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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 4 0F 2010
SPECIAL REFERENCE
PURSUANT TO CONSTITUTION, SECTION 19
IN THE MATTER OF RE-ELECTION OF THE
GOVERNOR-GENERAL, SIR PAULIAS MATANE, FOR THE SECOND TERM AND INTERPRETATION OF
SECTIONS 87(5) AND 88 OF THE CONSTITUTION
REFERENCE BY
THE MOROBE PROVINCIAL EXECUTIVE
Waigani: Sakora J, Batari J,
Cannings J, Manuhu J, Gabi J
2010: 29 October, 29, 30 November, 10 December
CONSTITUTIONAL LAW – appointment of Governor-General by the Queen and Head of State – whether proper procedures followed – Constitution, Division V.3: appointment etc of Governor-General – Organic Law on the Nomination of the Governor-General.
A referring authority filed a special reference to the Supreme Court under Section 19 of the Constitution seeking the Court's opinion on eight questions of interpretation and application of the Constitutional Laws relating to the re-appointment, by the Queen and Head of State, of the Governor-General. The questions concerned, in particular, Section 87(5) of the Constitution (no person is eligible for appointment more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term). Section 88(1) of the Constitution (the Governor-General shall be appointed by the Queen and Head of State, acting with and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament), Section 88(2) of the Constitution (a decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot, in accordance with an Organic Law) and Section 95 of the Constitution (if there is a vacancy in the office of Governor-General, the Speaker is the Acting Governor-General). The material facts were undisputed, including that, though the Parliament voted by two-thirds absolute majority to approve the appointment of the immediate past Governor-General for a second term, no exhaustive secret ballot was conducted and that on the day that the Parliament gave its approval, that person's first term of office had expired and the Parliament was presided over by the Speaker, contrary to Section 95(4) of the Constitution (during any period when he is the Acting Governor-General, the Speaker shall not exercise or perform any of the other powers, functions, duties and responsibilities of the office of Speaker).
Held:
(1) The Parliament, and in particular the Speaker, breached Section 88(2) of the Constitution – which requires that every decision of the Parliament to nominate a person for appointment as Governor-General be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law, including where a person proposed for nomination has been approved for appointment for a second term – by not having an exhaustive secret ballot and not allowing any other candidates to be considered for nomination.
(2) The Speaker breached Section 95(4) of the Constitution by exercising the powers, functions, duties and responsibilities of the Speaker during a period when he was by virtue of Section 95(2)(a) of the Constitution the Acting Governor-General.
(3) The breaches of Sections 88(2) and 95(4) of the Constitution and related Constitutional Laws were serious and extensive and resulted in most of the eight questions being answered in the manner proposed by the referrer.
(4) The Court was obliged, by virtue of its duty to uphold the Constitution and the Rule of Law, to give its binding opinion that the nomination, and consequently the appointment, of the Governor-General was unconstitutional, and to declare that the appointment was null and void and to order that it is quashed and that the Parliament be called to meet as soon as practicable, in view of the vacancy in the office of Governor-General, to nominate the next Governor-General.
Cases cited
The following cases are cited in the judgment:
Provincial Executive Council of the Fly River Provincial Government of Western Province v Registrar of Political Parties (2010) SC1057
Re Election of Governor–General (No 1) (2003) SC721
Re Election of Governor–General (No 2) (2004) SC728
Re Election of Governor-General (No 3) (2004) SC752
Re Election of Governor-General (No 4) (2004) SC773
SPECIAL REFERENCE
This was a Constitution, Section 19 reference.
Counsel
A Manase, for the referrer
P Ame, for the first intervener
C Mende, for the second intervener
J Lome, for the third intervener
L Kandi, for the fourth intervener
B Lomai, for the fifth intervener
10 December, 2010
1. BY THE COURT: The Morobe Provincial Executive has applied to the Supreme Court under Section 19 of the Constitution for its opinion on eight questions relating to the interpretation and application of the Constitutional Laws. The questions surround the decision of the National Parliament on 25 June 2010 to nominate Sir Paulias Matane for appointment as Governor-General. The questions are in the nature of a challenge to the constitutionality of Sir Paulias's appointment.
2. The Queen and Head of State of Papua New Guinea, Queen Elizabeth II, appointed Sir Paulias as the Governor-General in accordance with the advice of the National Executive Council given in accordance with the decision of the Parliament. Sir Paulias was originally appointed as Governor-General in 2004 for a six-year term. His most recent appointment was for his second term as Governor-General.
3. The referrer's questions concern, in particular, the following provisions of the Constitution:
4. The full text of Part V (the head of state) of the Constitution, in which these provisions are found, together with the Organic Law on the Nomination of the Governor-General, are set out in appendixes to this judgment.
5. The material facts are undisputed, including that, though the Parliament voted by two-thirds absolute majority to approve the appointment of Sir Paulias for a second term, no exhaustive secret ballot was conducted and that on the day that the Parliament gave its approval, Sir Paulias's first term of office had expired and the Parliament was presided over by the Speaker, Hon Jeffrey Nape MP, contrary to Section 95(4) of the Constitution. This provision states that, during any period when he is the Acting Governor-General, the Speaker shall not exercise or perform any of the other powers, functions, duties and responsibilities of the Office of Speaker.
PARTIES
6. Five parties were granted leave to intervene in the reference. Three of them were candidates for the office of Governor-General by virtue of their being proposed, along with Sir Paulias, for nomination:
7. Those three interveners generally support, with some exceptions, the submissions of the referrer. They say that the nomination and the appointment of Sir Paulias were unconstitutional and that the Court should quash Sir Paulias's appointment.
8. The second intervener, the National Parliament, opposes most of the referrer's submissions and argues that the Constitutional Laws were substantially complied with and that Sir Paulias's appointment should not be disturbed.
9. The fourth intervener, the Attorney-General, Hon Ano Pala MP, proposes answers to the questions that would generally lead to the conclusion that Sir Paulias's appointment was unconstitutional; however, in significant respects the propositions advanced by the Attorney-General differ from those of the referrer.
10. We will begin by setting out the facts on which the eight questions are based. We will then set out and give an opinion on each question. We conclude by making a number of consequential declarations and orders based on our answers to the questions that are an integral part of our opinion.
THE FACTS
11. We base our determination of the facts on a statement of facts agreed to by the parties, subject to modification and clarification arising from oral testimony of the Secretary to the National Executive Council, Mr Manly Ua, and various affidavits and excerpts from Hansard, all of which have been tendered with the consent of the parties.
12. Sir Paulias' first term of office as Governor-General commenced at midnight on 26 May 2004. This was the time of commencement under the instrument of appointment executed by the Queen and Head of State and dated 23 June 2004.
13. On 4 May 2010 the Speaker of the National Parliament, Hon Jeffrey Nape MP, made a statement in the Parliament on the nomination of the Governor-General. The Speaker announced that the office of Governor-General would become vacant on 29 June 2010. It is not clear why he gave that date, which was incorrect, but it is the date he stated. He explained the requirements for proposals for nomination under the Organic Law on the Nomination of the Governor-General and stated that the proposal forms must be handed to the Clerk of the Parliament by 18 May 2010. He fixed 20 May 2010 as the date for conduct of a ballot to decide the person who would be nominated by Parliament to fill the vacancy. Those dates were later extended, apparently because of problems with the proposal forms.
14. Sir Paulias' term of appointment was, by virtue of Section 91 of the Constitution, six years, which meant that it ended at midnight on 26 May 2010.
15. On 27 May 2010 – there being a vacancy in the office of Governor-General – the Speaker was required by Section 95(2) of the Constitution to be Acting Governor-General. However, the Speaker did not then or at any material time perform any of the powers, functions, duties and responsibilities of the Acting Governor-General. He remained, in fact, the Speaker.
16. On 28 May 2010 the Speaker announced in the Parliament that the proposal forms must be handed to the Clerk by 4 June and that the ballot would be conducted on 5 June 2010. Those dates were later extended and 25 June 2010 was set as the date for conduct of the ballot.
17. On 25 June 2010 the Parliament met at 10.00 am. The election of the Governor-General was the first item of business. The Speaker began by stating that under Section 6(a) of the Organic Law on the Nomination of the Governor-General he was required to declare the names of the candidates furnished to him by the Clerk, which were:
18. The Speaker made the following statement regarding Sir Paulias's candidature:
Amongst the candidates is the present Governor-General, Sir Paulias Matane. In accordance with Section 87(5) of the Constitution, the Parliament is required to determine by a two-thirds absolute majority vote of 73 Members, the eligibility of Sir Paulias Matane to be appointed as Governor-General for a second term. Honourable Members, if Sir Paulias Matane doesn't obtain the required two-thirds absolute majority of 73 Members of Parliament to be appointed as Governor-General for a second term, he will not be eligible for nomination by Parliament for appointment.
On the other hand if he does obtain the required two-thirds absolute majority vote of Parliament, then he will be eligible for nomination by Parliament for appointment as the Governor-General for a second term. Accordingly, we will proceed with the vote as required by Section 87(5) of the Constitution.
19. Sir Michael Somare MP then moved a motion:
That the Parliament resolve that Sir Paulias Matane is eligible to be appointed for a second term as Governor-General.
20. The motion was seconded by Sir Puka Temu MP. Two points of order were raised by Mr Peter Ipatas MP, seeking clarification of the motion, but the Speaker disallowed them. The Attorney-General, Mr Ano Pala MP, intervened by stating:
This motion is asking for the current Governor-General to be eligible to go for a second term.
