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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCCOS NO 7 OF 2020
APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)
APPLICATION BY
THE HONOURABLE PETER O’NEILL MP
Waigani: Salika CJ, Cannings J,
Manuhu J, Hartshorn J, Kariko J
2020: 3rd, 9th December
CONSTITUTIONAL LAW – sittings of National Parliament – whether decision of the Parliament to adjourn its sittings was made in breach of the Organic Law on the Calling of Meetings of the Parliament, s 2(1)(a)(i).
PARLIAMENT – offices of Speaker and Deputy Speaker – whether Speaker may, outside a sitting of the Parliament, validly overrule a ruling of the Deputy Speaker or a decision of the Parliament as to Parliament’s next sitting –Constitution, ss 107, 108, 114 – whether a decision by the Speaker to recall Parliament is subject to the principles of natural justice – Constitution, s 59.
PARLIAMENT – whether business of the Parliament transacted at a sitting of the Parliament called without lawful or proper notice to all members of the Parliament, is constitutional – whether National Budget passed at an unconstitutional sitting of the Parliament, is valid and effective – whether a decision of the Parliament to adjourn the Parliament, made at a sitting that is unconstitutional, is valid and effective.
REMEDIES – whether the Supreme Court can order the Parliament to sit at a date other than the date on which the Parliament has decided to conduct its next sitting or meeting – Constitution, ss 22, 23, 99, 155(4).
On 10 November 2020 the National Parliament commenced meeting, and sat on 11, 12 and 13 November 2020. On 13 November 2020, when the Deputy Speaker was presiding, the National Parliament decided that it would sit next on 1 December 2020. On 16 November 2020 the Speaker of the National Parliament publicly announced his opinion that the ruling of the Deputy Speaker on 13 November 2020, which led to the decision to sit next on 1 December 2020, was incorrect. The Speaker stated that the ruling was contrary to s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament and the Standing Orders as the decision to adjourn to 1 December 2020 was preceded by a motion by the Leader of the Opposition, not by a motion by a Minister. The Speaker overruled the decision of the Deputy Speaker and stated that the meeting that commenced on 10 November 2020 was still in progress and shall only be adjourned by a Minister on motion without notice pursuant to the Standing Orders and the Organic Law on the Calling of Meetings of the Parliament. As a result of the Speaker’s public announcement, the Parliament sat on 17 November 2020. It passed the 2021 National Budget and adjourned to 20 April 2021. On 18 November 2020, the applicant, a member of the Parliament opposed to the government, commenced proceedings under s 18(1) of the Constitution, seeking various declarations and orders, including a declaration that the decision of the Parliament of 13 November 2020 to adjourn to 1 December 2020 was constitutional; a declaration that the Speaker’s overruling of the decision of the Deputy Speaker amounted to an overruling of the decision of the Parliament to adjourn to 1 December 2020 and was unconstitutional; a declaration that the business of the Parliament transacted at the meeting on 17 November 2020, including the passing of the National Budget and the adjournment to 20 April 2021, was unconstitutional; and an order that the Parliament shall meet as soon as is practicable.
Held:
(1) The Parliament’s decision of 13 November 2020 involved no breach of any procedure prescribed by any Constitutional Law, and in particular involved no breach of s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament. The decision of the Parliament was to adjourn the sittings of the Parliament to 1 December 2020 and could be made on a motion by the Leader of the Opposition. The decision was not to call a new meeting of the Parliament.
(2) The Speaker’s decision of 16 November 2020 to overrule the Deputy Speaker’s rulings of 13 November 2020 (which necessarily entailed the overruling of the Parliament’s decision to adjourn to 1 December 2020) was made in excess of his powers, functions, duties and responsibilities under s108 of the Constitution and was unauthorised by any other law and was unconstitutional, invalid and ineffective.
(3) The sitting of the Parliament on 17 November 2020 was unconstitutional as it took place only because of the unconstitutional decision by the Speaker of 16 November 2020 to overrule the Deputy Speaker’s rulings of 13 November 2020, which had the effect of overruling a constitutional decision of the Parliament of 13 November 2020 to adjourn its sittings to 1 December 2020.
(4) Declarations were made accordingly; and it was ordered that the next sitting of the Parliament shall be on 14 December 2020 at 10.00 am.
Cases Cited
The following cases are cited in the judgment:
Application by Namah (2020) SC2040
Haiveta v Wingti (No 1) [1994] PNGLR 160
Haiveta v Wingti (No 3) [1994] PNGLR 197
Namah v O’Neill (2015) SC1617
Namah v Pato [2014] PNGLR 150
PLAR No 1 of 1980 [1980] PNGLR 326
Re Petition of MT Somare [1981] PNGLR 265
SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] PNGLR 233
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319
SC Ref No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336
SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151
SC Ref No 3 of 1999 Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285
SC Ref No 4 of 1990 Reference by Acting Principal Legal Adviser re Meetings of Parliament [1994] PNGLR 141
SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500
The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491
APPLICATION
This was the determination of an application under s 18(1) of the Constitution.
Counsel
G J Sheppard & P Tabuchi, for the Applicant, the member for Ialibu-Pangia Open, Hon Peter O’Neill MP
C Mende & C Gagma for the First Intervener, the Speaker of the National Parliament, Hon Job Pomat MP
N Yalo, for the Second Intervener, the Attorney-General, Hon Pila Niningi MP
9th December, 2020
1. SALIKA CJ: This is an application under s 18(1) of the Constitution asking the Supreme Court to interpret and apply ss 11, 12, 18, 22, 37, 41, 50, 108, 114, 124, 155(4), 209, 210, 211 and 225 of the Constitution and ss 1, 2 and 3 of the Organic Law on the Calling of Meetings of the Parliament (the Organic Law).
2. Section 18 provides:
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other Courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
3. The applicant invokes this provision to address his grievance by way of this application.
FACTS
4. The facts in this application are not disputed and the applicant and interveners have agreed to the following:
PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
5. The relevant principles of constitutional interpretation are well entrenched in this jurisdiction and I restate them here as follows:
6. The principles of constitutional interpretation in PNG are well established. The Supreme Court in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233 restated those well-established principles. They are:
(i) In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution s 158(2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Sch 1.4. Each Constitutional Law is intended to be read as a whole: Constitution, Sch 1.5(1).
(ii) In cases where the word of expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.
(iii) But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2).
(iv) The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR No 1 of 1980 [1980] PNGLR 326, SC Ref No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336, SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No 3) [1994] PNGLR 197. The Judges are urged to use “judicial ingenuity” in appropriate cases, to do justice”: Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a Constitutional Law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500.
