Joshua v Meya [1989] PGNC 43; [1988-89] PNGLR 188; N724 (22 May 1989)

N724

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HAGAI JOSHUA AND GIMSON SAONU

V

ARON MEYA, JERRY NALAU AND MANG KEMBU

Waigani
Andrew AJ
21-22 May 1989

PARLIAMENT - Provincial Parliament - Suspension of members - Failure to attend sittings - Validity of motion of No Confidence - Matters of public policy relating to public office - Whether justiciable - Constitution, ss 50, 134.

PARLIAMENT - Provincial Parliament - Morobe Tutumang - Motion of No Confidence - Validity - Sufficiency of notice - Sufficiency of vote on - "Two-thirds absolute majority vote" - Morobe Provincial Constitution, ss 41, 42 - Constitution, Sch 1.2, definition "absolute majority vote".

PARLIAMENT - Provincial Parliament - Morobe Tutumang - Suspension of members - Validity of - Constitutional power to legislate or make standing orders allowing for suspension of three months - No such legislation to suspend for three months - Morobe Provincial Constitution, s 22.

The Constitution, s 134, provides that the question whether the procedures prescribed for Parliament or its committees have been complied with is non-justiciable.

The Morobe Constitution, s 41, provides:

"Vote of No Confidence

(1) The Premier or Deputy Premier may be dismissed by a vote of No Confidence passed by the Tutumang.

(2) Notice of a motion of No Confidence must be given at least two (2) weeks before a vote on the motion and must be signed by at least five (5) members of the Tutumang.

(3) Subject to Subsection 2 a vote of No Confidence is a vote of the Tutumang that is expressed to be a vote of No Confidence passed by a two-thirds absolute majority vote."

Section 28(1) provides:

"Unless this Constitution or the Standing Orders of the Tutumang provide for something different all questions shall be decided by the Tutumang in accordance with the majority of votes of the members then present and voting."

"Absolute majority vote" is defined in the National Constitution, Sch 1.2, as meaning:

"(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total numbers of seats in the Parliament; ..."

The Morobe Constitution, s 22, empowers the Tutumang to legislate for the dismissal of members for misconduct in office and to legislate or make Standing Orders to allow the Speaker to suspend members for up to three (3) months. No such legislation had been passed — Standing Orders 87, 88 and 89 gave the Speaker power to control and discipline the behaviour and conduct of members within the Tutumang during its sittings with power on motion to suspend for periods of up to five days.

Held

(1) Questions, as to whether certain members of the Morobe Provincial legislature (the Tutumang) had been validly suspended from the Tutumang and whether a No Confidence motion in the Tutumang was validly passed were justiciable before the National Court: the issues raised were substantial ones of public policy relating to the holding of public office and the exercise of public functions as guaranteed by s 50 of the National Constitution: the issues raised were much wider than the interpretation of procedural matters.

James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420 and Kaguel Koroka v Philip Kapal [1985] PNGLR 117, distinguished.

(2) The requirement under s 41 of the Morobe Constitution for two weeks notice of a No Confidence motion was subject to s 8 of the Interpretation Act (Morobe Province) so that the day on which the No Confidence motion was to be heard was excluded and insufficient notice could not be cured by adjournment.

(3) Accordingly, thirteen days notice of a motion of No Confidence rendered the notice invalid.

(4) Because s 42(3) of the Morobe Constitution specifically required a vote of No Confidence to be passed by a two-thirds absolute majority vote, s 28(1) did not apply; Schedule 1.2(1)(a) of the National Constitution applied so as to require a vote of No Confidence in the Tutumang to be passed by a two-thirds majority of the number of seats in the Tutumang.

(5) Because the number of seats in the Tutumang was 35, a two-thirds absolute majority was 24 votes and a vote of No Confidence by 22 members was invalid.

(6) Section 22 of the Morobe Constitution was an enabling provision only which did not itself give power to suspend a member of the Tutumang for a period of three months or any period in the absence of legislation or Standing Orders so providing.

(7) Accordingly, an order of the Speaker of the Tutumang suspending members for a period of three months for failure to attend a sitting (which was not validly called) was invalid.