21. Hansard records that there were "members interjecting" at that time. The Speaker said that he would not allow any more points of order and would "allow the process to complete". He ordered the bells to be rung. The vote on the motion was taken and recorded as 84 ayes and 13 noes.
22. There was then another point of order, this one by Mr Peter Waranaka MP, seeking a ruling by the Speaker on the need for a secret ballot. The Speaker responded that it was a valid point of order and suspended Parliament to make a decision on it. The Speaker resumed the Chair at 11.50 am and announced that Parliament was further suspended, to 2.00 pm.
23. Parliament resumed at 2.50 pm and the Speaker, after quoting Section 87(5) of the Constitution, ruled:
Honourable Members, in accordance with this provision, I now declare Sir Paulias Matane as the Parliament's nominee for the position of the Governor-General for the second term.
24. Mr Don Polye MP raised a point of order, seeking clarification whether Sir Paulias still needed to be elected. The Speaker responded:
Minister for Works, he is elected for the second term.
25. That was the end of the business of nomination of the Governor-General. There was no further business and the Parliament adjourned, at 3.00 pm, to 20 July 2010.
26. Later that day, 25 June 2010, a special meeting of the National Executive Council was convened, at which it was resolved to advise the Queen and Head of State to appoint Sir Paulias as Governor-General. An instrument of advice was prepared in the following terms:
ADVICE TO HEAD OF STATE
Your Majesty
You are hereby informed that on the Twenty Fifth day of June 2010, the National Executive Council did decide to advise you to appoint GRAND CHIEF SIR PAULIAS MATANE, GCL, GCMG, K St J, as Governor-General of Papua New Guinea in accordance with the attached instrument.
This advice is given as required by the Constitution of the Independent State of Papua New Guinea, in accordance with a decision of the Parliament.
27. The instrument of advice was signed by Sir Michael Somare as Chairman of the National Executive Council and dated 25 June 2010.
28. The one-page draft instrument of appointment attached to the instrument of advice stated:
ELIZABETH THE SECOND, Queen of Papua New Guinea and Her other Realms and Territories, Head of the Commonwealth.
To all and singular to whom these Presents shall come,
Greeting!
WHEREAS Section 87(5) of the Constitution of the Independent State of Papua New Guinea provides for the appointment by the Head of State, on the advice of the National Executive Council, given in accordance with a decision of the Parliament, of the Governor-General.
NOW THEREFORE, I, acting with, and in accordance with, the advice of the National Executive Council of the Independent State of Papua New Guinea, given in accordance with a decision of the Parliament, to hereby appoint GRAND CHIEF SIR PAULIAS MATANE, GCL, GCMG, K St J, as Governor-General of the Independent State of Papua New Guinea.
GIVEN at Our Court of St James's, this Twenty Fifth day of June, in the year of our Lord, Two Thousand and Ten and in the Fifty-Eighth year of Our Reign.
By Her Majesty's Command.
[Signed by Sir Michael Somare]
PRIME MINISTER,
NATIONAL EXECUTIVE COUNCIL.
29. The Secretary to the National Executive Council, Mr Ua, took the instrument of advice, together with the draft instrument of appointment, to London. He left Port Moresby on 28 June and arrived on the morning of 29 June. On 30 June 2010 he hand-delivered the documents to the Private Secretary to Her Majesty. Mr Ua remained in London, waiting for the instrument of appointment to be signed, until about 10 July (he was not sure of the exact date in oral testimony) when the signed instrument was furnished to him by the Private Secretary.
30. The instrument was signed by Her Majesty, on the top left-hand corner of the page, with the famous and familiar handwriting, "Elizabeth R", but undated (other than the date 25 June 2010 referred to in the text of the instrument).
31. Mr Ua returned to Port Moresby, with the signed instrument of appointment, on or about 13 July 2010. There was only one original instrument of appointment and it has been admitted into evidence in these proceedings.
32. On 12 July 2010 Dr Lawrence Kalinoe, writing as "Secretary for Justice and Attorney-General", advised the Official Secretary to the Governor-General, Mr Tipo Vuatha, that the Speaker, Mr Nape, "must now immediately assume office as Acting Governor-General". Mr Vuatha conveyed that advice on the same day, to Mr Nape, stating:
You are now appointed as the Acting Governor-General until the formal swearing-in ceremony is conducted as proposed on Wednesday 21 July 2010.
33. There is no evidence that Mr Nape was given any formal advice before then about being Acting Governor-General.
34. On 15 July 2010 the referrer's lawyers, Manase Lawyers, filed the special reference, which is now before the Court.
35. On 16 July 2010 Mr Nape wrote to the Prime Minister, rejecting the advice that he was Acting Governor-General, by stating:
I sought legal advice on my qualification to be Acting Governor-General and have been advised that Section 95(2) [of the Constitution] is not mandatory but optional.
Having received this advice, I wish to inform you to appoint a Minister to act as the Governor-General while I take on my responsibility as the Speaker of the Parliament to conduct Parliament business.
In informing you of this, I will cease to be the Acting Governor-General effective as of today, 16 July 2010.
36. On 21 July 2010 Sir Paulias was 'sworn in' for a second term as Governor-General by taking the Oath of Allegiance and making the Declaration of Loyalty and the Declaration of Office before the Chief Justice in the presence of the Parliament under Section 90 of the Constitution. He has remained in office as Governor-General since then.
37. Those are the material facts. We will now address the eight questions arising from them.
QUESTION 1: IS THE INCUMBENT GOVERNOR-GENERAL REQUIRED TO SUBMIT A PROPOSAL FOR NOMINATION FORM IN ACCORDANCE WITH SECTION 4 OF THE ORGANIC LAW ON THE NOMINATION OF THE GOVERNOR-GENERAL PRIOR TO RECEIVING THE APPROVAL UNDER SECTION 87(5) OF THE CONSTITUTION?
38. This question directly concerns two provisions of the Constitutional Laws: Section 87(5) of the Constitution and Section 4 of the Organic Law on the Nomination of the Governor-General. However, the issues raised by the question cannot be resolved without considering other provisions, particularly Sections 88(1) and (2) of the Constitution.
Section 87(5)
39. Section 87(5) is of critical importance as it is the only provision of any of the Constitutional Laws that expressly deals with the situation in which a person (such as Sir Paulias Matane) is proposed for nomination who has previously been appointed Governor-General. It states:
No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term.
40. The effect of the definition of "absolute majority vote" in Schedule 1.2(1) of the Constitution is that the number of members of the Parliament present and voting in support of a motion under Section 87(5) must be at least two-thirds of the total number of seats in the Parliament, ie 2/3 x 109 = 73.
Sections 88(1) and 88(2)
41. These provisions provide that the Queen and Head of State is the appointing authority and prescribe roles for the Parliament and the National Executive Council in the procedure for appointment.
42. Section 88(1) states:
Except in the case of the first Governor-General appointed before Independence Day the Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.
43. Section 88(2) states:
A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.
The Organic Law on the Nomination of the Governor-General
44. The long title to the Organic Law states that it has been made to implement Section 88(2) of the Constitution by providing for the conduct of an exhaustive secret ballot to decide the Parliament's nomination for the office of Governor-General. The Organic Law contains only nine sections. Section 1 is a definition section. Section 2 provides that an election under this Law shall be conducted by, or under the supervision, of the Clerk of the Parliament. Sections 3 to 6 set out who must do what in preparation for the election. Sections 7 to 9 regulate the conduct of the ballot.
Preparation for election
45. The Organic Law, Section 3, obliges the Speaker to take a number of steps whenever there is a vacancy or imminent vacancy in the office of Governor-General. He must:
(a) notify the members of the Parliament of the need to elect a Governor-General;
(b) fix a date for the conduct of a ballot to decide the person to be nominated by the Parliament to fill the vacant office;
(c) call for nominations to fill the vacancy.
46. Section 4 prescribes the form of a proposal for nomination, which must comply with Schedule 1 of the Organic Law. It must be signed by the proposer (who must be a member of the Parliament), not less than 15 other members of the Parliament and the person accepting the proposal. Under Section 4(2) a member of the Parliament cannot propose more than one person as a candidate. A proposal for nomination form may be handed to the Clerk at any time before the commencement of voting. Section 4 states:
(1) A proposal for nomination shall be—
(a) in the form in Schedule 1; and
(b) contain the signature or other mark of—
(i) the proposer; and
(ii) the person proposed as accepting the nomination; and
(iii) not less than 15 other members of the Parliament; and
(c) handed to the Clerk at any time before the commencement of voting.
(2) A member of the Parliament shall not propose more than one person as a candidate for election as the Parliament's nominee.
47. Section 5 provides that the Clerk of the Parliament, who has primary responsibility for preparation for and conduct of the exhaustive secret ballot, may reject a proposal for nomination if it is not in the prescribed form or is not signed by at least 15 members or the Clerk has reasonable cause to believe and does believe that the person proposed is not qualified for appointment as Governor-General. If the Clerk rejects a proposal he must give reasons for doing so. A person aggrieved by a rejection has five days in which to appeal to the National Court.
48. The need for strict compliance with Section 4 and the onerous duty imposed on the Clerk to ensure that its provisions are enforced were emphasised by the Supreme Court in the case of Re Election of Governor-General (No 1) (2003) SC721. The Parliament's decision to nominate Sir Albert Kipalan for appointment as Governor-General was declared null and void. The then Clerk, Mr Ano Pala, was found to have failed in his duty to reject all nine proposals for nomination as each failed to comply with Section 4 of the Organic Law.
49. Section 6 provides what the Clerk must do immediately before the commencement of voting. He must furnish the Speaker with a list of all candidates for election, so the Speaker may declare the names to the Parliament; and he must distribute to each member present in the Parliament a ballot–paper, in a form he, the Clerk, approves.