(v) However, there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not shy away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.
(vi) In interpreting the Constitution, the Judges may use certain aids. These include the Reports of the Constitutional Planning Committee (Constitution, s 24) and the National Goals and Directive Principles (Constitution, s 25).
7. The above restated principles above are a constant reminder to the Courts dealing with issues of interpretation of the Constitution in applications under s 18(1) and Supreme Court references under s 19 of the Constitution.
ISSUES
8. The following issues arise from the facts:
(1) Whether the Parliament's decision on 13 November 2020 to adjourn to 1 December 2020 based on a motion without notice by the Opposition Leader Hon Belden Namah was constitutional.
(2) Whether the Speaker's decision on 16 November 2020 to "overrule" the decision made by the Deputy Speaker to grant leave to the Opposition Leader to move a motion to adjourn the Parliament from 13 November 2020 to 1 December 2020 was unconstitutional.
(3) Whether the Parliament meeting on 17 November 2020 was unconstitutional.
(4) Whether the decisions of the Parliament made at its meeting on 17 November 2020 are constitutional and valid:
(i) the decision to adjourn Parliament to 20 April 2021; and
(ii) the passing of the Appropriation (General Public Service Expenditure 2021) Act 2020 ("the Budget"); and
(iii) the decision to change the membership of the Members’ Private Business Committee.
DEALING WITH THE ISSUES
ISSUE 1: WHETHER THE MOTION BY HON BELDEN NAMAH, THE LEADER OF OPPOSITION, ON 13 NOVEMBER 2020 TO ADJOURN PARLIAMENT TO 1 DECEMBER 2020 WAS CONSTITUTIONAL AND THEREFORE VALID
9. The facts relating to this issue are that the Parliament had adjourned to 10 November 2020 at its September meeting. On Tuesday 10 November 2020, Parliament started its November meeting. The purpose of the meeting was, as I understand, among other business of Parliament, to pass the Appropriation Bills (the Budget) for the year 2021.
10. On Friday 13 November 2020 the Deputy Speaker, Hon Koni Iguan MP, at the material time presided over the session of Parliament in the absence of the Speaker, Hon Job Pomat MP.
11. Section 108 of the Constitution provides:
(1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.
(2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker. [underlining mine]
(3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.
12. Pursuant to s 108(2) the Deputy Speaker, when presiding in Parliament, in the absence of the Speaker, exercises all the rights, privileges, powers, functions and responsibilities of the Speaker.
13. The Leader of the Opposition sought leave to suspend so much of the Standings Orders as applicable and was granted leave by the Deputy Speaker, who was then in the Speaker's Chair. Hon Namah moved the motion to adjourn Parliament to 1 December 2020. Parliament by majority 57 to 39 adjourned to 1 December 2020.
14. The Speaker, Hon Job Pomat, heard of the adjournment and formed the view that the adjournment was contrary to s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament, which provides:
In relation to any meeting of the Parliament, other than the first meeting after a general election, the time and date for the meeting shall be fixed by the Parliament on motion without notice by a Minister.
15. The Speaker also relied on s 43 and s 47 of the Standing Orders to support his view or contention that the adjournment by Parliament to 1 December 2020 was not valid. His reason was that the Chair, then the Deputy Speaker, had wrongly exercised his powers and functions to grant leave to Hon Belden Namah to move a motion without notice to adjourn Parliament to 1 December 2020, on the basis that the Deputy Speaker had breached s 2(1)(a)(i) of the Organic Law.
16. This was also compounded by advice he evidently got from the Clerk of the Parliament and legal advisers that the adjournment of Parliament to 1 December 2020 was not constitutional and therefore invalid. The advice led the Speaker to believe that the motion by Hon Namah to adjourn Parliament to 1 December 2020 was not constitutional and valid.
Was the motion to adjourn Parliament invalid by reason that Hon Belden Namah was not a Minister?
17. The applicant submitted through his counsel that the motion by the Leader of the Opposition was not invalid in that the motion was not to fix a new date for the calling of a meeting of Parliament, but to adjourn the sitting date within the same November meeting.
18. The applicant therefore argued that the Opposition Leader's motion without notice on 13 November 2020 only adjourned the sitting days of Parliament and did not fix a time and date for another or new meeting of Parliament. Section 2(1)(a)(i) of the Organic Law requires meetings of Parliament to be “fixed by the Parliament on motion without notice by a Minister”. In this case, the evidence shows, and it is conceded, Hon Belden Namah, who was not a Minister, moved the motion to adjourn Parliament to another date within the same meeting session. He was not fixing a new meeting time and date under s 2(1)(a)(i). At that stage of the proceedings of Parliament there was no apparent breach of any Constitutional Law or Standing Orders or an Act of Parliament.
19. It is to be noted that s 2(1)(a)(i) of the Organic Law does not itself provide who is to move a motion to adjourn Parliament from day to day or from one sitting day to another sitting day within the same meeting period. Does that duty belong also to a Minister or the Leader of Government Business or the Speaker? The Constitutional Laws are silent on that.
20. The Standing Orders do not provide for who is to move a motion to adjourn Parliament from day to day when it is meeting. That in my respectful opinion should be a matter for the Standing Orders of Parliament to dictate. The argument is that even if the Standing Orders provided for that, and even if they were breached, that breach would not be justiciable. See Application by Namah (2020) SC2040.
21. The Speaker's reliance on s 2(1)(a)(i) of the Organic Law to overrule the Deputy Speaker's rulings, granting leave to Hon Belden Namah to suspend Standing Orders and to move to adjourn Parliament to 1 December 2020, is not constitutionally correct, in my respectful view. This is because s 2(1)(a)(i) of the Organic Law does not specifically provide for adjournment of Parliament from its day to day sittings or even in the circumstances of this case.
22. Moreover, the Speaker's reliance on s 2(1)(a)(i) of the Organic Law, on 16 and 17 November 2020, to overrule Parliament’s decision (57 votes to 39) to adjourn Parliament to 1 December 2020 is also wrong, in my respectful view. The Deputy Speaker did not act contrary to s 2(1)(a)(i) of the Organic Law. He did not breach any Constitutional Law in that regard. The Speaker was obliged to get a proper interpretation from the Supreme Court, rather than rely on his advisers or on his conscience.
