The 2011–2012 Papua New Guinean constitutional crisis was a political dispute between Sir Michael Somare and Peter O'Neill, both claiming to be the rightful Prime Minister of Papua New Guinea.
O'Neill had been elected by parliament as prime minister on 2 August 2011 and Sir Michael Somare claimed the post on the basis of a Supreme Court ruling on 12 December 2011. Article 142(2) of the Constitution provides that the Prime Minister is appointed "by the Head of State, acting in accordance with a decision of the Parliament." The Queen's role is executed by the Governor General.Constitution of the Independent State of Papua New Guinea http://www.parliament.gov.pg/constitution-of-the-independent-state-of-papua-new-guinea No date on posting. Accessed on:1 July 2018 The Governor General had therefore to decide on the actual wish of parliament: the opinion identified by O'Neill or the wish as defined by the Supreme Court.
The situation raised important constitutional issues. The actual crisis cannot be understood as a question of law in the first place. It was part of a longer standing power struggle between opposition and government. O'Neill won that struggle and remained de facto in power after the court ruling. It laid the foundation for his dominance in the PNG political arena. Somare did not admit defeat. The 2012 election, however, gave a clear victory to O'Neill. Somare accepted the outcome and he even supported the election of O'Neill as prime minister. The conflict flared up again during the Peter O'Neill/Leo Dion government period from 2012 to 2017.
Background The government of Michael Somare was already challenged before the constitutional crisis. The opposition had tried to mount a motion of no confidence since 2009. This was blocked by the speaker, Jeffrey Nape, through adjourning parliament before the motion could be tabled. Somare's reputation was also dented by a leadership tribunal in 2009. That tribunal, however, treated him lightly. During the tribunal he appointed Sam Abal as acting Prime Minister. Abal was again acting Prime Minister when Somare was hospitalized in Singapore in March 2011. The position of Prime Minister became particularly opaque when Arthur Somare, a son of Michael Somare and an MP as well, announced in June 2011 on behalf of the family that Somare had spent three weeks in intensive care and could not be expected to resume work as prime minister.Ailing PNG leader Somare retiring: family. Available at: http://www.abc.net.au/news/2011-06-28/ailing-png-leader-somare-retiring-family/2775212 Posted on 28 June 2011 Accessed on: 1 July 2018 Arthur Somare positioned himself in this way for the post. The legality and validity of this statement was challenged immediately as Michael Somare had not been heard himself.Family urges Sir Michael Somare to quit as PNG leader but PM’s office denies resignation. Available at: https://www.theaustralian.com.au/news/world/sir-michael-somare-quits-as-png-leader/news-story/302839d1a7acbe13740393dac8fbbb61?sv=a8aceb9611d7522f45299c4a246083f8 Posted on 28 June 2011
In this uncertain situation the opposition tried to mount another motion of no confidence. The success of such a motion was not certain at all. The government of Michael Somare had been established with the support of a large majority in parliament (86 out of 109 votes). Somare had already lost the support of some MPs when the Supreme Court loosened the restrictions on MPs to change sides. A previous attempt to mount a vote of no confidence by breakaway ministers and MPs led by Puka Temu had been unsuccessful. Somare's majority could only be confidently challenged if there was a revolt in his party, the National Alliance (NA). It was also vital that the Speaker would change sides, as he had obstructed previous attempts. When the speaker did so and allowed an open vote for a new government, the parties supporting the Somare government split. NA divided in a breakaway group itself under the leadership of Don Polye (21 MPs), opposed to a group that remained loyal to Sam Abal and Michael Somare (20 MPs).PNG National Alliance party suspends Abal http://www.pireport.org/articles/2011/07/26/png-national-alliance-party-suspends-abal Posted on 26 July 2011 Accessed 1 July 2018 The desire not to seem displeasing to Somare may be the reason that it was in the end not presented as a motion of confidence but a declaration that the post of prime minister was vacant. This had large consequences in the ensuing court cases.
The revolt proved successful. Peter O'Neill became the new Prime Minister with the support of 70 MPs out of a 109-member parliament. However, O'Neill's People's National Congress (PNC) had only six seats in parliament. PNC had supported the Somare government since 2007. Belden Namah and Mekere Morauta of the main opposition PNG party led the revolt, but they did not become prime minister. Namah, the leader of the opposition, became deputy Prime Minister. He had also been part of the Somare government. Don Polye, who had led the revolt in NA, became the Minister for Finance and the Treasury. He had been strongly tipped for the post of Prime Minister.Ron May, Papua New Guinea’s "Political Coup": The Ousting of sir Michael Somare. Available at: https://openresearch-repository.anu.edu.au/bitstream/1885/141449/1/BriefNote_2011_1_May_0.pdfPosted on: 1 November 2011 Accessed on: 1 July 2018 It was thus to a large extent a revolt from within.
