The Unconstitutional Blame Game

People blame the Supreme Court, by ordering that Sir Mike "is restored forthwith", for this Constitutional mess. I disagree...

Apart from being concerned about the Constitution, as a officer of the court, I believe it's my duty to correct a negative perception towards the court, which has unfortunately been expounded by fellow officers of the court...

You see folks, SC has a duty to the dispensation of justice and to provide clarity where there is obviously an area of uncertainty. And to avoid confusion.

Let me ask us all this: WHAT IF SC HAD NOT MADE SUCH AN ORDER? Would we still have this fiasco?? My answer:

YES!!!

You see if SC said "no vacancy" and left it there. ALL PARTIES will say... "NOW WHAT??"

Then Tiff and co would advise ONamah while Kua and co would advise Team Somare on next moves...thus ordinary lawyers would play "higher court" in interpreting and applying the decision of the Supreme Court...and the Constitution...

Sir Mike would say "well then I'm still PM!" and would run off to get his cabinet sworn in. ONamah would rush to Parliament to vote ONeil back in, and hold the fort till they get what they want...

Aha! But isn't that EXACTLY what happened?!

You see folks. Read the judgments. Not just the SCR 2011 but previous SCR matters. The court is allowed to make declaratory orders to avoid further confusion (that may arise out of its initial interpretation of the Constitution), in order that justice is done and the nation doesn't get thrown into further chaos. Also that the parties would know what to do about a particular case (I.e if the matter related to a particular case).

So when SC said "no vacancy"; in order to avoid the "now what?" moment, it invoked it's inherent powers to make further declaratory order so that parties know what the SPECIFIC CONSEQUENCE of its ruling is. Ergo, for clarity sake it said "Somare is still the legal PM" (restored forthwith)...a very NATURAL, LEGAL EFFECT of the "no vacancy" order.

Now please don't believe the lies that the Court cannot issue an order for Parliament. That's not what happened in this case. But it has happened before when Sir Paulias' re-election as GG was declared invalid. The Court told Speaker (Acting) to recall parliament ASAP to vote a GG because there was no GG. In giving that order the actual words were "in view of a vacancy". In this case there was no vacancy that required court to send the question back to Parliament to settle. It just declared WHAT IS.

(Please remember it was a DECLARATORY ORDER. Not a substantial order. As in like "I now appoint/re-instate Sir Mike as PM". Which is what current ONamah advocates are saying the court did! It was declaring what the legal effect of the Constitution was in the case before it. Every lawyer (well maybe not every) knows that Constitutional laws speak "from time to time" and are "self-executing". How? Through its letter and application by an authorized person (e.g EC) and, where there's confusion, through the courts when they interpret the law.

So the self-executing Constitution said "Somare is still PM"...savvy? Now it's up to the parties to respect the ruling of the court which is the MOUTH-PIECE of the Constitution at any given time. Especially when there's a major confusion.

If the 2011 SC said "no vacancy" and left it to our own pollies to sort out what comes next, we'd still have EXACTLY THE SAME MESS (starting with ONamah and Somare running in opposite directions)...or worse! And the
Court would have definitely failed us and failed itself.

If it said "no vacancy" and then ordered Parliament to go back to sort it out, it would have contradicted itself, making a mockery of itself. How can you say there was no vacancy (which would mean there STILL ISN'T) but then say "oh but please go ahead and elect someone"...the seat isn't empty! So it can't be refilled!

So it made the most logical and reasonable declaration it could under the Constitution. Obviously, one party didn't like it....

Folks, the rule of law, and justice, demand there law has a certain degree of CERTAINTY to it. That is, it should not be such that ordinary people cannot "TRUST THE LAW". And it must be clearly applied and clearly articulated. Leaving it open to people's own devices is dangerous (as we have only recently witnessed). So the court, as a responsible custodian and dispenser of justice, mandated by the People of PNG through the Constitution, tried to prevent such uncertainty with an explicit order as to who is the proper Constitutionally-correct PM...

You see folks the reason we're in this mess is that ONamah REFUSED to SUBMIT to the NATURAL effect of the Constitution (as interpreted by the SC).

NOT because SC "appointed" or "reinstated" Somare. Coz it didn't! It ensured there was a clear outcome to it's decision.

IT'S NOT THE COURT'S FAULT WE'RE IN THIS MESS...it's people's egos...

Luv ya

Tokaut tokstret...

(PS: I'll try deal with those retrospective laws, including withdrawing the leave grant, later)


Sent from R&G's iPhone