23. The Speaker's roles, duties, functions and responsibilities are spelt out by s 108 of the Constitution. He is the head of the First arm of Government under our democratic Westminster system of government. To question a decision of the Parliament, whether that decision is right or wrong, is not for the Speaker to overrule in the manner he did. The rulings and decisions of the Deputy Speaker, when he or she is in the Chair, is recorded and “sticks” and is not to be altered later by the Speaker. The Deputy Speaker’s ruling is the decision and the Speaker can do nothing to alter or change it, whether the Deputy Speaker’s ruling or decision is right or wrong.
24. It was submitted by the Attorney-General that the Speaker acted well within the ambit of the broad powers conferred on him by s 108(1) of the Constitution. The Speaker has broad powers when he is in the Speaker’s Chair in Parliament regulating the proceedings in the Chambers of Parliament and making decisions on the floor of Parliament.
25. The Constitution and the Organic Law do not allow him to do what he did outside of Parliament to overrule the rulings and decisions of the Deputy Speaker.
26. There are constitutional requirements to recall Parliament earlier than the fixed time and date. For instance, in emergency situations created under ss 227 and 228 of the Constitution. The recalling of Parliament by the Speaker, in this instance did not warrant such a recall. The Attorney-General submitted that anyone who complained about the Speaker’s action is a person who does not care about the Constitution. The Attorney-General questions the applicant’s application to come to Court. The Attorney-General, with respect, must appreciate that it not the Speaker’s role to interpret the Constitution under s 108 of the Constitution. If the Speaker was aggrieved with the actions of the Deputy Speaker, he was at liberty to come to the Supreme Court and not do what he did. If he acted on advice, he was wrongly advised.
27. Going by the evidence presented and the facts agreed, I am of the firm view that the Speaker’s decision to rely on the Organic Law to overrule the Deputy Speaker’s rulings on 13 November 2020, to grant leave to Hon Belden Namah, and thereby to overrule Parliament’s decision to adjourn to 1 December 2020 was wrong and invalid. Parliament was validly adjourned from 13 November 2020 to 1 December 2020.
28. For the Speaker to defy the Parliament’s decision to adjourn to 1 December 2020 was contemptuous of the Parliament, in my respectful opinion. His actions on 16 November 2020 could amount to contempt of the Parliament. In my respectful opinion the Speaker’s actions were calculated and deliberate and are unlawful.
29. The motion to be granted leave to suspend Standing Orders is non-justiciable. The leave granted by the Deputy Speaker to Hon Belden Namah to suspend Standing Orders is non-justiciable. The ruling by the Deputy Speaker to grant leave to Hon Belden Namah to move to adjourn Parliament to 1 December 2020 is also non-justiciable. This is all because they are internal procedures of Parliament and cannot be inquired into by the Court. See Haiveta v Wingti (No 3) [1994] PNGLR 197 and the recent decision of the Supreme Court in Application by Namah (2020) SC2040.
30. The Parliament's decision on 13 November 2020 to adjourn to 1 December 2020, based on a motion without notice by the Leader of the Opposition, Hon Belden Namah, is therefore not unconstitutional in my respectful opinion for the reasons given above.
ISSUE 2: WHETHER THE SPEAKER'S DECISION ON 16 NOVEMBER 2020 OUTSIDE PARLIAMENT TO "OVERRULE" THE DECISION OF THE DEPUTY SPEAKER TO GRANT LEAVE TO THE OPPOSITION LEADER TO MOVE THE MOTION TO ADJOURN PARLIAMENT FROM 13 NOVEMBER 2020 TO 1 DECEMBER 2020 WAS UNCONSTITUTIONAL
31. The Speaker submitted that he overruled the rulings of the Deputy Speaker to grant leave to Hon Belden Namah to move a motion without notice to move to adjourn Parliament to 1 December 2020, because the Deputy Speaker’s rulings were inconsistent with s 2(1)(a)(i) of the Organic Law.
32. The Speaker is not given any power to overrule or veto the decision of the Deputy Speaker by the Constitution or by an Organic Law. Section 108 of the Constitution is clear: the Deputy speaker is equal with the Speaker in terms of "rights, privileges, powers, functions, duties and responsibilities". The Speaker is, with respect, in my view, first of two equals. For the Speaker to purport to exercise a power he does not have is not constitutional. The Speaker's and the Deputy Speaker's powers and functions are subject to the Constitutional Laws, Acts of Parliament and Standing Orders of Parliament. On this occasion the Speaker purported to exercise powers which are not provided for by the Constitution and not by the Organic Law. His actions are therefore unconstitutional and therefore invalid.
33. Section 2(1)(a)(i) of the Organic Law does not preclude any Member of Parliament including the Leader of the Opposition from moving a motion to adjourn Parliament to another date within the same meeting dates fixed. In this case the November sittings of Parliament were still on and progressing. It is commonly referred to as the "Budget Session". The Budget for 2021 had not been passed, so the sittings of the Budget session were still on and were to be continued on 1 December 2020.
34. Parliament had adjourned to 1 December 2020. It needed Parliament to change the date from 1 December 2020 to another date.
35. In that regard the Speaker states:
Therefore, in the best interests of Parliamentary procedure and to uphold the rule of law, my conscience dictates that I overrule that decision made by the Chair.
36. While he says "in the best interest of Parliamentary procedures and to uphold the rule of law" he does not state what law or power gave him the right to overrule the Chair. Is that upholding the rule of law? He says he is dictated to by his conscience. Conscience is not law nor is it a Constitutional Law for that matter.
37. The Speaker addressed the nation and Members of Parliament in a press conference saying:
The result of my decision is that the meeting of the Parliament which commenced on Tuesday the 10th of November 2020 is still in progress and it shall only be adjourned by a Minister on a motion without notice pursuant to Standing Orders and the Organic Law on the calling of Meetings of the Parliament.
38. Section 2(1)(a)(i) of the Organic Law does not mention the words "adjourn” or “adjournment". It only addresses the matter of any meeting of Parliament, other than the first meeting after a general election: "the time and date for the meeting ... shall be fixed by the Parliament on motion without notice by a Minister". The Organic Law is silent on who can move to adjourn Parliament to the next day or date within a session of Parliament that had been fixed already at the last meeting by motion of a Minister.
39. From the above discussion, with respect, I am again firmly of the opinion that the decision of the Speaker, to "overrule" the decision of the Deputy Speaker to allow the Leader of the Opposition to move a motion to adjourn Parliament to 1 December 2020, is unconstitutional.
