Introduction

I have published this account somewhat belatedly; however, regardless of the current state of the constitutional crisis in Papua New Guinea, it brings some fundamental underlying principles of Westminster parliamentarism to light and provides an excellent case study in the consequences of combining a highly codified constitution with a system that traditionally rests on unwritten constitutional convention. Papua New Guinea’s codified constitution illustrates the dynamic between the Sovereign (Head of State), the Governor-General (the Queen’s representative), the Prime Minister, and Parliament. Interestingly, it also incorporates several elements that the Forseyite camp of Canadian constitutional scholars have studied or advocated: the constructive vote on non-confidence, the prime ministerial confirmation vote at the beginning of the session, the elimination of crown prerogative on dissolution, etc.

I argue that Papua New Guinea’s present constitutional crisis ultimately derives from its highly codified constitution, which, for instance, attempts to reconcile the contradictory concepts of popular sovereignty, as in a republic, and the sovereignty of the crown, as in a constitutional monarchy. The Constitution of Papua New Guinea provides an interest case study relative to my upcoming article that I co-authored with Nick MacDonald on “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia”

The Crisis

Papua New Guinea has descended into a bizarre constitutional crisis that pits the ousted Prime Minister Sir Michael Somare and the Supreme Court on one side against Prime Minister Peter O’Neill and Parliament on the other. The Governor-General of Papua New Guinea Sir Michael Ogio and the Queen – the supposed neutral, dignified parts of the Crown – find themselves trapped between the two political factions.

Papua New Guinea held its last election in June 2007. The Prime Minister Sir Michael Somare left Papua New Guinea in April 2011 in order to undergo heart surgery in Singapore; he appointed Sam Abal as Acting Prime Minister. Somare’s family announced his resignation in June 2011 while he was still recovering from surgery in Singapore; however, Sir Michael himself did not submit his resignation to the Governor-General as per Section 146 of the constitution.

On 2 August 2011, the Parliament voted 70 to 24 remove the Acting Prime Minister and nominated Peter O’Neill as Prime Minister. The Governor-General Michael Ogio then formally appointed Peter O’Neill. Sir Michael challenged this ruling upon his return to Papua New Guinea, and on 11 December 2011, the Supreme Court ruled 3-2 in favour of Sir Michael’s reinstatement. Governor-General Ogio then swore in Sir Michael and his cabinet on 14 December 2011 – which in effect gave the country two governments. “Parliament then voted to suspend Ogio” and appointed the Speaker as Acting Governor General. Parliament then nominated O’Neill as Prime Minister, and the Acting Governor General appointed him. These events have plunged Papua New Guinea into an unprecedented constitutional crisis. The latest report (as of 21 December 2011) indicates that the ousted Governor-General Michael Ogio admits that he should not have appointed Somare as Prime Minister.

The Paradox of Codification: Making Conventions Justiciable Limits Parliament and Empowers The Courts

The Constitution of Papua New Guinea contains numerous contradictions and codifies almost all aspects of government over the course of 166 pages, including the roles of the Queen – which the constitution unreservedly calls “the Head of State” –, her representative the Governor-General, the Prime Minister, the National Executive (the equivalent of our Privy Council), the confidence convention, motions of non-confidence, and the procedures for dissolution.

Popular Sovereignty or Parliamentary Sovereignty?

The preamble borrows its introduction from the American constitution and asserts that “We the People of Papua New Guinea […] hereby establish, adopt, and give to ourselves this constitution […].” This wording therefore adopts the republican concept of popular sovereignty and formally vests sovereign authority in the people of Papua New Guinea; in contrast, a constitutional monarchy would vest sovereignty in the Crown-in-Parliament. However, Section 82 defines Queen Elizabeth II as “Queen and Head of State of Papua New Guinea” after “having been requested by the people, through their Constituent Assembly” to assume this role. Essentially, the Queen is the Head of State of Papua New Guinea because the people so asked her. This provision seems inherently contradictory with the idea of constitutional monarchy; however, history shows that the Westminster parliament changed the line of succession twice, in 1688 and in 1707, in order to secure the Protestant succession. William III and George I became kings because Parliament asked them to assume the role of Sovereign. The invitation extends to all the Queen’s rightful heirs and successors: “The provisions of this Constitution referring to the Queen extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.” The difference hinges on parliamentary sovereignty vs popular sovereignty, but the idea of “electing a Sovereign” remains the same in principle.

