Section 63 of the Organic Law on the Integrity of Political Parties and Candidates of Papua New Guinea (OLIPPAC), passed in 2002, requires the Governor General to invite the party with the largest number of MPs to form government after an election. However, OLIPPAC does not require the same for a vote of no confidence. The incumbent Prime Minister, Peter O’Neill, first came to the position through a vote of no confidence in 2011, with only five MPs in his People’s National Congress (PNC) party. Another party, the PNG party, had 25 MPs in the same coalition when O’Neill was elected Prime Minister.
On 7 May 2019, the parliament of Papua New Guinea met and the Opposition submitted a motion of no confidence following Standing Order 130(4) and Section 145 of the Constitution for a vote of no confidence against Prime Minister Peter O’Neil. In response, the government mustered a small majority to adjourn parliament to May 28. If and when there is a vote of no confidence, the alternative prime ministerial nominee will be James Marape, who is currently without a party, having resigned from the PNC. He was nominated despite the National Alliance having nine MPs, the largest party in the opposition.
This article provides a brief history of the developments that led to the differences in OLIPPAC regarding the prime minister’s nomination and election, after an election and during a vote of no confidence.
The first aim of Section 63 of the OLIPPAC is to ensure that a prime minister is appointed after a general election in an orderly way “with direct relationship to the way voters expressed their wishes”. If the nominated candidate fails to win a majority of votes, then the process is thrown open to any contender, and any group that can pull together enough support will form the government.
The invitation for the party with the largest number of MPs to form government became important when smaller parties lobbied to form governments despite their minute numbers. For instance, in 1997 Bill Skate’s PNC won only six seats out of 109, but was successful in attracting a majority to form government.
The emphasis on the prime minister being elected from a party that represented the preferences of the population complemented the change from first past the post (FPTP) to limited preferential voting (LPV), which, among other things, was aimed at electing MPs who were representative of the voters’ preference. The percentage of MPs winning elections began decreasing after independence to the point where, in 1997, 15 MPs were elected with less than ten per cent of the vote each, including three candidates who won their seats with less than seven per cent of the vote. The move to LPV was to ensure that the winning candidate was broadly supported, having received 50% + 1 of the total votes cast. The government was also to be formed from a party more broadly supported during the election. However, given the lack of importance of parties in PNG during elections, the value of requiring that the PM come from the largest party can be questioned.
The second aim of Section 63 of the OLIPPAC is to bring political stability. Inviting larger parties to form government eliminated smaller factions such as Bill Skate’s PNC, which some claimed used bribery and corruption to entice MPs to their camp. As Reilly (2002) noted around this time, potential leaders engaged in “frantic post-election tussles for commitments of loyalty from newly elected members, in the hope of being able to piece together a parliamentary majority.” This gave rise to corruption and patronage, while the political system became discredited. Note that the Supreme Court ruled other parts of OLIPPAC that were intended to bring political stability unconstitutional in 2010, but not Section 63, for placing restrictions on the fundamental rights of MPs provided for by Section 50 of the Constitution. This is the right to “to take part in the conduct of public affairs, either directly or through freely chosen representatives; and to vote for, and to be elected to, elective public office as genuine, periodic, free elections; and to hold public office and to exercise public functions”.
In February 2019, the former Attorney General and PNC MP Davis Steven sought a Supreme Court interpretation on whether the Prime Minister’s position in the event of a vote of no confidence should be confined to the party with largest numbers, as is the practice after national elections. While the issue was still before the courts, Davis Steven resigned from PNC and later, in early May 2019, joined the Opposition. He is now part of the team that has nominated James Marape, an MP currently without a party, as the alternate Prime Minster.
As discussed, there is nothing in OLIPPAC that requires that, following a vote of no confidence, the PM come from the largest party. If there was, O’Neill himself would not have come to power. Although the 2011 vote of no confidence that brought him to power was retrospectively ruled unconstitutional by the Supreme Court, this was for other reasons.
Hi Michael.
Excellent write-up. I’d like to say that section 63 of the constitution needs to be reviewed btw, some of the even you noted needed to be rectified. Otherwise all good.
I agree that section 63 of the Act does not provide a clear and concise meaning as to whether the PM is to be elected from the party with the largest number of members afer a VONC. This section clearly needs to be reviewed.
Thanks for information.
informative
Thanks Bro, Michael Kabuni. Section 63 of the OLIPPAC law is very interesting and I think the new government maybe should have the section reworded for the purposes of explicit clarity. But I don’t think it should be repelled. On the contrary, I think it should be looked into have it expounded upon through sub-clause(s).
Informative thank you!
very informative commentary. Thank you Micheal
My opinion is, the Supreme Court will rule even section 63 of OLIPPAC as unconstitutional. Remember in 2010, it ruled that sections preventing MPs from voting against their party’s position in parliament, or voting against the PM in a vote of no confidence having supported him after election, as unconstitutional. I guess the only reason why section 63 of OLIPPAC (which states that only party with majority after elections can form the government) is still active is because it was not one of the provisions raised for interpretation by the Supreme Court in 2010. Had it been raised, it would have been ruled unconstitutional together with the other provisions that were ruled unconstitutional. In it’s ruling, the Supreme Court stated that such restrictions takes away citizen’s fundamental rights under section 50 of the Constitution. Preventing individual MPs or party with small numbers does the same thing too. With this precedence set, section 63 may be ruled the same way. If another amendment is made, as you suggest, that can be contested in court.
Am thinking now that PM has advised the new Attorney General to review the OLIPAC. They may amend it to favor the PNC rulling party. By way of adding a new section similar to section 63 but for VONC, must comes from a party with large numbers. PM has passed so many controversial laws in his term than any other government in history to favor his Government.