ISSUE 3: WHETHER THE PARLIAMENT MEETING ON 17 NOVEMBER 2020 WAS UNCONSTITUTIONAL
40. The answers given or arrived at to the earlier issues 1 and 2 in this matter provide the obvious answer to this question because the answer to this question is a consequence of the answers to the earlier questions. The purported meeting of Parliament on 17 November 2020 called by the Speaker, Hon Job Pomat, was unconstitutional and therefore invalid. The purported passing of the 2021 Budget or the Appropriation Bills for 2021 were and are also for those reasons invalid and unconstitutional.
41. The purported decision of Parliament made on 17 November 2020 to adjourn Parliament to 20 April 2021 is also unconstitutional and therefore invalid.
ISSUE 4: WHETHER THE DECISIONS OF PARLIAMENT MADE AT THE MEETING ON 17 NOVEMBER 2020 ARE CONSTITUTIONAL AND VALID
42. These decisions are:
(i) the decision to adjourn Parliament to 20 April 2021; and
(ii) the passing of the 2021 Budget or the Appropriation (General Public Service Expenditure 2021) Act 2020; and
(iii) the decision to change the membership of the Members Private Business Committee.
43. My answers to issues 1, 2 and 3 apply similarly to this issue. The decisions of Parliament made on 17 November 2020, as a consequence of an invalid and unconstitutional calling of Parliament on 17 November 2020, are unconstitutional and invalid and are of no consequence.
44. Finally, I adopt the orders proposed by Cannings.
45. CANNINGS J: The member for Ialibu-Pangia Open, Hon Peter O’Neill MP, applies under s 18(1) of the Constitution for various declarations and orders regarding:
46. The applicant argues that:
47. The applicant seeks various declarations and orders to give effect to what he argues are the constitutional decisions made by the Parliament, and to remedy those decisions, including the Parliament’s decision to adjourn to 20 April 2021, which he argues are unconstitutional. The remedies he seeks include:
FACTS
48. The facts on which the application is based are uncontentious:
In September 2020 the Parliament rose, after adjourning its next meeting to 10 November 2020.
On Tuesday 10 November 2020 the National Parliament commenced its meeting, at what was commonly regarded as the Budget session, and sat on 11, 12 and 13 November 2020.
On Friday 13 November 2020, when the Deputy Speaker, Hon Koni Iguan MP, was presiding, the Leader of the Opposition, Hon Belden Namah MP, moved a motion without notice: “That so much of the Standing Orders be suspended as would prevent me moving a motion without notice”. The motion was carried 57 votes to 39 votes.
The Leader of the Opposition then moved a motion to discharge and appoint members of the Members’ Private Business Committee. That motion was also carried.
The Leader of the Opposition then sought leave to move another motion without notice, and leave was granted.
The Leader of the Opposition then moved a motion:
That the Parliament at its rising, adjourn to Tuesday 1 December 2020 at 2 pm.
That motion was also carried.
The Leader of the Opposition was able to move those motions in those terms as he was granted leave to do so by the Deputy Speaker.
It was reported in the media that after the Parliament adjourned on 13 November 2020 to 1 December 2020, approximately 49 members of the Parliament, who appeared to be opposed to the Government led by the Prime Minister, the Hon James Marape MP, went to Vanimo, West Sepik Province.
On the afternoon of Monday 16 November 2020, the Speaker of the National Parliament, Hon Job Pomat MP, publicly announced his opinion that the ruling of the Deputy Speaker on 13 November 2020, which led to the decision to sit next on 1 December 2020, was incorrect. The Speaker stated that the ruling was contrary to s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament and the Standing Orders as the decision to adjourn to 1 December 2020 was preceded by a motion by the Leader of the Opposition, not by a motion by a Minister.
The Speaker overruled the decision of the Deputy Speaker and stated that the meeting that commenced on 10 November 2020 was still in progress and shall only be adjourned by a Minister on motion without notice pursuant to the Standing Orders and the Organic Law on the Calling of Meetings of the Parliament. The full text of the Speaker’s statement was in the following terms:
STATEMENT BY THE SPEAKER
Honourable Members,
On Friday 13th of November 2020, a motion without notice was moved by Hon Belden Namah pursuant to Standing Orders after seeking leave of Parliament, which was granted.
The motion without notice that was moved was an adjournment motion, to adjourn the Parliament to 1 December 2020.
After careful consideration of the Chair’s ruling I am of the opinion that this ruling was incorrect. I bring to your attention Section 2(1)(a)(i) of the Organic Law on the Calling of Meetings of Parliament which states. “In relation to any meeting of the Parliament ... the time and date for the meeting shall be fixed by the Parliament on a motion without notice by a Minister”.
I further remind members of Standing Orders 43 which states, “A motion for the adjournment of the Parliament may be moved only by a Minister, and no amendment can be moved to the motion”.
Standing Orders 47 states, “A motion for the purpose of fixing the next meeting of the Parliament may be moved by a Minister at any time without notice.
Honourable Members,
I am conscious that the adjournment motion may be a clear breach of the Organic Law and thus amounting to a breach of a Constitutional Law.
It is clear from the facts that Hon Belden Namah is not a Minister of State and therefore, under the provisions of the Organic Law was not entitled to move an adjournment motion.
There is some speculation that Standing Orders were suspended and this gave legitimacy to the motion. I disagree with that contention on the basis that a Constitutional Law provision cannot and should not be suspended through the use of Standing Orders.
Therefore, in the best interests of Parliamentary procedure and to uphold the rule of law, my conscience dictates that I overrule that decision made by the Chair.
Honourable Members,
The result of my decision is that the meeting of the Parliament which commenced on Tuesday the 10th of November 2020 is still in progress and it shall only be adjourned by a Minister on a motion without notice pursuant to Standing Orders and the Organic Law on the calling of Meetings of the Parliament.
Thank you.
HON JOB POMAT MP
Speaker of the National Parliament
As a result of the Speaker’s public announcement, the Parliament sat on 17 November 2020. It passed the 2021 National Budget and adjourned to 20 April 2021.
49. On 18 November 2020, the applicant, a member of the Parliament opposed to the government, commenced these proceedings under s 18(1) of the Constitution. The application was amended on 19 November 2020. It is the amended application on which the Court is now ruling.
50. On 30 November 2020 the Full Court of the Supreme Court was convened. The applicant’s request for a declaration that he had standing was granted, having regard to the rules of the underlying law developed in Re Petition of MT Somare [1981] PNGLR 265 and confirmed in Namah v Pato [2014] PNGLR 150. The Court also ordered, with the consent of the parties, that the decisions of the Parliament of 13 November 2020 (to adjourn to 1 December 2020) and 17 November 2020 (to adjourn to 20 April 2021) were stayed and that the Parliament shall not meet until these proceedings are heard and determined.