Cases Cited

James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420.
Kaguel Koroka v Philip Kapal [1985] PNGLR 117.

Summons

This was the hearing of a summons for declaratory orders relating to the suspension of thirteen members of the Morobe Provincial legislature (the Tutumang) for failure to attend a sitting of the Tutumang called for the purposes of putting a No Confidence motion in the Premier.

Counsel

L Henao, for the plaintiff.
M J Sevua, for the defendant.
Cur adv vult

22 May 1989

ANDREW AJ: The plaintiffs seek declarations and orders by way of originating summons in the following terms:

1. A declaration that an order by the first defendant to suspend the plaintiff and 12 other Tutumang members is null and void.

2. A declaration that the election of Jerry Nalau as Premier by the Tutumang on 16 May 1989 is null and void.

3. A declaration that the election of Mang Kembu as Deputy Premier is null and void.

4. A declaration that the plaintiff is the Premier of Morobe.

5. A declaration that Gimson Saonu is the Deputy Premier of Morobe.

6. Further or other orders.

7. Costs.

The facts of this matter are mostly undisputed. The plaintiff Hagai Joshua was elected Premier of the Morobe Province by the Provincial legislature (called the Tutumang) in June 1988. On 2 May 1989, 10 members of the Tutumang petitioned the Speaker to recall the Tutumang for a No Confidence motion in the government of the Premier on 15 May 1989 — pursuant to s 25(2) of the Morobe Constitution. On the same day, a notice of motion of No Confidence in the Premier was served upon the Speaker in compliance with s 42(1) of the Morobe Constitution and also on that day the Clerk of the Tutumang, on instructions of the Speaker, gave notice to all members to attend on 15 May at 2 pm.

On 15 May, at 2 pm, only 22 of the total number of 35 members of the Tutumang attended the sittings. They were all members of the Opposition faction and the remaining 13 (including both plaintiffs) did not attend. When the Tutumang resumed, the Speaker adjourned the sittings temporarily to seek legal advice in relation to the 13 absent members. He then resumed sitting and told the mover of the motion that it was up to him to move the motion on the floor. The member for Kote Constituency, Mr Yaip Avini, rose and moved that the sittings be adjourned to the following day, 16 May, at 10 am. The motion was passed and the Tutumang was adjourned to the following day. When it resumed the next day the Premier and his supporters were not present and the sittings were then adjourned to 11.30 am. Mr Manarufe Zurecnuoc, the Provincial legal officer, then advised the Premier and his supporters (on the direction of the Speaker) to attend the Tutumang by 11.30 am. The Premier advised him that, as far as they were concerned, the motion was not put or moved at the sittings specified in the Notice Paper and so, by virtue of s 37 and s 38 of the Morobe Tutumang Standing Orders, the motion could not be put as it was not put or moved on the day and time set on the Notice Paper and further that there was no business set for 16 May.

The Premier and his supporters were further requested to appear. They did not do so and the Tutumang resumed at 3 pm with 22 members in the Chamber. The Speaker ruled that he was suspending the Premier and the 12 other members pursuant to s 22 of the Morobe Constitution for disregarding his direction. The motion of No Confidence in the Premier was then moved and debate commenced. At the close of debate the motion was put to the vote and supported by 22 members of the Tutumang. When the vote was taken the Speaker ruled that as he had suspended 13 members, the suspended members did not have a right to vote and that as only 22 persons had a right to vote and therefore to pass the motion, a two-thirds majority of 22 was required. Accordingly he ruled that the motion of No Confidence in the Premier was passed and subsequently Mr Jerry Nalau was nominated and elected unopposed as Premier and Mr Mang Kembu was elected unopposed as Deputy Premier.

In a subsequent letter to the suspended members the Speaker has given his reasons for suspension. He says:

"Your refusal to attend the Tutumang and continues [sic] boycotting of the Tutumang Session without reasons and disregarding the authority of the Speaker during the vote of No Confidence have no official reason and you are hereby suspended from your duty as an Honourable Member for ... Constituency.

Under s 22 subs (4) of the Morobe Provincial Constitution which has reference to Standing Order No 87 you have also breached the Constitution.