The constitution prescribes both a “Declaration of Loyalty” and an “Oath of Allegiance.” The Declaration of Loyalty requires the office holder to “freely and willingly declare [his] loyalty to the Independent State of Papua New Guinea and its People and to the Constitution of Papua New Guinea […] and promise [to] uphold the Constitution and the laws of Papua New Guinea.” The Declaration of Loyalty also follows the classic republican model and acknowledges the sovereignty of the people and significance of the constitution in securing their sovereignty. However, the Oath or Affirmation of Allegiance follows the Australian standard: “I,…, do swear that I will well and truly serve and bear true allegiance to Her Majesty Queen Elizabeth II. Her heirs and successors according to law. SO HELP ME GOD.” While I can accept the idea of “electing a Sovereign”, because the Westminster parliament has done so twice in its history, I cannot reconcile the Declaration of Loyalty and the Oath of Allegiance: the former recognizes the republican principle of popular sovereignty, and the latter recognizes the sovereignty of the Crown-in-Parliament.

The Queen and the Governor-General

The constitution also codifies the powers of the Queen and Governor-General and the procedure by which the Governor-General is appointed. After defining the Queen as “Head of State”, the constitution then refers to this office by the latter appellation. Section 86 outlines the functions of the Queen; paragraphs 1 and 2 essentially eliminate all the reserve powers by declaring that the Queen “shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.”

The phrase the Queen “shall act only with […] the advice of the National Executive Council” (the cabinet) eliminates the exercise of royal prerogative at the Queen’s personal discretion or initiative. The addition of “and in accordance with the advice of the National Executive Council” means that the Queen must carry out the advice of her Ministers in Papua New Guinea, “in accordance with whose advice the [Queen] is obliged […] to act.” This paragraph also recognizes that additional Acts of Parliament may further regulate, limit, or abolish the exercise of crown prerogative.

Curiously, Paragraph 4 stipulates that the advice that the Cabinet or Prime Minister offers to the Queen is “non-justiciable” – notwithstanding that almost all the other codified provisions are by definition justiciable.

The Governor-General acts as the Queen’s representative and carries out all powers and functions of that office, except where the constitution otherwise notes. Section 87 Paragraph 5 states that the Governor-General will normally serve only one term, but that Parliament may, but a two-thirds supermajority, approve a second term. By Section 88, “The Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.” Judging by the wording, Parliament nominates a person for Governor-General through a simple majority vote and “exhaustive secret ballot”, after which the government must give the Queen binding advice to appoint the nominee. The Queen must remove the Governor General from office on the advice of the government; interestingly, an absolute majority in parliament can also force the government to advise the Queen to remove the Governor General. After the Queen’s dismissal of the Governor General, the Speaker or Chief Justice (in that other of precedence) becomes the “Acting Governor General.” Prime Minister O’Neill invoked this procedure.

The Prime Minister

Upon its first sitting after an election, the Parliament of Papua New Guinea nominates the Prime Minister in a confirmation vote, and the Governor-General is bound to appoint Parliament’s nominee.

Section 142: (2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

The Codification of the Confidence Convention and Procedures for the Dissolution of Parliament

Section 105 describes the three procedures through which a general election can be held.

1.A general election to the Parliament shall be held—
(a)   within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
(b)   if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—
(i)      a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or
(ii)       the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or
(c)   if the Parliament, by an absolute majority vote, so decides.

Papua New Guinea operates parliaments on a fixed term of five years. The specification in part b) seems unusual and only makes sense in light of Section 145. Essentially, it means that parliament can only defeat the government in order to precipitate fresh elections in the last 12 months of the life of the parliament, whether by passing a vote of non-confidence or by defeating the government on legislation that the Prime Minister has deemed a matter of confidence. However, Part c) seems to mean that “an absolute majority” of parliament can decide to dissolve itself at any time during the life of the parliament. The Fixed-Term Parliaments Act of the United Kingdom now allows the Westminster Parliament to follow a similar procedure. The crown prerogative on dissolution does not exist under the constitution of Papua New Guinea.