Conduct of the election
50. Sections 7, 8 and 9 prescribe the procedure for conduct of the exhaustive secret ballot. The procedures vary according to whether one person (Section 7) or two persons (Section 8) or more than two persons (Section 9) are proposed for nomination.
51. It is the Clerk, not the Speaker, who conducts and supervises the election. The Clerk's duties include counting the votes for each ballot and furnishing the result to the Speaker.
52. The Speaker's role is to declare whether a candidate has been elected as the Parliament's nominee (by virtue of receiving a majority of votes) or whether a further ballot is necessary or whether it is necessary for him (the Speaker, where there is an equality of votes) to cast a vote.
Issues raised by question 1
53. We now return to the issues raised by question 1.
54. How does the requirement under Section 87(5) of the Constitution for a two-thirds absolute majority vote relate to the requirement under the Organic Law for a proposal form to be completed and handed to the Clerk?
55. Does the proposal form have to be handed to the Clerk first, before the Parliament votes on a motion under Section 87(5)? Or does the Parliament vote on a motion under Section 87(5) first and then, if the motion is carried, the person approved for a second appointment is permitted to be proposed for nomination?
Or – and this is the critical issue in this whole reference – if a motion under Section 87(5) is carried (as it was on 25 June 2010) does the person who has been approved for a second appointment automatically become the Parliament's nominee, without any need to conduct an exhaustive secret ballot under the Organic Law? We propose to deal with this issue first as, although it is raised more directly by later questions, we cannot give a conclusive answer to question 1 without resolving it.
If a motion is carried under Constitution, Section 87(5), does the person approved for a second appointment automatically become the Parliament's nominee?
56. The second intervener, the National Parliament, argues this issue in the affirmative. The argument focuses on the words of Section 87(5), which state that the subject of the two-thirds majority vote is whether the Parliament "approves appointment for a second term". If a two-thirds absolute majority vote is obtained this means that the Parliament is approving the person's appointment for a second term.
57. Interestingly, the motion that was moved in the Parliament by Sir Michael Somare on 25 June 2010 was not cast in those terms. The motion was not that the Parliament resolve to 'approve Sir Paulias' appointment for a second term' but that it resolve that Sir Paulias Matane "is eligible to be appointed for a second term". We will address the significance of this issue of fact later in the judgment. For now, we focus on the issue of interpretation raised by the argument that once a two-thirds absolute majority vote is obtained under Section 87(5), there is no need to conduct an exhaustive secret ballot under the Organic Law.
58. Mr Mende, for the Parliament, submitted that the use of the words "approves appointment" in Section 87(5) is significant. It makes it clear that if a person secures the support of a two-thirds absolute majority it is unnecessary for the Parliament to undertake any other step. The person whose appointment is approved is the Parliament's nominee. If all that the Parliament were voting on was whether to approve a person as a 'candidate' or to approve the person as someone who could be 'proposed for nomination', different words would have been used. Neither the Constitution nor the Organic Law says that a person approved for a second appointment must be the subject of a proposal for nomination or must be approved a second time in an exhaustive secret ballot under Section 88(2). As the Constitution and the Organic Law are silent on the matter the Court should not read into the Laws what is not in the letter of the law. That would amount to legislating by judicial act, which would be an improper exercise of judicial discretion, Mr Mende submitted.
59. It would also not make sense, Mr Mende submitted, to require a person who has received the support of at least two-thirds of the number of members of Parliament, to be subject to another vote. If that was the result intended, the Constitution would say so. The appointment of the Governor-General is made under Section 88(1); and Sections 87(5) and 88(2) provide for alternative ways of deciding on the Parliament's nominee. If one of the persons proposed for appointment has been appointed previously, Section 87(5) applies. If none of them has been appointed previously, Section 88(2) applies. If a person who has been appointed previously does not secure the support of a two-thirds absolute majority under Section 87(5), Section 88(2) applies and then, but only then, an exhaustive secret ballot will be conducted under the Organic Law.
60. We agree that it is important at the outset to focus on the actual words of Section 87(5) and ascertain their meaning, rather than beginning with some preconceived notion of what the purpose of the provision is thought to be and then adjusting the interpretation of the provision accordingly. We also agree that the words "approves appointment" in Section 87(5) are strong and direct and convey the impression that when a vote is taken under Section 87(5), the Parliament will be deciding whether to approve or not approve a person's appointment, and not merely whether the person can be considered for appointment.
61. However, the argument falls foul of a principle of statutory interpretation, which has been enshrined by Schedule 1.5 of the Constitution as a fundamental principle of constitutional interpretation: the words of a provision must be read in context, not in isolation. Schedule 1.5 states:
(1) Each Constitutional Law is intended to be read as a whole.
(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.
62. When the words "approves appointment" are read in the context of the words surrounding them, a different picture emerges. We start with Section 87(5) itself. The sub-section begins with the words "no person is eligible for appointment more than once unless ...", and it ends with "but no person is eligible for appointment for a third term". Those words put a gloss on "approves appointment". They suggest that the provision is talking about eligibility – qualifications – for appointment rather than prescribing a procedure for direct approval of the person's appointment.
63. The proposition that Section 87(5) merely prescribes a requirement of eligibility is enhanced when it is read in the context of the other provisions of Section 87, which state:
(1) The Governor-General must be a citizen who—
(a) is qualified to be a member of the Parliament (except for the reason that he occupies the office of Governor-General) [Constitution, Section 103]; and
(b) is a mature person of good standing who enjoys the general respect of the community.
(2) The question, whether for the purposes of Subsection (1) a person is a person to whom Subsection (1)(b) applies, is non-justiciable.
(3) The Governor-General must not hold any office or position or engage in any calling other than that of, or an office or position associated with, his office as Governor-General, except with the consent of the Head of State, acting with, and in accordance with, the joint advice of the National Executive Council and the Ombudsman Commission.
(4) A request for the consent of the Head of State under Subsection (3) shall not be made unless agreement on the matter in relation to which the consent is sought has been reached between the National Executive Council and the Ombudsman Commission.
64. All of those sub-sections (and there are none other, besides sub-section (5)) relate to the question of eligibility of a person for appointment to the office of Governor-General, ie the qualifications that he or she must have to be appointed and remain in office as Governor-General.
65. Indeed the head-note to Section 87 is "qualifications for appointment". We acknowledge that under Schedule 1.3(2) of the Constitution the head-notes to the various sections of a Constitutional Law do not form part of the Law. Nevertheless, a head-note is a legitimate aid to interpretation in the event of doubt or ambiguity. Here, the head-note reinforces the proposition that Section 87(5) is adding to the list of qualifications of a candidate, in the case of a person who has had a prior appointment as Governor-General, rather than providing a procedure for nomination that is an alternative to that prescribed by Section 88(2).
66. Furthermore, the proposition that Section 87(5) provides a procedure for appointment that is an alternative to Section 88(2) is excluded when the words of Section 88(2) are read in the context of Section 88(1). It is under Section 88(1) that the Queen and Head of State appoints the Governor-General, acting with, and in accordance with, the advice of the National Executive Council given in accordance with "a decision of the Parliament". The words "a decision of the Parliament" are the concluding words of Section 88(1) and they are, in the exact same form, the introductory words of Section 88(2). As they connect so closely together, the concluding words in Section 88(1) can mean only what they mean and refer to in Section 88(2). The decision is "to nominate a person for appointment as Governor-General", and that decision is made:
67. No indication is given, by a cross-reference to Section 87(5) or otherwise, that the procedure for making a decision under Section 88(2) can be avoided or becomes inapplicable in the event that a person is the subject of a two-thirds absolute majority approval under Section 87(5).
68. The proposition that Section 88(2) is providing a mandatory, and the exclusive, procedure for appointment – which was advanced by the referrer and all interveners other than the National Parliament – is strengthened when regard is had to the head-note to Section 88: "Appointment to office", and when it is compared to the Section 87 head-note: "Qualifications for appointment". One section (87) is about who is eligible for appointment. The other section (88) is about how they are appointed.
69. We are not impressed by the submission that it makes little sense for a person approved for appointment for a second term under Section 87(5) to be subject to a ballot under Section 88(2). We see no logical or practical difficulty or any element of contradiction arising from requiring a person who has passed the eligibility requirement of Section 87(5) to be subject to the procedure prescribed by Section 88(2).
70. Section 87(5) is a check-and-balance to ensure that no one person is entrenched in office as Governor-General for an overly long period. Hence the prohibition on appointment for a third term. Section 87(5) forces the members of Parliament to deliberately consider the appropriateness of re-appointing a person who has already served one term. It sets in play a filtering process, but it is not the source of the power to nominate a person.
71. We are not legislating by judicial act by interpreting Section 87(5) in the manner contended for by the referrer and other parties. We are interpreting the words "approves appointment" in Section 87(5) in context. We are reading the Constitution as a whole and giving its words a fair and liberal meaning.
72. We conclude – and note that this interpretation will underpin our answers to most of the questions in this reference – that if a motion is carried under Constitution, Section 87(5), the person approved for a second appointment does not necessarily become the Parliament's nominee. That person only becomes eligible to be the nominee. He or she only becomes the nominee if a decision to nominate him or her is made in accordance with Section 88(2).
We now return to the core of question 1.
Does the proposal form have to be handed to the Clerk first, before the Parliament votes on a motion under Section 87(5)?
73. As we have rejected the Parliament's argument that Section 87(5) provides a standalone procedure for appointment and upheld the referrer's proposition that Section 87(5) is merely an eligibility provision, we must now address the issue of the order in which these two steps are undertaken. The answer is not immediately apparent from the words of the Constitution or the Organic Law.
