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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 165 of 2013 & SCA NO. 177 of 2013
APPLICATIONS pursuant to Constitution Section 18 (1)
Application by BELDEN NORMAN NAMAH, MP
Leader of the Opposition
First Applicant
AND:
Application of ILA GENO
Second Applicant
AND:
THE HON. PETER O'NEILL, MP
PRIME MINISTER
First Respondent
AND:
THE HONOURABLE THEODORE ZURENUQC
SPEAKER OF THE NATIONAL PARLIAMENT
Second Respondent
AND:
THE HONOURABLE KERENGA KUA, MP
ATTORNEY GENERAL & MINISTER FOR JUSTICE
Third Respondent
Waigani: Injia CJ, Salika Dep.CJ, Sakora, Kirriwom & Davani JJ
2015: 4th September
CONSTITUTION - Constitutional claims under s 18(1) of the Constitution - Practice and procedure - Pleading the claim- Onus and standard of proof- Evidence - Findings of fact -Identification of Constitutional issues - Determination.
CONSTITUTION - Constitutional interpretation and application - Constitutional Amendments – inconsistency with existing provision of Constitution - purpose of provision or other related provisions-Constitutionality and validity of Constitutional amendment.
CONSTITUTION - Specific Constitutional Amendments – of s 145(l){b) and (4) (Motions of No confidence)and s 124 (1) (calling and sitting of Parliament- inconsistent with s 145, s 111, s 115,and s50(1) (c) and (e) of the Constitution - Constitutional Amendments declared Unconstitutional and invalid.
Facts
The nature of the claim and prayer for declaratory relief in the two applications are similar. The applicants seek declaratory orders that four(4) Constitutional amendments made by the Parliament relating to the conduct of proceedings in the Parliament with regard to calling of meetings, the rights of members of Parliament (MPs) to introduce a motion of no confidence in the government, the period of notice required for introducing a motion of no confidence, the number of MPs required to endorse the motion of no confidence, and the grace period allowed before a successful vote of no confidence is allowed, are unconstitutional.
Held
Per Injia CJ, Salika DCJ, Sakora J and Davani J agreeing with the reasons and conclusions, Kirriwom J agreeing with the conclusions:
1. A challenge to a constitutional amendment made in 1991 has been unduly delayed and is dismissed for that reason, at [71].
2. There are limits to the power of Parliament to amend the Constitution. The constitutional amendment must itself be Constitutional and comply with the formal requirements in ss 13-17, at [78]
3. If a constitutional amendment is found to be inconsistent with the purpose and wording of an existing provision of the Constitution, the amendment must give way to the existing provision, at [79].
4. The principle of individual and collective responsibility of the Ministry to Parliament pronounced in s 141 is a fundamental principle that underpins Parliamentary democracy and must be given full effect, at [80].
5. The amendment to s 145 (1) (b) with regard to one month’s notice restricts an MP’s right given under s 111 to move a motion of no confidence with due expediency, at [89].
6. The amendment to s 124(1) restricts or impedes upon Parliament’s ability to convene Parliament to give itself enough time to conduct its business, especially on a motion of no confidence, at [90-91].
7. A significant reduction in sitting time in Parliament is inconsistent with the purpose of s 124, s 111 and s 115 at [92].
8. The amendments to ss 124 & 145 are clearly inconsistent with the spirit and purpose of ss 50 (1) (c) and (e), s 111, s 115, s 124, s 141 and 145 of the Constitution, at [99].
9. Constitutional amendments Motions of No Confidence Law 2012 and Motions of No Confidence Law 2013 and Calling of Parliament Law 2013 are unconstitutionally invalid, at [111].
Counsel
N M Cooke QC with L Henao, for the First Applicant
N Yalo, for the Second Applicant
I Molloy with L David, for the First and Third Respondent
T Tanuvasa, for the Second and Third Respondents
4th September, 2015
1. INJIA CJ: These are contested applications brought under s 18 (1) of the Constitution. The nature of the claim and prayer for declaratory relief in the two applications are similar. The applicants seek declaratory orders that four(4) Constitutional amendments made by the Parliament relating to the conduct of proceedings in the Parliament with regard to calling of meetings, the rights of members of Parliament (MPs) to introduce a motion of no confidence in the government, period of notice required for introducing a motion of no confidence, the number of MPs required to endorse the motion of no confidence, and the grace period allowed before a successful vote of no confidence is allowed.
2. The applications were jointly tried. This is the joint judgment on the applications.
3. These claims, which I refer to as "Constitution claims" , are amongst the first of its kind brought under s 18(1) of the Constitution and the new rules of Court found in Order 4 of the Supreme Court Rules 2012, and the first such claim that has been fully tried on its merits. The new rules of court were introduced following this Court's decision in Re Reference by Ken Norae Mondiai (2010) SC1087. The rules give private citizens who have sufficient interest in the subject matter of the proceedings but who otherwise lack standing to bring a Constitutional Reference under s 19 of the Constitution, to bring a Constitutional Claim challenging the Constitutional validity of a statutory enactment.
The parties
4. The applicants must have sufficient interest to bring a Constitutional claim. These claims involve challenge to statutory enactments for which the main relief sought includes invalidation of those enactments. The rules of court require applicants to have standing to bring such claims: 0.4 r.l of the Supreme Court Rules 2012. The first applicant is the leader of the Opposition. The Second Applicant is a senior citizen. Both applicants lacked standing to bring Constitutional reference challenging validity of legislation under s 19(1) of the Constitution. They brought these applications following this Court's grant of standing to each applicant in separate applications brought by them.
5. With regard to the respondents, given the Constitutional significance of the claims and the serious consequences that may flow from a successful challenge to the legislations in question, persons that have an interest in the matter should be represented and heard on the application. Parliament is obviously an interested party in the proceedings as its legislations are under challenge. The Parliament is represented in these proceedings by the Second Respondent. In addition, the Attorney General as the Principal Legal Advisor to the National Executive Council and the Prime Minister as the head of the National Executive Council are named as respondents in the proceedings. They represent the Parliamentary Executive which is responsible for initiating the policy that led to the enactment of the legislation by Parliament. Therefore all persons or parties that have an interest in the matter under consideration have been represented and heard in these proceedings and this Court is able to make its decision on the merits of the issues in the case.
The claim
6. The claims relate to four Constitutional amendments made by Parliament between1991 and 2013. In 1991, Parliament amended s 145(4) of the Constitution that increased the grace period allowed before a motion of no confidence in the government is moved in the Ministry, the Prime Minister or a Minister (hereinafter collectively and severally referred to as the "government"), from six (6) months to eighteen (18) months: Constitutional Amendment No.14 of 1991 (First Amendment).
7. In 2012, Parliament again amended s 145(4) of the Constitution which increased the grace period from 18 months to thirty (30) months: Constitutional Amendment (Motions of No Confidence) Law 2012 (Second Amendment).
8. In 2013, Parliament amended s 145 (1) (b) of the Constitution which increased the period of notice required for a motion of no confidence to be given from one (1) week to one (1) month. In the same amendment, Parliament also increased the number of MPs required to endorse the notice of motion of no confidence from one tenth (11 MPs) to one fifth (22 MPs): Constitutional Amendment (Motion of No Confidence) Law 2013 (Third Amendment)
9. Also in 2013, Parliament amended s 124 (1) of the Constitution which reduced Parliament's sitting time from "not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period" down to " not less than 40 days in each period of 12 months."
10. There are a multiple grounds of challenge pleaded in the applications. I have condensed those into four main grounds as follows:
(1) The four Amendments curtail Parliament’s ability to bring the Executive Government to account for its actions and are inconsistent with the system of responsible government establishment by the Constitution under s 99 (separation of powers) and s 141 (Nature of Ministry: collective responsibility).
(2) The amendments restrict or prevents a MP’s right to introduce a motion of no confidence under s lll of the Constitution.
(3) The amendments restrict or prevent the exercise of the rights of individual MPs to hold office and perform their public functions given them under s 50(l)(c) and (e) of the Constitution.
(4) The amendments deprives other MPs from being given the opportunity to contest for the position of Prime Minister or Minister under s 50 (l)(c) and (e).
11. The alleged facts relied upon to support the claims for declaratory relief set out in the application are expressed in similar terms. Much of those facts relate to the manner in which the amendments were introduced in Parliament and voted on by MPs.
Proof of the Claim
12. In an ordinary civil claim, it is the pleadings that define the foundation of the claim (or defence to the claim) and it is the pleadings that drive the evidence and the outcome of the case. Findings of fact and reasonable inferences drawn from primary facts are made from the evidence and the law applied to reach a conclusion that determines claim and the relief to be granted. It is possible though for a case that raises purely legal issues on the pleadings based on uncontested facts to be determined without recourse to any evidence. The plaintiff bears the onus of proving the claim on the ordinary civil standard of proof- on the balance of probabilities. These principles equally apply to the proof of a Constitutional claim brought under s18(1) of the Constitution.
13. A Constitutional claim brought under s 18(1) of the Constitution insofar as it involves challenge to the validity of legislation is a public law suit that is often permeated by socio -political surroundings. There is that danger inherent in such claims that parties, in particular applicants, tend to overload the pleadings with irrelevant matters and exaggerate pleadings and material in support that prove to be burdensome for the Courts of law. It is necessary for the Court dealing with a claim under s 18(1) of the Constitution that is permeated by political surroundings to adopt a strict approach by insisting on parties to plead matters that are the proper subject for judicial resolution and confine their case to the pleadings.
Constitutional provisions under consideration in this case
14. The Constitution establishes a British Parliamentary Westminster system of government in which the Parliament appoints the Prime Minister and he or she in turn appoints other Ministers to assist him. The collective body of Ministers including the Prime Minister constitute the Ministry and is described as the Parliamentary Executive. The Ministry is responsible for running the government and directly accountable to the Parliament and liable to be dismissed from office by Parliament for cause.
15. Section 141 of the Constitution provides for the individual and collective responsibility of the Ministry in the following terms:
"Subdivision B.—The Ministry.
141. Nature of the Ministry: collective responsibility.
The Ministry is a Parliamentary Executive, and therefore—
(a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister;
and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and
(b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and
(c) it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.
16. The procedure for dismissal of the Prime Minister, a Minister or the Ministry collectively, through a successful vote of no confidence, is set out in s 145 of the Constitution. Section 145, after the 2012 and 2013 amendments, now reads:
"145. Motions of no confidence.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of
no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one month's notice, signed by a number of members of the Parliament being not less than one fifth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament, (new amendment in 2012)
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty months commencing on the date of the appointment of the Prime Minister."
17. A MP's right to bring a motion before Parliament, that includes a motion of vote of no confidence, is guaranteed by s 111 of the Constitution, which is in the following terms:
111. Right to introduce bills, etc.
(1) Subject to Section 210 (executive initiative) and to an Organic Law made for the purposes of
Subdivision VI. 2. H (Protection of Elections from Outside or Hidden Influence and Strengthening of
Political Parties), any member of the Parliament is entitled to introduce into the Parliament, in
accordance with, and subject to any reasonable restrictions contained in, the Standing Orders of
the Parliament, a petition, question, bill, resolution or motion.
(2) The petition, question, bill, resolution or motion shall be dealt with as provided by the
Standing Orders of the Parliament.
(3) The Standing Orders of the Parliament may make provision for priority to be given to
Government business at certain times or in certain circumstances, (my underlining)
18. A motion of vote of no confidence may be successfully moved by an affirmative vote by simple majority of MPs: see Constitution, sll4 (Voting in Parliament).
19. The pre-amendment s 124 read as follows:
"Section 124
Calling, etc.
(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament.
(3) Subject to Subsection (1) and (2), an Act of the Parliament or the Standing orders of the parliament may make provision in respect of the sittings of the parliament, (my underlining)
20. The amended Section 124 now reads:
Subdivision F.—Calling, etc., of the Parliament.
124. Calling, etc.
(1) The Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general election, and shall meet not less than 40 days in each period of 12 months.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament.
(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament (my underlining).
21. Section 50 (l)(c) and (e) of the Constitution states:
50. Right to vote and stand for public office.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or
(ba) has dual citizenship of another country,
has the right and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the
purpose in a democratic society that has a proper regard for the rights and dignity of mankind,
(my underlining).
Constitutional issues before the Court
22. The central issue that emerged from the pleadings and from the way the parties argued their respective cases before us is whether the four Constitutional amendments are inconsistent with the purpose of s 145, s 111 and s 124 and infringes s 50(l)(c) and (e) of the Constitution.
Evidence
23. Parties chose not to rely on any affidavits at the trial. They based their respective cases on three other material: Hansards of Parliament containing the debates and votes taken in 1991, 2012 and 2013, the Final Report of the Constitutional Planning Committee published in 1974 (CPC Report) and the Debates of the Constituent Assembly. After the conclusion of arguments, the Court reserved its decision. In the intervening period, the Court considered it necessary to ascertain the facts of the case. The Court re-opened the case and commissioned one of its own members, the Deputy Chief Justice (trial judge), to take the evidence in relation to the substantive issues before the Court, ascertain the facts and place those before this Court: O. 3 r. 3, Supreme Court Rules 2012; Application by Francis Gem to enforce Constitutional Rights (2010) SC1065. Those facts, it was understood, amongst other relevant things, would cover things such as the number and results of the motions of votes of no confidence moved since Independence, the reasons behind successful votes of no confidence, the circumstances prevailing at the time that prompted the amendments made in 1991, 2012 and 2013, and the desirability of those amendments as seen today by some of the key figures or founding fathers of our Parliamentary democracy.
24. The trial judge called for and received affidavits from three former Prime Ministers namely, Grand Chief Sir Michael Somare, Grand Chief Sir Julius Chan and The Hon Paias Wingti) and the current Prime Minister The Hon Peter O'Neill. The trial judge also received an affidavit from one of the key members of the Constitutional Planning Committee (CPC), President John Momis, now the President of the Autonomous Region of Bougainville (ABG). Sir Mekere Morouta and Sir Rabbie Namaliu, the only other surviving former Prime Ministers who did not give evidence.
25. The facts found by the trial judge based on the affidavits were placed before us and parties made submissions on them. Those facts which I set out later in my judgment are confined to the historical facts pertaining to the appointment of Prime Ministers after the General elections and in the term of Parliament. The parties submitted those facts do not shed any new light on the issues in the case and saw little or no assistance to be gained from those facts. They repeated their earlier position that there are no facts in the case.
26. I consider that there is some real benefit to be gained from the evidence of the former and serving Prime Ministers and from one of the founding fathers of the Constitution. It is a rare opportunity given to this Court to have their insight into what was the thinking behind the original provisions when they were first enacted at Independence, how their application has been played out to achieve the purpose of those provisions and the justification for the amendments. Although this Court commissioned the trial judge to perform the task of fact finding, it is open for this Court to make its own additional findings of fact on the same evidence. I intend to do that in this case. For that purpose, I set out the body of each affidavit after omitting the formal parts.
