News | Thursday 30th June, 2011 |
How to make PM’s retirement legal
THE Government was supposed to have appointed two medical doctors to report back within 28 days on the condition of the Prime Minister Sir Michael Somare when he went into hospital for medical treatment and also heart surgery on April 21.
This is the view of a very senior legal officer in the Solicitor Generals Office. Had that been done, there would not be any confusion today on the way forward in relation to whether or not the office of the PM is vacant and when constitutional provisions should be invoked to elect a new Prime Minister.
“The proper and moral thing to do after the PM was admitted to the ICU, was to appoint two medical doctors to report within 28 days, pursuant to Section 6 of the Prime Minister and National Executive Council Act 2002, and after three months, they could then certify that the PM is medically unfit to return to office,” the lawyer said.
“That is to comply with the law, instead of allowing the PM to continue to hold the substantive post while in the sick bed,” and he paid tribute to the Somare family for going public on their decision for the Grand Chief to retire and allow the normal process to take its course.
He said the Constitution, supplemented by the Act, provided that when the PM is ill, “he is subjected to medical examination immediately, rather than treating it as another public servant on sick leave. The law is more concerned in the interest of the country”.
The following is the senior legal officer’s opinion with regard to the current situation PNG is faced with:
“There are six (6) instances where the position of the PM is permanently vacant and they are provided for under Section 147 of the Constitution:
* When he dies, or
* When he resigns by giving notice in writing to the Head of State pursuant to Section 146, or
* When he ceases to be qualified to be a Minister such as being unseated in a general election, or
* When he is dismissed from office through a vote of no confidence (ss. 142(5)(a) and 145), or
* When he is dismissed from office as a penalty for breaching the leadership code (Section 142(5) (b) and Division III.2), or
* When he is removed from office for being medically unfit (section 142(5)(c)).
“When the PM is dismissed in a Vote of No Confidence, that is the time when the person nominated as the alternate Prime Minister in the Motion automatically becomes the Acting PM until he is appointed PM by Parliament (Section 143 (2) of the Constitution). In all the other 5 instances, there is no other expressed provision for someone else to be the Acting PM apart from the Deputy Prime Minister who will assume that responsibility by operation of law, particularly section 143 (1) of the Constitution and section 4 of the Prime Minister and National Executive Council Act 2002. Both of these provisions provide a number of same instances, where an Acting PM can assume the office of the PM as Acting PM and they are:
(a) there is a vacancy in the office of Prime Minister; or
(b) the Prime Minister is suspended from office; or
(c) the Prime Minister is,
(i) absent from the country; or
(ii) out of speedy and effective communication; or
(iii) otherwise unable or not readily available to perform the duties of his office.
“Section 143 (1)(a) provides an instance where there is a permanent vacancy in the office of the PM as stated earlier. The combined effect of Sections 143(1) and 142 (1),(2),(3)&(4) of Constitution shows that when there is an instance of permanent vacancy in the office of the PM, Parliament must be immediately recalled by the Speaker to appoint a new PM.
“The first business of the day when Parliament meets after there is a permanent vacancy is to appoint a new PM (section 142 (2)). That also means that there can never be a Parliament session with an Acting PM, dealing with any other business without first appointing a PM to the substantive position. The scheme of legislation is such that it prevents an Acting PM to run the country when the mandated CEO of the country has vacated office permanently. The duration of the Acting PM is from the date of the permanent vacancy to the time of immediate appointment of the new PM.
“In relation to section 143(1)(b), the Acting PM assumes office when the PM is suspended from office. The suspension of the PM is provided under Section 142(6) where he can be suspended pending investigation by the tribunal or when he is suspended on medical reasons under Section 6 of the Prime Minister and National Executive Council Act 2002. If the PM is suspended by the tribunal, it does not take any longer than the period of hearing and determination. If the PM is on suspension pending medical examination then the time period is also specified. Over all, it is apparent that the scheme of legislation provide for the Acting PM to remain in office for a limited period.
