The National

PORT MORESBY, Papua New Guinea (Aug. 3, 2011) – Papua New Guinea (PNG) does always tend to live up to that special reputation, for good or worse, that it has acquired over the years as the "land of the unexpected".

That came to pass yesterday when parliament, by an overwhelming majority of 70 votes to 24, voted Ialibu-Pangia MP and Works Minister Peter O’Neill in as prime minister of PNG.

This followed Speaker Jeffrey Nape apparent acknowledgment that there was a vacancy in the office of the prime minister soon after parliament resumed yesterday afternoon by allowing a nomination to be called for the position.

Opposition leader Belden Namah nominated O’Neill and the rest is history.

The biggest question is, of course, whether or not there was a vacancy in the office of the prime minister.

Until now, there has only been an acting prime minister in Deputy Prime Minister Sam Abal. He was appointed to the post when Prime Minister Sir Michael Somare took leave to face a leadership tribunal and, soon after that, went to Singapore for medical treatment. He has been hospitalized at the Raffles Hospital now for three months.

With three operations, the 76-year-old prime minister has taken a long time to recover. The family announced his resignation without his consent in May but that was not accepted and a process, to determine whether or not the prime minister was fit for office, was initiated by cabinet over the last few weeks.

This process is stipulated under the Constitution at section 142 which calls for the considered opinion of two physicians to have the governor-general declare the prime minister unfit to hold office for reasons of physical or mental incapacity. This process was to have been set in motion this week when the acting prime minister handed a preliminary medical report to the governor-general on Monday.

Parliament appears to have jumped the gun by going ahead with the election of a new prime minister without a proper invalidation of the incumbent prime minister.

The question, therefore, is: Are there two prime ministers holding office today?

Abal claims this is so and considers the election of O’Neill as illegal and unconstitutional. He has promised to challenge the election in the Supreme Court.

Namah who, by some master stroke, has lured across almost the entire government to its ranks to vote in O’Neill has relied upon a little known part of the law hidden in the schedules of the Constitution.

They seem to have relied upon schedule 1.2.10 (4), which states that "where a constitutional law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place".

It is implied here that cabinet had failed to begin the process to determine the health of the prime minister and that three months is a long time for the prime minister to be absent.

If this is indeed the section relied upon, then the new prime minister’s election must be "temporary". But the question that is silent in the provision is: "How long is temporary?" There are only nine months to the next general election.

Unless there are explicit provisions of the constitution which parliament might have violated in yesterdays’ election, the courts are going to be loath to delve into this matter when the matter is presented to them.

In the first place, any court decision will place it in direct conflict with the legislature and its processes and procedures.

Parliament’s vote yesterday was too overwhelming for there to be any question that there was a genuine desire by the elected representatives for a new prime minister and one that can be at the helm of government immediately.

Whatever legal questions are decided, that vote is going to be hard to put down or invalidate.

If the question does end up in court, it might turn out that the courts too will add further to the "unexpected" flavor by declaring the processes applied in the election of O’Neill to be legal but that parliament is dissolved and fresh elections be called with the prime minister-elect in charge into the elections.

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