27. President John Momis was the Deputy Chairman of CPC that authored the final CPC report. He is now serving his second elected term as President of the Autonomous Region of Bougainville. Prior to this, he served as a senior diplomat serving Papua New Guinea in different countries after leaving Parliamentary service of several terms as the regional member for Bougainville in the National Parliament. He is also known as the principal architect of the first amendment to the Constitution that incorporated the provincial government system in the Constitution. These background facts concerning this deponent and other background facts attributed to the other deponents in my judgment are publicly known facts that I take judicial notice of without further proof.
28. President Momis deposes to the following:
1. I swear this affidavit for the purpose of deposing to facts within my knowledge pertaining to Constitutional Amendment No 14 - Motion of No Confidence Law 1991.
2. In the Constitutional Planning Committee (CPC) considerations on the executive government the members of the CPC expressed strong views that the executive government must be accountable to the Parliament to prevent the government from abusing power and becoming all kinds of pretexts of acting for public good.
3. Initially the CPC did not want any grace period to be included in the Constitution because it was strongly in favour of collective responsible government. It was of the view that over a number of years the experience of government, it's positive conduct as a result of principled politicians and its performance would deter and make motion of no confidence unnecessary.
4. Accordingly the only reason for the CPC inserting under Section 145 of the Constitution a six months grace from motion of no confidence being moved against a government was to allow time for the government to settle in, formulate polices and implement them. If however it was found to be unfit to hold office it must be held accountable.
5. Constitutional Amendment No 14- Motion of No Confidence Law 1991 was passed at the time when there was movement of Members of Parliament from one political party to the other severing their allegiance to their political parties making easy the frequency of motions of no confidence being moved against the government.
6. The frequent changes to the government or the threat of frequent changes to government by way of motion of no confidence caused the over- reaction by government at that time to make motions of no confidence difficult, although it was a wrong prescription for the problem.
7. Except where stated to be on information and belief, I have personal knowledge of the facts deposed to in this affidavit and where so stated I believe such facts to be true.
29. Sir Michael Somare is the leader of the Pangu Pati that led the country to Independence and became the country's first Chief Minister before Independence and the first Prime Minister after Independence. He deposes to the reasons why the grace period was extended twice since Independence. He states:
1. lam the Regional Member of Parliament for East Sepik Province and Governor for that Province. I have been a Member of Parliament for more than 40 years. During my time as a Member of Parliament, I have held the office of the Prime Minister three times from September 1975 to March 1980, August 1982 to November 1985 and August 2002 to August 2011.
2. I am quite conversant with the changes that have been made to the law governing votes of no confidence in the Prime Minister in terms of the extension of the grace period and the reasons and circumstances upon which such amendments have been made.
3. I was replaced as Prime Minister by way of a vote of no confidence in March 1980 and in August 1982 respectively.
4. I am aware of an order made by the Supreme Court in this Application for parties to assist the Court with facts pertaining to the circumstances and reasons relating to the changes made to the law governing votes of no confidence resulting in the extension of the grace period from 6 months to 18 months then subsequently to 30 months.
5. On the basis of paragraphs 1 and 2 herein above, I am in a position to assist the Court in respect of paragraph 3 herein above.
6. When the Constitution was adopted at Independence in September 1975, the grace period within which a vote of no confidence could not be moved against the Prime Minister was 6 months following the election of a Prime Minister.
7. In 1991, the grace period was extended from 6 months to 18 months when Sir Rabbie Namaliu was the Prime Minister.
8. In 2012, the grace period was further extended from 18 months to 30 months under the leadership of the present Prime Minister.
9. The reason for the amendments as I understood was to maintain political stability in government by extending the grace period to protect a newly elected government or Prime Minister from constant motions of no confidence during the initial stages of its leadership so that sufficient time was given to the Prime Minister and his government to formulate and
execute its polices. Time had to be given to a government or a Prime Minister to find their feet so to say, hence the need to control possible frequent and may be unnecessary votes of no confidence.
10. On the other hand, sufficient time and opportunity must also be given to the people to change a government if it does not live up to its responsibilities. To extend the grace period for an extensive period such as 30 months runs the risk of granting a government which may turn out to be mismanaging the affairs of the country the complete freedom to mismanage the country without any checks and balances until the grace period lapses.
11. In view of the above, it is crucial to strike a balance between the extension of the grace period and right of the people to change a Prime Minister and or his government. I consider the thirty (30) month extension to be rather excessive. I prefer a grace period of 24 months. At the end of the first 24 months after a general election, the people must be given the
opportunity through their leaders to remove the Prime Minister if it is considered that the affairs of the country are being mismanage.
12. However, if a vote of no confidence is moved successfully for the second time in the same term of parliament then the country should go to general elections. The rationale behind this is to ensure that Members of Parliament give serious thought and consideration to the consequences of a vote of no confidence being successful for the second time in the same
term of parliament and further to be genuine about the reasons why a motion of vote of no confidence should be moved.
13. Except as stated to be on information, belief or otherwise, the matters I depose to herein above are true and correct in their material particulars to the best of my knowledge and recollection.
30. Sir Julius Chan is also one of the founding fathers of the nation who led PNG to Independence alongside Sir Michael Somare, as his deputy. He is the founding leader of the Peoples Progress Party that partnered with Sir Michael Somare's Pangu Party to lead the country to Independence. He also deposes to the reasons why the grace period was extended twice, as follows:
1. lam the Regional Member of Parliament for New Ireland Province and Governor of that
Province. I have held the office of the Prime Minister two times as a result of successful motions for a vote of no confidence. In March 1980, following a successful vote of no confidence I succeeded the Grand Chief Sir Michael Somare as the country's second Prime Minister and in August 1994,1 replaced Paias Wingti as the Prime Minister following the Supreme Court's ruling on the controversial resignation and re-election of Mr. Wingti on the same day.
2. As a long time Member of Parliament, I am well aware of the changes that have been made to the law governing votes of no confidence in the Prime Minister in terms of the extension of the grace period and the reasons and circumstances upon which such amendments have been made.
3. I have also been made aware of an order of the Supreme Court in this Application for parties to assist the Court with facts pertaining to the circumstances and reasons relating to the changes made to the law governing votes of no confidence resulting in the extension of the grace period from 6 months to 18 months then subsequently to 30 months.
4. The first amendment to section 145 of the Constitution was made in 1991 by extending the grace period ("the grace period ") for a vote of no confidence from 6 months to 18 months. The Constitution Amendment No. 14 - Motions of No Confidence was certified on 23
December 1991.
Annexed hereto and marked with letter “A" is a true copy of the amendment.
5. In February 2013, the grace period was further extended from 18 months to 30 months. The Constitutional Amendment No. 36- Motions of No Confidence Law was certified on 25 February 2013.
Annexed hereto and marked with letter "8" is a true copy of the amendments.
6. The amendments to extend the grace period were made to supposedly achieve political stability that may be politically reasoned. However, it is my conviction excessive stability often leads to dictatorship. It does promote hunger for power. The greatest manifestation of stability in my view is in the transition from one government to another. Stability must not be for the purpose of protecting a bad or corrupt government to remain in power.
7. Contrary to the popular view that an extension of the grace period would provide political stability, the said extensions of the grace period have served to entrench the position of the government of the day. It does not necessarily guarantee good management, it leaves open the question of inefficient corrupt government remains untouchable for the specified grace period".
8. A grace period of 6 months as decided by our founding fathers was meant to gear our new Independent Papua New Guinea exercising limited "grace period "for "settling in "rather than "staying in". Any lengthy extension of the grace period only deprives the right of the people through its Parliament thereby depriving rights of elected representatives to conduct checks and balances on the Parliament elected executive government in open accountable Westminster system adopted in 1975.
9. Except as stated to be on information, belief on otherwise the matter I depose to herein above are true and correct in the material particulars to the best of my knowledge and recollection.
31. The Hon. Paias Wingti is a long time politician that first joined Parliament shortly after Independence and for the most part has remained a MP. He held many senior Ministries in various governments and became Prime Minister on three occasions. He deposes to the following:
1. I am the Regional Member of Parliament and Governor of the Western Highlands Province.
2. I severed as the Third Prime Minister of Papua New Guinea between 1985 and 1988 and again from 1992-1994.
3. My first term as Prime Minister came as a result of a Vote of No Confidence against Grand Chief Sir Michael Somare in 1985.
4. In 1988,1 was removed as Prime Minister as a result of a No Confidence Vote and was replaced as Prime Minister by Sir Rabbie Namaliu.
5. I have been advised and am aware of an order by the Supreme Court in these proceedings for
parties to assist the Supreme Court to determine the reasons and circumstances giving rise to the amendments to Section 145 of the Constitution through Constitutional Amendment No. 14 of 1991 and Constitutional Amendment (Vote of No Confidence) Law 2012.
6. I first became a Member of Parliament following the 1977 National Elections. I retained my nseat in Parliament during the parliamentary elections held in 1982,1987 and 1992.
7. Between 1977 and 1991 when Constitutional Amendment No. 14 was passed by Parliament, there were three (3) occasions when the Prime Minister was removed as a result of a vote of no confidence. In 1980, Sir Michael Somare was ousted as Prime Minister by a vote of no confident and was replaced by Sir Julies Chan. The other two occasions are highlighted above
in paragraph 3 and 4 of this affidavit.
8. Prior to the 1991 Amendment, Section 145 provided that the "grace period " to be 6 months following the election of Prime Minister. Given this limited period, the Government spent too much time worrying about a vote of no confidence instead of running the country.
9. /4s a result of these votes of no confidence, no Prime Minister had served a full five year term during that 15 year period giving rise to constant political instability.
10. As such, it was the desire of Government when Sir Rabbie Namaliu was Prime Minister in 1990 and 1991 to amend the Constitution to increase the grace period from 6 months to 30 months to give the government sufficient time plane and implement its vision and policies.
11. After debate, Parliament agreed that the grace period be increased from 6 months to 18 months.
12. In July 2013, Parliament again amended the section 145 of the Constitution thereby increasing the grace period from 18 months to 30 months.
13. It has been my experience as a Member of Parliament and former Prime Minister that the Government of the day spends more time managing numbers on the floor of Parliament rather than managing the affairs of the country.
14. It is therefore for this very reason that I support the amendments in July 2013 to give stability to government to carry out its’ polices and the people through Parliament should judge at the end of 30 months.
32. The Hon. Peter O'Neill, first elected to Parliament in 2002, served in various key Ministries in several governments and served as Opposition Leader before he was appointed Prime Minister in 2011. He deposes to the reasons for the Constitutional amendments made in 2012-2013, as follow:
2. I have been advised and am aware of an order by Supreme Court in these proceedings for parties to assist the Supreme Court to determine the reasons and circumstances giving rise to the amendments to Sections 145 of the Constitution through Constitutional Amendment No.14 of 1991 and Constitutional Amendment (Vote of No Confidence ) Law 2012.
3. I became Prime Minister in August 2011 and retained the position of Prime Minister after the 2012 General Elections.
4. I have been a Member of Parliament since 2002.
5. Prior to becoming Prime Minister, I served as the Opposition Leader and later Public Service Minister and Treasurer in the Somare Government after the 2007 National Elections.
6. In October 2012, the Government proposed to amend section 145 of the Constitution to extend the "grace period" from 18 months to 30 months.
7. The primary reason for this was to ensure political stability in government as previous governments were continually distracted from carrying out their Constitutional duties during the "grace period" by having to manage the numbers on the floor of Parliament to prevent a
vote of no confidence once the "grace period" lapsed. As a result, successive governments have failed to properly carry out their appointed mandate through implementation of visions and policies for the development of the country.
8. The proposed amendment had overwhelming support of Parliament as it was agreed that the government should concentrate on the development of infrastructure and delivery of services to our people. This could only be achieved where there is political stability, hence Parliament in its wisdom voted to extend the grace period.
9. It is a misleading notion to suggest that by extending the grace period, the people through Parliament would be unable to hold the government and the Prime Minister accountable. This is because Parliament can call for the resignation of the Prime Minister by not supporting the enactment of legislation sponsored by the government and by blocking the passing of the national budget on the floor of Parliament. If the government does not have the support of Parliament to govern then the Prime Minister has no choice but to resign from office even during the grace period.
10. This has happened previously in Parliament when the late Sir Bill Skate was Prime Minister. Mr. Skate did not have the support of his coalition partners and therefore resigned as Prime Minister paving the way for Sir Mekere Morauta to become Prime Minister.
11. The recent amendments give the government a period of two (2) and half years after the national election to implement its policies and development agenda for the country. At the end of that period, Parliament is at liberty to remove the Prime Minister if the people through Parliament deem that they no longer have confidence in the Prime Minister.
12. The amendment is a tool to guard against continuous political instability that has plagued this country since Independence in 1975.
13. In future, should the circumstances dictate that Parliament reduce the grace period, then the Parliament has every right under the Constitution to again amend section 145.
14. However, in the present circumstances, Parliament has decided that for the sake of development and the delivery of services in the country, the grace period should remain at 30 months.
Other relevant material: CPC report, Hansards of 2012-2013 and Debates of Pre Independence Constituent Assembly.
33. Also relevantly to be considered are other material that do not strictly form part of "the evidence" before the Court.
34. The applicants rely on the Hansard which contain the debates of Parliament on the Constitutional amendments made in 2012 and 2013. The Hansards are before this Court. They show that the bills for amendment received overwhelming support from MPs. Between 70 to 102 MPs voted in favour of the amendments. Very few as little as five MPs in each sitting that voted on the bills, opposed the bills. Those who supported the amendments spoke of the need to maintain political stability in Parliament by cutting down on the time spent by the government in Parliament worrying about managing number of MPs in Parliament come vote of no confidence time. There was little or no mention by the proponents of the amendments of a responsible Ministry's and its duty to account to Parliament for its actions and adequate time and opportunity to be made available to MPs to introduce bills and raise important issues and motions (including motions of no confidence) as a way of getting the executive government to account to Parliament.
35. Further material relied upon consist of the Final Report of the Constitutional Planning Committee published on 13 August 1975. On Parliament's central role under a Westminster style Parliamentary democracy, the CPC said:
"In the kind of participatory democracy we envisage for Papua New Guinea, with maximum emphasis on consultation and consensus, the national legislature must clearly have a central role. We believe that while the executive must be given every opportunity to provide strong leadership in reshaping our new nation to meet the needs and aspirations of our people, it is important also that this leadership does not become autocratic so that the legislature becomes a mere rubber stamp. If government is to be truly responsive to the people, it is vital that those whom the people elect to represent them should be able to contribute actively and effectively to the government of the nation. The legislature should not be seen as a rival to the executive arm, but rather as a full and constructive partner. It can then help to ensure the overall effectiveness of government by keeping the executive accountable to the people. This is the approach that underlies our proposals."
36. On the principle of responsible executive government, the CPC said:
"One of the major principles in our recommendations for the National Executive Council is that it should be responsible to the National Parliament. Basically this means that Ministers are individually and collectively answerable to members of the parliament for their executive actions and policies, including the work of their Departments. Ultimately, however, it means that Parliament must be able to change the government."
