[This comment was originally published by On Line Opinion on 20 December 2011 at the editor’s invitation as “Evisceration of reserve powers causes chaos on PNG”]
A key principle of the Westminster system may be found in the saying sometimes attributed to Winston Churchill:
"The Crown is important not so much for the power it wields, but for the power it denies others."
In his rush to force Papua New Guinea into premature independence, Gough Whitlam allowed the new country to be burdened by an inadequate constitutional system. This nominally keeps the Crown, but removes all of the reserve powers. So Papua New Guinea was to remain a constitutional monarchy, but one without any of the safeguards the system normally provides.
Worse, there is an attempt in the document to codify the various conventions. Even if accurate, this stops their development to cater for new situations. It can also make them justiciable, that is potentially subject to legal action. This slows down the process, and makes it legalistic. As we shall see, there is also an attempt to answer some of those many problems of government which are best solved informally and pragmatically.
…why the hurry?…
At least part of the reason for his haste was that Gough Whitlam seems to have been far too eager to comply with the demands of the Russian communists, and not only against so-called Australian colonialism. Under his government, Australia – alone among the Western powers – even recognized the brutal incorporation of the Baltic States into the now defunct USSR.
Apparently he expected Papua New Guinea to choose to become a republic. He left the country without legal assistance, and the new constitution was not to be given legal force through an Australian Act of Parliament. This would have involved Australian constiutional lawyers in at least an advisory role. Papua New Guinea was just cast adrift, legally speaking. The PNG draftsmen assumed the country would become a republic, and accordingly thought the royal conventions would not continue. But many New guineans were opposed to independence and the PNG leaders asked The Queen to become the country's monarch. The Queen lokke dto Australia for advice omce remain sovereignto remain a monarchy. Gough Whitlam was reluctant to advise The Queen on this, but eventually informed her that this would not cause her embarassment. ( See Peter Basset," Thirty Years on How Papua New Guinea became a Constitutional Monarchy".)
Mr.Whitlam's error is the key to understanding the current crisis in Papua New Guinea.
It all began when the Prime Minister, Sir Michael Somare, went to Singapore in late March for heart surgery. Because of complications, he was unable to return until September. The outlook was so gloomy that his son announced that he had retired. But then Sir Michael claimed he had not been consulted about that announcement and said he would continue.
Back in Port Moresby, a number of MPs believed he was no longer capable of leading the country. Section 142 of the Constitution answers how this is to be done. In fact, the Papua New Guinea Constitution has the answer for far too much and where it is needed, no answer. It is extraordinarily detailed, indeed, too detailed.
If we follow the crisis as it developed , we can see six significant weaknesses in the Papua New Guinea Constitution, all absent from the Australian, Canadian and New Zealand ones.
…first unwise aspect of the Constitution …
This section says that a Prime Minister can be removed by The Queen acting on the advice of Parliament. But for Parliament to act, the Speaker must table certificates from two medical practitioners that in their professional opinion the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out his duties.
It is extraordinary that the Constitution would go into such detail. Where a leader is deemed by his colleagues to be unfit for office in Canberra or in London, a practical solution is soon found. However, there is one Australian example which should not be emulated. That was when the behaviour of a federal leader of the opposition suggested that he was in the early stages of dementia. To get him out of the way, he was installed as the Chief Justice of New South Wales. Did they think nobody would notice?
In any event, the Constitution prescribed how this should be done. Under the rules of interpretation it was clear that no other way existed to force the Prime Minister out of office for being unfit. The alternative, a vote of no-confidence, is only available within a limited time under the Constitution. ( My understanding was this is a result of an amendment
In the absence of medical evidence, the Leader of the Opposition moved a motion in Parliament on 2 August declaring the Prime Minister's office vacant and his seat unrepresented. The Speaker, Jeffery Nape, should have of course ruled this out of order. He did not and the motion was passed.
Another constitutional provision compounded the problem. Instead of leaving the appointment of a Prime Minister to the Governor-General acting in accordance with established conventions, the Constitution states that the Parliament – there is only one chamber – elects the prime minister. They did this and they chose Peter O'Neill. The Governor-General, Sir Michael Ogio, had no discretion to refuse to swear him in.
The motion declaring the Prime Minister's office vacant was quite correctly found to be unconstitutional by the Supreme Court on 12 December – four months later. The court said Sir Michael was still the Prime Minister.
The delay in coming to this decision demonstrates how unwise it is to remove the reserve powers from the Crown. With appropriate legal advice the Governor-General, would no doubt have almost immediately decided not to call Mr. O'Neill and to leave Sir Michael in office.
In any event the Governor-General accepted the court's ruling and duly swore in Sir Michael and his ministry. Parliament reacted by ordering the Governor-General to reinstate Peter O'Neill. It also passed legislation purporting to validate its action against Sir Michael.
When the Governor- General understandably refused to reinstate O'Neill, Parliament resorted to yet another section unwisely inserted into the Constitution. This gives Parliament the power to suspend the Governor-General. This they purported to do.
Then we come to yet another unfortunate provision. On such a suspension the acting Governor- General is none other than the very man who allowed the original unconstitutional motion removing the Governor –General, the Speaker, Jeffery Nape.
This mess is the direct result of hastily drawn up Constitution which attempts to codify too much but which takes away one of the most important checks and balances on the politicians, the reserve powers. .
The danger of abuse is exacerbated in Papua New Guinea through the fact that Parliament has only one chamber – there is no Senate.
The problem in this instance is not the result of tribalism which hinders the development of a true party system. That is another issue. It is the Constitution.
…Westminster and Australia…
The Westminster system has proved to be one of the most successful constitutional systems in the history of the world. It was achieved not by wise men designing a Constitution in advance. It is the result of the evolution of the constitutional system in the United Kingdom over a long period of historical development. It is the result of the adoption of practices which were found to work – and work well – and which in the course of time became conventions of the Constitution.
The Australian Constitution, the product of our very wise founding fathers, is based on the Westminster system, incorporating specific provisions only when these were deemed necessary. The core of the necessary provisions relate to the adoption of federalism. But you still hear complaints that, for example, the prime minister is not mentioned in the Constitution. He does not need to be, and if he were this could lead to the sort of unintended consequences we are seeing in Moresby. As the no case declared in the 1999 referendum: "If it ain't broke, don't fix it…"
The Westminster system requires that there be in place significant checks and balances on the political arm, through for example, a bicameral parliament, an independent judiciary and that central institution which is beyond political power, the Crown.
Australiahas seen one significant attempt to rewrite the constitution. This was the republican model which was put to the people and rejected in 1999. In response to weaknesses exposed initially by the constitutional monarchists, the model had gone through a number of iterations at the 1998 Constitutional Convention and in its drafting.
In its final form its most serious flaw was that it would have been the only republic in history in which it would have been easier for the prime minister to sack the president than his cook.
The president – who was to be a pseudo-constitutional monarch – could be removed at any time without notice, without reason and without appeal. This effectively removed the reserve powers by ensuring that they could never be exercised. It significantly enhanced the power of the Prime Minister and the political class.
It could have produced the sort of constitutional quagmire that currently exists in Papua New Guinea. Fortunately, Australians are, as the late Richard McGarvie once observed, a wise constitutional people.
What a pity Mr. Whitlam did not pass on some of that wisdom to our former trust territory