Following are the reasons for your suspension:

1. No written official letter of reasoning for your boycott.

2. You have been given 14 days Notice to attend the Tutumang but refused to attend on the day appointed and the time set.

3. The subject matter of the Tutumang was the vote of No confidence which required all Tutumang members to attend and debate the issue and you wilfully without reason boycotted the sitting of the Tutumang.

4. Refused to attend the sufficient time given by the adjournment of the Tutumang.

5. You have lied to me that you would attend the second day session thus deceiving the Chamber.

6. You have failed to comply with the order notice from me thus undermining me as the Speaker of the Tutumang.

7. Your boycotting action was a disgrace to the Tutumang and the people who you represent and the Province and the nation as a whole.

8. You have devalued the spirit of democracy.

9. In your capacity as a leader you have breached the Constitution of Morobe s 47 subs 2(a), (b), (c) and (d).

10. You have made a mockery of Morobe Constitution and Standing Orders of the Tutumang.

My actions are sufficient on the above grounds.

In accordance with s 22 subs (4) of the Morobe Constitution I have applied Standing Order No 87 to suspend you on half (1/2) of your pay for the period specified on the attached note given to the Personnel Officer.

Your suspension is effective as of 3 pm of Tuesday 16 May 1989 when your suspension was announced.

Your official duty as an Honourable Member has ceased as of Tuesday 3 pm until your suspensions are lifted.

As an Honourable Member, I would like you to uphold the dignity of the Tutumang and the confidence of the people ... at its best. Yours faithfully,
...

AERON MEYA AKUI

Speaker of Morobe Tutumang (Assembly)" [sic]

There are two main issues raised by these events. The first is the question of the validity or otherwise of the suspensions and, secondly, the validity or otherwise of the No Confidence motion but there is also the preliminary matter of whether or not these issues are properly justiciable. I deal with these questions in reverse order.

1. THE ISSUE OF NON-JUSTICIABILITY

Counsel for the defendants point to s 134 of the National Constitution:

"134. Proceedings Non-justiciable

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under s 110 (Certification as to making of laws) is conclusive as to the matters required to be set out in it."

There is no similar provision in the Constitution of Morobe. In James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420, the Supreme Court found that the various procedural matters dealing with the conduct of the Parliament’s business were non-justiciable under s 134 of the Constitution. All Provincial laws shall be read and construed subject to the Organic Law on Provincial Government and to other National Constitutional Laws (see s 22 of the Organic Law on Provincial Government (Ch No 1)). In my view, the position here is distinguishable from the case of James Eki Mopio for the questions raised go further than the interpretation of procedural matters. They involve rights pertaining to the holding of public office and to the exercise of public functions as guaranteed by s 50 of the National Constitution. Further, by s 135 of the Constitution, the National Court has jurisdiction to determine any question as to the qualifications of a person to be or to remain a member of Parliament and by s 155(5) the National Court has an inherent power of review where, in its opinion, there are overriding considerations of public policy in the special circumstances of a particular case. In my judgment, the issues raised here — the questions are substantial ones involving rights to hold public office which involve the representatives of many persons in government — as a matter of public policy should be reviewed by the National Court. I think the position here is also distinguishable from the case of Kaguel Koroka v Philip Kapal [1985] PNGLR 117 where the result of a No Confidence motion was challenged where all the requirements pertaining to the No Confidence motion had been complied with. Here, as will become apparent later in this judgment, those requirements had not been complied with.

I find that both questions are properly justiciable before the National Court.

2. THE VALIDITY OF THE NO CONFIDENCE MOTION AND OF THE VOTING UPON THE MOTION

Section 41 of the Constitution of Morobe is as follows:

"41. Vote of No Confidence

(1) The Premier or Deputy Premier may be dismissed by a vote of No Confidence passed by the Tutumang.

(2) Notice of a motion of No Confidence must be given at least two (2) weeks before a vote on the motion and must be signed by at least five (5) Members of the Tutumang.

(3) Subject to Subsection 2 a vote of No Confidence is a vote of the Tutumang that is expressed to be a vote of No Confidence passed by a two-thirds absolute majority vote."

