• Understanding Constitutional Crisis in PNG: A Political Perspective
  
  By Francis Hualupmomi
  
  
  1. Introduction
  With the recent constitutional crisis, PNG is highly perceptible to be susceptible to civil crisis thrusting a state of anarchy. PNG over the years have consistently experienced a pattern of constitutional crisis. This paralysis is more similar to civil crisis seen in other ‘failed states’ such as Somalia, Fiji, Solomon Islands, to name a few. A civil crisis is inevitable when the ‘right to rule’ by the ‘rule of law’ is in question. The prevalent systematic corruption compounded with recent Maladina Bill and William Kapris are few of the cases, which exemplifies at hand a worst case scenario of the ‘rule of law’ being deliberately undermined by the state. This paper is an attempt to conceptualise the constitutional crisis in a political perspective.
  
  
  2. The Logic of Constitutional Crisis
  There is a bonded relationship between constitutional crisis and the concepts of sovereignty, legitimacy, authority and anarchy. An understanding on constitutional crisis is absolutely necessary to inform the public. Constitutional crisis is a situation that can be best represented in a schematised logical sequence.
  
  The Constitution is a written’ rule of law’, which governs the behaviour of actors and institutions in a society. Sovereignty is the exclusive right to complete control over an area of governance, people, or oneself. A sovereign is the supreme lawmaking authority, subject to no other. Therefore a state is sovereign. Without a constitution there is no sovereignty. Legitimacy is having the ‘right to rule’ over a subject by the rule of law. Legitimacy sanctions a state to be sovereign. Authority is having the right to exercise power. Anarchy is non-existence of the ruler over the ruled (non-existence of right to rule by rule of law).
  
  3. Relationship between Constitutional Crisis and Sovereignty, Legitimacy, Authority and Anarchy
  In a political democracy, the state through its apparatus is the legitimate authority to exercise power in all aspects of human relation under the framework of constitution, which in effect gives state a sovereign. The government – a system constituting actors and institutions - is the apparatus of the state. The actors and institutions are elected and appointed into the system as authorities by the people on their behalf to represent ‘common interest’. This gives legitimacy to government as the process of election and appointment is legally binding. This is also applied to decision making and policy development. However, if the process is ignored, undermined or violated then the legitimacy of the state and government or its sovereignty is in question. This situation is called constitutional crisis. And when this happens this can spark a state of anarchy.
  
  
  4. Conceptualising Constitutional Crisis
  A. Constitutional Crisis
  More precisely a constitutional crisis is a total breakdown in government’s orderly operation. It may occur as a result of certain situations:
  • When factions are created in government over power play by a certain faction. This is common in conflict between different branches of government or level of government (e.g., executive, legislature, and/or judiciary), or between different levels of government (provincial and local level government); an example in PNG is the 2007 Southern Highlands Emergency.
  • When one or more parties to the dispute wilfully choose to violate constitution or an unwritten constitutional convention or when disputant disagrees over interpretation of its provision or convention; a cited example is the debate on Women’ s Political Representative Bill and;
  • Dispute arises because certain aspect of constitution is unclear or ambiguous which sets future precedence (Lipset, 2004). An example is on the Organic Law on Political Party and Leadership Roles of Politicians.
  Generally, it occurs when a person (political or bureaucrats, or ordinary citizens) undermines the ‘rule of law’ by breaking the existing law (constitution). A constitutional crisis can lead to government paralysis, collapse, or civil war. One of the historic events of constitutional crisis is the ‘1997 Sandline crisis’ which almost renders PNG into an uncalled civil war. A constitutional crisis connotes the concept of legitimacy.
  
  B. Legitimacy
  Legitimacy is defined as the ‘right to rule’. Basically it refers to power bestowed upon government officials, acts, and institutions by people who believe that government’s actions are based on the use of power that is generally accepted and legally bonded. According to German political philosopher, Dolf Steinberger, "Legitimacy is the foundation of such governmental power as is exercised both with a consciousness on the government's part that it has a right to govern and with some recognition by the governed of that right” (1968).
  The right to rule is binding when it is based on true representation of people for the people. Government is elected through elections. Institutions, policies and decisions are made through proper means governed by the ‘rule of law’.
  Something becomes legitimate when one approves of it. This means policies and decisions made by the state must be mutually agreed by the people. For instance, the recent Maladina Bill cannot be legitimate when people disapprove of it. In a Lockean state government is not legitimate unless it is ruled with the consent of the governed.
  Civil legitimacy therefore becomes paramount. Modern constitution is premised on the general agreement of rule of law, which assumes that rules or laws exist to be followed to achieve a common good. Therefore ‘government offices are ordered by trust rather than exercised by dominion’.
  Moreover, constitutional crisis erupts when sources of legitimacy clash with one another. Constitution is the source of legitimacy. Constitutionalism is a modern concept that desires a political order governed by laws and regulations. It represents supremacy of law and not individualism, which embodies the principles of nationalism, democracy and limited government (Dogan, 2003).
  Hence, in a true ideal democracy, political legitimacy involves constitutionalism or the belief that an action is legitimate because it follows regular procedures which are part of the constitutional law because constitutional procedures are agreed to by a popular consent.
  Constitutionalism limits government’s action through separation of powers - a body of rules which ensure fair play and responsible government (transparency and accountability). Theoretically, democracy ensures that a government is operating under democratic principles and is subject to the will of the people. Because democracy is based on the will of the people it claims to have a popular mandate to exercise power, which is the ‘right to rule by the rule of law’. Exclusively, legitimacy of the state must be premised on these democratic principles:
  • Free and fair elections in which political parties participate without any fear or pressure;
  • Stable because the legitimacy of the state is not tied to an individual ruler or ruling party;
  • A constitution or well-respected constitutional conventions which are upheld by the judiciary within the state;
  • Popular participation of people in large numbers;
  • Strong and independent media which are unbiased and free from the control of the government;
  • A system of "checks and balances" and control of one organ of the state by another; and
  • Economic stability with continuity in policies for a specific period (Charlton, 1986).
  
