Polye v Zurenuoc [2016] PGSC 96; SC2039 (12 July 2016)

SC2039

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) NO. 3 OF 2016

Application Pursuant to Constitution Section 18(1)

BETWEEN
DON POMB POLYE MP
LEADER OF THE OPPOSITION
Applicant

AND
THE HON. THEODORE ZURENUOC, MP
SPEAKER OF PARLIAMENT
First Respondent

AND
HON. AIDE GANASI, MP
DEPUTY SPEAKER OF PARLIAMENT
Second Respondent

AND
KALA AUFA
ACTING CLERK OF PARLIAMENT
Third Respondent

AND
HON ANO PALA, MP
PRINCIPAL LEGAL ADVISOR,
MINISTER FOR JUSTICE AND ATTORNEY GENERAL
Fourth Respondent

Waigani: Injia CJ, Salika DCJ & Makail J
2016: 1^st, 6^th, 7^th & 12^th July

CONSTITUTIONAL LAW – Parliament – Notice of Motion of No Confidence in the Prime Minister – Submitted to Parliamentary Committee on Private Members Business – Notice not processed by Committee and not tabled in Parliament by Clerk – Parliament adjourned without considering Motion – Adjourned to a date after the occurrence of the fourth anniversary of Parliament’s term by which Motion cannot be moved – Whether Constitution breached – Constitution ss11, 111, 134, 142, 145; Standing Orders 22, 130, 131 & 132

Counsel

M Cooke QC with L. Henao, for the Applicant
JA Griffin QC with T. Twivey & D. Kipa, for the Respondents

12^th July, 2016

1. BY THE COURT: The application in this case arises from a notice of motion of no confidence in the Prime Minister (hereinafter referred to as the Notice) that was submitted to the Chairman of the Parliament’s Private Business Committee (the Committee) on 7^th June 2016 but was not cleared by the Committee to be tabled in Parliament by the Clerk on 8^th June 2016. On 8^th June, Parliament adjourned to 2 August 2016 without considering the motion of no confidence (Motion). As a result, the Motion would become ineffective because by 27^th July, 2016, the time limited for bringing a motion of no confidence in the Prime Minister under s 145 (2)(b) of the Constitution will have expired.

2. The applicant is a member of the National Parliament and the present Leader of the Opposition. The application is made under s18(1) of the Constitution and the Supreme Court Rules 2012. On 6^th July, 2016, this Court granted the applicant standing to bring the application.

3. The applicant seeks various declaratory orders set out in the application, one of which we have refined following this Court’s ruling that claims of “manipulation” of Standing Orders of the Parliament by certain members of Parliament (MPs) would not be allowed. The declaratory orders sought by the applicant are as follows:

(1) A declaration that it is mandatory for the process prescribed by Section 145 of the Constitution which includes Standing Order 130 to be fully complied with when a Motion of No Confidence in a Prime Minister is submitted to the Chairman of the Committee and in particular, after the Committee has satisfied itself that Motion is technically in order.

(2) A declaration that the actions of Acting Speaker of Parliament and Chairman of the Committee on Private Business in preventing the debate of No Confidence Motion lodged on 7^th June 2016 by the Parliament is contrary to the principle of responsible government enshrined in Sections141, 142 (5) (a) and 144 of Constitution is illegal.

(3) A declaration that the Motion of No Confidence in the Prime Minister lodged with the Speaker on 7^th June 2016 complies with the technical requirements of Standing Order 130.

(4) Order the Speaker to recall Parliament forthwith to debate the Motion of No confidence as a matter of national urgency.

(5) Order the Committee on Private Business to deliver a copy of the terms of the Motion of No confidence to the Clerk of Parliament who shall report the terms of the motion to the Parliament pursuant to the Standing Orders 130(3) and (4), 131 and 132.

Overview of the Case

4. The case for the applicant is set out in the application filed herein. In the course of dealing with the question of standing, the Court ruled that the real issues before the Court concern the actions of the Speaker in conducting the business of the Committee and the proceedings of Parliament with regard to the Notice. Therefore, the actions of other members of the Parliament and the Committee were irrelevant to the issue and could not be permitted. These include claims of manipulation of the Standing Orders by certain members to frustrate the Notice of the Motion from being introduced in Parliament.

5. Both parties tendered evidence at the hearing in the form of affidavits that were admitted into evidence. There are two (2) affidavits of the applicant in evidence. The respondent tendered four (4) affidavits, two of which are his own and one each from Mr. Basil Kambuliagen (Acting Clerk of Parliament) and Richard Whitchurch (Acting Parliamentary Counsel).

6. The facts to be found are derived from those evidence.

7. We set out the arguments of the parties first.

Applicant’s Arguments

8. The actions of the Second Respondent in his capacity as the Chairman of the Committee and the Acting Speaker are in question in these proceedings.

9. With regard to the actions of the Chairman of the Committee, the applicant argues that the Notice of 7^th June 2016 met all the technical requirements stipulated by Section 145 of the Constitution and Standing Orders 130. It was delivered to the Committee Chairman (Second Respondent) in time for the Committee to meet to clear it and deliver it to the Clerk to place it on the private business agenda for Wednesday 8^th June. He Second Respondent failed to convene a meeting of the Committee that morning. His actions infringe the rights and privileges of members of Parliament (MPs) to introduce, debate and vote on the Motion guaranteed by s111 of the Constitution.