74. At first glance, it might be thought, not unreasonably, that it is a matter of discretion. It is, arguably, optional, whether a proposal form for a person who has a prior appointment as Governor-General is given to the Clerk before the person is considered for eligibility for appointment under Section 87(5); or whether the person's eligibility under Section 87(5) is considered first, and then, if the two-thirds absolute majority vote is attained, a proposal form for that person is completed and handed to the Clerk. Support for this approach is obtained from the fact that the requirement to hand proposal forms to the Clerk arises under the Organic Law, which perforce of Section 10 of the Constitution, is an inferior Law to the Constitution. The Organic Law is to be read and construed subject to the Constitution, not vice-versa.
75. However, the better view is that it is not a matter of discretion. As the Constitution does not itself prescribe any way in which the name of a person who has a prior appointment as Governor-General can be put forward to the Parliament for its consideration, the Law which expressly requires that that person's name be put forward for consideration for appointment so that that person's qualifications and eligibility for appointment can be tested and assessed by the Clerk – the Organic Law on the Nomination of the Governor-General – must first be followed. There is no other way that the Parliament would know that such a person was available for and interested in re-appointment. So, it is not optional. The proposal form must be completed and handed to the Clerk, before the Parliament votes on a motion under Section 87(5). It would not be proper for the Parliament to vote on a motion under Section 87(5) before requiring a proposal for nomination form to be completed in respect of the proposed candidate and handed to the Clerk.
Matters of detail
76. Before pronouncing our opinion on question 1 there are some matters of detail concerning the wording of the question that we need to address. The question is loosely drafted in three respects.
77. First, it uses the term "incumbent" to describe a person whose eligibility for re-appointment as Governor-General is being considered under Section 87(5). "Incumbent" (the present holder of an office) is not a word that appears in either the Constitution or the Organic Law, so it is not an appropriate word to use in a question relating to the interpretation or application of a provision of a Constitutional Law under Section 19 of the Constitution.
78. Another reason "incumbent" is a poor word choice is that the person who is the subject of a motion under Section 87(5) might not be the current Governor-General. To be considered for re-appointment under Section 87(5), and to be subject to the restrictions that the provision imposes, a person need not be the incumbent Governor-General. It is necessary that the person has been appointed once before – served one term as Governor-General – not that the person is the present holder of the office. Question 1 is not directly concerned with the facts giving rise to this reference. It is a question of interpretation, not application, of the Constitutional Laws. So the fact that it was presumed by many of the parties in this reference, for the purposes of their submissions, that Sir Paulias Matane was the incumbent, is irrelevant for the purposes of giving our opinion on question 1. The facts become significant in later questions, which involve application, as well as interpretation, of the provisions of the Constitutional Laws.
79. However, as we are alluding to the facts at this point, it needs to be clarified that on the day that the Parliament voted under Section 87(5) – 25 June 2010 – Sir Paulias Matane was not the incumbent Governor-General. His term had expired at midnight on 26 May 2010. Sir Paulias was the immediate past Governor-General and he had been appointed previously and it was proposed that he be nominated for a second term; so he was subject to Section 87(5). We emphasise, however, that the person being considered for eligibility for appointment for a second term might be a person who served a term as Governor-General at some time in the past, before the incumbent or the immediate-past Governor-General was appointed.
80. The second difficulty we have with the wording of question 1 is the presumption it contains that it is the person being considered for eligibility under Section 87(5) who would submit a proposal for nomination form. We acknowledge that the Organic Law does not expressly prohibit the person being proposed for nomination actually handing the form to the Clerk, but we suggest that the preferable interpretation is that it is the function of the proposer – not the person being proposed – to hand the form to the Clerk.
81. The third matter of detail is another poor choice of words. The Organic Law does not speak of anyone being required to "submit" a proposal for nomination form. Such a form is under Section 4(1)(c) of the Organic Law to be "handed to the Clerk". We do not wish to belabour the point. However, good word choice – use of the precise words of the provisions of the Constitutional Laws – is essential in a Section 19 reference. If too much leeway is given to referring authorities, if no attention is paid to detail, the Supreme Court will be placed in the position where it is not interpreting the provisions of the Constitutional Laws, but interpreting someone else's interpretation of those provisions. That would be a recipe for misinterpretation of the Constitutional Laws.
82. The shortcomings in the wording of question 1 have raised the issue of whether the question should be answered at all.
83. Under Section 19(4)(c) of the Constitution and Order 4, Rule 16 of the Supreme Court Rules the Court may decline to give an opinion if a question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea. We do not think that question 1 fits any of those descriptions. The question has been posed in good faith and arises out of real, not hypothetical, facts and it is of immediate relevance to the circumstances of the country. We are therefore obliged by Section 19(1) of the Constitution to give an opinion on it. Our opinion must, of course, be read subject to and in the context of everything that we have discussed above.
Answer to question 1
84. Yes, a proposal for nomination form for an incumbent Governor-General, or any other person who has previously been appointed Governor-General, must be handed to the Clerk of the Parliament under Section 4 of the Organic Law on the Nomination of the Governor-General, before the question of the approval of that person's appointment for a second term is voted on under Section 87(5) of the Constitution.
QUESTION 2: DOES SECTION 87(5) OF THE CONSTITUTION PROVIDE FOR THE APPOINTMENT OF THE INCUMBENT GOVERNOR–GENERAL FOR A SECOND TERM WITHOUT COMPLYING WITH THE PROCEDURE IN SECTION 88(2) OF THE CONSTITUTION AND THE ORGANIC LAW ON THE NOMINATION OF THE GOVERNOR-GENERAL?
85. We have already answered this question in giving our opinion on question 1.
86. Section 87(5) does not provide for the appointment of an incumbent Governor-General, or any other person who has previously been appointed Governor-General, without complying with the procedure under Section 88(2) of the Constitution and the Organic Law. The Parliament's decision to nominate a person for appointment as Governor-General must always be made by a simple majority vote, in an exhaustive secret ballot, conducted in accordance with the Organic Law.
87. The answer to question 2 is no.
QUESTION 3: IF NOT, DOES THE PROCEDURE UNDER SECTION 87(5) OF THE CONSTITUTION ONLY QUALIFY THE INCUMBENT GOVERNOR-GENERAL TO CONTEST AS A CANDIDATE FOR GOVERNOR-GENERAL?
88. This question is a restatement of question 2, the proposition being tested by it being framed so as to require the opposite response to that in question 2.
89. Section 87(5) provides a further eligibility requirement in the case of a candidate who has previously been appointed Governor-General. In that sense, it is correct to say that the attainment of a two-thirds absolute majority vote under Section 87(5) only 'qualifies' the person to contest as a candidate for election, subject to meeting all other qualifications for appointment in Section 87 of the Constitution and the Organic Law.
90. The answer to question 3 is yes.
QUESTION 4: DOES THE PROCEDURE FOR VOTING BY TWO-THIRDS ABSOLUTE MAJORITY VOTE IN SECTION 87(5) OF THE CONSTITUTION REQUIRE AN EXHAUSTIVE SECRET BALLOT AS STIPULATED IN SECTION 88(2) OF THE CONSTITUTION?
91. The referrer and the third intervener argue this question in the affirmative. They say that when the Parliament votes on the question of whether to approve a person's appointment for a second term the procedure in Section 88(2) applies: there must be an exhaustive secret ballot conducted in accordance with the Organic Law. All other parties argue in the negative.
92. There are flaws in the affirmative proposition, which are immediately apparent when the elements of Section 88(2) are examined. There are four elements of the decision-making procedure in Section 88(2):
93. None of those elements apply to a vote taken under Section 87(5). First, the nature of the question that is to be put to the Parliament under Section 87(5) – eg whether the Parliament approves the appointment of a person as Governor-General for a second term – admits of a simple 'yes' or 'no' vote. It does not lend itself to any sort of "exhaustive" procedure.
94. Secondly, it is to be presumed that by virtue of the nature of representative parliamentary democracy that is entrenched by the Constitution, the proceedings of the Parliament shall, unless the contrary intention is clearly expressed in a Constitutional Law or in the Standing Orders of the Parliament, be conducted openly, and that votes are taken, if necessary, after open debate. Section 114 of the Constitution and Parts VX (motions, questions, votes and resolutions) and XVIII (voting) of the Standing Orders reinforce this presumption. Of particular significance are Standing Orders 161 to 165 and 180 to 190. Standing Order 161 requires that as soon as the debate upon a question has been concluded, the Speaker shall put the question to the Parliament. Standing Order 162 allows a complicated question to be divided. Standing Order 163 requires questions that are put to the Parliament to be resolved in the affirmative or the negative by the majority of voices: "Aye" or "No". Standing Order 164 provides that the Speaker shall state whether in his opinion the "Ayes" or the "Noes" have it; and that if his opinion is challenged, the question is to be decided by vote. Standing Order 180 provides that such a vote shall be taken by each Member standing in his or her place. Standing Orders 181 to 190 contain detailed requirements about ringing of the Bells, closing and locking of the doors and the Members standing to be counted. A "secret" vote is thus something out of the ordinary; and this means that only if a law expressly requires a vote to be taken in secret should that be permitted to occur. Secret votes are expressly required by Section 88(2) of the Constitution – which is concerned with the decision on which person to nominate for appointment as Governor-General – but not by Section 87(5). A question under Section 87(5) must therefore be presumed to be determined by the majority of the voices, and if necessary, an open vote.
95. Thirdly, the question that is put to the Parliament under Section 87(5) does not lend itself to being determined by a "ballot".