37. On changing the executive government through a vote of no confidence provision, the CPC said:
41. One of the major principles in our recommendations for the National Executive Council is that it should be responsible to the National Parliament. Basically that means that Ministers are individually and collectively answerable to members of the Parliament for their executive actions and policies, including the work of their Departments. Ultimately, however, it means that Parliament must be able to change the government.
42. For the first three years of the Parliament's terms we propose an adaptation of what has been called the "constructive vote of no confidence". Under this procedure, a vote of no confidence in the National Executive Council may be moved if it has been signed by one-tenth of the members and at least one week's notice has been given. To be successful, it must be passed by an absolute majority of the Parliament.
43. In addition we propose two further conditions. First, in order to ensure some stability in government, such a motion may not be moved unless the Prime Minister has been in office for at least six months. In practice this is likely to mean that if the Parliament is dissatisfied with the government, it may try to change it at the second meeting after the one at which it comes into office. The government should therefore have at least one meeting of Parliament in between in order to show something of its legislative programme.
44. The second condition provides the basis for the description "constructive vote of no confidence". Such a motion may be moved only if it concludes the name of the proposed successor to the Prime Minister. If the motion is successful, it thereby incorporates the election of a new Prime Minister. Accordingly the Speaker revokes the appointment of the defeated Prime Minister and appoints his named successor, who is then free to choose his own ministry.
45. There are four main advantages in this procedure. Firstly, it reduces the element of uncertainty that might follow the fall of a government; one Prime Minister automatically gives way to another. Secondly, it ensures that the Speaker does not exercise any discretion as to who should be appointed to succeed the outgoing Prime Minister, Thirdly, the government has a realchoice; members know who will become Prime Minister if the motion is successful. Fourthly, it should ensure that a motion of no confidence is moved in all seriousness. It would still be open to the Parliament to register its strong opposition to, or dissatisfaction with, a particular government policy or action by adopting a motion that falls short of one of no confidence – such as motion of censure.
38. On collective responsibility of the NEC, the CPC said:
17. In order to make sure that the decisions are in fact collectively, we have proposed basic rules of procedure for meetings of the National Executive Council. In normal circumstances, executive decisions should be made only after due consideration and by at least a minimum number of Ministers. We have therefore recommended that a submission to the National Executive Council should be circulated to all Ministries at Least two weeks before any decision on it is made. Decisions of the Council must also be made by not less than one-third of the Ministers. This should reinforce the concept of collective responsibility. The same principle leads us to recommend that full minutes of proceedings be kept and distributed to Ministers. They must have a clear record of the decisions for which they are collectively responsible. Our recommendations include procedures which may be adopted whenever urgent action by the Council is required.
39. On the appointment of Ministers from amongst MPs, the CPC said:
23. We propose that the Prime Minister and other Ministers should all be chosen from among members of the National Parliament. We have considered the possibility of allowing some Ministers to be nominated from outside the Parliament in order for example, to obtain the service of persons with particular professional skills. However, as indicated in chapter 6, we have concluded that the elective principle should not be contravened and we have found little public support for including a provision of this nature. Meanwhile, arrangements can conveniently be made to have specialist advisers available as required when Parliament is sitting.
40. Also relevant to be considered are the debates of the pre-Independence House of Assembly on the reports of the Constitutional Panning Committee. The debates did not result in any significant departure from the recommendations. The only significant departure was the recommendation that a vote of no confidence in the Ministry must be supported by an absolute majority whilst a vote of no confidence in a Minister including the Prime Minister was by simple majority. In the end, Parliament rejected the recommendation and settled for a simple majority.
Central issue in the case
41. The central issue to be determined, as mentioned earlier, is whether the Constitutional amendments are inconsistent with the purpose of the principal provisions that were amended and with other related provisions. Specific issues include whether the amendments made to s 145(l)(b) and (4) are inconsistent with the purpose of s 145 itself and s141; whether the amendment to s 124(1) is inconsistent with the purpose of s 124 itself and with s 111, 141 and s 145 and whether the amendments to s 145 and s 124 restrict a MP's exercise of his or her right to hold public elective office and perform the public duties of that office given by s 50(l)(c) and (e) of the Constitution and s 111.
Applicants' Arguments
42. The applicants arguments are based on the construction and application of the Constitutional provisions in question with the aid of the CPC Report and Parliamentary debates contained in the Hansards.
43. The applicants argue that sl45 provide the mechanism by which Parliament ensures that the executive is collectively responsible to the people through the Constitution as provided in s 141. The purpose of s 145 is to keep the executive arm of government that the Parliament itself has appointed under check, and allows for the removal of a bad government that has lost the respect and confidence of the Parliament and its members. That check is necessary for Parliamentary democracy to survive and function properly and a safeguard against entrenching power and autocratic rule.
44. The mischief that s l45(4) is intended to prevent is for Parliament to remove bad governments that cannot account to Parliament for its actions and thereby lost the confidence of Parliament; its purpose is not to hinder, prevent or restrict Parliament's ability to make that decision. Its purpose is not to guarantee the government numbers of MPs to stay in power.
45. If MPs cause instability in government by switching or severing party allegiances come vote of no confidence time, such actions go to the discipline and behaviour of MPs. The solution to such misbehaviour lies in correcting the behaviour of MPs through information, education and discipline developed over time; the answer does not lie in changing the law to restrict Parliament from performing its duty to make the executive accountable and restricting MPs from performing their functions.
46. The CPC in its Report was clear about the central role that the National legislature must have in the participatory democracy that it recommended (Westminster style of representative Parliamentary democracy). The Parliamentary executive held office in the absolute discretion of the Parliament. The executive was responsible and accountable to the people for its performance through Parliament and that Parliament should not become a mere rubber stamp for its policies and actions. Ultimately Parliament must be able to change the government if it failed to discharge its executive function effectively.
47. The CPC recommended a six (6)month grace period for the government to settle in, stabilize itself and demonstrate its policies and programs. It was to ensure that the newly appointed government would not be changed immediately in Parliament's second meeting after it came to office, but that it was given enough time to demonstrate its effectiveness. Its purpose was not to sustain the new government in power for any period of time longer than was necessary for that purpose. The applicants submit the grace period extended in 1991 to 18 months and now 30 months is too long a period for the government to settle in, stabilize itself and establish its policies and programs. The extended period has substantially reduced the time allowed for the government to account for its actions. The machinery by which MPs bring the government to account has been so altered, piece by piece, concepts imbedded in the Constitution as to accountability whittled away, as to vanishing point, thereby subverting the whole concept of responsible Ministry. For a lengthy period of the Parliamentary term, the government is not accountable because the opportunity of time for a vote of no confidence is reduced significantly over time, so that effectively such motion cannot be moved.
48. The applicants submit the grace period allowed by the amendment is one half of Parliament's five year term. This period, when considered together with the last 12 months of the term in which if a vote of no confidence though permitted does not result in change of government in that the same government stays in a caretaker capacity through the elections, leaves 18 months only for the government to be accountable though a vote of no confidence. This defeats the purpose of s 145. Even in those 18 months a Prime Minister could resign and get re-elected using its numerical superiority and extend its term by another 30 months that would see the government remain in power without accountability for the entire five year term of Parliament. Such an attempt is not without precedent and it can happen again. Prime Minister Paias Wingti made such move in 1994.
49. The applicants submit that in most other Westminster style Parliamentary democracies including the United Kingdom, the removal of executive governments, by whatever method, is governed by convention. The subject of removal of government once raised in Parliament receives high priority on the list of Parliament's business and treated with the outmost respect and seriousness and opportunity given at the earliest convenient time for the notice to be given with convenient ease, debated and voted upon. The situation in PNG is unique in that a 6 months grace period was allowed at Independence, then extended to 18 months in 1991 and now extended to 30 months. Perhaps a grace period of 6 to 12 months may be justified. These extensions beyond this period of the grace period go beyond the purpose of the grace period embodied in s 145(4).
50. The applicants submit the unamended Section 111 allowed MPs to freely exercise their right to bring a Motion of no confidence with little difficulty in circumstances where the government was not performing effectively. The MP was able to secure the minimum number of other MPs (11) to support the motion and give a week's notice which was sufficient time for the government to prepare its response. The amendment increased the length of notice and the required more members (one fifth or 22 MPs) to endorse the motion makes it more difficult for a motion of no confidence to obtain the required number of MPs to endorse the motion. The extension of notice time gives the government more time to use its patronage, in exerting pressure on MPs who subscribed to the motion to withdraw their support for the motion.
51. The applicants submit the unamended Section 124(1) required Parliament to meet at least three times a year in principle for not less than 9 weeks in each sitting. That means Parliament would be in session for 27 out of 52 weeks in a year. No motion of no confidence can be moved when Parliament is not sitting. Under this amendment law, it would be possible for Parliament to sit only once or twice a year leaving little time during the remainder of the year for MPs to conduct their business and move motions. The amendment substantially reduced the opportunity for Parliament to make the executive answerable to the people as required by s 141.
52. The applicants submit the amendments were rushed in Parliament without full debate. The executive government that had been recently appointed in 2012 after the general elections, buoyed by the support of an overwhelming majority of MPs moved quickly to entrench its hold on power by rushing the amendments in the name of political stability. As evident from the speeches of government MPs and other MPs that supported the amendments contained in the Hansards, they all spoke of the need for political stability and little was said of Parliamentary accountability. Unlike the 1991 amendments, the 2012 and 2013 bills were rushed and voted on in the first reading without adequate opportunity for meaningful debate. Counsel for the first applicant Cooke QC put it in these terms: "there were about one speaker on one side, one speaker on the other or two speakers on the other and then the motion was put and the guillotine was brought down, the debate was stopped and the bill was put through. And this happened on each occasion.."
53. The applicants submit each of these amendments involve a piecemeal curtailment of Parliaments ability to bring the Executive Government to account for its actions as prescribed by s 141. They are inconsistent with the principle of responsible government enshrined in the Constitution s 141. Further, they curtail the ability of a MP to exercise his right to introduce a motion of no confidence in Parliament accorded by s 111. The amendments restrict a MPs right given by s50(l)(c) and (e) to perform his public function in introducing motions including motions of no confidence.
54. For the foregoing reasons the applicants submit, the amendments should be declared invalid. This Court should follow the approach in the OLIPAC case where a subsequent amendment to the Constitution was found to be inconsistent with an existing provision and declared unconstitutional and invalid.
Respondents' arguments
55. The respondents' arguments are also based on the construction and application of the Constitutional provisions in question with the aid of the CPC Report and Parliamentary debates contained in the Hansards.
56. The respondents argue that Parliament exercised its power to alter the Constitution given by Constitution, ss 13-14. The wide power given to the Parliament to alter the Constitution was affirmed by this Court in the OLIPAC case. The alterations cannot be classified as amendments that constitute substantial and radical changes to the system of government by changing the Constitutional structure as asserted by the applicants. Even then Parliament has wide power to alter the Constitutional structure: Special Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates (OLIPAC decision). In the OLIPAC decision, this Court recognized Parliament's law making power and its power to alter the structure of the Constitution, eg. Introduction of Provincial Government system in 1975 and further alterations to those provisions in 1995. The alterations made in this case are not substantial as those made in 1975, they are valid and they involve questions of degree which are matters for decision by the legislature.
57. The argument with regard to inconsistency between a subsequent amendment of the Constitution with an existing provision of the Constitution is misconceived because s 11 of the Constitution which is the inconsistency provision is not applicable to amendments to the Constitution itself.
58. Further s 145 before the amendments provided for a grace period of 6 months and later increased to 18 months in 1991. No questions arose then as to its inconsistency with s 141. The grace period in s 145 after the 1991 amendments were harmoniously read with s 141. Section 141 has not been altered. The amendments in 2012 and 2013 are not introducing something new and radical; it is matter of degree.
59. With regard to the reduction of time for Parliament to meet for the government to account to the Parliament, the argument that the amendments are sweeping and exaggerated is not true. These amendments do not mean that the government ceases to be accountable to Parliament. No such argument were made when the 1991 amendments were made some 24 years ago. The government continued to be accountable to Parliament after the 1991 amendment. The applicants have produced no evidence to show that the government failed to account to the Parliament since the 1991 amendments.
60. There are adequate other avenues provided in the Constitution for the government to account to Parliament over its policies and programs. For instance, an unpopular government that is unpopular in Parliament will not get legislation enacted if the majority of MPs vote against it. If the concern were that the government would not be able to account to Parliament if it mismanages the economy or the finances of the government, s 209 of the Constitution provides the machinery for the government to obtain approval of the Parliament to pass the budget. If the government lacks support to pass the budget, the Prime Minister could resign from office paving the way for a new government to be formed.
61. This Court should disregard the applicants reference to the situation in other
Parliamentary democracies with regard to no confidence vote provisions in their laws. The PNG Constitution should not be construed
by recourse to overseas principles as discouraged in the OLIPAC case.
62. With regard to the computation of the grace period, the respondents submit the last 12 months of the term of Parliament are irrelevant for purpose of computing the grace period because a motion of no confidence can be moved in that period.
63. Allowing for the amendments, half way through the term of the Parliament, there is a 18 month period during which the government is accountable in that it can be changed through a successful vote of no confidence. The test of the grace period is not its reasonableness; it is the power to make those alterations.
64. It is not true to say that the amendments restrict or prevent Parliament and MPs from performing their Constitutional functions given by s 50(l)(e) and (e) and s111. MPs can still conduct Parliamentary business such as moving motions of no confidence because they have 18 months to do so and this time is sufficient.
Applicants' arguments in response
65. The applicants argue in response that it is the reduced opportunity to make the government to account to Parliament through a motion of no confidence that is important. It is the opportunity to ventilate matters of public interest including maladministration by the government or wasteful expenditure or things like that that when the motion is moved, generate public debate in Parliament about the government's administration. Whether the motion is successful and a change of government occurs is a matter for the Parliament; the point is sl45 is a useful tool for making the government accountable that is of concern here.
66. With regard to the last 12 months of Parliament's term, even with a successful vote of no confidence in that period, the government that has lost the confidence of the people remains care-taker government during the elections and avoids accounting for its actions.
67. With regard to Parliament's control over the finances of the State, Parliament's rejection of a bad budget proposed by the government would not result in a change of government though it may provoke a Constitutional crisis. Therefore that is not an ideal and effective mechanism to make the executive accountable whereas s 145 is.
Determination of issues
68. There are factual issues to be determined first.
Determination of facts
69. The trial judge found the following facts from the affidavit evidence:
(i) Sir Michael Somare became Prime Minister of PNG on Independence day on 16 September 1975.
(ii) He took the country to the first General Election in 1977 after Independence. At this election Paias Wingti was elected to Parliament.
(iii) Somare was elected Prime Minister for the first time by Parliament in 1977.
(iv)In March 1980, Somare was replaced as Prime Minister by Julius Chan as a result of a successful vote of no confidence against Somare.
(v) Elections are conducted at 5 year intervals so the next elections from 1977 was in 1982.
(vi) In 1982 Somare was elected Prime Minister again after 1982 General Elections.
(vii) In 1985 a vote of no confidence was moved successfully against Somare and Wingti became Prime Minister in 1985.
(viii) In 1987 Paias Wingti was returned as Prime Minister after the Genera Elections in 1987.