The Current Situation
“The current situation is such that the PM himself did not make the decision to retire. Instead, it is the decision of the family due to his medical condition.
“The Prime Minister has not resigned because he is not capable of making that decision personally. As such, any decision made on his behalf by his family cannot be properly termed as resignation under Section 146 (1) of Constitution which provides for resignation.
“The Constitution does not provide for retirement procedures for retirement of the PM, nor does it provide for sick leave procedures.
“Two options are available for the PM’s:
n First is an instance where the PM and or a Minster ceases to be qualified as a minister. Under section 141(a) of the Constitution, there is only one qualification to be a Minister and that is being a Member of Parliament. It therefore follows that the PM can retire as the Regional MP for East Sepik Province which would effectively render the vacancy of the office of the PM under Section 147(1)(c) of Constitution.
n Secondly, the NEC should advise the Governor General to request the PNG Medical Board to appoint two medical practitioners to provide two medical report on the condition of the PM to be tabled in Parliament in accordance with Section 142 (5)(c) of Constitution and Section 6 of Prime Minister and National Executive Council Act 2002. Note that the latter Act provides a period of 3 months limit on the time allowable to test whether the PM can recover and if he does not within that period, Parliament can remove the PM under subsection (11) of that section.
“In the instant case, the PM’s family announced a retirement on behalf of the PM as the PM cannot coherently make a decision given his condition. If that position is to be allowed, then it takes the first option.
“The decision by the family can be taken as the PM retiring as the Regional MP of ESP. Otherwise, the most likely available option is the second one, where two medical doctors have to be appointed to provide a medical opinion.
“Note that the PM had been in hospital for more than three months which qualifies a final report in light of his condition as well as the family’s decision.”
This is the view of a very senior legal officer in the Solicitor Generals Office. Had that been done, there would not be any confusion today on the way forward in relation to whether or not the office of the PM is vacant and when constitutional provisions should be invoked to elect a new Prime Minister.
“The proper and moral thing to do after the PM was admitted to the ICU, was to appoint two medical doctors to report within 28 days, pursuant to Section 6 of the Prime Minister and National Executive Council Act 2002, and after three months, they could then certify that the PM is medically unfit to return to office,” the lawyer said.
“That is to comply with the law, instead of allowing the PM to continue to hold the substantive post while in the sick bed,” and he paid tribute to the Somare family for going public on their decision for the Grand Chief to retire and allow the normal process to take its course.
He said the Constitution, supplemented by the Act, provided that when the PM is ill, “he is subjected to medical examination immediately, rather than treating it as another public servant on sick leave. The law is more concerned in the interest of the country”.
The following is the senior legal officer’s opinion with regard to the current situation PNG is faced with:
“There are six (6) instances where the position of the PM is permanently vacant and they are provided for under Section 147 of the Constitution:
* When he dies, or
* When he resigns by giving notice in writing to the Head of State pursuant to Section 146, or
* When he ceases to be qualified to be a Minister such as being unseated in a general election, or
* When he is dismissed from office through a vote of no confidence (ss. 142(5)(a) and 145), or
* When he is dismissed from office as a penalty for breaching the leadership code (Section 142(5) (b) and Division III.2), or
* When he is removed from office for being medically unfit (section 142(5)(c)).
“When the PM is dismissed in a Vote of No Confidence, that is the time when the person nominated as the alternate Prime Minister in the Motion automatically becomes the Acting PM until he is appointed PM by Parliament (Section 143 (2) of the Constitution). In all the other 5 instances, there is no other expressed provision for someone else to be the Acting PM apart from the Deputy Prime Minister who will assume that responsibility by operation of law, particularly section 143 (1) of the Constitution and section 4 of the Prime Minister and National Executive Council Act 2002. Both of these provisions provide a number of same instances, where an Acting PM can assume the office of the PM as Acting PM and they are:
(a) there is a vacancy in the office of Prime Minister; or
(b) the Prime Minister is suspended from office; or
(c) the Prime Minister is,
(i) absent from the country; or
(ii) out of speedy and effective communication; or
(iii) otherwise unable or not readily available to perform the duties of his office.