  C. Authority
  Alluding to legitimacy, the concept of state authority also defines how power is wielded within the framework of rule of law to best service popular interest. Authority is often used interchangeably with the term ‘power’. However, their meanings differ. Power is defined as ‘the ability to influence somebody to do something that he/she would not have done’, and Authority refers to a claim of legitimacy, the justification and right to exercise that power (Dahl, 1971). In other words, the right to exercise power is legitimate when it is wielded by the rule of law. If it is not in the interest of the consent, ultimately the power exercised by that authority may be deemed as illegitimate.
  For instance, the covert operations undertaken by the state to deport Julian Moti out of PNG to Solomon Islands although is in the best interest of national security is absolutely illegitimate as the power of the authority to conduct that exercise is not justified by the rule of law and, even so, consent of the populous.
  Max Webber argues that legitimate authority is one which is recognized as legitimate and justified by both the ruler and the ruled.
  All states through the constitution sets up its institutions as its apparatus which are legitimate to exercise authority. For instance, the existence of Ombudsman Commission is a constitutional apparatus of the state bestowed with legal authority to ensure ‘checks and balances’ or a balance of power. Limiting its power by the state will contradict the notion of legitimacy. This, in extreme cases, may possibly lead to a state of anarchy.
  More so, jurisprudence governs the behaviour of individuals in the society, who are driven by human nature. Human nature is driven by self-interest, a stimulus to graft. Decisions and policies pursued outside the rule of law is egoistic in nature and remains only to serve the interest of certain individuals (elites) of the society. This often leads to conflict.
  Interestingly, with high impact projects such as LNG coming on stream in the market economy, certain individuals, government officials, political segments or regimes may use graft in the name of legitimacy to manipulate and bulldoze policies or laws to satisfy their own interest. Karl Marx sees it as a draconian capitalist mode of legitimacy. The irrational approach undertaken by the state in developing and managing the LNG projects which resulted in resource owners’ rebellion is a signal of civil crisis. In such situation, a state of anarchy is inevitable.
  
  D. Anarchy (Anarchism)
  Anarchy is the absence of government - a state of lawlessness due to the absence or inefficiency of the supreme power or political disorder. Anarchism is a political philosophy which considers the state undesirable, unnecessary and harmful, and instead promotes a stateless society, or anarchy. It seeks to diminish or even abolish authority in the conduct of human relations (Christiano, 2004).
  Nevertheless, a state can delve into a state of anarchy should the legitimate authority distorts the rule of law. The state, its apparatus and officials may fall prey to graft behaviour to satisfy its human nature. When this occurs legitimacy is undermined causing constitutional crisis and leads to anarchy. The state theoretically will be in chaos, at the extreme of it, inexistent. In order words, if the authority violates the rule of law, the legitimate government is in itself anarchy – an illegitimate government. The civil society assumes full liberty at the expense of illegitimate government and wilfully takes the rule of law into their own hands.
  For instance, this scenario may pose an important strategic question of energy security. Increasingly, with a seemingly draconian political regime in PNG, manipulated by global forces – international actors such as multinational corporations (MNCs) penetrating and influencing state decisions and policies in energy industry, a possible civil crisis in resource theatres is a potential threat. Resource owners will no longer respect the rule of law – law will be taken into their own hands – thus sovereignty of the state will be at stake.
  
  5. Conclusion
  In conclusion, theoretically, constitutional crisis is a situation that occurs when the ‘right to rule’ by the ‘rule of law ‘is under question. When this happens civil crisis is inevitable which can lead to anarchy. Practically, the recent constitutional crisis in PNG has reached a critical point of ‘brinks of demise’. The people have lost confidence and trust in state’s legitimacy. The future scenario is gloomy. A civil crisis remains highly possible, which can lead into a state of anarchy.