Monday, November 14, 2011

Constitution in crisis

Source: Post Courier, November 14, 2011
PM calls for calm, says it’s a healthy democracy . . .
PAPUA New Guinea is facing its most volatile Constitutional crisis – a stand-off between its second and third tiers of government – the Judiciary and the Executive.
Up front in this seemingly explosive power-play is the possible jailing of the Acting Prime Minister, Belden Namah, and the Government’s chief legal advisor Attorney General, Dr Alan Marat, on charges of contempt of the Supreme Court.
It is understood Mr Namah and Dr Marat will head to Port Moresby’s central police headquarters between 9 and 10 today.
The unprecedented confrontation is the first for PNG stemming from last week’s extraordinary suspension of the Chief Justice Sir Salamo Injia by the National Executive Council (NEC) chaired by Mr Namah, on the grounds of alleged mismanagement in office.
The Supreme Court countered through Justice Bernard Sakora by approving a stay order on Sir Salamo’s suspension and issued bench warrants for the arrest of both leaders last Friday.
The acting Police Commissioner Tom Kulunga has acknowledge receiving the court orders and has seven days to effect them.
Only one near precedent is the jailing of former Justice Minister and Member for Manus, Nahau Rooney, for contempt of the Supreme Court in 1979 which saw the Prime Minister, Michael Somare, using his powers of mercy to release her.
Nearly half the bench including the then Chief Justice resigned after her release.
The build up to the current situation happened late last Thursday when the judiciary countered with Justice Bernard Sakora approving a stay order on the suspension of the Chief Justice including the arrest of the two, pending formal charges of contempt to be laid by the Registrar of the Supreme Court. The order includes detaining of Mr Namah and Dr Marat until their appearance on December 12, 2011 at 9.30am.
So far Mr Namah and Dr Marat have not backed down from the NEC decision and appear to have the support of Prime Minister Peter O’Neill who is attending the Asia Pacific Economic Community summit in Honolulu, Hawaii.
Mr O’Neill issued a statement brushing aside the collation of the August 2, 2011 events resulting in his election as Prime Minister as being pivotal to the current situation. Maintaining the suspension, Mr O’Neill said it was unrelated to the August 2 proceedings. At a press conference last Saturday Mr Namah said the same emphasising his government’s aim to target elimination of corruption.
Dr Marat on the other hand decried having not been given the opportunity to explain his reasons over the sequence of events resulting in the ultimate decision reached by NEC. Both men are in Port Moresby but are yet to be served the bench warrants. Contempt of the court carries a fine, three years jail term or both.


PNG faces crisis: Observers
By TODAGIA KELOLA
THE head on collision by the two arms of Government has been described by observers as serious constitutional crises for the country.
Former acting Judge Nemo Yalo, senior lawyers and some senior police officers said the impasse by both arms of Government would create confusion on how other constitutional bodies perform their duties and responsibilities.
“Especially the police force which has been tasked to execute the arrest orders on the two leaders, whilst we are bound to execute the court order, from experience there is always repercussions from the Executive arm when things are back to normal,” said a police officer on condition of anonymity.
But Prime Minister Peter O’Neill has brushed aside these concerns, saying he will never allow such situation to occur when he is the head of the country. In a statement released from Honolulu Mr O’Neill said: “There is no reason for citizens and residents to fear a collapse of the rule of law or to speculate about the onset of a constitutional crises.
“What the nation has been watching and experiencing since August 2 is a healthy democratic display of the Legislature, the Executive and the Judiciary proactively exercising their respective constitutional and independent roles as the three arms of Government.
“That being so, the gravest development we must all expose, oppose and depose is the intrusion by all three arms of Government into the affairs of each other.
“One arm of Government must not unilaterally usurp the powers and authority of the other and vice versa.
“The exercise Government’s collective right to make national interest decisions – including decisions relating to members of the judiciary collectively or individually in the interest of transparency and good governance – through the National Executive Council should not be usurped by the threat of warrants of arrest for members of the NEC.’’
Mr Yalo, in a statement, said the NEC suspension of Chief Justice and its appointed of a tribunal was wrong in law.
“The head of state has those powers. If the NEC exercised those powers they are procedurally seriously flawed and unconstitutional. The fact that NEC conducted a marathon meeting on Thursday afternoon till late and the evidence of the head of state’s gazettal notice was published after hours raises more suspicion. Whilst I do not condone any misconduct by the Chief Justice, if any, this is the worst case of abuse of power at the highest level. “...If this is not a corrupt abuse of power then what is?”

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