“Section 143 (1)(a) provides an instance where there is a permanent vacancy in the office of the PM as stated earlier. The combined effect of Sections 143(1) and 142 (1),(2),(3)&(4) of Constitution shows that when there is an instance of permanent vacancy in the office of the PM, Parliament must be immediately recalled by the Speaker to appoint a new PM.
“The first business of the day when Parliament meets after there is a permanent vacancy is to appoint a new PM (section 142 (2)). That also means that there can never be a Parliament session with an Acting PM, dealing with any other business without first appointing a PM to the substantive position. The scheme of legislation is such that it prevents an Acting PM to run the country when the mandated CEO of the country has vacated office permanently. The duration of the Acting PM is from the date of the permanent vacancy to the time of immediate appointment of the new PM.
“In relation to section 143(1)(b), the Acting PM assumes office when the PM is suspended from office. The suspension of the PM is provided under Section 142(6) where he can be suspended pending investigation by the tribunal or when he is suspended on medical reasons under Section 6 of the Prime Minister and National Executive Council Act 2002. If the PM is suspended by the tribunal, it does not take any longer than the period of hearing and determination. If the PM is on suspension pending medical examination then the time period is also specified. Over all, it is apparent that the scheme of legislation provide for the Acting PM to remain in office for a limited period.
The Current Situation
“The current situation is such that the PM himself did not make the decision to retire. Instead, it is the decision of the family due to his medical condition.
“The Prime Minister has not resigned because he is not capable of making that decision personally. As such, any decision made on his behalf by his family cannot be properly termed as resignation under Section 146 (1) of Constitution which provides for resignation.
“The Constitution does not provide for retirement procedures for retirement of the PM, nor does it provide for sick leave procedures.
“Two options are available for the PM’s:
n First is an instance where the PM and or a Minster ceases to be qualified as a minister. Under section 141(a) of the Constitution, there is only one qualification to be a Minister and that is being a Member of Parliament. It therefore follows that the PM can retire as the Regional MP for East Sepik Province which would effectively render the vacancy of the office of the PM under Section 147(1)(c) of Constitution.
n Secondly, the NEC should advise the Governor General to request the PNG Medical Board to appoint two medical practitioners to provide two medical report on the condition of the PM to be tabled in Parliament in accordance with Section 142 (5)(c) of Constitution and Section 6 of Prime Minister and National Executive Council Act 2002. Note that the latter Act provides a period of 3 months limit on the time allowable to test whether the PM can recover and if he does not within that period, Parliament can remove the PM under subsection (11) of that section.
“In the instant case, the PM’s family announced a retirement on behalf of the PM as the PM cannot coherently make a decision given his condition. If that position is to be allowed, then it takes the first option.
“The decision by the family can be taken as the PM retiring as the Regional MP of ESP. Otherwise, the most likely available option is the second one, where two medical doctors have to be appointed to provide a medical opinion.
“Note that the PM had been in hospital for more than three months which qualifies a final report in light of his condition as well as the family’s decision.”
This has got to be the most clearly explained scenario regarding the handling of Prime Minister Grand Chief Sir Micheal Somare's resignation lately. Top mangi, senior legal officer!
ReplyDeleteAll other explanations apart from this are not as simple as it should be for any other educated person in other professions to understand how the constitution of Papua New Guinea deals with such scenarios.
Now, it should be noted that given the available options by the senior legal officer, option 2 is the best we should take. While respecting the Somare Family's decision to remove their head of family from any further constrains to his health, this option also safe guards them in a sense that proper and legal avenues has been evoked in order to honor their request.
On the other hand, this option should have been enacted with 28 days, yes, 28 days of when the PM went into the ICU. It is now three months after the PM has been admitted, we should already have a new and permanent Prime Minister to handle the daily business of the country, not Actors, this is not HollyWood or Bollywood.
So, immediately the government should commence the process of sending doctors to visit the Prime Minister and give their reports. All medical records are readily available, they only need to go through and assess the reports and give their final reports. Please make the right move.