96. Fourthly, the Organic Law has been made under and for the purpose of implementing Section 88(2). It makes no mention of Section 87(5). A vote under Section 87(5) clearly cannot be taken under the Organic Law.
97. The answer to question 4 is no.
QUESTION 5: DOES THE VOTE BY TWO-THIRDS ABSOLUTE MAJORITY VOTE IN APPROVING THE INCUMBENT GOVERNOR-GENERAL'S APPOINTMENT FOR A SECOND TERM QUALIFY HIM TO BE A CANDIDATE FOR THE GOVERNOR-GENERAL POST AND THEREFORE THE INCUMBENT GOVERNOR-GENERAL MUST FURTHER SUBMIT TO THE APPOINTMENT PROCESS UNDER SECTION 88(2) OF THE CONSTITUTION AND THE ORGANIC LAW ON THE NOMINATION OF THE GOVERNOR-GENERAL FOR ACTUAL APPOINTMENT?
98. This question is a restatement of questions 2 and 3.
99. Clearly, for the reasons we have already given, the vote by a two-thirds absolute majority, approving the appointment of the incumbent Governor-General (or any other person who has previously been appointed Governor-General), qualifies that person to be a candidate. Such a person must still be subject to the appointment process under Section 88(2) and the Organic Law, ie the Parliament must make a decision to nominate that person for appointment as Governor-General by a simple, majority vote, in an exhaustive secret ballot conducted in accordance with the Organic Law on the Nomination of the Governor-General.
100. The answer to question 5 is yes.
QUESTION 6: IS THE ELECTION OF THE GOVERNOR-GENERAL UNDER CONSTITUTION [SECTION] 87(5) UNCONSTITUTIONAL AND THEREFORE INVALID?
101. We have two problems with this question. First, it is vague. Which election? When was it conducted? Who was elected? It was clarified, however, in the course of submissions that the question is intended to relate to the purported 'election' of Sir Paulias Matane as Governor-General under Section 87(5) of the Constitution that occurred in the Parliament on 25 June 2010.
102. Secondly, it is not, strictly speaking, correct to refer to what happened as an election. Though the Speaker declared, at one stage, that Sir Paulias was "the Parliament's nominee for the position of the Governor-General for the second term" and, later, in responding to a point of order, that "he is elected for the second term", there was, in fact, and in law, no election. There was a vote on a motion under Section 87(5) of the Constitution that Sir Paulias be eligible to be appointed for a second term, and the passing of the motion by more than a two-thirds absolute majority was regarded as a decision of the Parliament to nominate Sir Paulias as Governor-General. Only in that sense can it be said that there was an election.
103. Despite the deficiencies in the question, none of the interveners objected to it or submitted that we should decline to give an opinion on it, so we will proceed to do so, subject to the qualification that it is restated in the following terms:
104. In light of our answers to previous questions, the question must be answered in the affirmative. The decision to nominate Sir Paulias for appointment was not made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with the Organic Law, as required by Section 88(2) of the Constitution. All of the requirements of Section 88(2), which, by virtue of the use of the word "shall" in the provision, are mandatory procedural requirements, were breached.
105. Section 88(2) is of such critical importance in the whole of the constitutional scheme provided by Part V of the Constitution for the appointment of the Governor-General that strict compliance with its provisions is necessary. Substantial compliance is insufficient. Those principles emerge from the Supreme Court decisions in Re Election of Governor–General (No 1) (2003) SC721, Re Election of Governor–General (No 2) (2004) SC728, Re Election of Governor-General (No 3) (2004) SC752 and Re Election of Governor-General (No 4) (2004) SC773, and we endorse and apply them in these proceedings. There was substantial non-compliance with Section 88(2). It follows that Sir Paulias's nomination was invalid.
106. It also follows that all decisions made in reliance on that unconstitutional and invalid nomination are, likewise, unconstitutional and invalid. In particular:
107. The answer to question 6 is yes.
QUESTION 7: IF THE COURT FINDS THAT THE NOMINATION OF SIR PAULIAS MATANE UNDER SECTION 87(5) OF THE CONSTITUTION IS INVALID, CAN THE PARLIAMENT PROCEED TO NOMINATE ANY OF THE FOUR PERSONS WHOSE PROPOSALS FOR NOMINATION HAVE BEEN ACCEPTED BY THE CLERK OF PARLIAMENT AND ANNOUNCED BY THE SPEAKER ON 25 JUNE 2010?
108. As we have found that the nomination of Sir Paulias and his appointment as Governor-General are invalid, the question arises whether the Parliament can now proceed to nominate any of the four persons whose proposals for nomination were accepted by the Clerk, and announced by the Speaker on 25 June 2010.
109. The referrer and the third intervener, Sir Pato Kakaraya, argue in the affirmative. They argue that the process of appointment should restart at the point at which it has been found to have miscarried: after the two-thirds absolute majority vote under Section 87(5) and before the conduct of the exhaustive secret ballot under Section 88(2). They submit that there was nothing intrinsically invalid about the decision under Section 87(5). It was how the decision was interpreted by the Speaker and the National Executive Council that led to invalidity. The decision should remain intact and, there being no reason found by the Clerk to reject any of the four proposals, they should each be regarded as valid, and therefore the same four candidates should be subject to an exhaustive secret ballot under Section 88(2).
110. The second and fourth interveners, the National Parliament and the Attorney-General, argue in the negative. They argue that in view of the lapse in time since the making of the proposals – six months – the most prudent course of action would be to start the process afresh, by calling for proposals for nomination.
111. The first and fifth interveners, Mr Ronald Rimbao and Sir Makena Geno, agree largely with the referrer and the third intervener that the process should restart at the point it miscarried but argue that the names of only three of the four candidates should be permitted to go forward to an election. Sir Paulias should be excluded, it is submitted, as, when the Parliament approved his eligibility for appointment for a second term, it was unlawfully presided over by the Speaker (by virtue of Section 95(4) of the Constitution).
112. We will deal with the last proposition first. We reject it outright as Sir Paulias Matane has not been proven to have done anything unlawful or wrong. Nor has it even been suggested that he has done anything unlawful or wrong. It would be unfair, unreasonable and constitutionally unwarranted to exclude Sir Paulias, and not other candidates, from a further ballot.
113. Having said that, we are persuaded by the submissions of the Attorney-General and the National Parliament that the most appropriate and prudent course of action would be to recommence the process of appointment from the very beginning. The entire procedure for appointment of the Governor-General was tainted by the breach of Section 88(2) of the Constitution that occurred when the Speaker decided to bypass the need for an exhaustive secret ballot.
114. It is clear from Hansard that there was confusion amongst the members of the Parliament when they were asked to vote on the motion that Sir Paulias be approved for appointment for a second term. They did not know what they were doing. They did not know if they were voting on Sir Paulias's eligibility or if they were voting on whether he should be the Parliament's nominee for appointment. The Speaker himself also, with respect, did not know. That can be the only explanation for the lengthy adjournment to give a ruling on the point of order made after the vote in Sir Paulias's favour.
115. Furthermore, as will become clear from our opinion on question 8, the Speaker, Mr Nape, should not have presided in the Parliament on 25 June 2010. He was on that day required to be the Acting Governor-General and he was prohibited from exercising or performing any of the powers, functions, duties and responsibilities of the office of Speaker.
116. Mr Nape should also not have been presiding in the Parliament on 28 May 2010 – the day that he announced new dates for handing in of proposal forms to the Clerk and the conduct of the ballot – as by that date there was a vacancy in the office of Governor-General.
117. Finally, the six-month time lapse since the proposals for nomination were made makes it prudent to restart the process from the beginning. The circumstances of the candidates may have changed in the intervening period. One or more of them might no longer wish to be proposed for nomination.
118. We conclude that all four proposals for nomination must be declared invalid.
119. The answer to question 7 is no: the four proposals for nomination are invalid, however, this does not prevent new proposals in respect of any of those four candidates being made in the future. Nothing prevents any of them being proposed again.
QUESTION 8: WAS THE ELECTION OF THE GOVERNOR-GENERAL ON 25 JUNE 2010 PURSUANT TO CONSTITUTION [SECTION] 87(5) BY PARLIAMENT PRESIDED OVER BY THE SPEAKER HON JEFFREY NAPE INVALID IN VIEW OF THE FACT THAT HE [THE SPEAKER] WAS ACTING GOVERNOR-GENERAL BY VIRTUE OF SECTION 95(2)(a) OF THE CONSTITUTION WHEN THE INCUMBENT GOVERNOR-GENERAL'S TERM EXPIRED AT MIDNIGHT ON [26] MAY 2010?
120. There are three distinct issues raised by this question:
(a) Was the Speaker, Mr Nape, the Acting Governor-General on 25 June 2010?
(b) If yes, did the Speaker act unlawfully by presiding in the Parliament on that day?
(c) If yes, did that render the nomination of Sir Paulias Matane unconstitutional and invalid?
(a) Was the Speaker, Mr Nape, the Acting Governor-General on 25 June 2010?
121. Mr Nape became the Acting Governor-General, by virtue of Section 95(2)(a) of the Constitution, at midnight on 26 May 2010, when Sir Paulias Matane's first six-year term as Governor-General expired. Section 95(2)(a) states:
If ... there is a vacancy in the office of Governor-General ... the Speaker is, subject to Subsection (3) [which did not apply on 25 June 2010], the Acting Governor-General.
122. Mr Nape became Acting Governor-General by operation of law. No formal advice or instrument of appointment had to be in place.