10. It is argued that the Standing Orders regulate the order of business of the Parliament but cannot operate to curtail or prevent MPs from exercising their Constitutional rights to introduce the motion given by s111 of the Constitution. A Notice and a Motion in the Prime Minister, because of its intended effect to change the government, can never be a parochial matter, it must always remain a matter of national importance, and should be, if it meets the technical requirements, delivered to the Clerk of Parliament to be put on the business item for introduction when Parliament next meets to consider MP’s private business. The Notice being in order, having met all the technical and procedural requirements stipulated by s145 of the Constitution and Standing Order 130, this Court should declare the Notice to be so, and order the Committee to deliver the Notice to the Clerk of Parliament to report its terms to the Parliament pursuant to Standing Orders 130(3), 131 and 132. This Court should also order the Speaker to recall Parliament forthwith for the motion to be introduced, debated and voted upon as a matter of national urgency.

11. The applicant argues the actions of the Second Respondent on the 7^th and 8^th of June in respect of the Notice is not an isolated incident but part of a deliberate and concerted attempt by him to frustrate and prevent the Opposition from introducing and moving a motion of no confidence in the Prime Minister. He or the Committee chaired by him on three previous occasions had rejected three similar notices, submitted by MPs between October 2015 and March 2016 on spurious, irrelevant or unsubstantiated grounds. This led to an improper and invalid exercise of the Standing Order 22.

12. With regard to the actions of the Second Respondent as the Acting Speaker, the applicant argues that it is the Speaker’s duty to regulate Parliamentary proceedings and administer its affairs: Constitution, s108. These include regulating Parliament’s sitting days. He is under a duty to ensure that parliament meets and sits in accordance with the sitting days specified by s124. In this case, when Parliament was adjourned to 2^nd August 2016, that sitting days requirement will not be met. Parliament’s decision to adjourn to 2^nd August and thereby adjourn the motion would be invalid and ineffective by virtue of s11 of the Constitution. For this reason, the Speaker would be entitled to recall Parliament using his inherent power under s108. In addition, this Court should use its inherent power under s155 (40 of the Constitution to recall Parliament for the Motion to be introduced, debated and voted upon.

13. The applicant argues that these actions of the Second Respondent and that of the Parliament are in breach of Sections 111, 134, 141, 142 and 145 of the Constitution and or inconsistent with those provisions and they should be struck down by this Court pursuant to s11 of the Constitution.

14. The applicant relies on judicial pronouncements of principles on the national importance and necessity of a motion of no confidence in achieving a responsible and accountable Parliamentary executive in this Court’s decision in SCR No 4. Of 2013 and SCA No. 177 of 2013, In the Matter of an Application under Constitution, Section 18(1) by Belden Namah & Ila Geno v The Hon. Prime Minister Peter O’Neill, the Hon Theodore Zurenuoc, Speaker of the National Parliament and the Hon. Kerenga Kua, MP, Attorney General and Minister for Justice, Unnumbered judgment of the Supreme Court dated 4^th September 2015, per Injia CJ, Salika Dep CJ, Sakora, Kirriwom & Davani JJ. The applicant submits the actions of the Second Respondent and Parliament in this case goes against those principles.

Respondents’ Arguments

15. The respondents accept the right of MPs to bring a motion of no confidence in Parliament emphasised by the Supreme Court in SCR No. 4 of 2013 and SCA No. 177 of 2013, but they argue that the right is not unqualified. The Notice and the Motion must comply with the technical requirements stipulated in s145 of the Constitution and Standing Orders of Parliament.

16. In the present case, the applicant has not proved any Constitutional breach or breach of the Standing Orders occurred in respect to the Notice of June 7^th for a number of reasons. First, the notice was submitted late. The applicant, having attended the April sitting of Parliament and having had access to the Parliament’s internet website where the schedule for the June sittings was published, knew that Parliament would sit from 31^st May to 8^th June. He left the Notice too late and submitted it on the second week of the June sittings, on 7^th June which was the day before Parliament was to rise. The applicant knew that any notice approved by the Committee could come before Parliament for debate until after one week’s notice had been given and that this motion could not meet that time line. The Notice could not be dealt with by the Committee on Wednesday the 8^th June because Parliament on that day met and adjourned as scheduled. The applicant’s actions in the late submission of the Notice in these circumstances was nothing short of incredible.

17. Secondly, the Committee could not have met and cleared the Notice in time for the 8^th June 2016. The applicant had to be aware that the Committee sat during lunch hours on Wednesdays when Parliament was sitting and that it would sit at lunch time on Wednesday 8^th June. In submitting the Notice on Tuesday 7^th on the day before Parliament was scheduled to rise, he gave little time to the Committee to clear the Notice. The applicant ignored the one-week notice requirement and took upon himself the risk that the Motion could not be moved within the four (4) year period. The applicant has only himself to blame for what happened when Parliament did adjourn to 2 August 2016. The applicant had a history of being extremely negligent in the conduct of this matter. He was the author of his own problems.

18. The Committee required time to examine and clear the Notice. The Committee was charged by Standing order 22 to do more than just the technical requirements of the Notice. Whether or not the Notice was parochial in nature or a matter of national importance was for the Committee to determine under Standing Orders 22 and 130. This Notice had to be subjected to proper scrutiny because the previous three (3) Notices submitted to the Committee came under similar scrutiny and found to be either materially defective or of a parochial nature. For instance, the first motion contained unsubstantiated and/ or scandalous allegations of some MPs by some unknown persons. The second Notice though duly signed by thirteen MPs was parochial in nature because on 29^th October 2015, Parliament passed a motion of confidence in Prime Minister Peter O’Neill by 78 votes in favour and 2 against; and also passed the budget 98 votes to nil votes. The third motion was found by the Committee not to be of national importance but went on to reject the Notice because six (6) of the grounds were defective, that the signatures of some MPs affixed to it were without authorisation and that the subject matter was subjudice and not open to the committee to deliberate upon.

