Mopio v Speaker of Parliament [1977] PGLawRp 558; [1977] PNGLR 420 (28 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 420 - James Eki Mopio v Speaker of Parliament 

[1977] PNGLR 420

SC126

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JAMES EKI MOPIO

V

THE SPEAKER OF THE NATIONAL PARLIAMENT

Waigani

Frost CJ Prentice DCJ Williams J

28 October 1977

PARLIAMENT - Appointment of Prime Minister - Appointment sought to be set aside - Procedure on appointment - Procedure non-justiciable - Constitution s. 115(2)(3), s. 134[cdlix]¹, s. 142(4)[cdlx]².

Section 142(4) of the Constitution which provides “If a Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day,” provides merely for the time for the question of the appointment of Prime Minister to be considered, and the order of business, which are matters which concern the conduct of the business of the Parliament and its procedures within s. 134 of the Constitution.

Held

Accordingly, that proceedings seeking a declaration that the appointment of the Prime Minister was null and void on the ground that s. 142(4) of the Constitution had not been complied with, involving the question whether the procedure in s. 142(4) of the Constitution had been complied with and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, were non-justiciable under s. 134 of the Constitution and jurisdiction ought to be refused.

Application for Prohibition and Declaration

These were applications for prohibition, declaration and determination of a question relating to the interpretation of s. 142(4) of the Constitution, instituted by a member of the National Parliament. The principal relief sought was a declaration that the appointment of the Prime Minister was null and void and that a new election of a Prime Minister should be ordered.

The plaintiff in person.

Counsel

C. Maino-Aoae and Pokwari Kale, for the defendant.

B. W. Kidu, Acting Principal Legal Adviser to the National Executive, intervening.

28 October 1977

FROST CJ PRENTICE DCJ WILLIAMS J: These proceedings concern the appointment of Mr. Michael Somare as the Prime Minister of Papua New Guinea following the general elections earlier this year. Mr. James Eki Mopio, the plaintiff, who is a member of the National Parliament, contends that the requirements of s. 142(4) of the Constitution were not complied with, and on that ground seeks a declaration that the appointment of the Prime Minister was null and void and that a new election of Prime Minister should be ordered. The other relief sought by way of order for prohibition would not appear to be appropriate.

At the outset Mr. Kidu, the Acting Principal Legal Adviser, sought leave to intervene on behalf of the National Executive Council. Mr. Mopio, who appeared in person, objected to the application, but as the interests of the Prime Minister and also the entire Ministry were vitally concerned leave was granted.

Section 142(4) of the Constitution provides as follows:

N2>“(4)    If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.”

Mr. Mopio contends that that section goes further than to prescribe the order of business for the next sitting day after the meeting of Parliament has been called, and requires that the election of the Prime Minister is to be conducted on the day following the appointment of the Speaker. If that were the proper construction of the section, it would not be the end of the matter because Mr. Mopio would then need to establish that the section was mandatory and not merely directory so that non-compliance would have the effect in law of invalidating the appointment.

After Mr. Mopio outlined his case a preliminary objection was taken by Mr. Pokwari Kale on behalf of the Speaker that what Mr. Mopio was seeking to do was to litigate before this Court the question whether a procedure prescribed for the Parliament had been complied with, and that such a question, there being no special provision in a Constitutional law to the contrary, was non-justiciable — Constitution, s. 134. So far as Mr. Mopio’s reliance on a breach of the Standing Orders was concerned, Mr. Pokwari Kale submitted that as such orders concerned the order and conduct of the Parliament’s business and proceedings that matter also was non-justiciable. Constitution, ss. 133, 134.

Counsel relied also on the Constitution, s. 115(2), which provides, so far as is relevant, that there shall be freedom of 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).

Mr. Kale then referred to Dingle v. Associated Newspapers Ltd. & Ors.[cdlxi]³, a case in England, in which the Court applied the Bill of Rights 1688, s. 1, art. 9, to which our s. 115(2) is substantially similar, and also a passage from the headnote of the earlier case of Bradlaugh v. Gossett[cdlxii]⁴ which was adopted by the Court. Whilst full recognition is to be given to the autochthonous nature of the Constitution of Papua New Guinea, this passage is helpful in illustrating the meaning of s. 115(2). It is as follows:

“Reference was also made to Bradlaugh v. Gossett, and it is sufficient to read a short portion of the headnote: ‘The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law ...’. There is a clear affirmation of the exclusive right of Parliament to regulate its own internal proceedings.”[cdlxiii]⁵

The Acting Principal Legal Adviser supported these submissions and referred also to the Constitution, s. 115(3), which provides, so far as is relevant, “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, ...” He submitted that this section clearly conferred upon the Speaker an immunity from judicial control or supervision in the exercise of his function of conducting the election of the Prime Minister.

Although Mr. Mopio made no direct reply to these arguments, part of the case that he presented to the Court was presumably intended to meet the issue of non-justiciability if it proved to be raised on behalf of the Speaker or National Executive Council.

Mr. Mopio referred to s. 22 of the Constitution which provides that the provisions of the Constitution that recognize rights of individuals as well as those that conferred powers or imposed duties on public authorities shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as is practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine. He referred also to the power to impose sanctions under the Constitution, s. 23. His argument was based also on s. 50 which confers as one of the special rights of citizens the right to vote for and to be elected to public office, and also s. 57 which provides for the enforcement of the guaranteed rights and freedoms by the National Court. The submission as we understand it is that the Constitutional right of a Member of Parliament to be elected as Prime Minister and the enforcement of the Speaker’s duty in that regard are required to be protected by the National Court, and that this consideration over-rides the provision that certain proceedings are to be non-justiciable. But the Standing Orders deal with the conduct of the Parliament’s business and s. 142(4) does not deal with or affect the rights of Members. Further, s. 22 in its generality must give way to the particular provisions of s. 134. Section 142(4) provides merely for the time for the question of the appointment of Prime Minister to be considered, and the order of business — whether on one day or more than one day — in which it is to be dealt with by the Parliament.

These are matters which concern the conduct of the business of the Parliament and its procedure. Accordingly as the issues before the Court involve the question whether that procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, this Court has no jurisdiction to entertain the case now before it.

The Court is not to be taken as accepting as correct that construction of s. 142(4) which is contended for by Mr. Mopio.

A further insuperable difficulty for Mr. Mopio is that insofar as the application takes the form of a reference for the interpretation of the Constitution, s. 19(3) provides that only certain designated authorities may make such a reference to this Court, and Mr. Mopio cannot bring himself within that provision.

Accordingly the applications now before the Court are refused.

Applications dismissed.

The plaintiff (in person): J. E. Mopio.

style='font-size:12.0pt;font-family:Verdana'>[cdlix]Section 134 of the Constitution provides PROCEEDINGS NON-JUSTICIABLE. Except as is specially provided by a Constitutional Law, the question, whether procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable ...

[cdlx][cdlxi][1960] 2 Q.B. 405.

[cdlxii](1884) 12 Q.B.D. 271.

[cdlxiii] [1960] 2 Q.B. 405 at p. 410.