123. Mr Nape expressed the view in a letter to the Prime Minister dated 16 July 2010 that his acting appointment was a matter of discretion. That is an incorrect view. It was a mandatory appointment. Mr Nape remained, as a matter of law, Acting Governor-General, until the commencement of Sir Paulias's second term of appointment.
124. We note that according to the instrument of appointment, Sir Paulias's second term commenced on 25 June 2010. Though no time of commencement was expressly fixed (unlike the instrument of appointment for the first term, which fixed midnight on 26 May 2004 as the time of commencement), the reasonable inference to draw from the terms of the instrument and the circumstances in which it was executed is that Sir Paulias's second term commenced at midnight on 25 June 2010.
125. Section 95(3) of the Constitution sets out the circumstances in which the Speaker is relieved of the obligation to be Acting Governor-General and the Chief Justice becomes Acting Governor-General, eg if the Speaker is on leave, absent from the country or out of speedy and effective communication. There is no evidence that any such circumstances existed. The Speaker was, as a matter of law, the Acting Governor-General from midnight on 26 May to midnight on 25 June 2010.
126. Thus on 25 June 2010, Mr Nape was the Acting Governor-General.
(b) Did the Speaker act unlawfully by presiding in the Parliament on 25 June 2010?
127. June 25, 2010 is a critical date. It is when the Parliament dealt with the business of the nomination of the Governor-General: it voted on the motion that Sir Paulias be approved for appointment for a second term and the Speaker declared that Sir Paulias was the Parliament's nominee and stated that Sir Paulias was elected for a second term.
128. Mr Nape presided in the Parliament on that day, which appears to be contrary to Section 95(4) of the Constitution, which relevantly provides:
During any period when he is the Acting Governor-General, the Speaker ... shall not exercise or perform any of the other powers, functions, duties and responsibilities of the office of Speaker ...
129. Mr Mende, for the National Parliament, submits that we should refrain from making any finding of illegality regarding Mr Nape's conduct because of Section 95(6) of the Constitution, which states:
The question, whether the occasion for the exercise or performance of a power, function, duty or responsibility by an Acting Governor-General or a Minister under this section has arisen or has ceased, is non-justiciable.
130. The argument is that the question of whether Mr Nape acted unlawfully is non-justiciable. Thus, according to Schedule 1.7 of the Constitution, the question may not be heard or determined by the Court.
131. We reject that argument. Section 95(6) only applies in relation to the question of whether a person has lawfully exercised or performed a power, function, duty or responsibility as an Acting Governor-General.
132. Section 95(6) does not render non-justiciable the question of whether the Speaker (or the Chief Justice or a Minister) was Acting Governor-General at a particular time. Nor does it apply to the question whether the Speaker acted unlawfully at a particular time by exercising a power, function, duty or responsibility of the Speaker during a period when he was the Acting Governor-General.
133. We find that Mr Nape exercised the powers, functions, duties and responsibilities of the Speaker when he presided in the Parliament on 25 June 2010.
134. As he was Acting Governor-General on that day, he acted unlawfully, contrary to Section 95(4) of the Constitution.
(c) Did the unlawful acts of the Speaker render the nomination of Sir Paulias Matane unconstitutional and invalid?
135. There is no provision of the Constitution that expressly states that all decisions of the Parliament made when a person (such as Mr Nape) was unlawfully presiding over it, are necessarily invalid. Nor is there any general principle of constitutional interpretation that requires such a result. It is a matter of constitutional interpretation and application, the starting point of which is Section 11(1) of the Constitution, which states:
This Constitution and the Organic Laws are the Supreme Laws of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
136. It is necessary to examine and assess the nature and extent of a constitutional breach and all prevailing circumstances before making a determination of the consequences of the breach.
137. Here, it was a clear and manifest breach of a very straightforward provision – Section 95(4) – of the Constitution. It is not something that can be regarded as a subtle, technical or insignificant constitutional irregularity. It may well be argued that Mr Nape did not realise or had not been advised that he was Acting Governor-General on that day. It is not necessary, however, for the Court to make a finding to that effect in order to determine that this was a very serious breach of the Constitution. If it were proven that Mr Nape deliberately ignored advice, that would make the breach even more serious than it was. However, although it might be suspected, given the terms of Mr Nape's letter to the Prime Minister of 16 July 2010, that Mr Nape made a deliberate decision to ignore the Constitution, we do not find that he deliberately breached the Constitution.
138. We are intrigued by the statement Mr Nape made in the Parliament on 4 May 2010 that the office of Governor-General would become vacant on 29 June 2010. No evidence was adduced in these proceedings that would provide any support for such a proposition. The Court can only speculate as to why that date was thought to mark the end of Sir Paulias's first term of appointment. Perhaps that was the sixth anniversary of Sir Paulias' first being sworn in under Section 90 of the Constitution. Perhaps it was thought by someone that Sir Paulias assumed office under Section 89 of the Constitution on 28 June 2004, and that under Section 91 of the Constitution, his six-year term ended on 28 June 2010. All of those propositions are without foundation. Sir Paulias' first term of appointment ended at midnight on 26 May 2010 and the questions posed in these proceedings have been addressed on that basis.
139. The extent of the constitutional breach is magnified when it is considered that Mr Nape had been unlawfully exercising the powers, functions, duties and responsibilities of the Speaker for a continuous period of almost one month by the time that he acted unlawfully on 25 June 2010.
140. The serious nature and extent of the Speaker's breach of the Constitution and the circumstances in which the breach was committed, have the consequence, in our opinion, that all of the proceedings of the Parliament of 25 June 2010 in regard to the nomination of a person as the next Governor-General, including all votes, decisions, determinations, rulings and declarations on the matter, are unconstitutional and invalid.
141. The answer to question 8 is yes.
SUMMARY OF ANSWERS
142. Our opinion on the eight questions of constitutional interpretation and application that were referred to the Court can be summarised as follows:
1 Yes, a proposal for nomination form for an incumbent Governor-General, or any other person who has previously been appointed Governor-General, must be handed to the Clerk of the Parliament under Section 4 of the Organic Law on the Nomination of the Governor-General, before the question of the approval of that person's appointment for a second term is voted on under Section 87(5) of the Constitution.
2 No, Section 87(5) of the Constitution does not provide for the appointment of an incumbent Governor-General, or any other person who has previously been appointed Governor-General, without complying with the procedure under Section 88(2) of the Constitution and the Organic Law.
3 Yes, the attainment of a two-thirds absolute majority vote under Section 87(5) of the Constitution only 'qualifies' the person in whose favour the vote is attained, to contest as a candidate for election.
4 No, when the Parliament votes under Section 87(5) of the Constitution on the question of whether to approve a person's appointment for a second term the procedure in Section 88(2) does not apply: there must not, for the purposes of a Section 87(5) vote, be an exhaustive secret ballot conducted in accordance with the Organic Law.
5 Yes, the vote by a two-thirds absolute majority under Section 87(5) of the Constitution, approving the appointment of the incumbent Governor-General (or any other person who has previously been appointed Governor-General), only qualifies that person to be a candidate.
6 Yes, the nomination on 25 June 2010 of Sir Paulias Matane under Section 87(5) of the Constitution was unconstitutional and invalid; and all decisions made in reliance on that unconstitutional and invalid nomination, including the appointment of Sir Paulias as Governor-General, are, likewise, unconstitutional and invalid.
7 No, the Parliament cannot now proceed to nominate any of the four persons whose proposals for nomination were accepted by the Clerk, and announced by the Speaker on 25 June 2010. The four proposals for nomination are invalid, however, this does not prevent new proposals in respect of any of those four candidates being made in the future. Nothing prevents any of them being proposed again.
8 Yes, all of the proceedings of the Parliament of 25 June 2010 in regard to the nomination of Sir Paulias Matane as the next Governor-General, are unconstitutional and invalid by reason of the serious nature and extent of the breach of Section 95 of the Constitution committed by the Speaker in unlawfully presiding in the Parliament on that day.
COMPLIANCE
143. This case is all about compliance, or, more particularly, non-compliance with the law. Not just any law, but the Constitution: the Supreme Law of the Independent State of Papua New Guinea. This is the third occasion in a little over seven years on which the Supreme Court has been required to intervene in a case of flagrant breaches of the Constitutional Laws concerning the nomination of the Governor-General.
144. The People of Papua New Guinea may be forgiven for wondering whether their leaders are learning from past mistakes and whether they are committed to the Constitution. All members of the Parliament, including the Speaker, and also the Clerk of the Parliament, are subject to the Leadership Code. All Judges are also subject to the Leadership Code.
145. All leaders are required by Section 249 of the Constitution, before entering upon the duties of their office, to make the Declaration of Loyalty under Section 6 of the Constitution, in these terms:
I,..., realizing fully the responsibilities to which I am committing myself and the consequences of not living up to this Declaration and those responsibilities, freely and willingly declare my loyalty to the Independent State of Papua New Guinea and its People and to the Constitution of Papua New Guinea adopted by the Constituent Assembly on 15 August 1975, as altered from time to time in accordance with its provisions, and promise that I will uphold the Constitution and the laws of Papua New Guinea. [Emphasis added.]
146. These are not empty words. They convey a solemn obligation on the part of all our leaders to be loyal to the State and the People of Papua New Guinea and to uphold the Constitution. When leaders fail to discharge that obligation, they set a poor example for everyone else and the Rule of Law is at risk.
147. What happened in the Parliament on 25 June 2010 is regrettable. We urge all members of the Parliament to consider very closely the reasons for our opinions and endeavour to learn from the errors that have been exposed. If there is confusion or doubt in the future as to what the constitutional requirements are, the Parliament (an authority that is authorised by Section 19(3)(a) of the Constitution to seek opinions from the Supreme Court) might consider referring constitutional questions to the Supreme Court before decisions are made. This would appear likely to enhance the prospects of compliance with the law and to reduce the risk of constitutional errors being made.