19. Thirdly, the applicant’s case is not a lost cause because a Motion (without naming an alternate Prime Minister) can still be moved in the August sittings, but that only the result will be different. If the motion is successful, the country will go to the elections with a care-taker government.

20. Fourthly, it is argued that there is no challenge to the validity of the Standing Orders. The respondents’ insistence on the Standing Orders being complied with is not unreasonable. The Committee is the only body that should clear a Notice. This Court should not usurp the functions of the Committee to determine the competency of the Notice and declare it to be compliant with Standing Orders 22 and 130.

21. With regard to the actions of the Acting Speaker (Second Respondent) and the Parliament in adjourning the sitting to 2^nd August, the respondents argue that Parliament adjourned early that day because of the shootings at the University of Papua New Guinea and the unfolding of civil disturbances that morning. It was a reasonable decision in the circumstances. Even if the civil disturbances had not occurred, Parliament would still have not dealt with the Motion because the Motion had not been cleared by the Committee and was not before Parliament. Additionally, Parliament could not have sat beyond its scheduled sitting period to entertain the Notice.

22. It is argued that the relief sought, the facts pleaded, and the material relied upon in support, are not clearly articulated and seek orders that this Court lacks jurisdiction to grant.

23. Moreover, even if they were clearly articulated, and even if Parliament were ordered to meet in the coming weeks, there is insufficient time to arrange for MPs to return to Port Moresby on short notice and be given a fair opportunity to exercise their right to debate and vote on the Motion. Most MPs would be greatly inconvenienced and would prove costly for the government in bringing them to Port Moresby for the meeting. In all the circumstances, and in the exercise of its discretion, the court should dismiss the application.

24. Our consideration of these submissions are embodied in our decision in the proceedings part of this judgment.

Findings of Fact

25. Much of the facts are undisputed. Where disputes occurred, those were resolved at the hearing.

26. On 6^th April 2016 (the April sittings), Parliament adjourned to 31^st May 2016 at 2:00 pm for the June sittings. The Second Respondent chaired the meeting as Acting Speaker. In that decision, Parliament did not fix the sitting schedule for the June sittings. Subsequently, the Speaker (First Respondent) published the June sitting schedule on the internet in a website operated by the Parliament, to be from 1^st to 8^th June 2016. The sitting schedule, we are told by the respondents, was fixed by the Speaker in consultation with the “Government Caucus”. The Second Respondent also chaired the June sittings of Parliament. Parliament actually sat on Tuesday 31^st May 2016. The first week of the sitting commenced on Tuesday 31^st May. The second week commenced on Tuesday 7^th June.

27. The applicant attended the Parliament meeting on 6^th April and was aware that Parliament had adjourned to 31^st May 2016. He was or ought to have been aware that Parliament was scheduled to sit from 31^st May 2016 and up to 8^th June 2016. He did not submit or cause to be submitted the Notice in the first week of the June sittings.

28. On Tuesday 7^th June, at 10:25 pm the Notice was delivered to the Office of the Speaker and was received by the Second Respondent. The Notice was expressed to be a notice of motion against Prime Minister Peter O’Neill and named Don Polye as the alternate Prime Minister. The notice was signed by Sam Basil MP as the mover and signed by Grand Chief Sir Michael Somare MP as the seconder. It was signed by a fourteen (14) Members of Parliament (MPs) that included mover and seconder of the Motion. The second respondent intended to put the Notice to the Committee on the next day because Standing Order 22 required the Committee to meet each Wednesday when Parliament was in session. That did not occur because Parliament adjourned at 11:55am on Wednesday.

29. Wednesday 8^th June 2016 was Private Members Business. Parliament commenced sitting at 10:00 am but was adjourned for lack of quorum. The Second Respondent chaired the sitting. Parliament reconvened at 11:00 am. Private members asked questions which were responded to by government Ministers. Parliament adjourned at 11:55pm to 2^nd August 2016 at 2:00 pm for the August sittings, for reasons given by the mover of the motion, the Hon. James Marape. The motion was passed on the voices.

30. It is convenient at this juncture to quote pertinent parts of the Parliamentary Hansards of 8^th June, as follows:

“MR JAMES MARAPE (Tari-Pori – Minister for Finance) – I ask leave of the Parliament to move a motion without notice.

Leave granted.

SPECIAL ADJOURNMENT

Motion (by James Marape) agreed to –

That due to many prevalent issues in the city and country today, the Parliament at its rising, adjourn until Tuesday 2 August 2016 at 2: 00 pm.

ADJOURNMENT

Motion (by James Marape) proposed-

That the Parliament do now adjourn

Mr. Sam Basil – Point of Order!

(Opposition Members Interjecting)

Motion – That the Parliament do now adjourn – agreed to.