(ix) In 1988 Paias Wingti was removed as Prime Minister through a vote of no confidence and Rabbie Namaliu became Prime Minister.
(x) In 1991 Parliament extended the grace period from 6 months to 18 months.
(xi) In 1992 Paias Wingti was elected Prime Minister after the 1992 General Elections.
(xii) In 1994 Paias Wingti resigned as Prime Minister and was elected Prime Minister the same day. After this Julius Chan became Prime Minister.
(xiii) From 1977 to 1991 no Prime Minister had served a full five year term upon being elected Prime Minister after a General Election.
(xiv) The next election after the 1992 election was in 1997. There is no evidence as to who became Prime Minister after the 1997 General Election. There is no evidence whether the Prime Minister after the 1997 elections faced a vote of no confidence.
(xv) The next election after the 1997 election was in 2002. Sir Michael Somare became Prime Minister after the 2002 National Election. He was Prime Minister for the full 5 years into the next general election in 2007. Sir Michael returned as Prime Minister after the 2007 National Election up to August 2011.
(xvi) In February 2013 Parliament extended the grace period from 18 months to 30 months,
(xvii) So far in this current term of Parliament Peter O'Neill is still Prime Minister up to now.
70. It is fair to say that the findings made by the trial judge are confined to historical facts pertaining to the appointment of Prime Ministers after the General Elections conducted since Independence and the removal of Prime Ministers by successful votes of no confidence since Independence. There are some important parts of the evidence of the four deponents that explain the underlying purpose and reasons for the enactment of the original provisions in question, the subsequent amendments made to those provisions and how those provisions have been understood and applied. Those evidence are relevant to the issues at hand.
71. Based on the facts deposed to in the additional affidavits, I make certain pertinent findings in addition to those found by the trial judge. Support for these findings is also found in the CPC Report and the debates contained in the Hansards. Those findings are as follows:
(i) That s145 of the Constitution was intended by framers of the Constitution and accepted by the Constituent Assembly to be an important means by which Parliament retained overall control over the Parliamentary executive to ensure that the executive government accounted to it over serious governance issues raised by MPs and to dismiss the executive government in appropriate cases where it had lost the confidence of the Parliament.
(ii) That sl45 was intended to provide a flexible procedure by which MPs who wished to bring a Motion of no confidence would be afforded every opportunity to introduce the motion with no difficulty. Section 145 was intended to be facilitative without any restriction which would make it difficult for MPs to exercise their right to move a motion given by both s 111 and s 145. MPs would be free to introduce the motion that raised serious issues of governance, without difficulty and debated and voted upon with due expediency
(iii) That the grace period of six months was an exception than the general rule in s 145. Its purpose is to give the newly appointed executive government enough time to settle in and develop its policy and legislative programs. The six month grace period was not intended to give more time to the executive government to entrench power and strengthen its hold on power for a lengthy period without accountability.
(iv) That s 145 read in conjunction with sill ands 124 and s 50(l)(c)and (e) were intended to give Parliament and its MPs adequate time to conduct the business of Parliament including being able to perform their duties including moving motions of no confidence, opportunity for debate the motion and vote on those motions.
(v) That the amendment to s 145 in 1991 and 2012 and 2013 were enacted to bring about political stability in Parliament as a result of MPs switching part allegiances, especially come vote of no confidence time and the government spent a lot of time worrying about maintaining the numbers to remain in government than running the country. The amendments received overwhelming support from MPs. Very few, up to 5 MPs on each occasion, opposed the bills and voted against them. The purpose the proponents of the amendments had in mind and expressed in Parliament during the debates is different from and inconsistent with the purpose stated in (iii) above.
(vi) That the Constitution provides other ways by which the executive government accounts to the Parliament for the performance of its functions. Those include votes against the government on legislations proposed to Parliament by the government, vote against the budget proposed by the executive government and voluntary resignation by the Ministry, Prime Minister or a Minister in response to criticism by MPs of their performance. However those mechanisms do not allow Parliament to remove the executive government that it has appointed; s 145 does. Section 145 provides an important and effective mechanism by which Parliament as the appointing authority of the executive government exercises its right to dismiss the government where the government has lost the confidence of Parliament.
(vii) That the increase of the grace period from 18 months to 30 months makes it difficult for MPs to bring a motion of no confidence to change a bad government, it is excessive, is the wrong prescription for the problem of members switching or severing their allegiance to political parties, and has the tendency allow a bad government to remain in power and avoid accounting to Parliament.
(viiij That in real practice though, the situation with Motions and votes of no confidence is not as bad as professed to be by proponents of the extension of the grace period. In almost 40 years of independence, only three successful votes of no confidence have been recorded. There is no evidence of how many motions of no confidence have been moved in this period and how many were unsuccessful and the voting pattern of MPs on those occasions along political party lines and shift of allegiances. But at least the facts show that only three successful voted of no confidence have been recorded in the 40 years of Independence. In 1980 Prime Minister Michael Somare replaced by Sir Julius Chan, in 1985 Sir Michael Somare was replaced by Paias Wingti) and in 1988, Prime Minister Paias Wingti was replaced by Sir Rabbie Namaliu. in this period there was much political instability with MPs constantly switching political party allegiances come vote of no confidence time. There is a reasonable inference to be drawn from these facts that despite all the talk and the fear of political instability through frequent vote of no confidence, MPs and Parliament for that matter have exercised the opportunity given to them in s 145 responsibly. The fear of constant change of government through vote of no confidence expressed in these debates we have read in the Hansards and those advanced before us by proponents of increased grace period to instil stability and discipline in MPs are on the facts before us, not supported by the facts before us.
Determination of Constitutional issues and conclusions
72. Of the four amendments in question, the First Amendment was made in 1991. It has been challenged more than two decades after its enactment. The challenge to this amendment is far too belated. Parties' interest in actionable wrongs fade with passage of time. In ordinary civil suits, statutory time limits are prescribed for bringing an action. The Constitution and the Supreme Court Rules do not prescribe any time limit for bringing Constitutional claims such as a Constitutional claim under s 18(1) of the Constitution. There is however a general discretion in the Court to dismiss a claim that has been unduly delayed. If statutory time limitations were applicable for bringing Constitutional actions such time limits prescribed by statutes for actions in tort and contract, then by analogy, a three to six year time would be reasonable: see s 16 of Statue of Limitations 1988, s 16. In my view, the challenge to the first Constitutional amendment made to s 145(4) of the Constitution has been unduly delayed and it is dismissed for that reason.
73. The remaining three Constitutional amendments are jointly considered because they are closely related. No question arises with regard to delay in challenging these amendments.
74. The three amendments involve measures introduced by Parliament that affect the way in which Parliament and its members conduct the business of the Parliament. In issue is the MP's right to move any motion in Parliament (s 111), a MP's right to move a Motion of no confidence in the Ministry, the Prime Minister or a Minister (s 145(l)(a)), the period of notice required to be given for notice of motion of no confidence (s 145(l)(b), the number of MPs required to endorse the motion of no confidence (s 145(l)(b)), the grace period allowed before such motion is moved (s 145(4) and the convening of Parliament and sitting time to allow adequate time to MPs to conduct Parliamentary business (s 124(1))). Also in issue is the right of MPs to hold public elective office and be given reasonable opportunity to perform the duties of the office in Parliament (s 50(l)(c) and (e)).
75. A number of provisions referred to above governing the convening of Parliament and the opportunity to conduct its business require consideration and application to the case at hand. In addition to the provisions of the Constitution mentioned above, there are other provisions of the Constitution that are relevant, of which are found in Subdivision D [Powers, Privileges and Procedures) of Division 2 ( The National Parliament) (ss 109-117) of which the main one is s 115 (2).
76. This case involves the interpretation and application of those provisions of the Constitution. This Court has exclusive jurisdiction to determine Constitutional issues: Constitution, s 18(1). In interpreting these provisions, this Court's overall judicial function is to dispense justice, (s 158). In so doing, provisions of the Constitution are intended to be construed fairly and liberally in a way that gives effect to the spirit and purpose of the provisions (Schedule 1.5(2)). Where a number of provisions relate to a particular matter or class of matters, they are intended to be read as a whole in order that the common purpose of those provisions are given effect to: (Sch 1.5 (1)). These principles are well settled in this jurisdiction.
77. Not so long ago, in 2010, this Court in the OLIPAC case struck down a Constitutional amendment to s 127 of the Constitution that, amongst other restrictions, was purposefully made to restrict in certain circumstances the voting rights of a member of Parliament on three important matters that the Constitution requires to be brought to Parliament for its decision- a vote to elect a Prime Minister, a vote on the National Budget and a vote to enact or repeal a Constitutional Law. The Court also struck down provisions of the newly enacted Organic Law on the Integrity of Political Parties and Candidates that prescribed the circumstances of those restrictions. The Court found restrictions imposed on the rights and freedoms of MPs in Parliament to freely assemble and associate through political parties of their choice (Constitution, s 47) and to exercise their right with complete freedom to debate and vote (s 50 (l)(c) and (e) and s115(2)) on those important Constitutional matters, were inconsistent with the provisions referred to. The answer to most of the important raised in the present cases are found in the OLIPAC decision and I adopt them in the course of my reasons for decision
78. One year after the OLIPAC decision, Parliament has enacted four Constitutional amendments which impede on the ability of Parliament and its members to move a vote of no confidence in the executive government. This time, the common purpose in these amendments were expressed by the proponents of the amendments to maintain political stability, in terms of strengthening the newly appointed government to carry out its mandate of running the government rather than worrying about maintaining its numbers in Parliament to defend against motions of no confidence come Parliament sitting time. The speeches that were made in Parliament during debates and the affidavits of some of the main players that sponsored the amendments confirm this was the only purpose of these amendments. The speeches that are found in the Hansards say little of a responsible ministry that must account to Parliament through the mechanism in s 145. The speeches say little of the rights of MPs to move a vote of no confidence, of reasonable opportunity given in Parliament for MPs to exercise that right and adequate opportunity in terms of Parliament sitting time given to MPs proposing a motion of no confidence to give notice and move the motion. The speeches say little to almost nothing about Parliament as an institution distinct from its Parliamentary executive to give itself sufficient time to conduct its business in the course of each year.
79. There is no question with regard to Parliament's power to alter any provision of the Constitution. There are however limits to the exercise of that power, the most fundamental of which is that such alterations must be made in accordance with the Constitution itself. In other words, the Constitutional amendment must itself be Constitutional. The Constitution places important limits that Parliament must observe in altering the Constitution. Two of those limits are pertinent to the case before us. First, the Constitution prescribes formal requirements to be complied in altering the Constitution and those are found in ss 13-17 of the Constitution. In the case before us, no question arises with regard to compliance with this limitation. The applicants raise some concern over the rushed manner in which the amendments were voted without adequate debate but that goes to the quality of the debate and justification for the amendments.
80. The second limitation was first enunciated by this Court in the OLIPAC case. In that case, the Court held that if a Constitutional amendment is found to be inconsistent with the purpose and wording of an existing provision of the Constitution, the amendment must give way to the existing provision. It follows that if this Court finds that the amendments are inconsistent with existing provisions of the Constitution, in that the amendment to s 145(1) and (4) are inconsistent with existing provisions of s145 itself, or s 141, s 50(l)(e)and (c), s 111, s 124 and any other related provisions, taken individually or collectively, the amendments are, to the extent of the inconsistency, unconstitutional and invalid. This ruling underscores the important Constitutional principle that the power to alter the Constitution that is vested in the Parliament must be exercised responsibly and with care so as to avoid any inconsistencies, contradictions, anomalies and absurdities in the Constitutional Laws.
81. The principle of individual and collective responsibility of the Ministry to Parliament pronounced in s 141 is a fundamental principle that underpins Parliamentary democracy. It is not a mere philosophical statement of no real practical application. Its interpretation and application to other provisions of the Constitution that define the relationship between the Parliamentary executive and Parliament and MPs that comprise those two arms of government must be real and serious consequences must flow from a breach of that principle. For unless the contrary intention were expressed in the provision itself that the statement in s 141 is one of principle and non-justiciable, and there is none in s 141, the principle must be given full effect.
82. I agree with the respondents that there are various other ways that the Constitution provides for the government to account to Parliament for the performance of its different functions, whether those be in policymaking, administration, law making, or administering the government's finances. But I also agree with the respondents that s145 is an important mechanism for the government to account to Parliament for its actions, and the only avenue available to the Parliament as the executive government's appointing authority, to remove the government that it is convinced has lost its confidence in its ability to govern the affairs of the country. Indeed both s 141 and s145 are accountability provisions as both provisions appear under Sub- Division B(Ministry).
83. Section 145 when its was first enacted, was facilitative of a motion of no confidence. It was intended to make it easy, convenient and expedient for a vote of no confidence to be given notice of, debated and voted upon. For this reason, minimal conditions were placed to ensure proper procedures were followed in introducing it,that adequate notice was given and given in all seriousness. Section 145(l)(b) required one week's notice, endorsed by one tenth of MPs, with the reasons set out in the motion and an alternate Prime Minster named in the motion. That is the general purpose of s 145. The insertion of the grace period was an exception than the general rule. Initially, the CPC did not favour a grace period, as it was then and still the case with many countries including the United Kingdom (censure vote) that do not have grace periods in their law. However with a change of mind, the CPC recommended a limited grace period that it considered would give adequate time for the newly appointed government to settle in organize its policies and programs. The six months grace period was considered sufficient for that purpose. Consistent with this thinking, it would never have been in the contemplation of the CPC and the framers of the Constitution then, at the time of Independence that an executive government would require more time than 6 months to settle in and organize itself. Extension of the grace period beyond six months, in my view is not in the nature and character of a "grace period"; its purpose clearly is the entrenchment of the government in power, which never was the expressed intention of s 145 when it was first enacted. It is unfortunate that the extension of the grace period in 1991 beyond 6 months went unchallenged because of the failure of those Constitutional authorities tasked with challenging such laws under s 19 of the Constitution.
84. A vote on a motion of no confidence is a very serious thing that threatens the life of the incumbent government and it should not be taken lightly by MPs on both sides of the floor of Parliament. It should be used reservedly and only in appropriate cases where MPs strongly feel that the incumbent government has lost Parliament's confidence in governing the country's affairs. Then there should be opportunity for free debate on a motion of no confidence in the chamber of Parliament by MPs and for MPs to decide on their vote in the free exercise of their conscience in the best interest of the people of their respective electorates they represent and the best interest of the nation; free from undue influences, petty personal interests and petty party politics. Unfortunately, in practice, the conduct of individual MPs leaves a lot to be desired of them. This situation was judicially noticed in the OLIPAC case. The answer to the problem does not lie in building protective walls, under compulsion of law, around MPs' rights and freedoms to freely conduct the business of Parliament and Parliament's ability to remove the government for cause; the answer lies in personal and institutional discipline through information, education and experience developed over time. As we said in the OLIPAC case:
187. We are not satisfied that the restrictions or prohibitions of a s 47 right (freedom of assembly and association) is the only way available to the government to bring about political stability. We acknowledge that the behaviour and conduct of many Members after they are elected to office particularly when voting on important matters in the Parliament are unacceptable. But such conduct can be corrected by the Parliament through information and education of Members and electors. This cannot be done overnight by compulsion under law. If the electors were properly educated to be able to make informed decisions as to how they exercise their franchise, and if Members were properly informed on their responsibilities, that would allow persons with the necessary attributes of good leadership to be endorsed by political parties as candidates at general elections. And once elected, they would behave and conduct themselves appropriately in accordance with the wishes of the electors during the term of the Parliament to which they were elected. This would also instil a sense of discipline and responsibility amongst Members. They would understand the value and benefits that a multi-party system brings to the system of government. The end result is that the political party system and the system of government in our country would develop to become a real democracy that is comparable to other developed democracies....
