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Staff Reporter 7/15/2013 | |
There is ongoing debate about whether or not the Constitutional amended that granted to a government elected into office 30 months grace period from motions of no confidence is constitutional. The constitutional amendment is a direct response to frequent use and abuse of the motion of no confidence provision in the Constitution. It was and has been argued that the amendment is necessary to prevent such abuse and thereby achieve political stability and stability in government. But is the Constitutional amendment Constitutional? What are the practical implications of this law? This author expresses his independent personal views on these questions for the public benefit.  
In early 2013 the Parliament passed an amendment to the Constitution effectively giving a government extended 30 months grace period from motions of no confidence being moved against it. What are the practical implications of the Constitutional amendment granting extended grace period of 30 months to any government under our Constitution? Firstly, the practical effect of the extended grace period is that the law favours one person to be the Prime Minister for 30 months and an additional 12 months if the last 12 months grace period prior to the general election is included. That is a total of 42 months. The constitutional amendment favours one MP and discriminates against the other 110 MPs. This is arguably contrary to Section 55 of the Constitution which says that every citizen (in this case, MPs) has equal rights under the Constitution to be elected Prime Minister. That is not to say that the nation should have more than one Prime Minister in every five-year Parliamentary term. The question should be left open as is the case in other democracies so that where a Prime Minister is weak, corrupt, unfit for the office or is tyrannical he should be held accountable in a timely manner rather than allow the law to insulate him from accountability and the principles of responsible government. Any one of the other 110 MPs who has the equal Constitutional right and is qualified and is fit should be able to seek to hold the office of the Prime Minister and he should not be prohibited by the same Constitution from exercising such right. 
Secondly, the law in favoring one MP (i.e. the Prime Minister), itrestricts the other 110 MPs’ Constitutional right to be a Prime Minister and exercise public duties relating to that office in accordance with Section 50(1)(e) of the Constitution. This provision says that every citizen has a right “… to hold public office and to exercise public functions’. Lets face it, who seeks to be elected to Parliament not to be a Prime Minister? Once elected into Parliament, an MP has a Constitutional right and is entitled to be elected Prime Minister provided one plays his or her political cards right. It is unimaginable that the Constitution insulates only one MP’spolitical interest whilst the very same Constitution grants all other 110 MPs’ equal right to be the Prime Minister and exercise public duties associated with that office.
Thirdly, speaking of ‘restricting’ a Constitutional right, the law is settled in our jurisdiction. Some constitutional rights can be regulated but not restricted. That is, Parliament may pass laws to limit certain Constitutional rights and freedoms but not completely prohibit or remove it. The right to vote and to stand for public office and the right to occupy public office and exercise public duties associated with that public office under Section 50 of the Constitution are rights that cannot and must not be restricted. Constitution at Section 50(2) says so. As if that is inadequate, Schedule 1.20 of the Constitution reiterates the same thing. The Supreme Court has interpreted and applied these provisions in numerous instances and has pronounced clearly that a right to vote and to stand for public office and the right to occupy public office and exercise public duties associated with that public office under Section 50 of the Constitution cannot and must not be restricted. On 7 July 2012 the Supreme Court nullified certain provisions of the Integrity Law because those provisions restricted MPs right to conduct public office under Section 50(1)(e) of the Constitution. The principles of law pronounced in that case no doubt applies in this case. The Constitutional amendment granting 42 months insulation to one individual MP restricts all other 110 MPs Constitutional right to be elected a Prime Minister and occupy that office and conduct public duties relating to that office. It also restricts, for an extended period, an individual MP from keeping the Prime Minister accountable through a motion of no confidence should they find it necessary to do so. Bringing a motion of no confidence against a Prime Minister or his government is in essence “conduct of public affairs” by persons (i.e. MPs) “occupying public office” within the meaning of Section 50(1)(e) of the Constitution. No law can restrict a Section 50 right.
Fourthly, the same restriction placed by the extended grace period applies to the Parliament as the highest accountability mechanism under our Constitution. If within weeks or months after taking office, a Prime Minister proves to be weak and corrupt or his government mismanages public funds so much so that PNG is fast heading to bankruptcyhe cannot be held accountable immediately. The Parliament simply has to wait for 30 months before attempting to keep him accountable. He is insulated from the principle of accountability and the principle of ‘responsible government’. Timely accountability is the bedrock of PNG’s Constitution. It is one of the basic tenets of democracy. It is the Peoples’ best insurance policy for weak and tyrannical government. How can one provision in the Constitution stand contrary to the fundamental principle that underscores the whole Constitution? Restricting or prohibiting accountability for an extended period is inconsistent with the constitutional principles of responsible government and accountability. 
The Constitution was drafted by the Constitutional Planning Committee (CPC) following comprehensive public consultations. The letter, intent and the spirit and the fundamental values and principles of the Constitution reflects the Peoples’ wishes and aspirations. This Constitution has never been under serious threat than in the last 18 months starting from August 2011 and appears to be continuing. With respect, the members of the CPC were less educated than the leaders of today. Yet the world marvels at our Constitution. The timeless fundamental values and principles that permeate our Constitution which reflects their wisdom castsinto doubt today’s intelligence. Whatever justifications offered, fiddling with or chipping away at the very bedrock principles and values that define our autochonous Constitution is a risk not worth taking. The government should make it its business to conduct wider and comprehensive consultations with the People first if it intends to enact or amend the Constitution or any other Constitutional Laws. After all that is how our Constitution was initially framed. If we opt for a conduct of nation-wide referendum on every proposed Constitutional amendment as it happens in Australia and other countries it may be costly exercise. No doubt, times have changed since1975 when the Constitution was first enacted. It needs to be revisited occasionally to make it suit the times. It seems it is difficult to legislate MPs’ behavior and attitude. Let us not attempt to fix our leadership attitudeby law and weaken the Constitution in the process. As the Supreme Court advised on 7 July 2010 in its ruling in relation to the Integrity Law what the MPs need is education and reorientation of their attitude and understanding of their roles and the purpose of political party system. Perhaps it is timely for the Supreme Court to determine the Constitutionality of the “grace period”.Could the Ombudsman Commission or the Law Reform Commission take up the challenge?

By Nemo   Yalo 
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