The parliament adjourned at 11:55 pm)

31. The Second Respondent could not arrange for a meeting of the Committee to clear the Notice on Wednesday before Parliament adjourned for lunch. He did not inform Parliament before it adjourned, that he had received the Notice, that the Committee was unable to meet in the morning and would meet at lunch to clear the notice in time for it to be placed on the afternoon session as its first item of business. He did not inform Parliament that it had to consider the Motion before 27^th July when the fourth anniversary of Parliament would expire and that no such motion would be moved after that date, and that this was the only time this Motion would have been dealt with.

32. Given that the Notice was of national importance and had to take priority over any other business on that day, there was ample time available in the morning of 8^th June between 8:00 am and 11:30 am for the Committee to meet to clear the Notice but that did not happen. If the Notice was cleared by the Committee in the morning at those times, the Clerk would have tabled the Motion as the first item of business at 11: am, during which the Motion would have been introduced and adjourned for a week for the debate and vote to take place.

33. On record, Parliament adjourned for the reason given by the mover of the motion for adjournment. Parliament did not adjourn for the other reason that the Speaker had scheduled the June sittings from 31^st May to 8^th June and that it could not sit beyond the scheduled period.

34. This is the fourth Notice that has not entered Parliament either because it had been rejected by the Committee or by the Chairman before it reached the Committee, in the space of just over seven (7), since the Supreme Court’s decision in SCR No. 4 of 2013 and SCA No. 177 of 2013, In the Matter of an Application under Constitution, Section 18 (1) By Belden Namah and Ila Geno v The Hon Prime Minister Peter O’Neill, the Hon. Theodore Zurenuoc, Speaker of the National Parliament and the Hon. Kerenga Kua, MP, Attorney General and Minister for Justice, unnumbered judgment of the Supreme Court dated 4^th September, 2015, Injia CJ, Salika Dep CJ, Sakora J, Kirriwom J and Davani J. In that decision, the Supreme Court invalidated constitutional amendments made to s145 and s134 that increased the grace period from 18 months to 30 months, increased the number of members required to sign the notice from one-tenth to one-fifth, increase the period of the notice from one week to one month and reduced the Parliament sitting days in a year by a significant period.

35. On the first occasion, on 29^th October 2015, the Second Respondent rejected a Notice delivered to him on 28^th October 2015, because six of the grounds of the Motion were defective. The Notice was not deliberated upon by the Committee. On the second occasion, on 4^th November 2015, the Committee deliberated on a Notice submitted on 2^nd November 2015 and rejected it because it was of a parochial nature in that on 29^th October 2015, Parliament had passed a Motion of Confidence in the Prime Minister Peter O’Neill by a vote of 78 to 2 and also passed the budget by unanimous vote. The Second Respondent chaired the Committee and the Parliament session on that day. On the third occasion, on 31^st March 2016, the Notice was delivered to the Second Respondent. The Committee rejected the Notice that was submitted to him on 22^nd March 2016, on the grounds that some signatures may have been affixed to the motion without proper authorisation and also that the matter was subjudice because a Constitutional Reference filed by the ruling People’s National Congress Party on 23^rd March 2016 was pending before the Supreme Court.

Notice of Motion of No Confidence Procedure

36. Section 142 (5) (a) of the Constitution provides for the Prime Minister to be dismissed from office by the Head of State in accordance with a motion of no confidence successfully moved against him, in accordance with s145 (motions of no confidence), if the motion is moved before the fifth anniversary of date fixed for the return of writs for the previous general election. In this case, that anniversary will occur on 27^th July 2016.

37. Section 145 of the Constitution provides:

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.

38. Standing Orders 22, 130, 131 and 132 set out the procedure for dealing with a Notice in the following terms:

Private Business Committee

22 (1) A Private Business Committee shall be appointed at the commencement of each Parliament

(2) The Committee shall consist of Mr. Speaker, the Deputy Speaker and five other elected Members (who shall not be Ministers).

(3) The functions of the Committee are:

(a) to meet each Wednesday during meetings of the Parliament to examine all notices of motion submitted to the Committee under SO 130, and to determine whether the terms of the motion are of a parochial nature or of national importance; and

(b) on determining that a notice is of national importance, to deliver a copy of the notice to the Clerk for reporting to the Parliament; and

(c) on determining that a notice is of a parochial nature, to return the notice to the Member proposing the motion with a recommendation –

(i) That the Member consult with the Minister or authority concerned; or
(ii) That the Member places a question relating to the subject matter on the Question Paper; or
(iii) That the Member may otherwise achieve more quickly and effectively the action sought by him; and

(d) to determine the order in which notices and Orders of the Day on the Notice Paper shall be considered on sitting days when private business has precedence.

(4) Should a quorum of Members of the Committee not be available before 1:45 pm; the functions of the Committee under s3(a), (b) and (c) shall be carried out by the Speaker.

Private Notice of Motion

130 (1) A private notice of motion shall be submitted to the chairman of the Private Business Committee.

(2) The Notice must be signed by the Member and the seconder.

(3) After determining that a notice of motion is in order under Standing Order 22, the Private Business Committee shall deliver a copy of its terms to the Clerk.

(4) For purpose of this Standing Order, a notice of motion of no confidence given under s145 of the Constitution is a private notice of motion and shall have precedence on Private Business Day”.

Reporting of Notices

131. On receipt of a notice of motion under Standing Order 129 or 130, the Clerk shall, at the first opportunity, report the terms of the notice of motion to the Parliament.

Order of Notices

132. Notices given under Standing Orders 129, 130 or 191 shall be entered by the Clerk on the Notice Paper in the order in which they were reported to the Parliament.

