Eichorn v Ninikin [1989] PGNC 124; [1988-89] PNGLR 222; N735 (18 July 1989)

N735

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BILL EICHORN

V

ROBERT NINIKIN, JOE YANZ AND
THE EAST SEPIK PROVINCIAL ASSEMBLY

Wewak
Kidu CJ
17-18 July 1989

PARLIAMENT - Provincial Parliament - East Sepik Province - Speaker - Removal from office - Procedure for prescribed by method of appointment - Cannot be removed by censure motion - East Sepik Provincial Constitution, ss 14, 40, sch 1.8.

PARLIAMENT - Procedures of - Motions of no confidence - Motions of censure - When appropriate - Effect of - Successful censure motion against Speaker - Not effective to remove Speaker from office.

The Speaker of the East Sepik Provincial Assembly (the Assembly) was deprived of his office following a censure motion against him voted upon by the Assembly and carried by 16 votes to 12 votes.

The East Sepik Provincial Constitution relevantly provides under s 14(2) for the Speaker of the Assembly to be "elected by secret ballot in accordance with the Standing Order"; and under s sch 1.8(4) and (5):

"Subject to Subsection (5), where a provision of this Constitution confers a power to make an appointment, the power includes power to remove or suspend a person so appointed ...

This power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power of appointment was made."

Held

(1) A motion of no confidence is not a censure motion: a motion of no confidence is intended to enable a change of government, to cause a general election or where provision is so made, to remove a Minister from office.

Reference No 2 of 1976 [1976] PNGLR 228 at 231, referred to.

(2) A motion of censure is a motion intended merely to criticise, condemn or rebuke a government or person and if successful does not cause a change of government, the holding of an election or loss of office.

Reference No 2 of 1976 [1976] PNGLR 228 at 231, considered.

(3) Section sch 1.8(4) and (5) of the East Sepik Provincial Constitution operates to require the Speaker of the East Sepik Assembly to be removed from office in the manner provided for his appointment to that office under s 14(2), that is, by secret ballot conducted according to the procedures laid down by the Standing Order.

(4) Because the censure motion against the Speaker of the Assembly was not a motion to remove him from office pursuant to s sch 1.8 of the East Sepik Provincial Constitution, s sch 1.8 was inapplicable.

(5) In the circumstances, the success of the motion did not have the effect of removing the Speaker of the Assembly from office.

Cases Cited

Reference No 2 of 1976 [1976] PNGLR 228.

Summons

This was the hearing of a summons seeking declarations in relation to the validity and effect of a successful motion of no confidence against the Speaker of the East Sepik Provincial Assembly.

Counsel

W Jerewai, for the plaintiff.
S Singin, for the defendants.
Cur adv vult

18 July 1989

KIDU CJ: On 6 July 1989, a motion adverse to the Speaker of the East Sepik Provincial Assembly, Mr Bill Eichorn, MPA, was moved and it succeeded 16 votes to 12. The alternate Speaker mentioned in the motion, Tony Paliak, MPA, was elected and sworn in to replace Mr Eichorn.

The plaintiff, in his summons, asks for the following orders and declarations:

(1) That the motion of no confidence in the plaintiff moved by the defendant, Robert Ninikin and seconded by the defendant, Joe Yanz on 6 July 1989, and voted upon by the East Sepik Provincial Assembly and carried by 16 votes to 12, be declared unconstitutional, null and void and of no effect.

(2) That subsequently the swearing in of the alternate Speaker named in the said motion be also declared null and void and of no effect.

(3) That the plaintiff be declared as the duly elected Speaker.

(4) Such other orders as to the Court deem meet.

(5) Costs.

When the motion was tabled there ensued debate about its constitutional validity. Upon legal advice the motion was amended by the Clerk of the Assembly, Mr Mazeb Magar, converting it into a censure motion against the Speaker. Subsequently a vote was taken and Mr Speaker lost his office.

MOTION OF NO CONFIDENCE

Section 40(1) of the East Sepik Constitution provides for motions of no confidence in the Premier, the Executive Council or an Executive member:

"1. For the purposes of Sections 34 (the Premier) and 35 (normal term of office of Executive Members) a motion of no confidence is a motion:

(a) that is expressed to be a motion of no confidence in the Premier, the Executive Council or an Executive member, as the case may be; and

(b) of which not less than 14 days’ notice in writing, signed by not less than five elected members of the Assembly, has been given in accordance with the Standing Orders."

It is crystal clear that motions of no confidence provided for by s 40 of the East Sepik Constitution only relate to the Premier, the Provincial Executive Council and individual members of the Executive Council. That provision does not apply to the Speaker, Deputy Speaker or other members of the Assembly. This obvious law has to be stated here because I am led to believe by Mr Singin that s 40 has been used before to move motions of no confidence against previous Speakers of the Assembly.