85. These sorts of protective barricades under compulsion of law that this Court has seen in these Constitutional amendments restrict, inhibits or impede on the rights of MPs and Parliament right to call upon the executive government to account to it for its actions by recourse to the strongest possible mechanism provided in s 145. As observed by President John Momis, Sir Michael Somare and Sir Julius Chan, founding fathers of our Constitutional democracy, the extension of the grace period by 30 months is too excessive and the wrong prescription for the ill brought about by political instability caused by MPs severing party allegiances come vote of no confidence time.
86. That said, the records on successful motions of no confidence in the 40 years of Independence, disclosed in the evidence and findings of fact made in this case, does not reveal a story that bad of a story after-all. In the almost 40 years of Independence, only three successful votes of no confidence have been recorded. There is no evidence of how many motions of no confidence have been moved in this period, the times at which the motions were moved, and how many were unsuccessful and the voting pattern of MPs on those occasions along political party lines, shift of allegiances, and the characters and personalities involved. Such evidence could have shed some interesting light on the subject and assisted this Court in understanding the threat to Parliamentary democracy posed by motions of no confidence. With the facts at hand, it is clear that there have been only three (3) successful motions of vote of no confidence recorded, all in the first 13 years after Independence which I would categorise as the formative years of an Independent PNG. Prime Minister Michael Somare was replaced by Sir Julius Chan in 1980, Sir Michael Somarewas replaced by Paias WIngti in 1985 and Prime Minister Paias Wingti replaced by Sir Mekere Morauta in 1988. In the 27 years since the last successful vote of no confidence, PNG has not seen any successful motion of no confidence. There is a reasonable inference to be drawn from these facts that, whatever the perceptions may be of the fallibility of our MPs come motion of no confidence time, that our MPs and Parliament for that matter have, in the 40 years of our Independence, exercised the avenue in s 145 with discipline, responsibly. The fear expressed in these debates I have read in the Hansards and in some of the affidavits before us those advanced before us, by proponents of increased grace period, are on the facts before us, for a large part, unsubstantiated.
87. These Constitutional amendments restrict or impede Parliament's ability to conduct its business in sufficient time (s 124) and restrict or impedes on the right of MPs and Parliament to be given reasonable opportunity to perform their duties in Parliament (s 50(l)c) and (e), and restrict or impede on the rights of MPs to conduct the business of Parliament freely and in accordance with their conscience (s 111, s 115,) and restrict or impede Parliament's ability to facilitate and deal with important and serious issues through a motion of vote of no confidence with due expediency (s 145 (4).
88. These amendments are in essence no different to the Constitutional amendments struck down in the OLIPAC case. What this Court said in the OLIPAC equally applies to the situation in this case. The Court said:
202. The right guaranteed by s 50 (l)(e) is for the purpose of performing one of the most fundamental of the Member's representative duties, as a legislator. Upon election to office, a Member has a right to hold that office for the duration of his term subject to those qualifications provided in sl03 of the Constitution. Apart from its primary function as a legislator or law-maker, Parliament has many other important duties and functions. It is Parliament's function to elect the heads of the legislature (Speaker of Parliament), the executive (Head of State) and the executive government (Prime Minister), debates and vote on motions to pass a law and to vote on the proposed law is essential to the performance of its legislative function. Decisions on all questions before a meeting of the Parliament are decided by vote on a motion in accordance with s 114 of the Constitution and the Standing Orders of the Parliament. The Constitution gives every MP the right to introduce private member's bill for enactment by Parliament (s 111) or to debate and vote on a bill for enactment introduced by the government. All those functions come under the Member's representative duties as a legislator.
203. In Its Final Report, the CPC advocated a system of participatory democracy that it considered fitting for Papua New Guinea. In the CPC's Final Report, Chapter 6/1 states:
In the kind of participatory democracy we envisage for Papua New Guinea, with maximum emphasis on consultation and consensus, the national legislature must clearly play a central role. We believe that while
the executive must be given every opportunity to provide strong leadership in reshaping our new nation to meet the needs and aspirations of our people, it is important also that the leadership does not become autocratic so that the legislature becomes a mere rubber stamp. If government is to be truly responsive to the people, it is vital that those whom the people elect to represent them should be able to contribute actively and effectively to the government of the nation. The legislature should not be seen as a rival to the executive arm, but rather as a full and constructive partner. It can help to ensure the overall effectiveness of government by keeping the executive accountable to the people. This is the approach that underlie our
proposals. ...
224. In our view s 50 (l)(e) when read liberally provides for the right of a MP to be allowed reasonable opportunity to perform the function of the office to which he or she has been elected, the right to freely express himself or herself in the Parliament during debates on a bill for enactment that concerns the MP's electorate or the nation; and to have complete freedom in debates and to vote on a bill for enactment into law (s 114)....
229. We have considered the importance of the unimpeded performance of MPs' representative duties in the Parliament to be of paramount and fundamental importance that goes beyond the reach of petty party politics which is played outside the chamber of the Parliament. We consider a MP's right to debate and to vote on a motion of no confidence on the Prime Minister, Ministry headed by the Prime Minister or a Minister appointed by the Prime Minister; a vote on the election of a Prime Minister; a vote on the National Budget; and a vote on the enactment of a Constitutional law; to be amongst the most fundamental of a MP's representative duties of which the MP has a right to be allowed to perform the functions of his office. It must be a real exercise of legislative power in the Parliament and not one that is pre-determined by decisions made and instructions issued outside of the Parliament chamber, whether that be in the Party boardroom or in the boardroom of the Parliamentary Wing of the party or elsewhere. It is also obvious from our discussions on the parliamentary system of democratic governments under the Westminster system that a prohibition against a MP's exercise of or performance of his function as a legislator in the Parliament is unheard of in any democratic country. We are not persuaded that this law is one that is reasonably justifiable under any circumstances in any system of participatory government that is modelled under the Westminster system of democratic government or any constitutional democracies for that matter...
235. For purposes of this Reference the relevant provisions ofsll5 of the Constitution are subsections (2) to (7) inclusive. What is prescribed in subsection (2) is very critical to a Member's right as an elected leader to represent his electorate in the Parliament once in office. He must be free to express himself, take part in debates and proceedings. For exercising these freedoms he cannot be liable to face any civil action or criminal prosecution, in normal circumstances, those are his rights as Member of Parliament, representing his voters, for expressing his or their views on the floor of the Parliament. It is said that a Member of Parliament is the voters' mouth-piece.
266. The first of the specific privileges of parliamen t is, as noted already, the freedom of speech and debate that has its origin in the 1689 Bill of Rights. Thus, defamatory statements in parliament are not actionable in a court of law, though any outrageous statements might be the subject of disciplinary action by the Speaker or the House itself. The celebrated 1839 English case of Stockdale i/ Hansard is about the publication of defamatory matter outside the House of Commons. The case caused a conflict between the House and the courts of law.
267. These privileges and immunities accorded are necessary in order for all Members of Parliament to perform their parliamentary duties and functions. These privileges and immunities as envisaged by the
Constitution are to be enjoyed by each and every Member of Parliament, be he in the government, the opposition, and be he a member of a registered political party or an independent. Moreover the privileges and immunities are also enjoyed collectively as a body of Members of Parliament as a whole for the protection of its members as well as Parliaments own authority and dignity. They are also enjoyed by Parliamentary Committees.
268. The government's right to introduce bills for enactment, the Members' right to introduce private members bills for enactment. Member's right to debate on motions for enactment of bills, and MP's right to vote on the motions for enactment of bills Is governed by Standing Orders of the Parliament and Constitution, ss 111 and 114. Those provisions are to be read consistently with the freedom of speech, debate and proceedings in the Parliament given to Parliament and its Members by s 115 (2).
269. The rights and privileges accorded to Members by sll5 are given by Constitutional Law and privileges and they cannot be taken away by any other law, especially the freedoms of speech, debate and proceedings which are pertinent to this Reference. These are essential aspects of a Member's duties and responsibilities to engage in full and meaningful debates in the Parliament on behalf of his people. Thus, any law which interferes with and takes away these rights and privileges would be in direct contravention of s111 of the Constitution, see; S.C.R, No. 2 of1982; Re Organic Law [1982] PNGLR 214 at 235-237 per
Kapi J (as he then was)."
89. The amendment to s 145(l)(b) restricts or impedes a MP's right to move a motion with the least number of MPs supporting it. Increasing the number of MPs supporting motion from one tenth (12 other MPs) to one fifth (24 MPs) makes it difficult for a MP to move a Motion of no confidence without the support of a sizeable number of MPs that he or she will find it difficult to secure. With many small parties represented in Parliament nowadays that have limited number of MPs, it is difficult for a MP to move such motion along party lines without the support of other political parties supporting them. An Independent MP has virtually no chance of assembling those number of MPs. In the end, no motion qualifies to go before Parliament. As a result the MP's rights under s 111 is also restricted or impeded.
90. The amendment to s 145(l)(b) with regard to one months notice restricts or impedes upon a MP's right given in s 111 to move a motion of no confidences with due expediency. In a crisis situation caused by bad governance for instance, serious problems raised in the motion are not brought to Parliament's attention and addressed quickly.
91. The amendment to s 124 (1) restricts or impedes upon Parliament's ability to convene Parliament to give itself enough time to conduct its business, especially on a motion of no confidence. The amendment has substantially reduced Parliament's sitting time in a year from minimum three sittings in a year and 9 weeks per sitting or 27 weeks of 52 weeks in a year, to barely 40 days or 5 weeks 5 days a year. This leaves little time for Parliament to sit and little time for MPs introduce and debate motions. If a motion of no confidence were to be moved, and with one month's notice is required, the changes of that motion being dealt with in the same sitting is almost nil because Parliament as we know sits for a week of 2 to 3 weeks the most. Consequently, the seriousness and urgency of a motion of no confidence is lost.
92. The time allowed by law for Parliament to meet and sit is significant to enable Parliament's to discharge its function effectively. PNG is a diverse country and facing many developmental challenges that require prudent government policies and management. Parliament should have enough time to debate these challenges. A vote on the appointment of a Prime Minister after the general elections or during the term of the Parliament, a vote on the budget and a vote on changes to the Constitution are singled out as amongst the most important of the Parliament's business, where the executive government is expected to play an import role in managing and accounting to Parliament on those matters. With very limited sitting time assigned to Parliament under compulsion of law. Parliament cannot be expected to be effective in discharging those functions. The amendment to s 124(1) restricts or impedes upon Parliament's ability to meet in sufficient time to discharge those functions.
93. No Parliament that is sufficiently informed of the consequences of this sweeping amendment to s 124 that substantially reduced its sitting times would have considered the amendments in its interest to enact. Parliament's term is limited to five years. Time therefore is of critical essence. Reducing Parliament's sitting time of already limited time assigned by Constitution, from 52% (27 weeks) per year down to 11% (5.5 weeks) per year poses immense difficulty for Parliament to conduct its business effectively. Parliament is the only forum charged by law to conduct meetings of the elected representatives of the nation to charge the executive government to account for its actions. MPs and members of the Ministry often make the mistake of accounting for their actions or making the executive to account for their actions through external public forums and other avenues and in the process undermine the Parliamentary process. In many instances policy decisions that Parliament should be informed of first, are discussed and decided upon and publicised well before they are presented to Parliament for is consideration. This kind of trend withers away Parliaments authority and threatens Parliamentary democracy. No right thinking Parliament, as an institution of participatory democracy, would consider it in its own interest to limit or deprive itself of reasonable opportunities and mechanisms provided by law such as those found in s145, s 111 and s 124 to require its own creature, the executive government, to accept responsibility and account to it on concerns of MPs over the executive government's management of government business. Significant reduction in sitting time in Parliament is inconsistent with the purpose of s 124, s 111, and s 115.
94. The notion of a responsible ministry entails a Ministry that is prepared and willing to account, in the true spirit of a responsible government, to its appointing authority for the manner in which it is administering the affairs of the nation. When MPs raise serious issues concerning matters of governance through a motion of no confidence, the government should welcome the motion with open arms because it gives a real opportunity for the executive government to explain its position. A vote on the motion of no confidence may or may not be successful but it is healthy for Parliamentary democracy because it gives the best opportunity for MPs to express their concerns and for the government to account and provide a response to those concerns. A performing government should be able to maintain the confidence of the majority of MPs to vote down the motion. The government using its numerical strength should not fear the unknown and erect barricades around its hold on power to protect itself, through compulsion of law, through Constitutional amendments that restrict Parliamentary process, that make it difficult for such Motions of no confidence to be given notice, debated and voted on.
95. The main Constitutional amendment is the extension of the grace period for bringing a vote of no confidence under s 145(4). The amendments to s 145(l)(b) and s 124(1) appear to be facilitative of or consequential to the amendment to s 145(4). As I have said, the grace period has a limited purpose and that is to give enough time to the newly elected government to settle in and organize its policies and work program. Six months was considered reasonable time at Independence when efficiency of conducting business was not advanced. Forty years on, with modern systems and processes that make the conduct of government business far more efficacious, six months grace period in my view is more than enough for the newly appointed government to settle in and organize its policies and programs. Even twelve months suggested by Sir Michael Somare in my view is far too long. A motion of a vote of no confidence, the only mechanism in the Constitution that provides for the Parliament to dismiss a government that it itself appointed, though it threatens "death and damnation" of the government, is a healthy check for Parliamentary democracy and it should not be feared. The government should never fail to accept the challenge. It should facilitate the opportunity for the motion to be brought with ease and dealt with in a timely manner and debated and voted upon with due expediency. The government should resist any temptation to resist, frustrate or delay or make it difficult for a motion of no confidence to be moved, using its numerical superiority in Parliament, to manipulate the conduct of the business in Parliament or the worst still, to amend the Constitution and other relevant laws to achieve those things and in the process entrench itself in power, become autocratic and escape being responsible to the Parliament.
96. Equally so, the Opposition which is usually associated with introducing or supporting Independent MPs to bring vote of no confidence, should keep their behaviour on check and act responsibly in ensuring that a motion of no confidence is not abused. It should use this avenue reservedly when the conditions for the removal of the government exist and only when it has and believes on reasonable grounds that it has reasonable prospects for success in the floor of Parliament. Frequent use or threatened use of this avenue that question the confidence placed on the government by Parliament over shorter periods of time, or worst still suggestion of a vote of no confidence mooted in almost every sitting of Parliament, as experienced in the first thirteen formative years after Independence, must be avoided.
