Government and governance, Law | The Pacific

28 February 2022

The time is right for the Papua New Guinea Government to pursue a much-needed law reform agenda, but politicians will have to show up to parliament first, Glen Mola Pumuye and Jennivive Kuman write.

Recently, there have been calls to review several laws in Papua New Guinea (PNG). One major reason for this push is because these laws, such as the Worker’s Compensation Act, labour laws and resource laws, were enacted years ago and are now outdated. Many laws in PNG were either passed in the colonial era and are no longer relevant to today’s circumstances, or are outdated criminal laws that are not up to date with international standards.

In 2018, Mange Matui, the Secretary for the Constitutional and Law Reform Commission (CLRC), stated that in excess of 370 PNG laws are outdated by half a century or more. Many other Pacific Island nations also face problems with pre-independence laws that are now culturally inappropriate and lack operational effectiveness.

Despite an obvious need for reform, there are a number of barriers to updating laws in PNG, of which two are most significant.

The first is political. There is a broad failure amongst PNG’s political class to recognise that lawmaking is an important parliamentary function and must be a priority in the government’s legislative agenda. Successful law reform further requires a vibrant parliamentary democracy in which there is a culture of debate and proactivity in responding to emerging situations.

However, as summarised by prominent political academic Alphonse Gelu, ‘the lack of quorum and persistent absenteeism have come to define the nature of Parliament in PNG. MPs [members of parliament] do not see the importance of their role to intelligently debate bills and other issues’.

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The primary factor causing this is the fact parliamentarians’ performance is measured in terms of service delivery, not lawmaking. They are seen as the key conduits to deliver services to their electorates because other systems of service delivery do not work effectively in PNG. There are few incentives for MPs to engage in law reform, a problem magnified by the absence of political parties with clear policy platforms.

Additionally, a culture of clientelism still dominates political life in PNG. This means that leaders are voted into parliament by people who expect benefits in return. As a result, MPs are more focused on re-election than parliamentary obligations. This aspect of Melanesian political culture draws MPs’ attention away from their institutional responsibilities as lawmakers and overseers of government.

Moreover, instead of debating and passing laws, parliamentarians’ time is taken up with frequent motions of no confidence. The use of a no confidence motions by the opposition, or even members of the government, can feel like a weekly occurrence in PNG politics. This has a disastrously destabilising effect on the governing process, as it forces politicians to focus on politics over policy. Only when a government is stable can it concentrate on lawmaking.

The second barrier to law reforms in PNG is a lack of both human and financial resources. This is linked to the aforementioned barrier because, in order for bills to be introduced in parliament to be passed into law, the groundwork and policy justification needs to be done by knowledgeable public servants.

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By the late 1980s and early 1990s, PNG’s CLRC had begun to experience a serious decline, caused by negative political interference, neglect, and a chronic lack of funds. As a result, their role was taken over by what have been described as ad hoc committees, created to do the work of the virtually ‘defunct’ CLRC.

More recently the CLRC has experienced a resurgence, despite its limitations. This improvement began with the appointment of a new secretary in 2018, who spearheaded much needed reforms, including a major suite of whistle-blower legislation. The new secretary was also instrumental in the formulation of the Independent Commission Against Corruption legislation and the Lukautim Pikinini Act, a benchmark for the protection of children in PNG.

Multiple law reform agendas are being pursued by the CLRC, including an income tax review, a review of real estate and housing issues, and the review of court procedures. Many young lawyers were recruited, and senior lawyers sent for postgraduate studies in Australia. Further, leading lawyers, bureaucrats, and academics have been appointed commissioners of the CLRC.

Whilst the CLRC is functioning admirably, it still suffers from massive funding shortages. Additional funding is needed so it can better assist the government pursue the pressing issue of law reform.

Now is an ideal time for the government to undertake significant law reform. There is a need to aggressively push for an update of PNG’s laws, as many were passed either before or right after independence and are not up to date with the current state of affairs.

With qualified people working for the CLRC and greater attention to law reform in parliament, there is an opportunity to update PNG’s outdated laws. Whether or not the country’s leaders can take advantage of this opportunity, is up to them.

This article is based upon a paper published by ANU Department of Pacific Affairs (DPA). The original paper can be found here.

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