SCOPE OF THIS OPINION
148. The final issue we address is whether to make more detailed declarations and orders in addition to the answers we have provided to the eight questions that were referred to us.
149. It is a peculiar feature of this case that very specific questions have been referred to the Court that are based on very specific facts. In the past it has been common to confine references to the Supreme Court under Section 19 of the Constitution to general questions of constitutional interpretation or application, eg where the referring authority seeks an opinion on the constitutionality of an Act of the Parliament or an Organic Law. If an opinion is sought on the constitutionality of a particular decision, based on particular facts, it has been customary for the questions to be raised through Sections 18(1) or 18(2) of the Constitution.
150. If we were to confine our declarations and orders strictly to the eight questions we would be acting consistently with the past practice of the Supreme Court. If we were to give more detailed declarations and orders, we would be doing things differently. But we would not be doing something that is improper or acting outside the Constitution.
151. The Supreme Court recently took a broad approach to the extent of its jurisdiction under Section 19 of the Constitution in Provincial Executive Council of the Fly River Provincial Government of Western Province v Registrar of Political Parties (2010) SC1057, the Section 19(1) reference concerning the constitutionality of the Organic Law on the Integrity of Political Parties and Candidates.
152. We adopt that approach here, which is consistent with our duty under Schedule 1.5(2) of the Constitution to give all provisions of, and all words, expressions and propositions in, a Constitutional Law (by which we refer to Section 19(1) of the Constitution) their fair and liberal meaning.
153. Section 19(1) states:
Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law. [Emphasis added.]
154. Section 19(2) provides that an opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.
155. We consider that it is desirable and necessary, having regard to the overarching duty of the Supreme Court to uphold the Constitution and the Rule of Law, and the inherent power of the Court under Section 155(4) of the Constitution to make, in such circumstances as seem proper, such orders as are necessary to do justice in the circumstances of this particular case, to make a number of consequential declarations and orders. If we do not do so, we would leave too many questions unanswered: What action should the Parliament take next? What is the status of the incumbent Governor-General? What is the status of the Speaker? That may well lead to confusion and uncertainty and create the need for a further Section 19 reference or lead to proceedings in the National Court.
156. Therefore, in the light of our answers to the eight questions comprising the reference, we make the following declarations and orders, which are incidental to and shall be regarded as forming an integral part of our binding opinion on the eight questions.
DECLARATIONS AND ORDERS
(1) The appointment by the Queen and Head of State of Sir Paulias Matane as Governor-General, dated 25 June 2010, was unconstitutional and invalid.
(2) Sir Paulias Matane shall cease to hold office as Governor-General at 12 midday on 13 December 2010.
(3) There shall thereupon be deemed to be a vacancy in the office of Governor-General and accordingly, subject to Section 95 of the Constitution, the Speaker shall be the Acting Governor-General.
(4) The Deputy Speaker or other member of the Parliament authorised under Section 108 of the Constitution or the Standing Orders of the Parliament to exercise or perform the powers, functions, duties and responsibilities of the Speaker shall, in accordance with Section 88(4) of the Constitution, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General, provided that the time and date for the meeting shall be no later than 40 days after the date of this order.
(5) For the purposes of nominating the next Governor-General, all proposals, votes, decisions and other processes made or conducted in May and June 2010 in connection with the appointment of the Governor-General are a nullity and shall not be relied on and accordingly the process of nominating the next Governor-General shall recommence ab initio in accordance with Section 3(a) of the Organic Law on the Nomination of the Governor-General.
Judgment accordingly.
_____________________
Manase Lawyers: Lawyers for the Referrer
Ame Lawyers: Lawyers for the First Intervener
Kelly Naru Lawyers: Lawyers for the Second Intervener
Greg Manda Lawyers: Lawyers for the Third Intervener
Solicitor General: Lawyer for the Fourth Intervener
Lomai & Lomai Attorneys: Lawyers for the Fifth Intervener
APPENDIX 1: CONSTITUTION, PART V
(THE HEAD OF STATE)
Division 1.—The Head of State.
82. Queen and Head of State.
(1) Her Majesty the Queen—
(a) having been requested by the people of Papua New Guinea, through their Constituent Assembly, to become the Queen and Head of State of Papua New Guinea; and
(b) having graciously consented so to become, is the Queen and Head of State of Papua New Guinea.
(2) Subject to and in accordance with this Constitution, the privileges, powers, functions, duties and responsibilities of the Head of State may be had, exercised and performed through a Governor-General appointed in accordance with Division 3 (appointment, etc., of Governor-General) and, except where the contrary intention appears, reference in any law to the Head of State shall be read accordingly.
83. Queen's successors.
The provisions of this Constitution referring to the Queen extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.
84. Precedence.
The Head of State takes precedence in rank over all other persons in Papua New Guinea, and the Governor-General takes precedence in rank immediately after the Head of State.
85. Royal Style and Titles.
The Style and Titles of the Head of State are as determined by Act of the Parliament, and until such an Act is made are—
Elizabeth II, Queen of Papua New Guinea and Her other Realms and Territories, Head of the Commonwealth.
Division 2.—Functions, etc., of the Head of State.
86. Functions, etc.
(1) The privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.
(2) Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.
(3) Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.
(4) The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.
Division 3.—Appointment, etc., of Governor-General.
87. Qualifications for appointment.
(1) The Governor-General must be a citizen who—
(a) is qualified to be a member of the Parliament (except for the reason that he occupies the office of Governor-General); and
(b) is a mature person of good standing who enjoys the general respect of the community.
(2) The question, whether for the purposes of Subsection (1) a person is a person to whom Subsection (1)(b) applies, is non-justiciable.
(3) The Governor-General must not hold any office or position or engage in any calling other than that of, or an office or position associated with, his office as Governor-General, except with the consent of the Head of State, acting with, and in accordance with, the joint advice of the National Executive Council and the Ombudsman Commission.
(4) A request for the consent of the Head of State under Subsection (3) shall not be made unless agreement on the matter in relation to which the consent is sought has been reached between the National Executive Council and the Ombudsman Commission.
(5) No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term.
88. Appointment to office.
(1) Except in the case of the first Governor-General appointed before Independence Day the Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.
(2) A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.
(3) Subject to Subsection (5), the Speaker shall, within the period of three months before the completion of the normal term of office of the Governor-General, call a meeting of the Parliament to nominate the next Governor-General.
(4) Subject to Subsection (5), in the event of a casual vacancy in the office of Governor-General, the Speaker shall, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General.
(5) If—
(a) at a time when a meeting of the Parliament should otherwise be called under Subsection (3) or (4) a general election to the Parliament has been ordered; or
(b) between the time when a meeting of the Parliament should otherwise be called under Subsection (3) and the date of the completion of the normal term of office of the outgoing Governor-General a general election to the Parliament is due to be held in accordance with this Constitution,
the Speaker shall not call a meeting of the Parliament in accordance with Subsection (3) or (4), as the case may be, and a nomination shall be made at the first meeting of the new Parliament as its first item of business after any formal business and the election of a Speaker.
89. Assumption of office.
Notwithstanding Section 90 (Declaration of Loyalty, etc.) for the purposes of this Constitution a person appointed as Governor-General takes office—
(a) subject to paragraph (b), at the end of his predecessor's term of office; or
(b) if he is appointed to fill a casual vacancy—on the date of his appointment.
90. Declaration of Loyalty, etc.
(1) Before entering upon the duties of his office, a Governor-General shall take the Oath of Allegiance and make the Declaration of Loyalty and the Declaration of Office before the Chief Justice and in the presence of the Parliament, but during a period of declared national emergency they may be taken and made in such manner as is directed by the National Executive Council.
(2) If the Governor-General has not complied with Subsection (1) before taking office—
(a) he is suspended from office until such time as he does so; and
(b) if he does not do so at the first reasonably available opportunity, he may be dismissed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament, and in that event is not eligible for re-appointment for a period of six years.
91. Normal term of office.
Unless he earlier dies, resigns, ceases to be qualified for office in accordance with Section 87 (qualifications for appointment), is dismissed under Section 90 (Declaration of Loyalty, etc.), or 93(1) (dismissal and removal from office), or is removed from office under Section 93(2) (dismissal and removal from office), the Governor-General holds office for a term of six years from the date of his assumption of office in accordance with Section 89 (assumption of office), plus any period that is required, in accordance with Section 88(5) (appointment to office), for the appointment of the next Governor-General.
92. Resignation.
(1) The Governor-General may resign from office by notice in writing to the Head of State.
(2) The resignation takes effect on its acceptance by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.
93. Dismissal and removal from office.
(1) The Governor-General may be dismissed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with either—
(a) a decision of the National Executive Council; or
(b) a decision made by an absolute majority of the Parliament.
(2) The Governor-General may be removed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed for the purpose by the National authority responsible for the registration or licensing of medical practitioners have jointly reported to the Speaker that, in their professional opinions, the Governor-General is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.
94. Suspension from office.
(1) The Governor-General may be suspended from office—
(a) by the National Executive Council, if he refuses or fails to act in accordance with the advice of the National Executive Council or of any other body or authority in accordance with whose advice he is obliged, in the particular case, to act, or acts, or purports to act contrary to, or without, any such advice; or
(b) in accordance with an Act of the Parliament pending an investigation for the purposes of Section 93(2) (dismissal and removal from office),
and pending any resultant action by the Parliament.