Here the notice of the motion of No Confidence was given on 2 May 1989 for the motion to be heard on 15 May 1989. Under the Interpretation Act (Morobe Provincial Government) (No 4 of 1980), by s 8, in computing time for the purposes of a provision, unless the contrary intention appears, a period of time from a certain day or the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the certain day or the day on which the event happens or the act or thing is done.

This means that less than the required 14 days notice of the motion was given. It was, in fact, 13 days. On that day the Speaker called upon the mover of the motion to move it on the floor of the Tutumang. It is apparent that he did not do so for he moved only that the sittings be adjourned until the next day. Under the Morobe Tutumang Standing Orders, if a member fails to rise and move the motion, it shall be withdrawn from the Notice Paper, unless he, or another member at his request, asks that it be postponed to another time or proceeds with it forthwith (Standing Order 28).

This did not happen here, so that in my view the motion was not properly before the assembly on either 15 or 16 May. It was not properly before the Tutumang on 15 May as at that time only 13 days had been given for its hearing on that day and the adjournment of the sittings to the following day did not cure that defect in itself and in any event the correct procedure of adjourning the actual motion was not complied with so that it was defective for that reason also.

There is also the matter of the voting upon the motion. The Speaker found that he had a two-thirds majority of the 22 members who voted.

By s 41(3) of the Morobe Constitution, a vote of No Confidence is a vote of the Tutumang that is expressed to be a vote of No Confidence passed by a two-thirds absolute majority.

Section 28(1) of that Constitution is as follows:

"28. Voting in the Tutumang

(1) Unless this Constitution or the Standing Orders of the Tutumang provide for something different all questions shall be decided by the Tutumang in accordance with the majority of votes of the members then present and voting."

A quorum for the sitting of the Tutumang is half the number of seats in the Tutumang at that time (Morobe Constitution, s 27(1)). There were and are currently 35 seats so that there was a quorum when the vote was taken. But the Morobe Constitution, in the words of s 28(1), does provide something different than the usual simple majority when it comes to No Confidence motions for the words of s 42(3) require that it be passed by a two-thirds absolute majority.

An absolute majority vote is defined in the National Constitution by Sch 1.2:

"Schedule 1.2. Meaning of Certain Expressions

1. In this Constitution or an Organic Law:

‘absolute majority vote’, in relation to proceedings in the Parliament means:

(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; ... "

Here there were 22 votes of No Confidence and that does not amount to two-thirds of the 35 seats in the Tutumang. It was irrelevant that some members were suspended. There must always be a two-thirds majority of the number of seats, and further the suspended members did not cease to be members — they still held their seats but were simply suspended from the sittings of the Tutumang.

I find that the No Confidence motion was invalid as not complying with s 41(2) of the Morobe Constitution and that in any event it was not passed by a two-thirds absolute majority as required by s 41(3).

3. THE QUESTION OF THE VALIDITY OF THE SUSPENSIONS

Section 22 of the Morobe Constitution provides powers to the Tutumang to pass an Act for the dismissal of members for misconduct in office and to proscribe specific acts which constitute such misconduct. By s 22(4), an Act of the Tutumang or the Standing Orders of the Tutumang may allow the Speaker to suspend members for up to three months. No such Act has been passed so that one must go to the Standing Orders for the power of suspension.

Standing Order 87 is as follows:

"87. Disorder

If a member:

(a) persistently and willfully obstructs the business of the Tutumang; or

(b) is guilty of disorderly conduct; or

(c) uses objectionable words and refuses to withdraw them; or

(d) persistently and wilfully refuses to conform to those Standing Orders or any one or more of them; or

(e) persistently and wilfully disregards the authority of the Chair,

the Speaker may report to the Tutumang that the member has committed an offence."

Standing Order 88 then provides that if a member is so reported he shall be called upon to stand in his place and make such explanation or apology as he thinks fit and afterwards a motion may be moved that such person be suspended.

Standing Order 89 then provides penalties of suspension on the first occasion for the remainder of the day’s sittings and on the second occasion within the same session for up to two days and on the third or any subsequent occasion within the same session for up to five days.

Clearly these Standing Orders are designed to give the Speaker powers to control and discipline the behaviour and conduct of members within the Tutumang during its sittings, for the member can be called upon to "stand in his place" for various forms of unruly and objectionable behaviour and he may there and then be dealt with by the Tutumang and suspended for up to a maximum of five days.