Mekere Morauta on the contrary had been the prime opponent of the Somare government. He did not become involved in the ensuing struggles surrounding the legality of the first O'Neill government. Instead, he used this position to fight a vigorous cleanup campaign of public enterprises in which he attacked especially the heritage of his predecessor, Arthur Somare.IPBC: Unfinished Business, Speech by Rt Hon Mekere Morauta KCMG MPMinister for Public Enterprises, Dinner hosted by IPBC, 12 July 2012. Available at: http://www.kch.com.pg/unfinished-business/ Accessed on: 6 November 2017
Legal battle The government of Somare/Abal was therefore not defeated by a motion of no confidence. In that case the position of O'Neill would have been unequivocally covered by law. It is puzzling that instead, the Speaker had allowed a motion to declare the post of Prime Minister vacant because of illness. That possibility was covered in the Constitution in section 142(5,c) on the grounds: "that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office." Parliament had approached the Papua New Guinea Medical Board for such a mission to Singapore at the beginning of Somare's hospitalization. Nothing came of that.
The next possibility envisioned concerned the absence of a Member of Parliament, and because the PM is an MP in a Westminster parliamentary system, this is therefore applicable to the Prime Minister. The relevant section 104 (d) of the Constitution reads: "if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given".
Somare had been absent since March but his reasons were accepted by parliament and he was granted leave until May 2012. Parliament then withdrew this leave. However, in early September Somare returned to PNG and declared that he was willing and able to finish his term of prime minister. On 6 September he made a brief appearance in the chamber and therefore the rule of missing three consecutive meetings no longer applied. On 9 December, Parliament amended the law to state that an absence of ninety days would make a parliamentary seat vacant. The Supreme Court would give a judgment on the legality of the O'Neill government on 12 December 2011.
The Supreme Court came unequivocally down on the side of Somare. There was no legal vacancy in the office of Prime Minister when O'Neill was elected. The Speaker's decision to declare a vacancy in Somare's parliamentary seat in East Sepik was similarly unconstitutional and void. Somare should have been reinstated as Prime Minister. According to the Supreme court the facts had not been correctly stated and therefore a different legal provision was applicable.Anthony Latimer, PNG constitutional crisis. Available at: http://www.nortonrosefulbright.com/knowledge/publications/61068/png-constitutional-crisis Posted on: December 2011. Accessed on: 7 July 2018
The factual situation did not change: O'Neill remained in charge. The Supreme Court heard the case again in May 2012 and came again down in favor of Michael Somare. The deputy speaker accepted the Supreme court ruling, but declared the seat again immediately vacant on the ground that Somare had been absent for 90 days. He referred to the change in law that parliament had passed on 9 December just before the Supreme Court's decision. O'Neill was therefore again elected as Prime Minister.
The Supreme Court ignored the change of law of 9 December 2011. It was also not valid on 12 December, as the Speaker of Parliament still had to certify the change of law. This brought to the fore the issue of constitutional law. The Constitution stresses separation of powers. According to those on the side of O'Neill, this implies that the Court cannot exercise executive decision making. The constitutional court can only judge on the constitutionality of a law or general measure. In this case, they were seen to encroach on the power of parliament. The legal battle was a conflict on the sovereignty of parliament.Peter Donigi, Constitutional Technicalities: Why is O’Neill is PNG’s Prime Minister. Available at: https://garamut.wordpress.com/2011/12/28/constitutional-technacalities-why-oneill-is-pngs-prime-minister/ Posted on 28/12/2011Accessed on: 7 July 2018
Political battle The essence of the PNG constitutional crisis in 2011–2012 was thus whether parliament was supreme or whether the separation of powers implied that parliament was under control of the judiciary. This was not in the first place a legal battle, but a political one. It was a struggle for political support. The O'Neill/Namah government obtained that support immediately in August 2011. The PM and cabinet were recognized by the Crown through the Governor-General, Michael Ogio. It also immediately gained international recognition, and the approval of Australia was especially vital.
There remained some pockets that were loyal to Michael Somare. For example, the court case challenging the legality of the O'Neill/Namah government was opened by the Provincial government of East Sepik, the home base of the Somare family. Nevertheless, the O'Neill/Namah government seemed safe. The judgment of the Supreme Court on 12 December 2011 was therefore a shock.
Somare immediately announced a new cabinet and had his cabinet sworn in by the Governor General. Somare himself did in his opinion not need to be sworn in, as that had happened already when he became PM again in 2007. Parliament protested strongly against this. Ogio was suspended and the speaker of parliament, Jeffrey Nape, became acting Governor General. Nape then swore in O'Neill and his cabinet. Civil society organisations, especially churches, offered to mediate. O'Neill refused on the ground that it is up to parliament to form the government and not forces outside the chamber.