What attracts privilege or contempt of the Parliament in Papua New Guinea? Former Judge Nemo Yalo explains

THE RIGHT TO FREEDOM OF EXPRESSION & PUBLICATION VERSUS DEFAMATION, BREACH OF PARLIAMENTARY PRIVILEGE AND CONTEMPT OF THE PARLIAMENT – PART I

By Nemo Yalo, Former Judge of Judiciary

INTRODUCTION

I have not written on public interest matters for a while. On Friday afternoon 1 June 2018, a fellow citizen greeted and asked me to write, again. So this time, I did

National Parliament of PNG

about Parliamentary Privilege and the referral of Bryan Kramer, Member for Madang Open Electorate to the Privilege Committee relating to a post on Facebook.

I have not met or communicated with Mr Kramer in any manner since the middle of last month. So I am not writing for him.

I wish to write in parts because the article is lengthy. In Part I, I set out the background facts, define ‘Parliamentary Privilege’ and outline what actions may amount to breach of privilege or contempt of the Parliament.

In Part II, I discuss the provisions of the Parliamentary Powers and Privileges Act and the Defamation Act, and discuss what actions may be defamation but is justified or excused under the law. In Part III, I discuss what shutting down Facebook means, digital future (APEC 2018 theme), the collective public voice never heard before and the proverbial naked Emperor. You wouldn’t want to miss, Part III.

BACKGROUND FACTS

On Tuesday 29 May 2018 the Post Courier published a report titled “Shutting down Facebook is a reality”. It reported the Minister for Communications and Information Technology, Mr Sam Basil’s response to its reporter’s question on the Government’s intention to regulate Facebook: ‘it will take up to one month or so for shutdown of Facebook’, said Basil. The reason for the shutdown is to research and analyse Facebook to eliminate fake accounts to prevent fake news and posting of material that are slanderous and pornographic. Mr Basil had said that the National Research Institute will be engaged for this purpose. However, the institute has denied any request by the Government. The news went viral globally.

On Wednesday 30 May 2018 Sam Basil denied in Parliament the report by Post Courier. On the same day Mr Kramer posted on Facebook an article titled “Did dumb just get dumber”, reacting to Mr Basil’s denial of the report. On Thursday 31 May the Post Courier reported that it stood by its report and its reporter’s taking of the news in Mr Basil’s electorate to be true and it is not “fake news”. The Paper unequivocally stated that it stands to protect the rights to freedom of expression and publication. Interestingly, Basil has chosen not take Post Courier to task under the relevant legislation his Ministry administers, for reporting the apparent ‘fake news’.

On Friday 1 June 2018 the Speaker of the National Parliament Hon Job Pomat MP referred Bryan Kramer to the Parliamentary Privileges Committee following a motion moved by Mr Kobby Bomareo, Member for Tewae-Siassi Open Electorate regarding the Facebook post of 30 May 2018. Following the Speaker’s move, the Opposition walked out of the Chamber. There was high drama in Parliament never seen in recent times.

WHAT IS PARLIAMENTARY PRIVILEGE?
Parliamentary Privilege is a legal immunity enjoyed by members of Parliament in which each legislator is granted protection against criminal or civil liability for actions done or statements made in Parliament in the course of the performance of their Parliamentary duties. It is common in countries whose Constitutions are based on the Westminster System.

In Papua New Guinea (PNG), Parliamentary Privileges are enumerated under Section 115 of the Constitution. Section 115 provides that there shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament). No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such. The basic rule of thumb is that anything said or done in the House stays within its walls. However, this particular privilege or immunity does not affect the operation of the leadership code, example fist-fight in the Chamber is not protected by privilege. Section 115 and the historical aspects of Parliamentary Privilege was discussed in some depth by the Supreme Court in the seminal judgment in a Constitutional Reference relating to the Integrity Law handed down on 7 July 2010 .

BREACH OF PARLIAMENTARY PRIVILEGE
A breach of Parliamentary privilege may occur when a Member of Parliament is obstructed or hindered from exercising his freedom to debate, introduce a bill or air grievances in Parliament or from conducting his lawful duties in a Parliamentary Committee. A breach of Parliamentary privilege occurs if a Member of Parliament is arrested within the Parliament precincts when Parliament is in session or when he is arrested outside of Parliament at any time for what he may have said or done in the Chamber of Parliament or at a Committee of Parliament in the course of performing his parliamentary duties.

