Balkin and Levinson classify Constitutional Crisis into three types. Type 1 Declaring a State of Exception, Type 2 Excessive Fidelity to a Failing Constitution and Type 3 Struggles for Power beyond the Boundaries of Constitution. They summarize all as follows;
Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to Constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used - or threatened - in order to prevail.
When Prime Minister Somare was removed from Office, some called it a constitutional crisis according to former Chief Justice Sir Anorld Amet. Sir Arnold said that the removal of the Prime Minister can only be done following the processes set out in section 142 of the Constitution.
The provisions of section 142 subsection 5 of the Constitution are as follows:
(5) The Prime Minister–
(a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election; and
(b) may be dismissed from office in accordance with Division III.2 (leadership code); and
(c)may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.
The East Sepik Provincial Government has asked the Supreme to rule on the Constitutionality of the decision by Parliament to remove Sir Michael and replace him with Peter O’Neil. This is the First Type of Constitutional Crisis
Under Papua New Guinea’s current Political Arrangement, there are three independent arms of Government – Legislative, Executive and Judiciary. The Legislative arm is headed by the Speaker of Parliament; the Judiciary is headed by the Chief Justice while the Executive is headed by the Prime Minister and the National Executive Council (NEC).
Each of these arms is not expected to be interfered with by another. However no arm of the Government has absolute power or is unaccountable. Thus if a Politician abuses his/her office, the politician is held accountable by the Leadership Tribunal. Likewise when allegations are brought against a judge, the National Executive Council has the Constitutional mandate to suspend the judge and refer the judge to a Tribunal.
On the 10th of November 2011, the acting Prime Minister, Belden Namah and the National Executive Council suspended the Chief justice from office under powers granted by section 179 of the Constitution. Section 179 reads:
179. REMOVAL FROM OFFICE OF CHIEF JUSTICE.
(1) If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may–
(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.
(2) If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may, by notice in writing to the Chief Justice, remove him from office.
(3) The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Services Commission.
The NEC, in accordance with section 181 of the Constitution set up a tribunal comprising former Justice Paul Akuram as Chairman and the Justices Collin Makail and George Manuhu to investigate allegations brought against the Chief Justice.
That evening the Supreme Court issued orders staying the NEC decision to suspend the Chief Justice, and issued a bench warrant for the arrest of acting Prime Minister Belden Namah and Attorney General Allan Marat.
What we have here is a situation where the Speaker of Parliament led Parliament to oust a Prime Minister. A Constitutional crisis of the nature of Type One arose where members of Parliament may have acted beyond the Constitutional provisions because they felt there were exceptional circumstances and it was in the public interest to do so.
The Supreme Court was then asked by aggrieved parties, to decide on the Constitutionality of Parliament’s decision. The Chief Justice presided over this case known as Supreme Court Reference No.3 of 2011. Hearings concluded on the 28th of October and a decision is expected to be handed down on the 9th of December 2011.
In highlighting the preceding fact, the Supreme Court formed the opinion that:
“...WHEREAS the Chief Justice had presided over the hearing of this Reference which concluded on Friday 28th October 2011, and the decision is pending on Friday 9th December 2011;
AND WHEREAS the said decisions and actions of the National Executive Council amount to contempt of the Supreme Court;”
The National Executive Council may have acted within its Constitutional powers to suspend the Chief Justice from Power but the Supreme Court has decided per the Bench Warrant that the action taken by the NEC amounted to contempt of the Supreme Court given the circumstances surrounding the suspension.
This is a Type 3 Constitutional Crisis where both parties may claim that their opponents are violating the Constitution or wrongly preventing lawful action under it. Resolution of this crisis will depend on whether the NEC is willing to accept the Courts decision or it views it as interference by the Courts into the Executive arm of Government.
We now have a situation where Parliament was taken to Court. The Court now believes that the Executive was interfering with the Judiciary and has restrained it from acting. The three arms of Government are now in a dangerous tango. This has brought about the issue of the role of the Head of State to the forefront.
Balkin and Levinson refer to the situation in 1860 where during the secession by the Southerners in the US, President James Buchanan sat idly because he believed the Constitution did not grant him powers to keep the Union intact using military force. This was a Type 2 Constitutional Crisis whereby a state actor adhered to what he perceive to be his constitutional duties even though the heavens were falling.
The Constitution of Papua New Guinea makes the role of the Head of State simply ceremonial. The Governor General is just a rubberstamp. By adhering to the Constitution, the Governor General is creating a Type 2 Constitutional Crisis. By adhering to his constitutional duties and not intervening to resolve the crisis, the Governor General as Head of State may not be acting in the best interest of the State.
Balkin, Jack M. and Levinson, Sanford, "Constitutional Crises" (2008). Faculty Scholarship Series. Paper 18. http://digitalcommons.law.yale.edu/fss_papers/18
Constitutional Crisis Hits PNG, PNG BLOGS (SCR No.3 of 2011)