt out, PNG law-makers are not in the business of scrutinising and mastering it for purposes of regulating their conduct.
In conclusion, voters ought to understand the parliamentary system we inherited through our colonial connections to Great Britain.
Elections are not simply about voting people to parliament to deliver goods and services.
Elected representatives are law-makers, and law-making is a fulltime profession, where social engineering of society through laws is supposedly under their custodianship.
These representatives should know the law and rules of society better than the average Papua New Guinean.
As voters we are also culpable in the instability that is instigated by our representatives.
Their failure to understand how they conduct themselves in parliament reflects badly on the voters who mandated them in the first place.
Patrick Kaiku teaches in the Political Science Department at the University of Papua New Guinea
In the midst of constitutional and political crisis, the justice system and courts are not working with unbiased rulings. Delayed process is another factor.
Many court cases involving politicians are struck out on the pretence of lack of evidence. Political influence in the court system is becoming a norm.
Setting up a Commission of Enquiry is another waste of money and resources that does not provide any evidence of wrongdoing by politicians or public servants.
The amount of money expended on commissions of enquiry is far greater than the amount being investigated and so much money goes down the drain. No prosecution done and we are left wondering how our justice system is operating.
Should we have a justice system that is workable or with two sets of laws, one for the politicians and one for the common people.
I would suggest we use the criminal code of Hammurabi in the old testament that is best suited in the PNG context: "Eye for an eye, tooth for a tooth".
If a politician steals, cut his finger off. If a rapist, remove his private parts. Etc.
Parliament is for law makers and it will be workable if we have 111 moralists who know the difference between right and wrong, good and bad, value and devalue, justice and injustice, etc.
All decisions and actions in parliament must reflect good governance, transparency and justice for the benefit of the people.
Posted by: Philip Kai Morre | 25 November 2020 at 08:54 AM
Dear Philip - Recently, in a Queensland local government election, there were two candidates for mayor of the City of Rockhampton. The more likely candidate withdrew after the election leaving as winner the less likely.
That person admits being rather unversed in governance at that level and it seems that, while entitled to be that City's Mayor, the Queensland government is set to make change to the law and so bring on another election for that mayoral position.
You can get the details better by seeing: https://www.msn.com/en-au/news/australia/chris-pineapple-hooper-is-formally-offered-and-accepts-role-as-rockhampton-s-mayor/ar-BB1b7uBU
You and all PNG citizenry might lukim tru at the PNG Constitution and statutes for similar rectification of inadequacy of process.
After all, that which was enacted as law on emergence from colonial times, if not adequately constraining ineptness and uncaringly flagrant camping, ought give rise to your "vote all of them out and get new ones".
[That uncaringly flagrant camping refers not only to the corralling usually seen at yardings of four-footed stock but to the high probability that such primitive tallying of followings is attendant with provisioning from the public purse.]
Posted by: Lindsay F Bond | 25 November 2020 at 08:35 AM
The late Thurgood Marshall had a rather loose but fascinating legal philosophy...."You do wat you think is right and let the law catch up"
Posted by: Bernard Corden | 25 November 2020 at 07:41 AM
Morals rest at the base of law.
Where there is no adherence to morals there is no recognition of the rule of law.
Laws do not determine what is right or wrong, only what is legal.
Posted by: Michael Dom | 25 November 2020 at 07:07 AM
In the next national election (2022) we will vote all of them out and get new ones who can develop PNG.
At the moment we have a constitutional crisis and it went beyond the Westminster system of government.
Whether in the opposition or government, all of them are corrupt and crooks with selfish motives.
Posted by: Philip Kai Morre | 24 November 2020 at 06:01 PM
"A nation gets the government it deserves" - Joseph de Maistre
Posted by: Bernard Corden | 24 November 2020 at 09:49 AM
A very astute commentary Patrick with which I entirely agree.
PNG has reached a point in its history where the citizens are entitled to expect that politicians actually understand their role.
Posted by: Philip Fitzpatrick | 24 November 2020 at 09:07 AM
Thank you Patrick for that message. Sadly most of PNG's MPs have an inherited mindset from the B4 MPs.
Almost from the first fully elected parliament emerged men who saw the opportunity to become MPs for life. (The few ladies fell by the wayside.)
But in the bigman ethos of their ancestors each would have to donate enough pigs or something else of value to convince their haus lains to put them back in via the weakness of the first past the post voting system.
I was among the foolish who imagined the alternative of preferential voting would stop that. It now appears with hindsight that it may have only exacerbated the need for even more cumshaw or downright vote buying.
I believe the sitting MP is chairman of his electorate's K10 million funding for development and that places huge pressure on him (or her) to be seen to be the instrument of parliament's largesse.
Perhaps per capita grants directly to each LLG would at least provide equable division of the K10 million or whatever amount it may be.
That at first seems a solution but then the MP would descend into local politics to ensure ward councillors would be favourable to him and his party.
Maybe that would mean the villagers would begin to understand that democracy only works if the grass roots have a real say in decision making.
I did some political education in south Lavongai villages prior to Independence Day. Several asked, "Why do we need an opposition? Surely everyone would want to vote for what was best for the nation."
I eventually realised that the village made community decisions after even heated debate on a consensus basis. Or so it seemed yet hidden from my foreign eyes were the machinations of the traditional bigman of the community.
In the late 1970s TIA president Walla told a New Zealand timber company, Grooms, they could not cut trees on Lavongai Island starting in Mamirum TRP.
So Grooms went home even though they had offered what I thought was a good deal.
Seemed a good result for the bigman to have achieved but lots of his people were not to know of the alternative which was coming from the north with the advent of rapacious Asian loggers able to suborn local elites.
Perhaps education will prove the answer to electing decent MPs. Don't hold your breath.
Posted by: Arthur Williams | 24 November 2020 at 07:16 AM