INTERVENERS
51. Two parties were granted leave, on 26 November 2020, to intervene in the proceedings:
52. The applications by five other persons to intervene were refused on 30 November 2020.
53. Both interveners oppose the application and all relief sought by the applicant. Their position is that:
ISSUES
54. Four issues arise:
55. The interveners argue that it was unconstitutional as the motion that led to it was moved by the Leader of the Opposition, not by a Minister, contrary to s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament, which provides:
In relation to any meeting of the Parliament, other than the first meeting after a general election, the time and date for the meeting shall be fixed by the Parliament on motion without notice by a Minister.
56. The interveners argue that the Organic Law, which is a Constitutional Law, is prescribing a procedure for the Parliament. Therefore, the question whether it has been complied with is justiciable under s 134 (proceedings non-justiciable) of the Constitution, which states:
Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.
57. The interveners rely on the interpretation given to s 134 by Sheehan J in Haiveta v Wingti (No 1) [1994] PNGLR 160, which was applied by the Supreme Court in Haiveta v Wingti (No 3) [1994] PNGLR 197 and in numerous other cases including the very recent decision in Application by Namah (2020) SC2040, to support that argument.
58. The applicant agrees that the question of compliance with the Organic Law on the Calling of Meetings of the Parliament is justiciable but argues that in this case the Organic Law was not breached. What happened on 13 November 2020 was not that the Parliament decided to call a meeting of the Parliament for 1 December 2020. It simply adjourned the meeting that had begun on 10 November 2020, and continued on 11, 12 and 13 November 2020, to 1 December 2020.
59. The applicant seeks to draw a distinction between “meetings” of the Parliament and “sittings” of the Parliament, based on s 124 (calling etc) of the Constitution, which provides:
(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 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 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.
60. There are three Supreme Court cases that have addressed s 124.
61. In SC Ref No 4 of 1990 Reference by Acting Principal Legal Adviser re Meetings of Parliament [1994] PNGLR 141, the Court (Kidu CJ, Kapi DCJ, Amet J, Hinchliffe J, Sheehan J) held that s 124 obliges the Parliament to meet at least three times in each period of 12 months, beginning on the day after the day fixed for the return of the writs for a general election. As to the duration of the meetings, the Court held (Kapi DCJ dissenting on this issue) that the requirement to meet for “not less than nine weeks” in each period of 12 months was directory only, as it was qualified by the stipulation that it was “in principle”; thus the question of compliance was the independent prerogative of the Parliament.
62. In SC Ref No 3 of 1999 Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285, the Court (Amet CJ (dissenting), Kapi DCJ, Woods J, Los J, Sheehan J, Sakora J, Sevua J) endorsed the dissenting opinion of Kapi DCJ in SC Ref No 4 of 1990 and decided that the Parliament was obliged to sit at least 63 days (9 weeks x 7 days) in each period of 12 months, and if it failed to do so, the duty to sit was enforceable under s 22 of the Constitution and sanctions could be imposed under s 23 of the Constitution.
63. In Namah v O’Neill (2015) SC1617, the Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Davani J) upheld a challenge, brought under s 18(1) of the Constitution, to Constitutional Amendment No 39 (Calling etc of the Parliament Law) 2013, which required that the Parliament meet “not less than 40 days in each period of 12 months”. The Court ruled that Constitutional Amendment No 39 was unconstitutional as it impeded the performance of the Parliament’s duty, amongst other things, to keep the Executive arm of government accountable, including by allowing for votes of no confidence in the Prime Minister, to be moved, debated and voted on. As a result of that case, s 124 has reverted to its original form.
64. Though the purported distinction between meetings and sittings of the Parliament has not been discussed in all judgments in those three cases, I uphold the applicant’s contention that there is a difference between the two terms, which was explained by Amet CJ in SC Ref No 3 of 1999 Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285, at 296 and 297, in these terms:
What does to "meet" and "meeting" mean and what does "sit" and "sitting" of the Parliament mean? Neither of these expressions is defined in the Constitution, but they are defined in the Standing Orders of the Parliament.
"Meeting" is defined as meaning "the period between the date of commencement of the business of the Parliament and the last day when such business is completed".
"Sitting " is defined as meaning the period during which the parliament is sitting without adjournment, and includes any period during which it is in Committee of the whole Parliament.
I consider that the term and the meaning of the expression "meet" or "meeting " is and should not be confused with the term and meaning of the expression "sitting". Meeting refers to a period whereas sitting refers to specific days. The clearest illustration of the distinction is that a "meeting" may last over a period of three weeks and during which Parliament may only actually "sit" for a total period of 12 days and not the full 21 days of the three weeks as might be assumed by equating a "meeting" with the sitting days. This is because the 12 "sitting days have been the four working days in each of the three weeks during which Parliament "met".
When Parliament is first "called to meet" after the general election, it may "meet" for three weeks, during which period it may only "sit" for ten days spread over the three weeks. In my opinion, Parliament has "met" for three
weeks during which it has "sat" 10 days.
In s 124 itself the contradistinction is made between "meeting" and "sitting", when in sub-sections (1),(2) and (3). In sub-section (3) it provides for the "sittings" of the Parliament, in contradistinction to "meetings".
In my opinion the following additional body of provisions of the Constitution compel the interpretation that "meetings" should not be mistaken with "sitting" days: Sections 2(1), 14(2)(a), 15(3)(c), 88(3)(4)(5)(b), 104(2)(d), 114(1), 115(6), 136, 142(2), (3), 187E(6)(a)&(b), 187F(2)(b), 239(2), 241(2)(b), 242(2), (3) and 245(1).
They make it abundantly clear that "meeting” cannot be equated with "sitting" days.
65. Though Amet CJ dissented from the rest of the Court on the question of whether “nine weeks” in s 124(1) equates to 63 days and whether the Parliament was under any obligation, other than an in principle and directory requirement, to sit for any minimum period, and whether any such obligation was enforceable and subject to sanctions, the distinction his Honour drew between meetings of the Parliament and sittings of the Parliament was not contested.
66. I adopt his Honour’s analysis of the distinction between meetings and sittings. It is borne out by the definition of those terms in the Standing Orders, s 2 of which states that, “unless the context otherwise requires or some other meaning is clearly indicated”:
“meeting” means the period between the date of commencement of the business of the Parliament and the last day when such business is completed ...
