"And if your Magnificence from the summit of your greatness will sometimes turn your eyes to these lower regions, you will see how unmeritedly I suffer a great and continued malignity of fortune."
Nicolo Machiavelli's dedication of THE PRINCE to Lorenzo Di Piero De' Medici
I received two emails regarding the recent NRI spotlight article I had only briefly mentioned in my article in PNG Attitude Friday (18th February 2011). The NRI article titled "This PARLIAMENT – AND THE NEXT?" highlighted many issues we are all familiar with.
These issues include matters relating to the election of Provincial Member of Parliament including representatives for the new provinces, the election of female representatives, the role of MPs and the sitting days of Parliament. The paper also warns that time is of the essence as the Elections are just around the corner.
While the Legislative matters highlighted can be addressed by Parliament one issue that sets a very bad precedence relates to the days of this the Seventh Parliament of Papua New Guinea has sat. Whether by coincidence or design the Parliament has consistently sat less than 63 days each Parliamentary year.
The table below summarizes this discrepancy
(Source: Macpherson et al, "This PARLIAMENT – AND THE NEXT?")
Section 124 of the PNG Constitution states;
"CALLING, ETC.
(1) The Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament.
(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament." [Emphasis mine]
The Supreme Court in Supreme Court Reference No.4 of 1990 summarized the above section as follows;
1. When the Parliament shall first be called to meet after a general election;
2. The frequency of meetings in each period of 12 months; and
3. The duration of the meetings in each such period of 12 months.
The Parliamentary Year of the current Parliament begins in August and lasts for duration of 12 months as defined in Supreme Court Reference No.4 of 1990. In his reference to the Supreme Court, Attorney General asked the Supreme Court's "opinion concerning the meaning of requirements of s 124 of the Constitution." This was in response to National Court proceeding taken by the Opposition regarding the adjournment of Parliament.
The Court held that;
1. "…the first period of 12 months should commence on the day after the return of the writ after a general election".
2. "The requirement in s 124 that the Parliament meet not less than nine weeks in each period of 12 months applies "in principle" only. "…and any lesser period must "not be inconsistent" with the requirement of nine weeks."
3. "No duty is imposed by s 124 on any person, office, or institution to ensure that the Parliament complies with the requirement to meet three times in each period of 12 months."
However in Supreme Court Reference No.3 of 1999, the Ombudsman Commission asked the Supreme Court to interpret section 124(1) of the Constitution following the adjournment of Parliament that would have resulted in the Parliament sitting on 20 days in that Parliamentary year after having sat only 40 days the previous Parliamentary year.
The Supreme Court held that the Sixth National Parliament was in breach of Section 124(1) of the Constitution. It further ruled that "The words "shall meet" are also applicable to the requirement for the Parliament to meet "in principle, for not less than nine weeks in the period of 12 months." This means that during each Parliamentary Year Parliament must now meet for a minimum of nine weeks or be in breach of the Constitution.
The ruling of the Supreme Court in Supreme Court Reference No.3 of 1999 was challenged by the Head of State in Supreme Court Reference No.3 of 2000. The Supreme Court's decision was handed down in 2002 keeping intact its original decision in Supreme Court Reference No.3 of 1999. Amet CJ as he was then and Sawong J both dissenting.
Thus, is the current Parliament in BREACH of the Constitution? In Supreme Court Reference No.3 of 1999, the Ombudsman Commission asked the Supreme Court to define whether a breach of section 124(1) of the Constitution had occurred and when. The Supreme Court replied "The breach has occurred and is continuing." The Supreme Court held that "The breach may be remedied by sitting the required period if there is time within the 12 months period. … The power to remedy the breach by ordering the Parliament to meet by a prescribed day is to be found in s 23 of the Constitution."
Obviously, Parliament cannot rewind time and sit in the missing days of past years unless someone decides that we start using the Islamic Calendar.
There are some (including former and current Members of Parliament) who do not agree with Supreme Court's interpretation of "in principle" to mean "shall" with regard to section 124(1). They argue that this section sets out a non binding guide as to the number of weeks parliament decides to sit because of the use of the qualifying adjective "in principle". Furthermore, they dispute the Supreme Court's interpretation of 9 weeks to mean 63 days (7 days x 9 weeks = 63 days). They argue that Parliament only sits 4 days a week (Monday to Thursday) thus nine weeks could mean 36 days (4 days x 9 weeks = 36 days).
In Supreme Court Reference No.3 of 1999 the Supreme Court held per Kapi DCJ as he was then, that "To give effect to this principle, s 124 requires the Parliament sit in principle for duration of not less than nine weeks to perform its constitutional functions. To come to a contrary view is to fail to give effect to the intention and the underlying philosophy of the Constitution. If the Parliament loses its focus then it is the duty of this Court to point the Parliament in the right direction. The Court is duty bound to do this within the terms of s 124 and the enforcement provisions under s 22 and s 23 of the Constitution."
If the Seventh Parliament is in breach of the Constitution, is its existence unconstitutional and illegitimate? What can be done to remedy this breach?
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