Notice of Motion of No Confidence of 7^th June and Actions of the Private Members Committee and its Chairman the Hon. Aide Ganasi, MP.

39. We find from the provisions of the Constitution and the Standing Orders cited above that a Notice given under s145 (1)(b) of the Constitution, given in accordance with the Standing Orders, is purely a notice to move a motion under s145 (1)(a); it is not the Motion itself; and as such the Notice should contain only those technical requirements stipulated in Constitution s145 and Standing Order 230. In the absence of any prescribed form of such notice in the Standing Orders, the form should make provisions for these technical requirements to be supplied. Because the notice itself is not the Motion, the Notice should not be accompanied by a statement of the reasons for the proposed Notice. Parties in this case accept this to be the case. Therefore, the Committee should only concern itself to the form of the Notice as to whether it meets the technical requirements.

40. There are five (5) technical requirements of the Notice. The Notice:

(1) Is expressed to be a motion of no confidence in a named Prime Minister: Constitution, s145 (1)(a).

(2) Must state the name of the alternate Prime Minister: Constitution, s145 (2)(a).

(3) Must name the person and contain the signature of the person moving the motion: Standing Order 130(2).

(4) Must name person and contain the signature of the person seconding the motion: Standing Order 130(2).

(5) Must name the persons and contain the signatures of not less than one – tenth of the Members of Parliament that support the motion: Constitution, s145 (1)(b).

41. The Notice submitted under Standing Order 130 is no ordinary Notice of Motion that may be given under the Standing Orders. The Constitutional importance of a notice of motion of no confidence in the Prime Minister or a Minister and the special care and priority to be accorded to it by Parliament, (and its Committee), MPs and the Parliamentary executive were emphasised by the Supreme Court in its’ decision in Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC1057 and needless to repeat them here.

42. The notice of motion of no confidence in the Prime Minister is a Constitutional motion that is required by s145(3) of the Constitution to be given in accordance with the procedures of Parliament contained in the Standing Orders and it should not be treated in the same vein and manner as any ordinary notices of motion that are required to be given by the Standing Orders. A notice of motion of no confidence is not a parochial matter but one of national importance because of its ability to change government if it is successfully moved. Granted the five (5) technical requirements are met on the face of the Notice, it should be cleared by the Committee without difficulty, in little time in order for it to be tabled in Parliament by the Clerk without delay. Standing Order 22(4) and 130(4) correctly envisages a notice of motion of no confidence will take utmost priority over any other private members’ business and be tabled in Parliament as the first item on Private Members Business day. Those provisions envisage that the Committee would meet on a Wednesday which happens to be the same day on which Parliament convenes to deal with private members’ business and that the Committee would clear all private members’ notice of motion on that day in time for the notices that are cleared by the Committee to be tabled by the Clerk on the same day. If the Committee does not meet due to lack of quorum on that day before 1:45 pm, the Speaker performs the duties of the Committee to clear the Notices in time for the motions to be introduced in the afternoon session which starts at 2:00 pm. The time frame for the Committee to meet and clear the notices is in hours and minutes for individual items. Given this scenario, a notice of motion of no confidence being what it is, should take very little time for the Committee to clear it by satisfying itself that it meets the five technical requirements. Of the requirements, the more substantive requirements of Constitutional significance are the mover, seconder and the signature of one-tenth of the Members of Parliament. If there are defects in this requirement, it is for Parliament to resolve, by recourse to verification or confirmation by the responsible MPs who authored and signed the notice, when the motion is debated and voted upon.

43. It is not for the Committee to vet the Notice and terminate it before it reaches Parliament. The Committee is given no such power by s145 of the Constitution and the Standing Orders to terminate a notice of motion of no confidence before it reaches parliament. Provided the five technical requirements have been met, the test in Standing Order 22 (3) does not apply to a motion of no confidence. A notice of motion of no confidence is too important a matter of national importance to be terminated by the Committee under Standing Order 22.

44. It defeats the principle of a reasonable Parliament, a responsible and accountable parliamentary Executive, is in usurpation of the functions of the Parliament and in violation of the rights of members of Parliament, for a notice of motion of no confidence to the Committee or its Chairman to subject the Notice to rigorous scrutiny and examination for technical defects in form and substance and terminate the notice before it reaches Parliament.

45. In the present case, the Notice was given to the Speaker on Tuesday 7^th June in time for it to be cleared by the Committee to go before the Parliament the next day. We are satisfied that the Notice met all the five (5) technical requirements and would have taken very little time, from a few minutes to under ten (10) minutes, to clear it. The Acting Speaker was aware of the Notice but he failed to convene a meeting of the Committee to clear it, between 8:00am and 11:00 am on Wednesday 8^th June in order for it to go before Parliament at 11:00 am that morning. If he had difficulty in securing the quorum for the Committee meeting that morning, he ought to have delivered the Notice to the Clerk himself for it to be tabled in Parliament that morning pursuant to Standing Order 22(4). When Parliament convened at 11:00 am on 8^th June, he failed to table the Notice as priority on Private Business day. When the Motion was moved for Parliament to adjourn, he allowed the motion to proceed and failed to inform Parliament that he had received the Notice and the consequences of that notice if it was not dealt with before 27^th July 2016. Such information would have assisted MPs to make an informed decision on whether or not to adjourn for that long. To make it worse, when members of the opposition interjected on the motion for adjournment, he failed to allow debate on the motion and brought on the vote prematurely and recognized the passage of the motion on the voices. In the circumstances, he committed a breach of s145 (10 and (2) of the Constitution. Consequently, he also committed a breach of the rights of MPs to move the Motion given by s111 of the Constitution. He also deprived Parliament of the opportunity to conduct proceedings on the Motion given by s115 of the Constitution.