“sitting” means the period during which the Parliament is sitting without adjournment, and includes any period during which it is in Committee of the whole Parliament.
67. The distinction between meetings and sittings is apparent from the provisions of Part VII (sitting, quorum and adjournment of the Parliament), consisting of ss 33 to 47, of the Standing Orders.
68. The distinction is also apparent from s 124 of the Constitution, which:
69. What does this mean for the present case? When on 13 November 2020 the Leader of the Opposition sought leave of the Deputy Speaker to move a motion for suspension of the Standing Orders, and when leave was granted and that motion was moved, and when it was passed by the Parliament:
70. The motion moved on 13 November 2020 by the Leader of the Opposition was a lawful exercise of his right as a member of the Parliament under s 111 (right to introduce bills etc) of the Constitution, which states:
(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.
71. The Leader of the Opposition’s motion was properly before the Parliament. It was resolved in the affirmative by a majority of 57 votes to 39 votes, being a majority of the votes of the members present and voting, in accordance with s 114 (voting in the Parliament) of the Constitution, which states:
(1) Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.
(2) Subject to Subsection (5), the member presiding does not have a deliberative vote except—
(a) on a motion of no confidence in the Prime Minister, the Ministry or a Minister, in accordance with an Organic Law referred to in Section 145 (motions of no confidence); or
(b) on any question which requires an affirmative vote greater than a simple majority.
(3) Subject to Subsection (5), except in a case where he has voted under Subsection (2), in the event of an equality of votes on a question, the member presiding has a casting vote, but if he fails to use it the motion shall be deemed to be withdrawn.
(4) The Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded.
(5) 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) may restrict the voting rights of a member of the Parliament in certain circumstances.
72. I find that the Parliament’s decision of 13 November 2020 to adjourn to 1 December 2020 was constitutional.
73. The Speaker justified his decision of 16 November 2020, which had the effect of the Parliament being recalled the next day, by his opinion that the Deputy Speaker had made an incorrect ruling to allow the Leader of the Opposition to move a motion without notice to adjourn the Parliament to 1 December 2020. The Speaker was of the view that the motion, and the subsequent decision of the Parliament to adjourn to 1 December 2020, were in breach of s 2(1)(a)(i) of the Organic Law on the Calling of Meetings of the Parliament.
74. I have already concluded that the Parliament’s decision to adjourn its sittings to 1 December 2020 was constitutional. The Speaker’s decision was based on a false premise and is therefore seriously flawed.
75. If for some reason the Parliament’s decision to adjourn its sittings to 1 December 2020 was constitutional, I would still rule that the Speaker’s decision of 16 November 2020 was seriously flawed.
76. First, the Speaker has no power, acting outside the confines of a meeting of the Parliament, to overrule a decision of the Deputy Speaker, both of whom hold office and exercise powers, functions, duties and responsibilities under ss 107 and 108 of the Constitution.
77. Section 107 (offices of Speaker and Deputy Speaker) states:
(1) There shall be offices of Speaker and Deputy Speaker of the National Parliament.
(2) The Speaker and the Deputy Speaker must be members of the Parliament, and shall be elected by the Parliament by secret ballot in accordance with the Standing Orders of the Parliament.
(3) The Speaker and the Deputy Speaker hold office, and their offices become vacant, in accordance with the Constitutional Laws and the Standing Orders of the Parliament.
(4) No Minister or Parliamentary Leader of a registered political party may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes a Minister or Parliamentary Leader of a registered political party he vacates his office as Speaker or Deputy Speaker, as the case may be.
78. Section 108 (functions of the Speaker and Deputy Speaker) states:
(1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.
(2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.
(3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.
79. I uphold the submission of Mr Sheppard for the applicant that the Deputy Speaker is not an underling of the Speaker, whose decisions can be overruled. Both hold office under the Constitution.
80. When the Deputy Speaker sits in the Speaker’s chair due to the absence from the Parliament of the Speaker – as was the case on 13 November 2020 – the Deputy Speaker has “all the rights, privileges, powers, functions, duties and responsibilities of the Speaker” in accordance with s 108(2) of the Constitution. The Deputy Speaker’s rulings are not capable of being overruled by the Speaker.
81. Secondly, though the Speaker’s decision of 16 November 2020 was to “overrule that decision made by the Chair”, the Speaker had for all intents and purposes overruled the decision of the Parliament to adjourn to 1 December 2020. I reject the interveners’ argument that the Speaker only overruled the Deputy Speaker’s ruling and did not overrule the Parliament’s decision to adjourn to 1 December 2020. The two things are inseparable. The Speaker overruled both the Deputy Speaker’s ruling and the decision of the Parliament. He had no power to overrule a decision of the Parliament.
82. Thirdly, the Speaker did not invoke any source of power other than his opinion that the decision to adjourn to 1 December 2020 was a breach of the Organic Law on the Calling of Meetings of the Parliament. I reiterate that that opinion was flawed.
83. However, if it was a correct opinion, there was still nothing in s 108 of the Constitution or any other Constitutional Law including the Organic Law on the Calling of Meetings of the Parliament or any Act of the Parliament or in the Standing Orders to authorise the Speaker to overrule a decision of the Parliament or to recall the Parliament other than in accordance with its decision.
84. Counsel for the Speaker, Mr Mende, and counsel for the Attorney-General, Mr Yalo, submitted that the Speaker’s decision could be regarded as an exercise of his powers and functions in “upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs”. I reject that submission. Those are general provisions only and do not allow the Speaker to override a decision of the Parliament made by a majority of members in accordance with s 114 of the Constitution.
85. The Speaker has, with respect, taken the law into his own hands by altering a deliberate decision of the Parliament, justified only by his opinion that what happened on 13 November 2020 was unconstitutional.
86. Fourthly, I uphold Mr Sheppard’s submission that the only proper course open to the Speaker, having formed the view that what happened on 13 November 2020 was wrong, was to approach the Courts with a view to remedying the breach of the Constitutional Laws that he apprehended to have occurred. He could have applied to the National Court for relief, relying on ss 22 and/or 23 of the Constitution.
87. Section 22 (enforcement of the Constitution) states:
The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.
88. Section 23 (sanctions) states:
(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—
(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,
or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.
(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.
(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).
89. The Speaker could also have applied to the Supreme Court under s 18(1) of the Constitution (the provision that the applicant has invoked in this case) and sought remedies for the alleged breach of the Organic Law on the Calling of Meetings of the Parliament.