97. It is neither my intention or those of this Court to outline the acceptable behaviour of the other two arms of government in the conduct of their business in Parliament, however these are matters of principle deeply rooted in the English Westminster system that this country has adopted, that are imbedded in the provisions of the Constitution under consideration here. I feel those such matters are the proper subject of judicial discourse, which this Court can restate for the benefit of MPs on both sides of the floor and in the interest of the maintenance of Parliamentary democracy.
98. A motion and vote on a motion of no confidence is an integral part of Parliamentary democracy and one that should be cherished and respected by both sides of the floor and put to good use for the sake of sustaining Parliamentary democracy. As the learned English author, Sir Charles Gordon, in the book, 20th ed, Erskine May, Parliamentary Practice, Butterworth, London (20th ed), 1983, writes:
"From time to time the Opposition put down a motion on the paper expressing lack of confidence in the Government-a Vote of censure'
as it is called. By established convention the Government never fails to accede to the demand from the Leader of the Opposition to allot a day for the discussion of such a motion. In allotting a day for this purpose the government is entitled to have regard to the exigencies of its own business, but a reasonably
early day is invariably found. This convention is due to the recognized and responsible position of the Opposition as a potential
Government- a position which guarantees the legitimacy of such an interruption of the normal course of business. For its part, the government
has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment." (My underlining)
99. In the Book Parliament 2nd edn, at p 158-159, Ivor Jennings, another learned
Englishman writes:
Once or twice a session the Opposition feels so strongly on a particular question, such as the rise in cost -of- living... that it decides to move a vote of censure. There is recognized convention that the Government will always find time for such a vote....
The absurdity of a system in which the government postpones its own business in order to let the Opposition threaten death and damnation is only apparent. The Opposition is not just a nuisance to be tolerated, but a definite and essential part of the Constitution. Once it is accepted that the Opposition is not only legitimate but essential to the maintenance of democratic government. the need for arrangements behind the Speakers' Chair follows naturally. Standing Orders and the practice of the House enable each side to exercise its proper functions, if either pressed its right to the uttermost the parliamentary system will come to an end, (my underling)
100. I am satisfied that these three amendments were rushed through in Parliament by the executive government, buoyed by its success after the 2012 General Elections that saw an unprecedented number of MPs supporting the government; in the name of political stability, with the aim of entrenching power in the government at the expense of the Parliament, the MPs and Parliamentary democracy. They are clearly inconsistent with the spirit and purpose of ss 50(l)(c) and (e), s 111, s 115, s 124, s 141 and 145 of the Constitution.
Conclusion
101. For the foregoing reasons, I am satisfied that the applicants have proven the claim on the balance of probabilities standard and grant the orders sought in the applications.
Decision and orders
102. I would grant the following orders:
(1) The applications with regard to Constitutional Amendment No. 14 of 1991 is dismissed.
(2) The applications with regard to Constitutional Amendment (Motions of No Confidence) Law 2012, Constitutional Amendment (Motion of No Confidence) Law 2013 and Constitutional Amendment (Calling of Parliament) Law 2013 are granted.
(3) The Constitutional amendments referred to in paragraph (2) of this order are declared unconstitutional and invalid. The respondents pay 75% costs of the applicant's costs of the proceedings.
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103. SALIKA DEP. CJ: I agree with the reasons for decision and orders proposed by the Chief Justice and give additional remarks on the underlying reasons why the Parliament prescribed 6 months grace period and not 18 months or 30 months.
104. To govern a country is serious matter. Therefore, every political party and its leader that goes to a National Election and aspires to win enough seats to form a government or aspires to be a Prime Minister to run or govern a country must have an already existing plan and vision to govern once Parliament elects the Prime Minister. Once a Prime Minister is elected and that Prime Minister forms a government he or she must hit the "ground running" so to speak and govern the country. In other words before assuming office as a government it must have all legislative and development agenda, its policies and all other aspects of governing a country in place ready to run the country. If it did not, then 6 months was considered sufficient time to formulate those. If after 6 months the government did not have those in place, Members of Parliament were at liberty to question the government’s unpreparedness to govern and move a vote of no confidence in it.
105. The Oxford Advanced Learners Dictionary defines Vote of Confidence as, "a formal vote to show that people support a leader, a politically party, an idea etc".
106. In the same dictionary, it defines a vote of no confidence in the opposite as, "a formal vote to show that people do not support a leader, a political party, an idea etc".
107. The Wikipedia, the free encyclopaedia defines a vote of no confidence as:
"a statement or vote which states that a person in a superior position - be it government, managerial, etc- is no longer deemed fit to hold that position. This may be based on said person falling short in some respect, failing to carry on obligations, or making choices that other members feel detrimental. As a Parliamentary motion, it demonstrates to the Head of State that the elected Parliament no longer has confidence in the appointed government."
108. In PNG evidence alluded to earlier shows that motions of no confidence were common shortly after independence because no one party was returned with a majority to form a government. Government were formed by a number of small parties forming one group to form a coalition government. Similarly the Opposition was made of small parties.
109. The grace period is not for the purpose of preventing Members of Parliament from moving Votes of No Confidence. A Vote of No confidence is an integral part and a legitimate process and procedure of a democratic Parliament. In developed countries vote of no confidence is governed by conventions. Votes of no Confidence should never be curtailed or suppressed. In PNG the grace period is to allow the government to settle down, get its legislative agenda in order within 6 months and start governing. Where an incoming government has in place its legislative and economic plans and its implementing those plans and governing the country. It would follow that it would not be necessary to move a vote of no confidence in that government because it is ready to govern and is governing.
110. If however a newly formed government still has no such plans within 6 months as to how it will govern, a vote of no confidence can be immediately moved. This is because governing a country must be of the paramount consideration for any government.
111. As earlier stated the insertion or inclusion of a grace period was an exception rather than a general rule meaning that time standards are unwritten but the understanding is there. In PNG the timeline was included and perhaps understandably so because of some level of uncertainty whether PNG would survive as a nation when it became independent. Within the first 6 months in office as a government, Parliament would sit twice. Within the 6 months if the government still had no legislative plans, and policies, no economic plans and policies, no fiscal plans and polices as required to govern a country, a Member of Parliament was at liberty to move a Vote of No Confidence in that government to show that the elected government no longer has the confidence of Parliament.
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112. SAKORA J: Upon perusing the draft opinion circulated by the learned Chief Justice, I intimated to him that I would concur with his conclusions to the issues raised in the two applications, and the reasons for these. And I respectfully do, only adding a few brief comments here by way of emphasis.
113. In his exhaustive treatment of the applications that seek declaratory orders of this court in respect of the four (4) amendments to the Constitution, the Chief Justice conveniently traces the history of these amendments, and the specific provisions of the Constitution affected by them.
114. Part IV of the Constitution makes provisions for 'The National Government' made up of, under s 99 (2) the following:
(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and
(b) the National Executive; and
(c) The National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.
115. The four (4) amendments directly impact upon the respective rights, powers, duties and functions of the first two arms of the national government.
116. With the protection of the 'non-justiciable' provision[1], Parliament conducts its various businesses and proceedings, according to its Standing Orders and Rules[2]. The unlimited law-making power of the Parliament is, of course, whilst always subject to the Constitution, to be exercised[3]:
for the peace, order and good government of Papua New Guinea and the welfare of the People.
117. The principal Constitutional amendments are to s 145 (1) and (4), the former sub-(s) which in its original form read as follows:
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Motions), a motion of no confidence is a motion –
(a) that is expressed to be a motion of no confidence in the Prime Minister, th e Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of the members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of Parliament.
118. Sub-s (4) in its original form is in the following language:
A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of six months commencing on the date of the appointment of the Prime Minister.
119. The first amendment to s 145 (4) Constitution was legislated in 1991, when the so-called 'grace period' was increased from six (6) months to eighteen (18) months[4]. That is some ten (10) years after the first successful 'motion of no confidence' was moved, resulting in the first change of government since Independence.
120. In 2012 the second amendment was promulgated.[5] This amendment once again increased the grace period for moving ‘motions of no confidence’ further to thirty (30) months. By this, it would appear from public records[6] that the three changes of government since the last amendment some 21 years earlier had no problem with the 18 months grace period.
121. In what can only be described as enhancing and facilitating the benefit(s) or consequences of those amendments, more particularly the 30 months grace period that further amendments were legislated affecting ss 145 (l)(b) and 124 (1) Constitution in 2013.[7]
122. It involved increasing the period of notice to be given for the moving of a 'motion of no confidence' from one (1) week to one (1) month. And finally, amendment to the concluding part of s 124 (1) from: and, in principle, for not less than nine weeks in each such period, reducing it to: not less than 40 days in each period of 12 months.
123. In my brief discussions here, I respectfully borrow heavily from my opinion in the Supreme Court case that consolidated two originating summonses brought under s 18 (1) Constitution, challenging the Constitutional validity of the Executive Government's declaration of a State of Emergency in the Southern Highlands Province in August 2006.[8] Similarly, my opinion in the 2008 Supreme Court Reference by the Ombudsman Commission on the amendments to the Organic Law on the Provincial and Local-level Governments.[9]
124. Part of the Preamble to the Constitution acknowledges the establishment of this sovereign state by the people: WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.
125. And the People asserted, amongst other claims and entitlements; that all power belongs to the people.
126. That is the very basis and source of the powers that the three arms of government are vested with and exercise in the discharge of their respective duties and responsibilities under the Constitution. These, of course, faithfully reflect the serious sentiments of the Constitutional Planning Committee (CPC,[10] where it proposed that the first part of the Constitution would include a statement that:
Power belongs to the people and it shall be exercised in accordance with this Constitution[11].
127. As if further elaboration were necessary, the Committee concluded its proposal by adding:
It is therefore appropriate that it be the people to whom that power should now be returned. The principle that power derives from the people provides the basis of the Constitution.[12]
128. The emphasis here on 'The People' as the source of all State powers under our system of government, and, in this, the supremacy of the Constitution[13], underlies this court's consideration and determination of the issues raised in the two applications. Basically, whether or not the four (4) amendments to the Constitution before us adversely affect, and in what way, the rights and interests of the people, intended to be exercised and safeguarded or promoted, by and through their duly elected members of parliament[14].
129. The common thread running through the challenges of the applicants, and their seeking of the declaratory reliefs, is the expectation that in a liberal democratic country such as ours, where the principles of responsible Cabinet government are (or ought) to prevail, the executive government must always be accountable to the people's representatives. It is the overarching contention of the applicants that the cumulative effect of those four amendments is to ensure that the Constitutional device for holding a Prime Minister and his Cabinet[15] accountable is made redundant.
130. As I noted in my dissenting judgment in the 2011 Supreme Court Reference on the 2 August 2011 change of government,[16] it is a matter of public record that in the last 40 years, the country has had ten (10) Prime Ministers. And during this period, the country has experienced nine (9) changes of government. The first of these took place in 1980 when the first successful motion of no confidence was moved on the then Prime Minister Michael Somare[17] ushering in the Prime Ministership of Julius Chan[18]. These changes can be summarised as follows:
vote of Parliament (on 2 August 2011)
131. A quick broad-brush overview of these changes tell the following story:
confidence successfully moved by Okuk. Chan new Prime Minister
(PM) by 57 votes to 49
confidence successfully moved by Chan. Wingti new PM by 58
votes to 50
successfully moved by Momis. Namaliu new PM
Parliament votes 99 to 10. Morauta new PM
arose for the appointment of a Prime Minister': by 70 to 24 votes
Parliament elected a new PM, Peter O'Neill. O'Neill - Namah
government goes to the 2012 national general elections
(Brevity rather than unintentional disrespect for the omission of
full names and titles)
132. By a decision of the Parliament, the Prime Minister shall be formally appointed by the Governor-General, immediately following a national general election[19] . The Prime Minister can and may be dismissed, removed or suspended from office for a variety of reasons under various specified circumstances[20]. The court is now concerned with, as stated above, the right and power of members of Parliament to move motions of no confidence pursuant to s 145 which has had those four (4) amendments affecting it.
133. The inclusion of those provisions under s 145 in the Constitution is a direct result of what the CPC commented and proposed in its final report[21].
Change of government
41. One of the major principles in our recommendations for the
National Executive Council is that it should be responsible to the
National Parliament. Basically this means that Ministers are
individually and collectively answerable to members of the Parliament
for their executive actions and policies, including the work of their
Departments. Ultimately, however, it means that Parliament must be
able to change the government.
134. The conditions for the moving of the motion of no confidence: grace period of six months; giving of one month's notice; and to be signed by one tenth of the total number of members of Parliament; and, the nomination of the next Prime Minister, all originate from the CPC Report[22].
135. As to the operation of s 145, Chief Justice Sir Sidney Frost, in the first opportunity for the Supreme Court to consider this provision, said this[23]:
It will be seen that so far as s 145 is concerned para.(l) is concerned with formal matters, and the provisions relevant to the question before the Court are confined to para. (2), and possibly para. (4). The notion behind s. 145 (2)(a) is 'constructive vote of no confidence' as it was referred to by the Constitutional Planning Committee (see Final Report (supra), at Ch. 7, p.6, paras. 41-45). Under the Constitution, for the first four years of the life of the Parliament a motion of no confidence may only be moved if it nominates the next Prime Minister, if the motion is successful, it thus also constitutes a decision of the Parliament entitling the person nominated to be appointed the next Prime Minister under s 142 (2). This explains the term 'constructive'. In the meantime that person becomes the Acting Prime Minister until he is appointed Prime Minister (s 143 (2)(a)). The main advantages which the Constitutional Planning Committee saw in this procedure are that it reduces the element of uncertainty that might follow the fall of a government, the Parliament has a real choice, the members knowing who would become Prime Minister if the motion was successful, and it should ensure that such a motion is moved in all seriousness (op.cit., para.45). It is appropriate that such a motion moved in the fifth and final year of the life of the Parliament, as provided in sub-s. 145 (2)(b), should not nominate the new Prime Minister because under s.105 (l)(b) if the motion is passed, the consequence is different for a general election is to held.
136. The CPC and the Constitution envisaged that, quite apart from changes of government that could occur through the regular electoral process, changes could come about during the life of a Parliament, through the direct action of members of Parliament to change the executive government. The CPC anticipated that this Parliamentary action to change the government could be due to Parliament being 'dissatisfied with the government'.[24]
137. The basis of this dissatisfaction could be many and varied. The Prime Minister and his Ministers, individually and collectively may not be performing properly in the management of and responsibility for their respective portfolios of government; policy formulation and execution may be flawed; the economy may not be managed properly; and, the government as a whole may be saddled or riddled with scandals that raise serious issues of public and private integrity.
138. Whatever the shortcomings, the government had to be responsible to and give an account of itself to the people's representatives in the Parliament. If it did not, or did not adequately, then a dissatisfied Parliament should be able to change that government.
139. Thus, a ’motion of no confidence’ is a deliberate device of the Constitution to enforce the principle of responsible government. Unlike some countries that operate or exist under executive presidencies, our system of government is a Parliamentary executive. The members of the executive government are drawn from the ranks of members of Parliament, and are answerable to the other members in Parliament.