46. We agree with the respondents that the applicant brought or caused the Notice to be submitted late giving short time for the Committee to meet to clear it before Parliament resumed at 10:00 am the next morning. However, given the Constitutional and national importance of the Notice and the Motion and the urgency with which it is treated by the Standing Orders, and given the technical requirements that were met by this Notice and which required very little time for the Committee to clear it, there was more than adequate time at the Committee’s disposal for the Committee to clear the Notice between 8:00 am and 11:00 am on 8^th June in time for the motion to be dealt with as the first item of private members’ business at 11:00 am.

47. We find these four rejections constituted a pattern that follows the decision of this Court in September 2015, in SCR No. 4 of 2013 and SCA No. 177 of 2013, In the Matter of an Application under Constitution, Section 18 (1) By Belden Namah and Ila Geno v The Hon Prime Minister Peter O’Neill, the Hon. Theodore Zurenuoc, Speaker of the National Parliament and the Hon. Kerenga Kua, MP, Attorney General and Minister for Justice, unnumbered judgment of the Supreme Court dated 4^th September, 2015, Injia CJ, Salika Dep CJ, Sakora J, Kirriwom J and Davani J. The Supreme Court in that case emphasised the national and constitutional importance of a motion of no confidence and discouraged actions by the Parliament and its members that curtail or frustrate a vote of no confidence from being moved against the Prime Minister or a Minister, and for every steps to be taken by those persons charged with managing the conduct of the business and proceedings of Parliament to ensure that those things do not happen. The Supreme Court in its earlier decision in Special Reference by the Fly River Provincial Executive re OLIPAC (2010) SC1057 emphasised that a motion of no confidence must be allowed to be given freely and debates and vote on it to be taken in complete freedom and according to the individual conscience of MPs. In those two cases, it was the legislative actions of the Parliament in enacting Constitutional amendments that were the subject of those judicial pronouncements. They equally apply to the actions of the Parliamentary Committee and Parliamentary Service personnel concerned in this case. The decisions of the Committee and the actions or omissions of the Speaker or Acting Speaker in the present case goes completely against the Constitutional principles that were articulated in that case. Such actions of the Committee and the Speaker is an affront to the rule of law and a real threat to Parliamentary democracy in this country and should be visited with the sternest of warnings and even impose civil and criminal sanctions provided under s23 of the Constitution on those responsible if this trend continues.

48. It is true the three (3) previous Notices were rejected by the Committee for different reasons, some of which may be reasonable or legitimate. The fourth one has not yet reached the Committee. Clearly, there is a pattern that has developed, that all four Notices, submitted in the space of just over 8 months have not progressed beyond the Committee stage. Whatever the reasons are, the fact remains that these rejections are unprecedented, and they undermine and pose a real threat to Parliamentary democracy in this country.

49. We are of the strong view that as a matter of Constitutional law and in the interest of good governance with a responsible and accountable Parliament and Parliamentary executive, a notice of motion of no confidence and the motion itself are far too important a matter of critical national importance that it should be, if it meets the technical requirements, tabled in Parliament by the Clerk, as a matter of urgency, in the first available opportunity when Parliament meets to conduct Private Members’ Business, and that when the motion is tabled by the Clerk, it should take precedence over any other private MPs’ business. The function of the Committee in clearing the motion is largely clerical.

Parliament’s decision to Adjourn to 2 August 2016 and the Conduct of the Acting Speaker the Hon. Aide Ganasi MP.

50. The office of the Speaker and the Deputy Speaker are established by the Constitution. The importance of the high office of the Speaker and his duties have been emphasised by this Court in several decisions of this Court: Special Reference by the Morobe Provincial Executive; re Election of Governor General (2010) SC1089, Special Reference by the Morobe Provincial Executive; re Election of Governor General (2010) SC1089, Special Reference by East Sepik Provincial Executive; re Election of Prime Minister (2011) SC1154 and Special Reference by Dr. Allan Marat, Minister for Justice; re Prime Minister and National Executive Council Act (Amendment)(2012) SC1187.

51. The independence of the Office of the Speaker and his duty to act fairly in regulating the proceedings of Parliament has been emphasised by this Court in those cases cited above. In those decisions, the conduct of various Speakers and the Parliament as a whole came under heavy criticism from this Court, because the Court noticed a trend developing then in which the Speakers and MPs were repeatedly failing to take their job seriously and with impartiality and that threatened the independence, dignity, respect and effectiveness of Parliament.

52. The central role of the Parliament and its elected members in the Constitutional structure of government in Papua New Guinea is well known. The powers and functions of the Parliament, the special privileges and immunities enjoyed by Parliament and its members, complete freedom of speech, debate and proceedings of Parliament enjoyed by members of Parliament and the rights of members to introduce bills and motions were spelt out at length by this Court not so long ago in the Supreme Court’s decision in Special Reference by the Fly River Provincial Executive; re OLIPAC (2010) SC1057.

53. But Parliament as an institution of government cannot of its own conduct activities to achieve its Constitutional mandate. Parliament’s activities depends solely on the activities of its members that constitute it and its administrative support personnel. It is conduct of those persons that can make or break the proper and effective functioning of Parliament as an institution of government.

