DON POMB POLYE VERSUS BELDEN NORMAN NAMAH
Election of Hon. Don Polye as Opposition Leader: Was it proper?
1. Introduction
It is confusing to the public whether or not the purported election of Hon. Polye as the Opposition Leader (OL) was technically (procedurally) proper. I wish to state the position of the law and express my fair and honest opinion on that to clear the minds of those who need such a clarification.
2. The Composition of the Office of the Opposition
Foremost, the Constitution does not establish the Office of the Opposition. However Schedule 1.2 of the Constitution defines the term “the Leader of the Opposition” as “…the member of the Parliament…recognized by the Parliament as being the principal speaker on behalf of those members of the Parliament who are not generally committed to support the Government in the Parliament;”.
Section 64(1) of the Organic Law on Integrity of Political Parties and Candidates (the Organic Law) establishes the Office of the Opposition. This section is clear that Opposition “…is made up of Members of Parliament not in government.” This appears to be in harmony with the constitutional definition cited above that any MP who is not supporting or in the Government is automatically in the Opposition. The OL is the “principal speaker” on behalf of MPs who make up the Opposition.
3. What is the Position of the Law regarding the Election of the Opposition Leader?
(a) The Constitution
The Constitution is silent on the election of the OL and/or the Deputy OL. The OL is a constitutional office holder (note that constitutional office-holder is different from constitutional office holder) and is one of the Leaders subjected to the Leadership Code. Under the Constitution, OL is a member of “two” important appointing committees and they are:
• Public Services Commission Appointments Committee-a committee that appoints the three members of the Public Services Commission one of whom is appointed as the Chairman, and
• Ombudsman Appointments Committee-a committee that appoints the three members of the Ombudsmen Commission one of whom is appointed as the Chief Ombudsman.
(b) Organic Law on Integrity of Political Parties and Candidates
As alluded to above, Section 64(1) of the Organic Law talks about the establishment of Office of the Opposition. Subsection (2) is relevant. It says that “(t)he Members shall elect in a democratic manner one of their numbers (sic) to be the Leader of Opposition who shall in turn then appoint one of the Members to be the Deputy Leader.” This proviso is apparently a summary and it does not provide the details of how exactly the election will have to be conducted as in the case of the PM.
Nevertheless, it is important to ask whether or not Polye was elected in a “democratic manner”.
The elements of this question are:
• firstly, whether the caucus was called properly according to Parliamentary conventions?
• secondly, if it was called properly, then was the matter on the agenda?
• if the matter was on the agenda, then was Polye nominated, seconded, voted; and did he win by a majority vote?
Contemplating on the first element, the caucus was not called by Namah and he should be the only person to call it according to parliamentary conventions.
Elaborating on the second element, Namah publicly said he ‘didn’t know what the agenda was’ and ‘there was absence of the agenda of the meeting in that minute that they circulated’.
After these findings, the last question is in fact irrelevant to consider as the process is flawed already in the initial stage. Therefore we accomplish that the entire democratic process was not followed.
(c) The Parliamentary Standing Orders
Like the Constitution, the Standing Orders of the Parliament (the Standing Orders) are also silent on the election of the OL. Section 24A of the Standing Orders allows the OL to nominate three members to form the Parliamentary Legislation Committee. This Committee is consisted of seven PMs, Speaker being the Chairperson and three other MPs nominated by the PM. Section 67 of the Standing Orders allows the OL to make Statements in Parliament relating to matters of Opposition policy or public affairs to which the Government has the right of reply.
4. The Parliamentary Conventions
The inevitable query from the preceding discussions is: What should guide the election of the OL in the absence of any “detailed law” pertaining to it? In any such cases, there is enduring international consensus that conventions should dictate the future practice and confer full legitimacy. The term “convention” here means “adopted/self-developed and accepted unwritten practice”. So parliamentary convention relating to the election of the OL means the unwritten practice the Parliament had so far developed and accepted/recognized as the usual way of electing the OL.
The incumbent Speaker Hon. Theo Zuronuoc says that according to parliamentary convention(s), the Leader of the party with the highest number of MPs becomes the OL and thus Polye should be recognized as OL. On that basis he purports to recognize Polye as the OL.
On another hand, Namah says again according to parliamentary precedents, he should be the one who should call the very caucus in which the agenda of election of OL can be discussed and that the way it eventuated is in breach of such practice (convention).
Both the Speaker and Namah appear to be correct according to precedents. In this case, any prudent person would correct the initial error (or illegitimacy) than to wrap it up unsolved and supposedly accept what appears to be the legitimate end. In other words, Polye’s purported election as OL is in breach of the parliamentary convention even if his party has the majority of the Opposition MPs. That is a clear and simple conclusion. It does not require King Solomon.
5. What if there is No Convention as to the Procedure and Conduct
Section 284(1) of the Standing Orders vests discretion in the Speaker to decide in a matter if the Standing Orders are silent on that particular matter. In deciding any question relating to procedure or the conduct of the business of the Parliament, Subsection (2) allows the Speaker to resort to the Australian Parliament’s House of Representative if the Parliamentary conventions are also silent (i.e., if there is no sessional orders or practice of Parliament).
6. Conclusion
To wrap up the discussion, there is no detailed law on the election of the OL. However, there is detailed parliamentary convention to give full effect to the ‘democratic manner’ referred to in Section 64(2) of the Organic Law. In the presence of such conventions (practice), the Speaker is not bound by Section 284(2) of the Standing Orders to resort to practices of the Australian House of Representative.
This leaves us to the question that whether Polye complied with the Parliamentary conventions. To this it was already accomplished that Polye has never followed the full democratic process that Parliamentary conventions have adopted. It appears that the process was hijacked and the Leadership was “grasped” by numerical strength.
It can all be summed up as follows:
• it was an unprecedented sharp contravention of parliamentary conventions regarding the election of OL in that the caucus was not called by Namah,
• there is no due respect and professional courtesy on the part of Polye towards his fellow brother and colleague Namah in “seizing” the Leadership,
• a clear manifestation of Polye’s desperate and power-hungry ambition, and
• it is quite a disgraceful conduct in the light of everything above.
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