90. Section 18(1) (original interpretative jurisdiction of the Supreme Court) states:
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
91. The Speaker could also have asked the Attorney-General, in his capacity as a Law Officer, as Principal Legal Adviser, to refer the questions of constitutional interpretation and application he was concerned about, to the Supreme Court, seeking a binding opinion under s 19 of the Constitution.
92. Fifthly, quite apart from acting without power to overrule the ruling of the Deputy Speaker and the decision of the Parliament, the Speaker, with respect, acted unfairly, in the sense that that term is used in s 59(2) of the Constitution, which provides:
The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
93. His decision of 16 November 2020 meant that he was recalling the Parliament for 17 November 2020, on less than 24 hours’ notice to the members of the Parliament.
94. It was widely known that members of the Parliament who supported the Leader of the Opposition had travelled to Vanimo shortly after the adjournment on 13 November 2020. The Speaker had made it very difficult, if not impossible, for a large number of members to return to the Parliament for the sitting that went ahead on 17 November 2020.
95. I reject the interveners’ argument that notice given by the Speaker was sufficient in the circumstances, as all that the Speaker was doing was giving notice of a resumption of the meeting that had begun on 10 November 2020 and been unconstitutionally adjourned to 1 December 2020.
96. Even if it was the case that the adjournment to 1 December 2020 was unconstitutional, and even if the Speaker had the power to remedy any constitutional error that had occurred, he had to act fairly. He had to take into account the reality of the situation. He had to give reasonable notice, so that all members of the Parliament were given a reasonable opportunity to attend Parliament, as he was recalling it ahead of the date set by the Parliament on 13 November 2020. The Speaker was in breach of his obligation to act fairly and in principle to be seen to act fairly.
97. Sixthly, the Speaker’s actions had the effect of denying to a large number of members, their rights, as members of the Parliament, under s 50 (right to vote and stand for public office) of the Constitution, to take part in the affairs of the Parliament and to exercise their functions as Parliamentarians.
98. The infringement of their rights by the Speaker was especially serious in this case as it denied those members of the Parliament the right to participate in the debate on the 2021 National Budget, which was voted on and passed at the sitting of 17 November 2020. This is one of the most important functions of the Parliament and of all members of the Parliament in any parliamentary year (SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319).
99. For those reasons, I find that the Speaker’s decision of 16 November 2020 to overrule the Deputy Speaker was unconstitutional.
100. I have already found that the Parliament’s decision of 13 November 2020 to adjourn to 1 December 2020 was constitutional, and that the Speaker’s decision of 16 November 2020, which resulted in the recall of the Parliament on 17 November 2020, was unconstitutional. I can draw no other conclusion than that the sitting of the Parliament on 17 November 2020 was unconstitutional.
101. It follows that all decisions of the Parliament made on 17 November 2020, including the passing of the 2021 National Budget and the adjournment of the Parliament to 20 April 2021, were unconstitutional.
4 WHAT ORDERS SHOULD THE COURT MAKE?
102. I would grant the relief sought by the applicant, and order the interveners to pay the applicant’s costs. I would make the declarations and orders under s 155(4) of the Constitution, underpinned by s 11 of the Constitution.
103. Section 155(4) (the national judicial system) states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
104. Section 11 (Constitution etc as supreme law) states:
(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.
105. I would declare and/or order that:
(a) the Speaker’s decision of 16 November 2020 is unconstitutional, invalid and ineffective;
(b) the sitting of the Parliament on 17 November 2020 is unconstitutional, invalid and ineffective;
(c) the National Budget passed at the sitting of 17 November 2020 is unconstitutional, invalid and ineffective;
(d) the decision of the Parliament at its sitting on 17 November 2020 to adjourn to 20 April 2021 is unconstitutional, invalid and ineffective;
(e) the decision of the Parliament regarding changes to the Members Private Business Committee made at its sitting on 17 November 2020 was unconstitutional, invalid and ineffective; and
(f) the sitting of the Parliament on 13 November 2020 and the decisions made during that sitting, including the decision to adjourn to 1 December 2020, were constitutional, valid and effective.
106. As to the application for an order that the Speaker be ordered to reconvene a sitting of the Parliament for 1 December 2020, that has been overtaken by events. I would order that the Speaker be ordered to forthwith give notice to all members and to reconvene the Parliament, for its next sitting, which should be on 14 December 2020 at 10.00 am.
107. MANUHU J: I have had the opportunity to read and consider the draft opinions of the Chief Justice and my other brother Judges. I respectfully agree with their Honours’ opinions and the conclusions that are drawn and the reasons given for drawing them. I concur with the orders proposed by Cannings J. I have nothing further to add.
108. HARTSHORN J: I respectfully agree with the judgments of the Chief Justice and my brother Judges, Cannings J and Kariko J.
109. Additionally, I make some observations concerning what in my view are critical for the determination of this proceeding and the orders to be made therein. That is the extent of the powers of the Speaker of Parliament and the action of the Speaker of Parliament, the Honourable Job Pomat, on 16 November 2020 (Speaker’s Decision). The Speaker’s Decision was communicated in a written statement dated 17 November 2020, and purportedly overruled “the decision made by the Chair”. The Speaker’s Decision had the effect of overruling the resolution of the Parliament made on 13 November 2020 to adjourn the sitting of the Parliament until 1 December 2020.
110. The Speaker, supported by the Attorney-General, submits that the Speaker was entitled to override the decision of the Chair, who was the Deputy Speaker, pursuant to s 108 Constitution as it provides that amongst others, the Speaker is responsible for upholding the dignity of the Parliament, regulating its proceedings and administering its affairs. Section 108 Constitution, is as follows:
108 Functions of the Speaker and Deputy Speaker
(1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.
(2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.
(3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.
111. To uphold the dignity of the Parliament is to ensure that persons conduct themselves appropriately and treat the processes and procedures of the Parliament with respect. This is a responsibility conferred upon the Speaker pursuant to s 108(1). Section 108(3) confirms that ss 108(1) and (2) provide powers, functions, duties and responsibilities. This is by providing that other laws may provide for other powers, functions, duties and responsibilities. What the Speaker purports to rely on for his Speaker’s Decision, the upholding of the dignity of the Parliament, is described in s 108(1) as a responsibility. It is not described as a function or duty and significantly, it is not described as a power.
112. To be able to overrule a decision of the Deputy Speaker or to be able to make a decision that has the effect of overruling a resolution of the Parliament, given the magnitude of such decisions, requires a specific power to do so conferred by a law. Nowhere in s 108 is the power given to the Speaker to override a decision of the, “Chair” or the Deputy Speaker, or to override a resolution of the Parliament.