A breach of privilege also occurs when there is an attack or when there is an act of disregard on the rights, powers and immunities of the House and its members, by anyone including an MP, or any other person or by a body.
I gather from the media reports that Mr Kramer’s referral has nothing to do with breach of the privileges listed under Section 115 of the Constitution.

CONTEMPT OF THE HOUSE

There are other acts against the dignity and authority of the Legislature which may not fall within the breach of privilege category. But the Parliament may punish the offender for contempt of the House. Instances of these may include obstruction of the performance of the functions of Parliament or its members (not inside the Chamber) or officers or the disobedience of the orders or resolutions of Parliament of its Committees or for libel (i.e. publishing false or damaging statements against the Parliament, its members or its officers). Disturbance or interruption of the proceedings of Parliament by anyone in the public gallery may amount to contempt of the House. MPs whilst in the Chamber behaving like school boys, we observe occasionally on the streets of Port Moresby are committing contempt of the House and should be referred to the privilege Committee. The rationale to punish for contempt of the Parliament is to protect itself from disrespect or from acts which impede it from the performance of its functions.

In other countries contempt, as opposed to privilege, is not specified or not categorised or enumerated. By comparison, whilst Section 115 of the Constitution enumerates privileges, contempt of Parliament is like a wide net cast out in the open ocean capable of netting anything. In the same way, it is not possible to categorise levels of punishments for contempt. The answers to the questions ‘whether a conduct is determined as contempt or not’ and if so, ‘what punishment to impose’ lie at the mercy of the whims of the privilege committee.

In PNG, however, the Parliamentary Powers and Privileges Act provides what amounts to contempt of the House and the range of penalties to be imposed.

In Part II, which is coming tomorrow, I will discuss the Parliamentary Powers and Privileges Act and the Defamation Act, what amounts to Defamation and what may be justified or fair comment notwithstanding that an act or statement or publication may be defamatory and therefore tantamount to contempt of the Parliament.

PNG NATIONAL SPEAKER POMAT COMES UNDER SCRUTINY OVER LACK OF DETAILED REPORT ON APEC MEETING

PNG NATIONAL SPEAKER POMAT COMES UNDER SCRUTINY OVER LACK OF DETAILED REPORT ON APEC MEETING

Parliamentary Opposition and Rabaul MP Allan Marat

PNG Parliamentary Opposition has taken a swipe at the Speaker Job Pomat for not having the benefit of accessing detailed information about the APEC Leaders’ Summit.

During Question Time in Parliament on Friday, Rabaul MP Allan Marat said in the past Parliament would sit for a fortnight and on the third the Parliamentary committee members would meet to pass resolution on their next course of action or activity plan.

He added that this was not happening with the committee responsible for APEC and Trade.

Marat stated Parliament has only been informed about the event on the mainstream media but not by the responsible Parliamentary Committee in Parliament.

The summit has already started in the lead up to the major one in November.

He has called on the Speaker to assign activities for the committee so a detailed and independent information be tabled in Parliament for its deliberation.

Mr Pomat responded that they would take the matter to the Leader of Government Business James Marape to ensure they perform their roles and responsibilities.

Author Reference:  Wanpis Ako has graduated from the University of Papua New Guinea with a Bachelors Degree in Journalism and Public Relations. He has briefly worked with two daily newspapers of Papua New Guinea-The National and Post Courier. His work experience has been extended into the Prime Minister's Media Unit and the office of Parliamentary Opposition Leader of Papua New Guinea- not to mention the Ministries of Treasury, Higher Education, Communications, Information Technology and Energy.  He has got over five years experience in digital marketing, branding, public affairs, media and public relations.    

PNG PARLIAMENT PASSES APEC  SECURITY AND SAFETY BILL

By WANPIS AKO

With only months to go before the Asia-Pacific Economic Cooperation Leaders' Summit takes off the ground in November this year, the Parliament of Papua New Guinea passed the APEC Security and Safety Bill to give immunity to foreign security officers who are accompanying the world leaders in its April session. 

Other related APEC official and ministers meetings have already commenced leading up to the main one.

That means they will be immune to prosecution under the countries legal system whilst the Parliamentary Opposition was calling for equal protection on the country's citizens. It is a norm for any APEC host country. (Their debates are below in the subsequent paragraphs).

An artistic impression of APEC meeting house.

It has sent signal to the whole world that the country is ready to receive its foreign guests with open arms in a more culturally Melanesian way.

The bill took precedence over other order of the day when Parliament resumed at 10:50 am last Friday (April 13, 2018).