I should also point out that a motion of no confidence provision is intended to enable the Assembly to change a government or cause a general election or get rid of a member of the Executive Council who is considered by the Assembly to be unsuitable for ministerial office. A former Chief Justice said this of the no confidence motions provision in the National Constitution but I consider that it applies to similar provisions in provincial Constitutions: see Reference No 2 of 1976 [1976] PNGLR 228 at 231.

CENSURE MOTION

As I have mentioned already, the motion of no confidence moved by the first defendant was converted into a censure motion by the Clerk of the Assembly. It was debated and voted upon and carried 16 votes to 12 in favour of the motion. This successful motion was taken to mean that the plaintiff lost his office as Speaker of the Assembly. But does a successful censure motion have this effect?

In the parliamentary system we inherited from England and Australia, a censure motion is intended to criticise, condemn or rebuke a person or government. Its effect, if successful, is not to cause an automatic loss of office by the person against whom it is directed or a change of government or the holding of a general election.

It is to be emphasised therefore that a censure motion is not like a motion of no confidence. Former Chief Justice, Sir Sydney Frost, in Reference No 2 of 1976, at 232, said of a motion of no confidence and censure motion:

"... It is thus clear that a no confidence motion, the provisions for which are to be found in that subdivision [that is, Division 4 of Pt VI, the National Executive], is one procedure designed by the Constitution to enable the Parliament to bring about a general election or a change in the Government. Of course it is always open to the Parliament to register strong opposition to or dissatisfaction with a particular government policy by passing a motion falling short of one of no confidence, such as a motion of censure, as was recognized by the Constitutional Planning Committee (Final Report, Ch 7, p 6, par 45) ..."

A censure motion being merely criticism or rebuke does not have the effect of causing the person against whom it is moved to lose office if it succeeds.

In this case before the Court, therefore, the success of the censure motion did not have as its automatic consequence the loss of office of Speaker by the plaintiff.

SECTION SCHEDULE 1.8

As there is no specific provision in the East Sepik Constitution or any Act of the Assembly under which the Speaker or Deputy Speaker may be removed from office, s sch 1.8(4) and (5) of the East Sepik Constitution may be resorted to. These provisions read:

"(4) Subject to Subsection (5), where a provision of this Constitution confers a power to make an appointment, the power includes power to remove or suspend a person so appointed ...

(5) This power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power of appointment was made."

The Speaker of the Assembly is appointed by the Assembly pursuant to s 14(2) of the East Sepik Constitution. It reads as follows:

"The Speaker and Deputy Speaker shall be members of the Assembly, and shall be elected by secret ballot in accordance with the Standing Orders."

There is absolutely no doubt then that the appointment of the Speaker by the Assembly must be by secret ballot conducted according to procedures laid down in the Assembly’s Standing Orders. And as requested by s sch 1.8(5) of the East Sepik Constitution, in order to remove the Speaker (or the Deputy Speaker) the same procedures must be followed. I have no evidence before me as to whether there was a secret ballot carried out in respect of the purported removal of the plaintiff. Be that as it may, s sch 1.8 is not relevant as the motion voted upon by the Assembly was a censure motion rather than a motion to remove him pursuant to s sch 1.8.

It might be said that as s sch 1.8(4) says "appointment" and s 14(2) talks of the Speaker being "elected" therefore it is inapplicable to the removal of a Speaker who is elected. I consider that there is no real difference in effect. The only dictionary I have at the Wewak Court House is the Oxford Paperback Dictionary and it defines "elect" and "appoint" thus:

"Appoint": to fix or decide by authority; to choose a person for a job; to set up by choosing members.

"Elect": to choose by vote; to choose as a course; to decide. (My emphasis.)

So the election of a Speaker by the Assembly is choosing a person for the job of Speaker.

I make the following declarations and orders:

1. I declare that the successful censure motion moved against the plaintiff on 6 July 1989 did not have the effect of removing him from the office of Speaker of the East Sepik Assembly.

2. I declare that the swearing in of Mr Tony Paliak, MPA, as the new Speaker was null and void and of no effect.

3. I declare that the plaintiff, Bill Eichorn, MPA, is still the Speaker of the East Sepik Assembly.

4. I order the defendants to pay the taxed costs of the plaintiff.

5. I order that the time for entry of the judgment be abridged to the time of settlement by the Registrar which shall take place forthwith.

Orders accordingly

____________

Lawyers for the plaintiff: Jerewai Lawyers.
Lawyer for the defendants: Provincial Legal Officer, East Sepik Provincial Government.