54. Parliament as an institution and collective body comprises of honourable and respected members who represent their respective electorates in their own right. They are each entitled by law to be informed of the grounds and reasons in sufficient detail upon which a motion without notice to adjourn Parliament for a lengthy period is proposed to be moved. Parliament is not the Government or the Opposition or members who align themselves with those groupings. It is independent and conducts its own business and proceedings in accordance with law. Matters which are not placed before Parliament should not be left to the assumed knowledge of MPs. Each MP has every right to have prior notice of any motion with or without notice to adjourn Parliament beyond its scheduled time or days and the reasons in support of the motion so that they can meaningfully debate the motion and make an informed decision on whether or not they should vote in favour of the adjournment.

55. It is also true that the conduct of meetings of Parliamentary Committees and proceedings of Parliament are the functions of the legislature and they are protected by Parliamentary privileges and immunities and firmly grounded in the Constitution; and it is not for this Court to tell Parliament how it should run its business. However, it is also established principle of Constitutional law that Parliament’s powers and functions and the manner in which they are performed or exercised are subject to and limited by the Constitution itself; and where Parliament has been found by this Court to have overstepped its limit or abused its powers, it is within this Court’s power and function to say so and issue declaratory and injunctive orders to remedy the situation. And this Court has done that, without question, in many cases that have come before the Court.

56. We are satisfied that the actions of the Second Respondent in his capacity as the Acting Speaker and also the Acting Chairman of the Private Business Committee, is reminiscent of the actions of past Speakers who came under heavy criticism in the cases decided by this Court referred to above. Perhaps it is time now for individual persons charged with administering the business affairs of the Parliament to be held personally accountable. It is for these reasons that if this Court were to find in favour of the applicant, it should articulate the principles at stake and issue orders that are enforceable against individual persons charged with managing the affairs and conduct of the business of Parliament. Principles and Orders, yes, they have been articulated well and long enough in the past, and their adherence and compliance is still a concern. It is time we believe that this Court should consider imposing civil and criminal sanctions on those found to be responsible for breach of Constitutional duty found in s23 of the Constitution.

57. We are of the view that the adjournment of Parliament and the number of sitting days for any one sitting, is subject to s124 of the Constitution, a matter for Parliament to determine at each sitting in accordance with the requirements of the business of the Parliament before it. It is not the function of the Speaker to conclusively pre-determine the sitting day period in advance for any one sitting(s). When parliament adjourned itself on 6^th April 2016 to 31^st May 2016, Parliament did not then fix a time period for the June sittings. The Speaker (First Respondent) acted outside of his powers by pre-fixing the sitting days for the June 2016 sittings in consultation with the government caucus, by publication of the sitting schedule on the internet.

58. It is true that the adjournment of Parliament on Wednesday 8^th June coincided with the published schedule for the June sittings. But parliament had to determine its own sitting schedule by resolution. In this instance, Parliament did decide to adjourn the sittings to June but adjourned for a different reason. Even then, that reason, we are satisfied, did not warrant the lengthy adjournment. The fact that there were civil disturbances arising from the University unrest was all the more reason why Parliament should have adjourned for a few days to allow the situation to return to normal. Further, had the Acting Speaker informed Parliament of the existence of the notice of motion of no confidence that was delivered to him on 7^th June, and that parliament will be required to sit for the Motion to be tabled after the Committee had cleared it, any reasonable Parliament in that situation in all probability should have continued to sit in the afternoon to deal with the Motion.

59. In the case before us, Parliament was proposed to be adjourned for a reason other than the one the Speaker had published on the website. And the motion was introduced without full reasons and allowed to be moved in very short time and passed on the voices without debate. Opposition members present who interjected were ignored by the Chair.

60. We are satisfied that had the Acting Speaker informed parliament that there was a notice of motion of no confidence submitted to him which was pending before the Committee and its serious Constitutional implications if Parliament were to adjourn, any right thinking Speaker would not have granted leave for the motion without notice to be introduced; or even if leave was granted, he would have allowed for full debate to enable Parliament to make an informed decision. Better still, the Speaker should have given the notice to the Clerk under Standing Order 22(4) to table it as the first item of private members’ business on the morning of 8^th June, if the Committee could not meet in the morning, and the motion would have been introduced by its mover and seconder and adjourned for a week for the debate and vote. Parliament in the circumstances reached an unreasonable decision that directly infringed the rights of members to introduce the Motion and for members to debate and vote on the motion.

61. We are satisfied that had the Acting Speaker informed that there was a Notice of Motion of No Confidence submitted to him which is pending before the Committee and its serious Constitutional implications if Parliament were to adjourn, any right thinking Speaker would not grant leave for the motion without notice to be introduced; or even if leave was granted, he would have allowed for full debate to enable Parliament to make an informed decision.

62. Better still, if the Committee was unable to meet between 8:00 am and 11:00 am on Wednesday, the Speaker should have given the Notice to the Clerk under Standing Order 22(4) to table as the first item of private members’ business on the morning of 8^th June and the Motion would have been introduced by its sponsor and adjourned for a week for the debate and vote. Parliament in the circumstances reached an unreasonable decision that directly infringed the rights of members to introduce the Motion, debate and vote on it.

63. We are of the view that although the application is also based on a breach of s134 of the Constitution, the facts before us do not support the claim.

64. We also note here that some of the findings of Constitutional breaches of s115 of the Constitution are not pleaded in the application. However, the facts establish those breaches, and in the exercise of our discretion, we have made those findings as a matter of principle.