Section 145 codifies the confidence convention. It also allow demonstrates that the resignation or dismissal of the Prime Minister does not automatically entail the resignation of the Ministry as a whole. Linking back to Section 105, parliament can introduce only constructive votes of non-confidence during the first four years of the life of the parliament: the motion must nominate the next Prime Minister, and parliament cannot be dissolved for an election. And parliament can only introduce traditional motions of non-confidence during the last year of the life of the parliament: this motion must not nominate a new Prime Minister and necessarily triggers an election. Finally, subsection 4 states that parliament may not put forward any motions of non-confidence in the Prime Minister or the Ministry during the first 18 months of the Prime Minister’s tenure.

Conclusion

Section 145 places bizarre and unwarranted limits on parliament’s power. However, based on this section, I can only conclude that the Supreme Court ruled correctly that parliament violated the constitution by removing Sir Michael Somare as Prime Minister. The last election in Papua New Guinea occurred in June 2007, which means that 11 August 2011, the date on which Parliament nominated Peter O’Neill as Prime Minister, fell within the last 12 months of the life of the parliament. Section 145 clearly stipulates that Parliament may not nominate a new Prime Minister within the last 12 months of the life of the parliament; instead, fresh elections must be held.

Australian constitutional scholar Anne Twomey argued that, rather than involving the Queen, the Parliament should be dissolved so that the people of Papua New Guinea – who, after all, are the sovereign according to their constitution – can resolve this crisis through the ballot box. According to Section 105 of the Constitution of Papua New Guinea, “A general election to the Parliament shall be held if the Parliament, by an absolute majority, so decides”, which presumably means that Parliament can dissolve itself at any point during its constitutional limit of 5 years. Since the Parliament of Papua New Guinea possess the power to dissolve itself, I agree with Professor Twomey that fresh elections offer the best solution to the current crisis, especially given that Papua New Guinea must hold elections by June 2012 anyway. The people should determine the outcome in order to preserve what neutrality of the Crown remains, and hopefully, an election would ensure that all parties put aside their differences in order to avoid violence and bloodshed.

In that upcoming article on “The Officialization of Constitutional Convention”, Nick MacDonald and I describe “the codification of convention” as a paradox. Conventions are, by definition, politicallyenforceable norms that complement the written constitution or statutory law. In contrast, Acts of Parliament and the written constitution are justiciable – enforceable in the courts. Codification thus eliminates the politically-enforceable character of constitutional convention altogether by converting these political rules into justiciable law. Under a highly codified constitution, the government’s decisions are subject not merely to parliamentary scrutiny or approval, but to judicial review. Papua New Guinea proves our hypothesis beyond any doubt, and offers a warning to any other Commonwealth Realm on the perils of codification. If only we could have included this example in the article! The article therefore recommends only the “officialization” of constitutional convention: the creation of official interpretations of convention endorsed by Cabinet (in the form of a handbook or manual) that describe the proper exercise of constitutional authority. Officialization preserves the fundamental character of constitutional convention: their adaptability, particularly in difficult situations that would force the normal application of a convention to deviate from the underlying constitutional norm or principle that it represents.

Overall, I can only conclude that Papua New Guinea’s highly codified constitution has little bearing on Canada; Papua New Guinean precedents are therefore not “persuasive” (to use the legal-constitutional term) on Canada, but they do warrant further study. I must admit: while there are 16 Commonwealth Realms, I have only examined the 4 “core Commonwealth realms” (the United Kingdom, Canada, Australia, and New Zealand) in any detail and neglected the remaining 12 others. The constitutional crisis in Papua New Guinea showed me the incredible institutional diversity of the Commonwealth Realms and the excellent opportunities for comparative analyses that they provide.

Related Posts:

• The Manual of Official Procedure of the Government of Canada
• The Origins of Prime Ministerial Centralization of the Crown-in-Council Prerogatives