(2) If the Governor-General is suspended from office by the National Executive Council under Subsection (1)(a), the Prime Minister shall immediately inform the Speaker of the suspension and of the reasons for it.
(3) If the Governor-General is suspended from office under Subsection (1)(a)—
(a) the Speaker shall, as soon as practicable, call a meeting of the Parliament at which the matter of the suspension and of the possible dismissal of the Governor-General shall be the first item of business after any formal business and, if necessary, the appointment of a Speaker; and
(b) the suspension may be lifted at any time by decision of the Parliament; and
(c) unless before the end of the meeting a recommendation is made in accordance with Section 93(1) (dismissal and removal from office) that the Governor-General be dismissed from office, the suspension ceases at the end of the meeting.
(4) If the Governor-General is suspended from office under this section, the Prime Minister shall, as soon as practicable, inform the Head of State of the suspension and of the reasons for it.
(5) A period of suspension under this section shall be taken into account in calculating for the purposes of this Division, the length of the period of service in office of the Governor-General.
95. Acting Governor-General.
(1) In this section, a reference to the Speaker or to the Chief Justice shall be read as a reference to the substantive holder of that office.
(2) If—
(a) there is a vacancy in the office of Governor-General; or
(b) the Governor-General is suspended from office; or
(c) the Governor-General is—
(i) on leave of absence; or
(ii) absent from the country; or
(iii) out of speedy and effective communication; or
(iv) otherwise unable to perform, or is not readily available to perform, the duties of his office,
the Speaker is, subject to Subsection (3), the Acting Governor-General.
(3) If at any time to which Subsection (2) applies—
(a) there is a vacancy in the office of Speaker; or
(b) the Speaker is suspended from office; or
(c) the Speaker is—
(i) on leave of absence; or
(ii) absent from the country; or
(iii) out of speedy and effective communication; or
(iv) otherwise unable to perform, or is not readily available to perform, the duties of his office,
the Chief Justice (if he is a citizen) is the Acting Governor-General.
(4) During any period when he is the Acting Governor-General, the Speaker or the Chief Justice shall not exercise or perform any of the other powers, functions, duties and responsibilities of the office of Speaker or Chief Justice, as the case may be, except that the Chief Justice may complete any proceedings actually commenced before him unless other suitable arrangements can be made.
(5) When neither the Speaker nor the Chief Justice is available (or, in the case of the Chief Justice, qualified) to be the Acting Governor-General, the powers, functions, duties and responsibilities of the Governor-General shall be exercised and performed by a Minister appointed by the Head of State on the advice of the National Executive Council for the purpose.
(6) The question, whether the occasion for the exercise or performance of a power, function, duty or responsibility by an Acting Governor-General or a Minister under this section has arisen or has ceased, is non-justiciable.
96. Terms and conditions of employment.
(1) Subject to this Constitution, the terms and conditions of employment of the Governor-General are as determined by or under an Organic Law.
(2) Except with the consent of the Governor-General the terms and conditions of employment of the Governor-General shall not be changed to his detriment during his term of office, and an Organic Law that so changes them shall recite the terms of the consent.
Division 4.—General.
97. Conveyance of decisions, etc.
Where any act is done, decision is made or advice is given by the Parliament or the National Executive Council under this Part, the Prime Minister shall immediately convey it to the Head of State.
98. Acts, etc., of the Head of State.
Unless the contrary intention appears, any act by the Head of State takes effect when it is formally advised to the Prime Minister or the National Executive Council.
APPENDIX 2: ORGANIC LAW ON
THE NOMINATION OF THE GOVERNOR-GENERAL
Being a Provisional Organic Law to implement Section 88(2) (appointment to office) of the Constitution by providing for the conduct
of an exhaustive secret ballot to decide the Parliament's nomination for the office of Governor-General,
MADE by the Constituent Assembly to come into operation on Independence Day.
1. Definitions.
In this Law, unless the contrary intention appears—
"member" means a member of the National Parliament;
"Parliament's nominee" means the person nominated by, or to be nominated by the National Parliament, to occupy the office of Governor-General;
"the Clerk" means the Clerk of the National Parliament.
2. The Clerk to conduct elections.
An election under this Law shall be conducted by, or under the supervision of, the Clerk.
3. Nominations.
Whenever the office of Governor-General is vacant, or is about to become vacant, the Speaker shall—
(a) on the first sitting day of the Parliament after the vacancy occurs, or the need to elect a new Governor-General occurs, as the case may be, notify the members of the Parliament of the vacancy or of the imminent vacancy; and
(b) at the same time fix a date, being a date not later than 10 sitting days after the day referred to in paragraph (a), for the conduct of a ballot to decide the person to be nominated by the Parliament to fill the vacant office; and
(c) call for nominations to fill the vacancy.
4. Proposals for nomination.
(1) A proposal for nomination shall be—
(a) in the form in Schedule 1; and
(b) contain the signature or other mark of—
(i) the proposer; and
(ii) the person proposed as accepting the nomination; and
(iii) not less than 15 other members of the Parliament; and
(c) handed to the Clerk at any time before the commencement of voting.
(2) A member of the Parliament shall not propose more than one person as a candidate for election as the Parliament's nominee.
5. Rejection of proposals.
(1) The Clerk may reject a proposal for nomination where—
(a) the proposal is not in the prescribed form; or
(b) the proposal is not signed by at least 15 members of the Parliament; or
(c) he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General.
(2) Where the Clerk rejects a proposal for nomination he shall immediately inform the Speaker, the proposer and the person proposed of his reasons for so doing.
(3) A person aggrieved by a decision of the Clerk may, within five days after the decision, appeal against the decision to the National Court.
(4) An election under this Law shall not be held until all appeals under this section have been dealt with.
6. Functions of Clerk prior to ballot.
The Clerk shall, immediately before the commencement of voting—
(a) furnish the Speaker with a list of all candidates for election and the Speaker shall declare the names to the Parliament; and
(b) distribute, or cause to be distributed, to each member present in the Parliament at that time a ballot-paper in a form approved by the Clerk.
7. Voting where one person only proposed.
(1) Where only one person has been proposed as the Parliament's nominee, each member present shall—
(a) indicate on his ballot-paper whether or not he agrees with the proposal; and
(b) deliver the ballot-paper to the Clerk.
(2) The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes and furnish the result to the Speaker.
(3) The Speaker shall—
(a) where the person proposed has received a majority of votes, declare that person elected as the Parliament's nominee; or
(b) where the person proposed has received less than a majority, declare that the election has failed, and that person shall not again be proposed as a candidate for election at that election.
8. Voting where two persons proposed.
(1) Where two persons have been proposed as the Parliament's nominee, each member present shall—
(a) indicate on the ballot-paper the name of the candidate for whom he votes; and
(b) deliver his ballot-paper to the Clerk.
(2) The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes for each candidate and furnish the result to the Speaker.
(3) The Speaker shall—
(a) where one of the candidates receives a majority of votes, declare that candidate elected as the Parliament's nominee; or
(b) where both the candidates receive an equal number of votes, declare that a further ballot shall take place immediately.
(4) Where on a ballot referred to in Subsection 3(b) there is again an equality of votes, the Speaker shall declare that—
(a) the matter stands adjourned for one sitting day; and
(b) that a further ballot shall then take place.
(5) Where on the ballot referred to in Subsection (4) there is again an equality of votes, the Speaker shall cast his vote.
(6) Where there is an equality of votes, a candidate may at any time after the result of the first ballot is declared, but before the commencement of the second or other subsequent ballot, withdraw his name from the election which shall then proceed in accordance with Section 7.
(1) Where more than two persons have been proposed as the Parliament's nominee, each member present shall—
(a) indicate on the ballot-paper the name of the candidate for whom he votes; and
(b) deliver his ballot-paper to the Clerk.
(2) The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes for each candidate and furnish the result to the Speaker.
(3) As soon as he has been furnished with the result of the ballot the Speaker shall declare the candidate with the least number of votes to be excluded from further ballots and a second ballot shall be held immediately and so on until there are only two candidates remaining.
(4) Where only two candidates remain in accordance with Subsection (3) the further ballots shall be conducted in accordance with Section 8 as though those two candidates were the only candidates nominated.
(5) Where in any ballot conducted under Subsection (3) no decision can be made as to which candidate to exclude from a subsequent ballot because two or more candidates have an equality of votes, a ballot shall be conducted as between those candidates only to determine which should be excluded and, if after conducting that ballot there is still an equality of votes, the Speaker shall cast his vote to determine which of the candidates is to be excluded from subsequent ballots.
(6) At any time after the result of the first ballot under this section is declared, but before the commencement of the second or other subsequent ballot, a candidate may withdraw his name from the election which shall then proceed as if he had not been nominated.
Schedule 1.—Proposal for nomination.
| SCHEDULE 1. | Sec. 4. |
Proposal for nomination.
THE INDEPENDENT STATE
of
PAPUA NEW GUINEA.
Organic Law on the Nomination of the Governor-General.
FORM OF PROPOSAL FOR NOMINATION OF PERSON FOR APPOINTMENT AS GOVERNOR-GENERAL.
I, the undersigned member of the National Parliament, propose ............................ who is qualified to be a member of the National Parliament and is a citizen of Papua New Guinea for nomination by the Parliament as Governor-General.
Dated the day ... of ..., 19 .
(Signature of Proposer.)
(Name of Electorate of Proposer.)
I, being the person referred to in the above proposal, accept the proposal.
(Signature of Person Proposed.)
We, the undersigned members of the Parliament, support the above proposal.
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(Electorates of Supporters of Proposal.) (Signatures of Supporters of Proposal.)
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