65. It is true that to some extent, the applicant in this case has blamed everyone else but himself, in seeking relief from Parliament and from this Court in a belated manner. His actions in delaying the Notice to the second week of June 2016 sittings has and will continue to prove burdensome for the respondents and this Court too, in marshalling time and resources in a short space of time in order to meet deadline of 27^th June 2016. Be that as it may, important Constitutional principles are at stake here and matters of political, economic and administrative expediency and costs should, in our view, give way to dictates of the Constitution.

66. For the foregoing reasons, we are satisfied that the Acting Speaker and the Parliament committed the following Constitutional breaches:

(1) The Second Respondent breached Sections 141, 142 and 145 by failing to convene a meeting of the Committee to clear the Notice to allow the Motion to go before Parliament on 8^th June 2016;

(2) The Second Respondent breached Sections 142 and 145 of the Constitution by failing to inform Parliament of the impending Notice and Motion and its likely consequences if the Motion was not dealt with by Parliament before 27^th July 2016 to enable Parliament to make an informed decision on whether or not to adjourn to 2^nd August 2016;

(3) The Second Respondent breached Section 145 of the Constitution and Standing Orders 130(4) and 22 by granting leave to move a motion without notice and facilitated a motion to adjourn Parliament to a date beyond 27^th July 2016 thereby rendering the notice of motion of no confidence given to him on 7^th July ineffective;

(4) The Second Respondent breached Sections 111 and 115 of the Constitution by depriving MPs of their right to move the Motion and to debate and vote on the motion with complete freedom;

(5) The Second Respondent breached Section 115 of the Constitution by depriving Parliament of its conduct of the Motion by failing to take steps to clear the Notice in time for Parliament to consider it on the morning of Wednesday 8^th June 2016; and

(6) The Parliament breached Sections 111, 115, 142 and 145 of the Constitution by making an unreasonable decision to adjourn parliament for an unsubstantiated reason and which prevented the notice of motion of no confidence from being moved on the 8^th of June 2016 and deprived members of their right to move the motion.

Conclusion

67. For the foregoing reasons, we are satisfied that the applicant has proven his case to the required civil standard of proof and would grant the application with appropriate orders to follow. The orders granted by this Court are to take into account the fact that there are only fifteen (15) days away before 27^th July 2016 being the date on which the fourth anniversary of the current term of Parliament will end; that the next meeting of Parliament conducted as a result of the orders we will require the motion to be tabled by the Clerk and introduce in Parliament by its mover in time for the debate and vote to take place within a week; all of which are to take place before 27^th July 2016.

68. The orders will take into account the fact that we have found the Notice meets all the technical requirements stipulated by the Constitution and the Standing Orders and it is with the Acting Speaker or the Speaker. We are mindful that the Notice is bound to receive the same treatment given to the previous three Motions, more time will be lost in the process and the breach of the Constitutional provisions referred to will continue unabated. For this reason, this Court will tailor its orders accordingly, pursuant to its inherent powers given by Constitution, s154(4).

Orders

69. The Court grants declarations and orders in the following terms, as follows:

(1) The application is granted

(2) A declaration is granted that it is mandatory for the process prescribed by Section 145 of the Constitution which includes Standing Order 130 to be fully complied with when a Motion of No Confidence in a Prime Minister is submitted to the Chairman of the Permanent Parliamentary Committee on Private Business (the Committee).

(3) A declaration is granted that the actions of the Second Respondent as the Acting Speaker of Parliament and Chairman of the Committee on Private Business, the Hon. Aide Ganasi MP, in failing to convene a meeting of the Parliamentary Committee on Private Business and in failing to inform Parliament of the pending Notice of Motion of No Confidence in the Prime Minister and in failing to conduct the meeting of the Parliament on 8^th June 2016 in such a way as to facilitate the introduction of the said Motion of No Confidence in Parliament thereby preventing debate by Parliament on the No Confidence Motion lodged on 7^th June 2016; and are contrary to Sections 111, 115, 141, 142 (5) (a) and 145 of the Constitution; and are therefore unconstitutional and invalid.

(4) A declaration is granted that the said actions of the Second Respondent referred to in order No. 3 hereof denied the rights of members of Parliament to introduce the said Motion and debate and vote on the said Motion contrary to Sections 111 and 115 of the Constitution and therefore unconstitutional and invalid.

(5) A declaration is made that the Parliament’s decision made on 8^th June 2016 was unreasonable and inconsistent with or in breach of Sections 111, 142 and 145 of the Constitution and declared invalid pursuant to s11of the Constitution.

(6) A declaration is granted that the said Motion of No Confidence in the Prime Minister lodged with the Speaker on 7^th June 2016 complies with the technical requirements of Section 145 of the Constitution and Standing Orders 22 and 130.

(7) An order is made the Clerk of Parliament place the Notice as the first item of business of Parliament on the first day of the sitting held pursuant to Order No.5 hereof.

(8) An order is made that the Speaker recall Parliament forthwith within five (5) days inclusive of today, for the Motion of No Confidence to be introduced, debated and voted upon in accordance with Sections 111, 115, 141, 142 and Section 145 of the Constitution, as a matter of national importance and national urgency.

(9) These orders take effect forthwith.
________________________________________________________________
Henaos Lawyers: Lawyers for the Applicant
Twivey Lawyers: Lawyers for the Respondents