140. Our system of government under the Constitution has been characterised as a 'modified version' of the Westminster model, 'allowing for representative and responsible government; and a cabinet system'[25].The representative aspect is declared in the Preamble [26] with the duly elected representatives in Parliament being people's delegates.
141. One important feature of our governmental system is that our executive is a parliamentary executive, a basic tenet of responsible government, ensuring that the individual Ministers and the Head of Government, the Prime Minister, who collectively constitute the Cabinet are responsible and accountable to the people the duly elected members of Parliament not in the Cabinet. Apart from the periodical direct accountability to the people through regular parliamentary elections, accountability to Parliament is ensured and facilitated by the parliamentary devices of Motion of No Confidence (ss 114 and 145) or Censure Motion moved and debated publicly on the floor of parliament.
142. The primary meaning of democracy has been defined as: government which is derived from public opinion and is accountable to it[27]. The learned author continues with the assertion that 'accountability entails that a government must continuously test its representativeness, that is to say, whether its claim that it is 'derived from public opinion' is still valid. Thus, it is not sufficient for a government to justify its existence because at some time in the past it was representative of popular opinion; for the two may have diverged since then[28].
143. It is suggested that this public opinion must be overtly and freely expressed, otherwise, it will be difficult for anybody to know, at any one time, that the government is still 'derived from public opinion'; that it is still representative and responsible as envisaged by the Constitution. And, of course, overt and free expression needs a vehicle, a machinery, sanctioned by law or by the Constitution itself for making that public opinion known. That vehicle, that machinery is specifically provided for under our Constitution by s 145.
144. Members of Parliament, as the duly elected representatives of the people, have a right to, through the parliamentary process and procedures, hold the executive government of the day accountable. This can only happen through the 'motion of no confidence. This right is specifically vested by the Constitution under s 111 - Right to Introduce Bills, etc. Sub-s (1) provides in unambiguous terms as follows:
(1) Subject to Section 21 (executive initiative), any member of the
Parliament is entitled to introduce into the Parliament, in accordance
with, and subject to any reasonable restrictions contained in, the
Standing Orders of the Parliament, a petition, question, bill, resolution or
motion.
145. A ‘motion of no confidence’ as envisaged under s 145 is such a motion.
The reasonable restrictions in the Standing Orders suggested in the provision would, in my opinion, concern matters of procedure rather
than of substance intended to limit, regulate or diminish a specific Constitutional right and privilege vested in the people's representatives.
146. The extending of the time for notice to be given for such a motion from one week to one month is restriction placed on members of Parliament in the due exercise of their right and privilege to hold a government accountable under the Constitution. Similarly, the extension of the so called 'grace period' from its original six months to eighteen months, and the more recent extension to 30 months. Combining these two extensions with the greatly reduced period for meetings and sessions of Parliament, all promulgated by the recent amendments, have the direct effect of ensuring that a government of the day has a free rein over the affairs of the country, unhindered by and unaccountable to Parliament, to whom it should be responsible to.
147. If the legitimate Constitutional duties and functions of the second arm of government are restricted or marginalised, or indeed regulated, in the way these amendments will surely cause, in my respectful opinion, then it cannot properly be said that in our country we enjoy the benefits of a liberal democracy, that proudly demonstrate all the hallmarks of 'constitutionalism'.
148. I respectfully restate my concurrence with the learned Chief Justice's conclusion on the two applications, and the reason for these. Finally, I endorse the orders consequent upon the conclusions.
149. KIRRIWOM J: I have read the judgement by the Chief Justice which extensively covers the historical background of the case in point because of
its significant constitutional importance in the socio-political development of Papua New Guinea’s constitutional democracy
after Independence in September 1975. The case covers historical accounts of motions of no confidence and its impact on stability
of governments and delivery of goods and services then and now. The case comes before the Supreme Court by way of Constitutional
Complaint by two senior citizens of this country, the Leader of the Opposition, Hon Belden Namah, MP, Member for Vanimo Green River
Electorate and former Chief Ombudsman, Ila Geno, as concerned citizens, whose standing was recognised by the Court. His Honour, in
his usual way, covered the background history and the factual basis of the case in his judgment and I adopt. Furthermore, I also
agree with the conclusion reached by the Chief Justice and add these observations of my own.
150. The issue here is whether the extension of grace period up to 30 months following election of Prime Minister and the increase
of notice period from one week to one month and the required minimum number of members to sign a petition from 11 to 22 by series
of amendments to sections 145 of the Constitution is unconstitutional in that they infringe on the rights of the Members of Parliament to effectively and meaningfully perform their
electoral roles and functions on behalf of their constituents which includes making laws as guaranteed by section 111 of the Constitution those functions stipulated in various provisions of the Constitutions including the right to bring a motion before the Parliament
and to vote and stand for elective public office under section 50(l)(c) and (e)?
151. Pre-amendment section 145 reads:
“145. Motions of no confidence.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister. ”
152. Post-amendment section 145 reads:
“145. Motions of no confidence.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other
Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b)-----of which not less than one week's notice, signcd-by a number-of members of the Parliament being not less than-enc-icnth- ofthc -total
number of seats in the Parliament, has been given in accordance with the Standing Ordcrs-of the Parliament.
(b) of which not less than one month's notice, signed by a number of members of the Parliament being not less than one fifth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not he allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2) (a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty months commencing on the date of the appointment of the Prime Minister. ’’
153. Section 111 of the Constitution provides:
“111. Right to introduce bills, etc.
(1) Subject to Section 210 (executive initiative) and to an Organic Law made for the purposes of Subdivision VI. 2. H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties), any member of the Parliament is entitled to introduce into the Parliament, in accordance with, and subject to any reasonable restrictions contained in, the Standing Orders of the Parliament, a petition, question, bill, resolution or motion.
(2) The petition, question, bill, resolution or motion shall be dealt with as
provided by the Standing Orders of the Parliament.
(3) The Standing Orders of the Parliament may make provision for priority to be given to Government business at certain times or in certain circumstances. ”
154. And section 50 (1) of the Constitution provides:
“50. Right to vote and stand for public office.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than
nine months; or
(b) has been convicted, within the period of three years next preceding the
first day of the polling period for the election concerned, of an offence relating
to elections that is prescribed by an Organic Law or an Act of the Parliament
for the purposes of this paragraph, or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through
freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine,
periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. ”
155. Our Founding Fathers of our Constitution in their deliberations as captured in the Final Constitutional Planning Committee Report had this to say about the power that is vested in our elected leaders:
"Power belongs to the people and it shall be exercised in accordance with this Constitution."
We believe it is important to make clear in this way that the power exercised under the Constitution is derived from the people, in the great majority of the societies that make up our nation, it was from the people rather than from kings or chiefs that power was taken by the colonial rulers. It is therefore appropriate that it be the people to whom that power should now be returned. The principle that power derives from the people provides the basis of the Constitution
As far as always having a National Government in place:
"35. We have taken particular care to provide for procedures to ensure that the country has a national government at all times. Thus, during the period when Parliament is dissolved and there is a general election, the National Executive Council stays in office until either the present Prime Minister or a successor is appointed following his election by the new Parliament. Whoever becomes Prime Minister would then have the right to construct a new Ministry. He may or may not choose any of the former Ministers. These procedures are similar to those found in most parliamentary systems.
36. We have provided separately, in paragraphs 38 and 39 below, for the procedures to be followed should there be a vacancy in the office of Prime Minister arising, for example from the death or resignation of the incumbent. However, it would be possible for all Ministers to resign so that, in effect, there is a resignation by the National Executive Council as a whole. A government might decide to do this if the Parliament rejects its Budget or other major legislation, but it need not necessarily do so. We have made specific provision for Parliament to replace a government that appears to have lost majority support, but we expect that Parliament itself will involve its own convention in respect of the circumstances in which a government ought to resign. If the Ministry as a whole does resign, we propose that the resignations take effect from the time of the appointment of a new Prime Minister following his election by Parliament.
3 7. The election of a new Prime Minister in these circumstances would take place at the next sitting of Parliament, although we have provided for the possibility of adjournments in paragraph 26. If Parliament is not meeting at the time, it must be convened by the Speaker within fourteen days. Until the appointment of a new Prime Minister, the outgoing government would remain in office in a "caretaker" capacity - that is, it would not embark on any major policy initiative during that period. In this latter respect, the arrangement would be like that existing during the period of a general election, when a government would be expected to exercise similar restraint.
With respect to changing a government, this is what the Founding Fathers said:
“Changing the government
43. One of the major principles in our recommendations for the National Executive Council is that it should be responsible to the National Parliament. Basically this means that Ministers are individually and collectively answerable to members of the parliament for their executive actions and policies, including the work of their Departments.
Ultimately, however, it means that Parliament must be able to change the government
42. For the first three years of the Parliament's term we propose an adaptation of what has been called the "constructive vote of no confidence". Under this procedure, a vote of no confidence in the National Executive Council may be moved if it has been signed by one-tenth of the members and at least one week's notice has been given. To be successful, it must be passed by an absolute majority of the Parliament.
43. In addition we propose two further conditions. First, in order to ensure some stability in government, such a motion may not be moved unless the Prime Minister has been in office for at least six months. In practice this is likely to mean that if the Parliament is dissatisfied with the government, it may try to change it at the second meeting after the one at which it comes into office. The government should therefore have at least one meeting of Parliament in between in order to show something of its legislative programme.
44. The second condition provides the basis for the description "constructive vote of no confidence". Such a motion may be moved only if it concludes the name of the proposed successor to the Prime Minister. If the motion is successful, it thereby incorporates the election of a new Prime Minister. Accordingly, the Speaker revokes the appointment of the defeated Prime Minister and appoints his named successor, who is then free to choose his own ministry.
45. There are four main advantages in this procedure. Firstly, it reduces the element of uncertainty that might follow the fall of a government; one Prime Minister automatically gives way to another. Secondly, it ensures that the Speaker does not exercise any discretion as to who should be appointed to succeed the outgoing Prime Minister. Thirdly, the Parliament has a real choice; members know who will become Prime Minister if the motion is successful. Fourthly, it should ensure that a motion of no confidence is moved in all seriousness. It would still be open to the Parliament to register its strong opposition to, or dissatisfaction with, a particular government policy or action by adopting a motion that falls short of one of no confidence - such as a motion of censure”.
156. It was the wish of the Founding Fathers that the Parliament must be able to change the executive government. And it provided this procedure under s145 of the Constitution. In their wisdom, the Founding Fathers felt that once a Government is formed after the return of the writs following a General Election, six months was sufficient for the Prime Minister and his Executive to perform to expectations of them under the Constitution. They perform the moment they got into office, or, be prepared to face the consequences.
157. As evidence showed there have been good number of no confidence motions successfully moved and Prime Ministers were ousted before they could deliver services to the people. It was considered six months was too short a time for a government to deliver service following the General Elections.
158. In 1991 the mood in the Parliament was that there must be stability in the National Government once it gets into office following General Elections by allowing the Government just elected to remain long enough in power to deliver service to the people and it was felt that frequent no confidence motions was the cause of this instability and uncertainty so there was strong mood to increase the six months grace period to 18 months. And so it happened in 1991 by Constitutional Amendment No. 14 of 1991.
159. Since that change in the Constitution, there have been no motions of no confidence for almost 20 years until 2 August, 2011 the Parliament unilaterally removed or overthrew a Government through a peaceful process of Members from the ruling coalition crossing the floor and joining up with the Opposition that saw the current Prime Minister elected as the new Prime Minister replacing Sir Michael Somare a move that the Supreme Court found to be constitutionally flawed and therefore invalid. This landmark decision subsequently had the Executive and the Judiciary engaged in lengthy bitter court battles over Constitutional References filed by responsible institutions seeking the Supreme Court’s opinion on the actions of the new regime.
160. The Supreme Court by majority of three in Special Reference by the East Sepik Provincial Executive (2011) SCI 154 held that s142 of the Constitution did not provide an alternative avenue to remove and replace a Government. The only avenue in ordinary times is by way of no confidence motion under section 142(2) but that was unavailable because the law did not allow appointment of a new Prime Minister within the last 12 months of the life of the Parliament before the next General Elections. There however can be a motion of no confidence in the Executive during this period but the motion cannot nominate a new Prime Minister. There are other avenues for removing a Prime Minister but those avenues are available for specific causes when such action is deemed necessary or appropriate such as removal on medical grounds, unfit to perform and resigns.
161. The dilemma that faced the country in the months that led up to the show down in the Parliament on 2 August 2011 and what transpired thereafter was a wake-up call for the elected leaders to take stock of why and what happened and to restore to the Constitution an easy access to the avenue for changing a Government so that the experience of August 2011 is not repeated again.
162. But we do not seem to learn from past mistakes and we continue to create more mistakes, make laws that perpetuate foreign interests and policies that promote and safeguard interests of a few minority while the silent majority watches in silence.
163. Almost four years ago in Special Reference by the East Sepik Provincial
Executive (2011) SCI 154 that this Court was forced upon the unfortunate and unenviable task of reviewing the actions of the Parliament of 2nd August, 2011 that unilaterally dismissed or put aside the normal process of change of Prime Minister and adopted an ill-advised course
pursuant to section 142 of the Constitution to topple the Somare-Abal regime which was ruled unconstitutional by majority decision of this court. This happened because the legitimate
procedure under s145 of the Constitution was not available to the Members of Parliament when it should have like in other democratically elected governments.
164. The Court acknowledged that at this point in time there was an overwhelming mood for change of Government but due to the impediments in s145, a Motion of No Confidence in the Prime Minister Grand Chief Sir Michael Somare who was sick in the hospital in Singapore and his Cabinet was split between factions supporting Member for Kandep Don Polye and those with acting PM Sam Abal and Member for Wabag, two prominent leaders of Enga Province, could not be legally moved.
165. And this unfortunate scenario unfolded because the Parliament in its wisdom though without foresight chose to widen the grace period of six months originally allowed in the Constitution to eighteen months. So while there was legitimate desire to change the Prime Minister at that critical point in time when the country needed decisive leadership, the avenue under s145 of the Constitution was unavailable because of lop-sided evaluation of the importance of that provision when the Parliament voted to increase the grace period from six months to eighteen months. And now a further knot is tightened around that only provision in the Constitution that provides the process to legally remove a bad government in power thereby removing altogether the only opportunity there is to change a government in the office that has to go by popular demand.
166. In my respectful opinion, we do not seem to have learnt from that unfortunate event of 2nd August, 2011 where the Parliament was made a mere rubber stamp to sanction an illegal act by not taking a good stock of what happened then and why it happened. We should now be a lot wiser and all steps taken to restore that opportunity its full extent of availability as it was since the Constitution was adopted by the Constituent Assembly. Our Founding Fathers were wisest of all wise men of today who included this provision into our Constitution in the first place.
