[the conversation - Anthony Regan ] Papua New Guinea has been gripped by political turmoil for almost a week now. Two men – Sir Michael Somare and Peter O’Neil – are currently claiming to be the rightful prime minister of the nation. Both have set up their own cabinets, and both answer to a different governor-general and police commissioner.
It was reported (16 dec, 2011) that O’Neil had managed to wrest power from Somare in the form of a coup, and that the crisis was essentially over. But reports from Port Moresby suggest the contrary – that Somare still claims legitimacy. It continues to be unclear how the stand-off can readily be resolved. So far violence has been avoided, but a continuing impasse could turn at any stage.
Constitutional lawyer and former Papua New Guinea resident Anthony Regan has been monitoring the political imbroglio as it has unfolded this week, corresponding with sources in Port Moresby. He explains below some key aspects of how such an unprecedented crisis came to pass for Australia’s closest neighbour.
How is it possible that the country now has parallel government structures – two prime ministers, cabinets, two governors-general, and police commissioners?
To understand how this situation has occurred, some background is required. Papua New Guinea national politics revolves round key personalities and patronage, with political parties of limited significance, and party ideologies and policies even less. Control of government is critical to dispensation of patronage. As a result, from independence in 1975, PNG saw high levels of instability in government, with members of Parliament often swapping sides. Constitutional limits on “party-hopping” were instituted in 2002, Michael Somare and his National Alliance Party (NA) being the main beneficiaries. Somare, in particular, was able to hold office as prime minister from 2002 until August 2011. Late in 2010, the PNG Supreme Court ruled key aspects of the limits unconstitutional. Always adroit, Somare clung to power, despite several moves to oust him.
In late March, an ailing 75 year old Somare went to Singapore for major heart surgery, leaving another MP, Sam Abal, as acting prime minister. Complications saw him remain there until September. His condition seemed grave, on 28th June his son Arthur (also an MP) announced a Somare family decision that his father had retired. It was, however, a decision about which the PM later said he had not been consulted. In any event, there was a high degree of uncertainty about how to deal with the situation. Moves were made to follow complex constitutionally mandated procedures to have Somare declared unable to be PM, on medical grounds, but the process was difficult.
On 2 August, leader of the opposition, Belden Namah, unexpectedly moved a motion in parliament to declare the PM’s office vacant. Despite the absence of a constitutional basis for such a step, the speaker allowed the motion. Some 48 members of the government voted in support of the opposition, including about half of Somare’s NA members. The then Minister for Finance and Treasury was elected PM. The move was attacked as unconstitutional by many observers, and challenged in a succession of court cases culminating in a Supreme Court decision handed down on 12 December.
The court’s decision declared unconstitutional both Somare’s removal as PM and Parliament’s decision to declare his seat empty, and ordered Somare’s restoration. On the same day, however, parliament passed an amendment to the Prime Minister and National Executive Council Act law retrospectively validating the acts of the Parliament in removing Somare as PM. There were 72 votes in favour.
Somare sought action from the governor-general to swear in his cabinet. After hesitation, the governor-general honoured the Supreme Court orders, and the swearing in occurred on 13 December. In response, parliament (O’Neil’s support there remaining solid) directed the governor-general to swear in O’Neil. When the governor-general failed to do so, the O’Neil Cabinet suspended him. Under the PNG constitution, suspension results in the speaker becoming acting governor-general. O’Neil was then sworn in again as PM by the acting governor-general.
Both Somare and O’Neil claim a constitutional basis for being PM, one under a Supreme Court order, the other under the December 12 Act of Parliament, a law which the Supreme Court has not yet considered. As each PM has appointed their own ministers, there are parallel cabinets. While Somare recognises the authority of the governor-general, O’Neil instead recognises the actinggovernor-general.
As for the two Police Commissioners, the O’Neil government had previously appointed Mr. Toami Kulunga to that office. When the constitutional crisis erupted on Monday 12 December, Mr. Fred Yakasa, a senior officer reported to be disgruntled with his being appointed police commander in Bougainville, emerged as head of a police unit apparently supporting Somare. On 13 December, Somare announced that Kulunga had been dismissed from office and replaced by Yakasa.
Who are the key players?
Peter O’Neil, 46, is leader of the People’s National Congress Party. His surname is that of his Australian father, while his mother is from Southern Highlands in PNG. An accountant, with a background in real estate and management, he represents a seat in the Southern Highlands Province, being first elected in 2002.
Grand Chief Sir Michael Somare, 75, entered the colonial legislature in 1968, with a background in teaching and radio journalism. Representing an East Sepik seat, he headed the first “indigenous” government pre-independence (1972-75) and was then prime minister from 1975-80, 1982-85, and 2002-11.
Sir Michael Ogio was MP for North Bougainville when appointed governor-general in January 2011 through a vote of the PNG parliament (the formal appointment being made by the Queen, as head of state, acting on and in accordance with the decision of the parliament).
