We make this Statement as protest. Firstly for the manner the Public Health Emergency Bill 2020 was rushed into Parliament by the Government and passed on Friday 12 June 2020. There was no prior wider consultation, openness, and debate in Parliament. The law was rushed in total secrecy without justification. Secondly, the law has serious constitutional issues, lacking transparency and accountability for political expediency, which required greater consultation with all stakeholders prior to presentation in Parliament.
We are told that the Bill that was introduced in Parliament was different to the initial draft that was circulated to Members of Parliament prior to the Parliament sitting on Friday 12 June 2020. The following are our fundamental concerns.
First and fundamentally, the Bill takes away the powers and functions of the Legislative Arm to the Executive Arm. In doing so it not only compromises the supervisory and oversight powers of Parliament on the Executive, but it surrenders or delegates its powers without reservation. A State of Emergency under Part X of the Constitution is a power vested on the Parliament during an emergency. This is so especially when the rights and freedoms of people under the Constitution are to be suspended and subjected to severe restrictions and deprivations. Only Parliament through the elected
Representatives of the people can, when the occasion necessitates, make those decisions. By the Bill the Parliament’s supervisory and control powers under S. 239 appears to be abrogated and divested in the Executive Arm of the Government. The Parliamentary Emergency Committee provided for under Sections 240-242 are also been abrogated and divested of its functions to the Executive Arm.
Second, the Bill creates and confers more powers to the Controller seemingly without much oversight from the Executive (NEC) or the Minister responsible. While the appointment of a Controller is with the NEC there is no set criteria and qualification for the position of the Controller, except that he or she should be a public office holder (s. 7). It does not even provide from which public office the Controller will be selected from - the police, defence, CS, Health or such other public office. It is left to the prerogative of the NEC. The functions and powers of the Controller are quite unlimited during the period of the emergency (ss. 8, 9). This is dangerous given the experiences the common people experience with the law enforcement authorities in normal times. More so, when the Emergency Act already abrogates and restricts the Constitutional rights to privacy, movement, personal liberty, free speech, etc., of the people. It imposes a double jeopardy for the people.
Third, “emergency” is not adequately defined under the Bill. Any definition must be consistent with the meaning set out under Sections 226-243 of the Constitution. The definition under the Bill does not reference the relevant Constitutional provisions. This is dangerous especially when powers are left to the Executive Government of the day.
Fourth, financial accountability of public funds is seemingly without transparency and accountability. The normal safeguards to accountability under the Public Finances (Management) Act 1995, and the National Procurement Act 2018 are also suspended. It leaves room for misuse of public funds for the emergency without scrutiny and accountability.
The Act effectively removes the oversight powers of the Public Accounts Committee of the Parliament to the Controller.
While it is understood that the suspension of the PFMA Act and the National Procurement Act is intended to avoid the cumbersome procurement procedures in emergency situation, the oversight functions and powers of the Auditor General (SS. 213-214, Constitution) and the Public Accounts Committee of Parliament (SS. 215-216, Constitution) cannot be removed.
The Act abrogates their powers and functions and vests on the Controller, who is not duly qualified, and who only reports to the Minister responsible and to the NEC. Emergency if at all is a good reason for use of Certificate of Inexpediency as opposed to the public tender process under the FFMA. However, a Bill that extricates itself of the whole PFMA is a sign of bad motive.
The law does not even allow for the application of the Audit Act and the powers of the Auditor General to audit the books of the Controller after the emergency period. When audit is brought under the Audit Act it will subject the Controller to the oversight function of the Public Accounts Committee of Parliament. Parliament under the Bill will be totally divested of its powers to the Executive Government, which raises serious constitutional questions.
Fifth, the following constitutional rights and freedom of the people will be suspended and deprived – liberty of the person (S. 42), freedom from arbitrary search and entry (S. 44), freedom of expression (S. 46), freedom from assembly and association (S. 47), right to privacy (S. 49), right to freedom of information (S. 51), right to freedom of movement (S. 52), and protection from unjust deprivation of property (S. 53) for the cause of public interest in public safety, public order, and public affair. This is a major fear. The Constitutional implications in the deprivation of these civil rights of the people under Section 233 of the Constitution will need the interpretation of the Supreme Court.
Sixth, the Bill does not include provisions for "Extra-Territorial Application" of the Emergency
law to PNG Citizens and subjects including PNG Flagged Vessels overseas; nor does it include its application to Foreign Flagged Vessels in PNG territory. The Bill does not include under the definition of "Vessel" reference to the Merchant Shipping Act and or the National Maritime Authority Act to allow the emergency law to apply to all vessels including PNG Flagged Vessels overseas and Foreign Flagged vessels in PNG territory. The role of the NMSA in this situation is not specified.
Seventh, the penalty provisions are too onerous considering the freedoms and rights being deprived on the one hand and the K50, 000.00 or imprisonment for a term not exceeding five years (individual) and K500, 000.00 (corporate) fines for breaches of the emergency law on the other under S. 44. While the penalties are designed to deter and enforce the emergency laws and directions it is too onerous and untenable.
Eighth, the transitional and savings provisions under sections 53 and 54 of the Bill has retrospective effect to all past actions, decisions, procurements, monies received and used under the past emergency laws and regulations. Any transparency and accountability of the funds, assets, contracts and works etc., under the repealed Emergency (General Provisions) (COVID 19) Act 2020 will be at the discretion of the Controller, Minister responsible and the NEC. There is no further oversight from the Auditor General or the National Parliament under the Bill.
The Bill has the appearance of creating Marshall law and Police State. It is a dragonian law to democratic rights and freedoms of people. This type of law cannot be allowed in a Constitutional democracy where the freedom and rights of the people are given special protection under the Constitution. It is a law that takes away the oversight powers of the Auditor General and the Parliament through its Public Accounts Committee. It will serve a bad precedent for future Governments.
The Bill extricates itself from the application of the Constitutional law, which is tantamount to altering the Constitution. This is a serious Constitutional point. To alter Constitution it requires wider consultation and over a number of sittings of Parliament over time intervals. It was not the case with this Bill.
In light of the above concerns, we had recommended for the presentation of the Bill to Parliament be delayed and allow for wider consultation with Constitutional offices, relevant State departments, think-tank groups and organisations, churches, and the civil society. We also thought it was necessary to seek a Supreme Court advisory opinion on the Constitutional implications of the Bill.
There is no real or perceived threat or danger to public good and welfare to rush and push this Bill into law, especially when we do not have local data, evidence, or deaths in PNG yet for such urgency. Reliance on outside advice and situations alone is no justification for the urgency.
We are a faith-based professional organisation and we are also concerned with the extreme restrictions under emergency laws affecting our churches and religious faith and worship activities. Whatever we do God must not be left out of the planning and measures taken in any emergencies. Our churches and people have been praying and will continue to pray for the protection and end to this Covis-19 Pandemic.
FINALLY, GIVEN THE PASSING OF THE BILL WE CALL ON THE OMBUSDMAN COMMISSION TO INITIATE A CONSTITUTIONAL REFERENCE IN THE SUPREME COURT TO DETERMINE THE CONSTITUTIONALITY OF THIS EMERGENCY LAW.
Paul Harricknen, OL President
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