167. It is therefore not without justification for our two senior Statesmen and Founding Fathers and also former Prime Ministers Grand Chief Sir Michael Somare and Sir Julius Chan to describe the amendment to section 145 as not in the best interest of the country but to achieve an outcome that ensured a particular Government remained in power until the next General Elections. This is a purpose that is foreign to the intention of the Founding Fathers who made or crafted the Constitution. They wanted that there be change in the Government through a vote taken by the Parliament if circumstances justified it.
168. And the effect of this thirty days grace period brought about by the amendment to section 145 is that strictly speaking one government remains in power for thirty months from the time of election of the Prime Minister following the return of the writs which is already half of the five year life of a Parliament. Twelve months is deducted from the remaining 30 months leaves only 18 months when a Motion of No Confidence can be moved against the Government. But that 18 months grace period may not even be possible to change the Government when the Government using its numerical strength can tactically out manoeuvre the Opposition by adjournments, etc until the safety zone of 12 months remaining before the issue of the writs for the next General Elections.
169. In the Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates [2010] SC1057 or commonly referred to as OLIPPAC, the Supreme Court was quite plain in its pronouncement that any law passed by the Parliament that affected the free exercise of rights and powers of elected leaders in the performance of their duties or exercise of those rights as stipulated under 111 and 50 of the Constitution are void as they are unconstitutional.
170. In that case the Supreme Court was dealing with an Organic Law that contravened the Constitution in its application and enforcement. Here we have a case of a substantive provision in the Constitution amended to give effect to aspirations and wish of the Government in power, the implications of which are no longer the same as the time when the 1992 amendment of the same provision was made that increased the grace period from six months to eighteen months. Two of the Founding Fathers of our Constitution are strongly opposed to the increase of the grace period to thirty months, although Sir Michael Somare would have supported a period of 24 months. However, Sir Julius Chan is quite opposed to any increase at all because as he says in the following paragraphs of his affidavit:
6. The amendments to extend the grace period were made to supposedly achieve political stability that may be politically reasoned. However, it is my conviction excessive stability often leads to dictatorship. It does promote hunger for power. The greatest manifestation of stability in my view is in the transition from one government to another. Stability must not be for the purpose of protecting a bad or corrupt government to remain in power.
7. Contrary to the popular view that an extension of the grace period would provide political stability, the said extensions of the grace period have served to entrench the position of the government of the day. It does not necessarily guarantee good management. It leaves open the question of inefficient corrupt government remains untouchable for the specified "grace period".
8. A grace period of 6 months as decided by our founding fathers was meant to gear our new Independent Papua New Guinea exercising limited "grace period" for "settling in " rather than "staying in". Any lengthy extension of the grace period only deprives the right of the people through its Parliament thereby depriving rights of elected representatives to conduct checks and balances on the Parliament elected executive government in open accountable Westminster system adopted in 1975."
_________________________________
171. DAVANI J: I have read the opinions of my brother Judges, more particularly the substantive opinion of his Honour the Chief Justice, and agree entirely with their views and the final orders issued by this Court. I will not reiterate the facts and issues of this case because they are sufficiently and exhaustively covered by the Chief Justice.
172. I wish to add to their opinions, my views in relation to Votes of No Confidence, focusing more on Great Britain and the Solomon Islands. My discussions are focussed on Great Britain, because our laws are based on the Common Law, which has its origins in Great Britain. My other focus is on the Solomon Islands because it is our closest neighbour in the South Pacific and is also Melanesian with scatterings of Polynesian, as PNG is.
173. Naturally, it is against this backdrop, that politics in this country developed and evolved, metamorphosing to the state it is in now. Since 16th September, 1975, the Courts in this country, more so the Supreme Court, has interpreted the law, on votes of no confidence, from Haiveta v Wingti (No.2)(1994)PNGLR 189 SC 465 to Special Reference by Fly River Provincial Executive; Re OLIPPAC (2010).
174. Papua New Guinea ('PNG') inherited a written Constitution at Independence day on 16th September, 1975, based on the Common Law. Equally, the political system, adopted by PNG, is an introduced system. Indeed, unique to PNG, members of Parliament are not representatives in the Westminster sense, nor rulers in the State or even chiefly sense, but leaders in the Melanesian sense. Meaning that showing up at a funeral by a politician, signifies and covers a considerable myriad of obligations and protocol.
175. PNG, as a sovereign nation, acquired this sovereignty through its autochthonous Constitution. The Constitution is tailored to be a home grown Constitution and to meet the aspirations of PNG society. It also severed all external legal linkages (e.g The Privy Council) and is reflective of PNG's hopes and aspirations as articulated by the Constitutional Planning Committee.
176. The people of PNG are encouraged by this autochthonous Constitution, to come to court and complain. As Former Chief Justice Amet said in SCR No.4 of 1980, Re Petition of MTSomare [1981] PNGLR 265;
"The People, repository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the people come to this court and complain ? After all it is their power and they are in my view, entitled to complain to the Supreme Court, In whom their power to determine the Constitutionality or otherwise of an Act of Parliament is vested...".
177. And the Applicants have done that. They have come to Court to complain.
178. This is not a case where the Judiciary should be exercising restraint because cabinet decisions must be protected from public scrutiny (Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 at 524), which myth has now been shattered by the Privy Council case of CO Williams Construction Ltd v Blackmanf [1995] 11WLR 102 and more recently in PNG, in the case Peter Aigilo v Prime Minister and Others N2102. Rather, simply put, this is a challenge by the applicants in relation to the issue of whether Constitutional Amendment No.36 - Motions of No Confidence Law (2012), where Parliament amended section 145(4) Constitution, by repealing the word "eighteen" and replacing it with "thirty", is the act or are the actions of a Responsible government. I discuss briefly, below, the concept of a Responsible government.
179. All counsel have made extensive submissions on the viability and futility of Parliaments actions, which are extensively covered by the Chief Justice, so I need not repeat them. Generally, the overarching submissions by the respondents are that the 30 month grace period will give the government of the day the opportunity to provide the services, it ought to provide. E.g when debating the 1991 and 2013 amendments, the Hansard show the frequent use of the words "stability", "instability", "service delivery". And it of course will be remiss of me not to mention that nowhere in those submissions, did respondents counsel, direct the Courts attention to either the dilapidation of infrastructure or lack of development, et al, as a result of the votes of no confidence that have been moved over the years in PNG's independent lifetime, and which votes were moved within periods less than the 30 month grace period.
180. Evidence was put before the Court from former Prime Ministers who explained the circumstances surrounding votes of no confidence that were moved during their terms in office. I need not repeat those facts because the Chief justice has done so. However, what is evident is that the opposition of that day, always had recourse to this 'remedy', for want of a better word.
181. One then asks the question, why is it that such a provision exists in the Constitution of a country considering, such a provision, may, with human infallibility, be abused? Or, is a government, a Responsible government, when it continues to have recourse to this provision? These are questions the lay person on the street, often asks, and which I take judicial notice of. Additionally, there is always a reason why provisions are inserted in legislation, in this case, the vote of no confidence provision. I have taken the opportunity, to "discover" this by looking at how this vote evolved in the English system, considering our laws are based on English Common Law. I also believe that it is imperative that the lay reader or student, understand this.
182. Wikipedia, The Free Encyclopaedia, discusses what a Responsible government is. It states that a Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy.-.Responsible government of parliamentary accountability manifests itself in several ways. Ministers account to Parliament for their decisions and for the performance of their departments.
183. And a motion of no confidence as a parliamentary motion, demonstrates to the Head of State that the elected Parliament no longer has confidence in one or more members of the appointed government.
184. In the United Kingdom, motions of no confidence are called votes of confidence, votes of no confidence or censure motions. They are a feature of the Westminster system of Government used in the United Kingdom, that requires an executive to retain the confidence of the House of Commons. It is a fundamental principle of the British Constitution that the Government must retain the confidence of the legislature as it is not possible for a government to operate effectively without the support of the majority of the legislature. In last resort, the principle is based upon the governments dependence upon the House of Commons for "political capital". (see Turpin ,C (2002) British Government and the Constitution 5th Ed pg 487).
185. Despite their importance to the British Constitution, the rules surrounding motions of no confidence are dictated by convention. A defeat in a vote of no confidence will oblige a government to resign or seek a dissolution of Parliament. A no confidence vote was last successfully used on 28 March 1979 when the minority government of James Callahan was defeated on a motion which read "that this House has no confidence in her Majesty's government." This forced a general election which was won by Margaret Thatcher.
186. In Britain, a no confidence vote can have the effect of uniting the ruling party, for this reason, such motions are rarely used and successful motions are even rarer. Before 1979, the last successful motion of no confidence occurred in 1924.
187. Motions of no confidence are far more common in multi-party systems in which a minority party must form a coalition government. This can result in a situation where there are many short lived governments because the party structure allows small parties to break a government, without means to create a government. This has widely been regarded as the cause of instability for the French Fourth Republic (1946 to 1958) and the German Weimar Republic (1918 to 1933 (when Hitler assumed power and the beginning of Nazi Germany). Recent examples of this phenomenon was in Italy in the 1950's and Israel and Japan in the 1960's.
188. In the South Pacific, votes of no confidence in Government, have become the norm as opposed to the traditional view, set out above. Care, Jennifer Corrin, in her article "In the Westminster system of Government approach in Solomon Islands" [2002] Alt Law Jl 78 ; (2002) 27(5)Alternative Law Journal 207, said this;
"Whilst there has been some recognition of party politics, mainly in the commercial centres ,the system of voting for a wantok...or the big man or chief of your customary group, is even stronger. The present weakness of the party system can be seen in the breakdown of allegiances of the 50 members of Parliament (then, in 2002). The party with the largest number of members. Peoples action Party with 20, formed the Government with 13 loosely grouped Independents. Generally the weakness of political parties has resulted in unstable parliamentary coalitions. Party allegiances and government leadership often change and frequent votes of no confidence merely highlight the lack of confidence in the system as a whole".
189. In PNG, the underlying reason for including the vote of no confidence provision in the Constitution, is best summed up by Chief John Momis in his affidavit. Chief John Momis was the Deputy Chairperson of the Constitutional Planning Committee, and said this in his affidavit;
"2.in the Constitutional Planning Committee(CPC)considerations on the executive
government the members of the CPC expressed strong views that the executive government must be accountable to the Parliament to prevent the government from abusing power and becoming dictatorial under all kinds of pretexts of acting for public good.
3. Initially the CPC did not want any grace period to be included in the Constitution because it was strongly in favour of collective responsible government. It was of the view that over a number of years the experience of government, its positive conduct as a result of principled politicians and its performance would deter and make motion of no confidence unnecessary.
4. Accordingly the only reason for the CPC inserting under section 145 of the Constitution a six months grace from motion of no confidence being moved against a government was to allow time for the government to settle in, formulate policies and implement them. If however it was found to be unfit to hold office it must be held accountable".
190. The central issue at the fore of this case is more particularly, whether the
Constitutional amendments will impede or restrict Parliaments or its members ability to bring the Executive Government to account
for its actions, hence is inconsistent with the system of Responsible government.
191. In my view, having considered all the above including PNG's unique position as a Melanesian country with its own social traditions and norms, surviving within the cocoon that is the Common Law and the Westminster System, the extended period of 30 months has substantially reduced the time allowed for Government to account for its actions because the whole concept of Responsible government or Responsible Ministry, has been whittled away, meaning that, for the 30 months period, the Government is not accountable for some of its actions which may be detrimental to good government.
192. It also is a case of the "numbers" game, meaning, our politicians must, by now, understand and fully appreciate, that they are in Parliament at their peoples behest and that party politics should not dictate their actions, rather, the people they represent and the platforms that got him into Parliament in the first place. That was the CPC's vision when it said as I quoted above that;
"(Governments) positive conduct as a result of principled politicians and its performance would deter and make motion of no confidence unnecessary".
193. The amendments are effectively substantial and radically changes the system of representative and responsible government. The 30 months period means that Government will not be accountable for its actions. It is not a representative and responsible government.
194. It is for the above reasons and the reasons espoused by my brothers, that my final orders will be in the following terms:
(1) The applications with regard to Constitutional Amendment No. 14 of 1991, is dismissed.
(2) The applications with regard to Constitutional Amendment (Motions of No Confidence) Law 2012, Constitutional Amendment (Motion of No Confidence) Law 2013 and Constitutional Amendment (Calling of Parliament) Law 2013, are granted.
(3) The Constitutional Amendments referred to in paragraph (2) of this order are declared unconstitutional and invalid.
(4) All the Respondents pay 75% of each Applicants assessed costs of the proceedings SCR No.4 of 2013 and SCA No. 177 of 2013, to be taxed if not agreed.
Orders of the Court
195. The Court orders as follows:
(1) The applications with regard to Constitutional Amendment No. 14 of 1991 is dismissed.
(2) The applications with regard to Constitutional Amendment (Motions of No Confidence) Law 2012, Constitutional Amendment (Motion of No Confidence) Law 2013 and Constitutional Amendment (Calling of Parliament) Law 2013 are granted.
(3) The Constitutional amendments referred to in paragraph (2) of this order are declared unconstitutional and invalid.
(4) The respondents pay 75% costs of the applicant's costs of the proceedings.
______________________________________________________________
Henao Lawyers: Lawyer for the First Applicant
Yalo Lawyers: Lawyer for the Second Applicant
Pacific Legal Group Lawyers: Lawyer for the First & Second Respondent
Solicitor General: Lawyer for the Third Respondent
[1] Section 134, Proceedings non-justiciable
[2] Section 133, Standing Orders.
[3] Section 109 (1); see also s 100 (1).
[4] By Constitutional Amendment No. 14 of 1991.
[5] By the Constitutional Amendment (Motions of No Confidence) Law 2012.
[6] See discussion below at p.4.
[7] Constitutional Amendment (Motion of No Confidence) Law 2013
[8] Southern Highlands Provincial Government v Somare & Ors; and Sir Matiabe Yuwi & Ors v Somare & Ors;
[2007] PGSC 2; SC 854 (1 March 2007)
[9] SC Ref No.1 of2008, Unreported SC 1058 of 4 June 2010.
[10] Final Report of the CPC, Part 1 (1974), Ch 7, p.7/1.
[11] Ibid, para.l.
[12] Ibid
[13] Section 11 Constitution.
[14] I respectfully agree with the learned Chief Justice's condensing of the issues or grounds of challenge in the
applications into four (4), see p 3, supra,
[15] Thus the executive government of the country.
[16] SC Ref No. 3 of 2011, advisory opinions handed down 12 December 2011, pp. 164-190.
[17]As he then was.
[18] As he then was.
[19] Section 142 (2) Constitution.
[20] Section 142 (5) (a) successful motion of no confidence under s 145; (b) in accordance with the Leadership Code; (c) mental and physical
incapacity.
[21] CPC Report 1974 (part 1), Ch 7 p.6, paras. 41-45 inclusive.
[22] Supra.
[23] Reference No.2 of 1976 [1976] PNGLR 228 at 234.
[24] See, para. 45, CPC Report, supra.
[25] John Goldring: The Constitution of Papua New Guinea, LBC, 1978, p. 14.
[26] Supra
[27] S E Finer, Comparative Government, 1970, pp. 63-66.
[28] Ibid
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