Minister for Lands and Physical Planning, and APEC Justin Tkatchenko has got the necessary support from ONLY the government MPs to make it become a law when it was passed by nine more than the absolute majority-64:17 votes in its favor.

This sunset law will now give security officers of the world leaders immunity against prosecution. That means they cannot be held liable or prosecuted under the country’s laws should they cause damages to lives and properties whilst cross firing with suspects attempting to assassinate their bosses. The law will be in operation for two-days during the world leaders’ summit in November. Thence, it will automatically be obsolete.

Debating on the Bill, Sinesine-Yongomugl MP and Opposition Stalwart Kerenga Kua said there was a loophole in the bill which needed to be fixed before it was reintroduced.

Whilst giving immunity to the foreign visitors for immunity, he said fellow citizens should also be protected in the bill.

He recommended to the Minister to insert a clause in the bill-an immunity clause for the citizens or the State to be vigorously liable for damages or loss of properties, urging the Speaker to defer the vote for the bill.

However, the Speaker Pomat ruled it out, maintaining forum for further debate.

Debating in support of the Bill, New Ireland Sir Julius Chan, the leader of People’s Progress Party, said the bill was in compliance with the Constitution. The people’s rights cannot be overlooked by the Government.

National Parliament House of Papua New Guinea.

Parliament became rowdy, attracting the Speaker to call for an order in the house.

“Our people are good people. I respect his (Kua’s) views. The unusual event which requires stringent security protocols. The event will guide our future. It will give the right signal to the whole world. Let us not miss the opportunities. Let us pick it. It is a right thing to do. It can’t be played up with,” he told Parliament.

Parliamentary Leader of United Resource Party in the coalition government and the Minister for State Enterprise, William Duma said the Opposition should stop painting a wrong perception to the public that the ‘government does not care about its own people,’ as opposed to the government’s priorities, policies and other government businesses.

He said PNG was coming off age, adding it can be reckoned with.

Just before Duma finished his debate in support of the bill, Kua interjected with a Point of Order. In that he said Duma was being defensive to foreign guests and not the people whom, he said, were protected should there be a civil and criminal liability.

Minister for Justice and Attorney-General-Davis Steven was dragged into the verbal tug of war. Minister Davis said there were not new issues with the bill as these questions were addressed by the State Solicitor and the First Legislative Council which had vetted the bill before being tabled in Parliament. He made reference to a Supreme Court decision related to a question of law-which was opposed by Kua again through a Point of Order.

Kua said the engagement of the Australian Federal police was declared illegal in a part of the decision and the case law cannot be brought to the attention of Parliament as it was not applicable.

However, the government’s chief legal advisor maintained that under the bill the people’s rights which Kua was debating were still active, adding this is an important bill that needs to be passed.

Opposition's Shadow Minister for Justice and Attorney-General (left) with fellow MPs outside Parliament

He called on Opposition MPs not to create a fire which does not exist in the bill.
Davis further said the bill was designed to advance the country consistent with priorities of government. “The bill was brought to Parliament after due considerations,” he told Parliament.

Another vocal critic in the Opposition ranks and East Sepik Governor Allan Bird-law has taken the government to task on who is going to be responsible should there be liability inflicted on the citizens under the bill. He likened the government’s behavior in Parliament to ‘driving a bulldozer’.

“I would like an assurance, before I give my support,” said Bird, who voted against it.

Prime Minister Peter O’Neill has urged Opposition MPs to be responsible other than portraying an impression of security threat to the foreign guests-who have confirmed to attend the summit.

He said the treat which, in fact, did not exist rarely in the country.

“In fact, we are a peaceful country. Our people’s rights are protected. The State always gets sued every day for damages to properties and loss of lives,” he told Parliament.

The bill, he said, will give only one-off immunity to the guests, adding it is a normal protocol.

“They are immune for prosecution. We need to respect those coming to the country. Let us portray the best image. It is not time to play politics and become alarmists. It is about leaders work together to attract investments.

“PNG has come off age. Stop being small-minded,” he told Opposition MPs in Parliament.

Author Reference: Wanpis Ako has graduated from the University of Papua New Guinea with a Bachelors Degree in Journalism and Public Relations. He has briefly worked with two daily newspapers of Papua New Guinea-The National and Post Courier. His work experience has been extended into the Prime Minister Media Unit and the office of Parliamentary Opposition Leader of Papua New Guinea- not to mention the Ministries of Treasury, Higher Education, Communications, Information Technology and Energy.  He has got over five years experience in digital marketing, branding, public affairs, media and public relations.