Jeffery Nape was first elected speaker of the PNG Parliament in 2004. Far from being impartial, he had a record of highly partisan rulings that helped the Somare government retain power. In entertaining the motion to declare the PM’s seat vacant in August 2002, Nape caught the acting PM, Sam Abal, by surprise.
What are their claims to legitimacy?
Somare not only claims legitimacy under the Supreme Court decision ruling his removal from office as unconstitutional, and directing his restoration as PM, but also claims to be supporting and restoring the constitutional order disrupted by the unconstitutional acts that saw O’Neil become PM.
By contrast, O’Neil relies on two main arguments. The first concerns the December 12 amendment to the Prime Minister and National Executive Council Act, which was not considered by the Supreme Court in making its ruling of the same day. Under the PNG Constitution, legislation is valid unless ruled unconstitutional by the Supreme Court. He argues that in the absence of such a ruling, the legislation should be followed, and he should hold office. His second argument involves a principle of ‘parliamentary supremacy’, to the effect that the PM should be the person supported by the majority of MPs.
In relation to O’Neil’s arguments, however, two significant points arise. First, with over 70 MPs currently supporting him, O’Neil can argue that Somare would face grave practical difficulties in governing. However, Somare could answer that argument by saying that once in office, PNG experience would suggest that his level of support may well rise. Second, there would be a strong possibility that a Supreme Court challenge would see the amending law ruled unconstitutional, for example on the basis that it indirectly amends the constitutional requirements for appointment and removal of the PM, without any constitutional basis for doing so.
How does the PNG Constitution allow such a situation to occur?
The PNG Constitution is one of the longest and most detailed in the world, in its detail seeking to avoid problems that sometimes arise in Westminster and other parliamentary systems. The situation here has not arisen because of inherent faults in the constitution. Rather, the problem lies in the intensity of competition for office in the PNG political and constitutional systems, and because the decision on resolving the competing claims for constitutional legitimacy between Somare and O’Neil was made by the wrong authority, one not empowered or equipped to make such a decision.
In effect, the governor-general was called upon to resolve the conflict. But as a ceremonial office, with none of the “reserve powers” of, say, the Australian Governor-General, he was ill-prepared for such a role. In a situation where O’Neil’s primary claim to constitutional legitimacy rests on the validity of the amending Act of 12th December, it should have been the Supreme Court that ruled on that issue. In doing so, the Court could also rule on his claims about the principle of parliamentary supremacy in relation to appointment of the PM. By making a decision to recognise Somare, without resolving the alternative claim to legitimacy, the impasse has intensified. Unfortunately, the intensity may become so great that not even a constitutional ruling of the kind suggested will be acceptable as a way of resolving it.
The stand-off has remained nonviolent, can this continue?
The impasse is causing serious tensions not only within and between government institutions, but also in PNG society. There have been previous grave crises in PNG that have caused similar difficulties. In general they have been resolved without significant violence. In particular, the security forces (police and army) have generally exercised restraint. Further, while there have sometimes been popular demonstrations, the limited violence arising from them has mostly involved opportunistic elements damaging and stealing from retail stores.
It is difficult to say whether or not the current tensions will escalate into violence. There have been shots fired by police outside the governor-general’s residence on Monday 12th, though no one was hurt. While there are tensions within the police force, they have so far been contained. The Papua New Guinea Defence Force (the army) has been in lockdown so far, with senior officers indicating that in a situation of doubt about the location of ultimate civilian authority, the army must avoid becoming involved. In relation to community action, so far there have been just a few small demonstrations in favour of O’Neil.
On the other hand, the longer the situation remains unresolved, the more risk there may be of heightened tensions, and dangers of pressures building for action, either by security force elements or groups in society.
What should Australia’s role be in this conflict?
Australia has limited scope to play any significant role beyond offering wise counsel to key actors on all sides to take moderate positions. Foreign Minister Kevin Rudd has good relations with both Somare and O’Neil. The Australian High Commission in Port Moresby is in good communication with both of them, as well as with many of their key advisers and supporters. Through such links, Australia can have considerable influence.
Beyond such action, it must be remembered that there are also resentments in PNG about Australia’s role as colonial authority, and as an aid donor often critical of trends there. If Australia were to apply too much pressure, or act in ways seen as interference in domestic affairs, its ability to influence through wise counsel could be lost.
How do you see this ending?
It is difficult to see how the situation can readily be resolved, because both sides seem to be increasingly taking a “winner-takes-all” stance. Possibilities for compromise seem few. However, there are moderates and cool heads on both sides. There are ongoing contacts between some opposing individuals. The same is true of opposing groups in the police. There are also many influential figures and groups in “civil society” (churches, NGOs and others) that are voices for moderation. It is in large part because of such factors that PNG’s political and constitutional systems have previously demonstrated great resilience.
If the impasse cannot be resolved quickly, there would be possibilities of beneficial outcomes from more intense diplomatic efforts, perhaps involving a group of countries from the region.
Anthony Regan works for the Bougainville government on an AusAID project.