This is different from the present case where the plaintiffs have failed to attend and the Standing Orders have not been amended to allow a suspension of three months as envisaged by s 22(4) of the Morobe Constitution. It seems to me that failure to attend meetings of the Tutumang should properly be dealt with under s 21(4)(c) of the Morobe Constitution where failure to attend two consecutive meetings of the Tutumang without permission may lead to a member’s seat becoming vacant.

The Speaker in his affidavit clearly states that he was suspending the plaintiffs for three months by the power given to him by s 22(4) of the Constitution for wilfully obstructing the business of the Tutumang. I find that s 22 is directed towards an Act being passed to provide for misconduct in office and s 22(4) cannot be read in isolation. It provides for that Act to allow suspension for three months (and no Act has been passed) and similarly it means that Standing Orders may be passed to include a power of suspension for three months. That Standing Order also has not been passed. I cannot read s 22(4) as itself giving a power of suspension of three months. The Standing Order to do so must be passed. Further, the office of wilfully obstructing the business of the Tutumang comes from Standing Order 87 — which is an offence under that order during the sittings of the Tutumang and for which the maximum penalty is five days suspension.

I find for these reasons that the suspension was invalid and also because it was based upon non-attendance at a sitting which was not validly constituted because the notice of motion of No Confidence did not comply with the period of notice of two weeks. Accordingly, I propose to order that the suspension of the plaintiffs was null and void.

I have considered the position of the other 11 members who were suspended. They do not appear as plaintiffs in this action but the originating summons also seeks an order that their suspensions were null and void and seeks further orders. In the interests of justice and in view of my findings, I think it would only be appropriate that I also list their suspensions.

In conclusion, I wish to make the following comments.

It seems to me that the Speaker of the Tutumang, Mr Aron Meya Akui, has behaved honourably and in the best interests of the Tutumang. It appears that he has become frustrated by the failure of the Premier and the Deputy Premier and the 11 other members to attend the Tutumang which has been seen, perhaps correctly, as an attempt to avoid a No Confidence motion against them. But their non-appearance cannot stop the sittings for, as long as there is a quorum of half the current number of 35 seats, then the sittings may proceed and a No Confidence motion can be conducted providing there is a period of notice greater than two weeks and may be carried if there is a two-thirds majority of the 35 seats which would amount to 24 votes. The ordinary business of the Tutumang can be conducted with a majority of votes of the members then present and voting. If members take it upon themselves not to attend, then their seats may become vacant, providing s 21(4) of the Morobe Constitution is complied with.

For the reasons outlined, I find that the notice of the motion of No Confidence did not comply with s 41(2) of the Morobe Constitution and was not passed by a two-thirds absolute majority as required by s 41(3). Accordingly, I propose to order that the election of Jerry Nalau as Premier on 16 May 1989 is null and void and that the election of Mang Kembu as Deputy Premier is also null and void. I also propose to make a declaration that the suspension of the first and second defendants and 11 other members is null and void.

I make the following orders:

1. The interim orders of Los J in this matter dated 17 May 1989 are absolved.

2. I declare that the order by the first defendant herein dated 16 May 1989 to suspend the following members of the Tutumang is null and void:

HAGAI JOSHUA

GIMSON SAONU

JONATHON SAING

TIM BAFENU

ROMOKE LOTOTONGIA

TINGNEO MANDAN

TUKAPE MASINA

JOE TAULO

GEMU APUAKE

MATHIAS YALABING

GEYOSHU KAHU

NAGARING PAPI

MUNZI KATIVA

3. I declare that the election of Jerry Nalau as Premier by the Tutumang on 16 May 1989 is null and void.

4. I declare that the election of Mang Kembu as Deputy Premier is null and void.

5. I declare that the plaintiff Hagai Joshua remains the Premier of the Morobe Province.

6. I declare that Gimson Saonu remains the Deputy Premier of the Morobe Province.

7. I make no order as to costs.

Orders accordingly

___________________

Lawyers for the plaintiffs: Henao Cunningham & Co.
Lawyers for the defendants: M J Sevua.