113. Section 108(3) provides that a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for, “other powers, functions, duties and responsibilities” of the Speaker and Deputy Speaker. No such Constitutional Law, Act of the Parliament or Standing Order which provides other powers or at all, was brought to this Court’s attention. Significantly, as any other powers of the Speaker may only be conferred pursuant to s 108(3), the powers provided in s 108(1) are the only existing powers conferred upon the Speaker. The Speaker does not have any inherent power. The Speaker cannot, for instance, take any action which he considers necessary in the circumstances, and as referred to by the Chief Justice, the Speaker cannot follow his conscience as he purported to do when making his Speaker’s Decision.
114. As s 108(1) does not provide the power to the Speaker to overrule a decision of the Deputy Speaker or the Chair or to overrule a resolution of the Parliament, the Speaker in making his Speaker’s Decision, purportedly exercised a power which is not provided to him under the Constitution or a Constitutional Law. He purportedly exercised a power which he does not have.
115. The Speaker contends that he overruled the Chair as a Constitutional Law had been breached. Putting aside for a moment, that the Speaker does not have such an overrule power as referred to above, the Speaker also does not have the power to interpret a Constitutional Law. That is the preserve of the Supreme Court. Consequently, the reason given by the Speaker for purporting to exercise the power which he does not have, also does not pass muster.
116. I am of the view that as the act of the Speaker in purporting to overrule the decision of the Deputy Speaker or Chair was without power and the consequential act of overruling the resolution of the Parliament to adjourn to 1 December 2020, was without power, those acts are inconsistent with the Constitution as they are acts in excess of the power and jurisdiction conferred upon the Speaker by the Constitution or a Constitutional Law. Those acts are also inconsistent with the Constitution as they have resulted in a question before a meeting of the Parliament which was decided in accordance with the majority of votes of the members present and voting, being overruled, contrary to s 114 of the Constitution.
117. Consequently, the Speaker’s Decision in purporting to overrule the decision of the Deputy Speaker or Chair and the consequential act of overruling the resolution of the Parliament to adjourn to 1 December 2020 are invalid and ineffective pursuant to s 11 of the Constitution.
118. I agree with the orders proposed by Cannings J.
119. KARIKO J: Hon Peter O’Neill MP applies under s 18(1) of the Constitution for this Court’s interpretation and application of a number of provisions of Constitutional Laws, ss 11, 12, 18, 22, 37, 50, 108, 114, 124, 155(4), 209, 210, 211 and 225 of the Constitution and ss 1, 2 and 3 of the Organic Law on the Calling of Meetings of the Parliament (the Organic Law), in essence for this Court to determine that:
(1) the recall of the Parliament by the Speaker, Hon Job Pomat MP, on 16 November 2020 to continue the sittings of the Parliament on 17 November 2020 was unconstitutional and invalid;
(2) the purported sittings of the Parliament on 17 November 2020 and its decisions including that which passed the 2021 National Budget and then its adjournment to 20 April 2021, were unconstitutional and invalid; and
(3) the purported adjournment of sittings by the Parliament on 13 November 2020 to 1 December 2020 was constitutional and valid.
120. The application is opposed by the interveners:
BACKGROUND FACTS
121. The relevant background facts are not in controversy.
122. The November meeting of the Parliament commenced as scheduled on Tuesday 10 November 2020.
123. The most significant business of the Parliament for this meeting was for the tabling, debating and passing of the 2021 National Budget.
124. On Friday 13 November 2020, the sitting of the Parliament was chaired by the Deputy Speaker, Hon Kone Iguan MP, in the absence of the Speaker.
125. That day, the Leader of the Opposition, Hon Belden Namah MP, moved a motion for suspension of such Standing Orders as to allow him to move a motion without notice. That motion was carried by an absolute majority of votes, 57 to 39.
126. A number of members of the government, including some Ministers, crossed the floor to the Opposition benches.
127. Mr Namah consequently moved a motion to have the members of the Permanent Parliamentary Committee on Private Business replaced, and with leave, he moved a motion for the Parliament to adjourn to Tuesday 1 December 2020 at 2 pm. Each motion was carried on the voices.
128. The Parliament then adjourned according to its resolution.
129. The events that unfolded in the Parliament that day strongly indicated that moves were afoot to challenge the Prime Ministership of the Hon James Marape MP.
130. With the reasonable belief that the Parliament had properly adjourned sittings to 1 December 2020, 49 members who voted with the Opposition for the adjournment, then flew to Vanimo, apparently to mobilize and strategize for a potential vote of no-confidence in the Prime Minister.
131. The political events that transpired on 13 November 2020 followed by the establishment of the Opposition “camp” in Vanimo, received nationwide publicity.
132. In the afternoon of Monday 16 November 2020, the Speaker publicly announced by way of a press statement that in his view:
133. Based on that statement, the Parliament sat the next day, 17 November 2020, but with many members still away in Vanimo.
134. The Speaker re-announced his statement from the previous day before the Parliament commenced its business on 17 November 2020, which included the tabling and passing of the 2021 National Budget.
135. The Parliament then resolved to adjourn to 20 April 2021 for its next meeting.
ISSUES
136. I agree with the applicant’s submission that the key issues for determination are:
(1) whether the motion passed by the Parliament on 13 November 2020 to adjourn its sittings to 1 December 2020 is inconsistent with s 2(1)(a)(i) of the Organic Law, and therefore unconstitutional and invalid; and
(2) does the Speaker have any power under the Constitution to unilaterally overrule the rulings made by the Deputy Speaker while acting as the Chairman in the absence of the Speaker during the sitting of the Parliament on 13 November 2020?
137. While the application has been framed to question the constitutional validity of events of 16 and 17 November 2020, I consider it logical to first address the events of 13 November 2020.
LEGAL PRINCIPLES
138. Section 18 of the Constitution reads:
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other Courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
139. In the recent case of Application by Namah (2020) SC2040 the Chief Justice confirmed the principles relevant to constitutional interpretation that were restated by the Supreme Court in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233. I note in particular the following principles for purposes of this opinion:
SECTION 2(1)(a)(i) OF THE ORGANIC LAW
140. The Organic Law was made pursuant to s 124 of the Constitution, and it provides for the calling of the Parliament:
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 a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principles, for not less than nine weeks in each such period.
(2) An Organic Law shall make provisions for the calling of the 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. [Underlining for emphasis]
141. Apart from prescribing when the Parliament shall first meet after the general elections (s 124(1)), the section clearly states that:
142. The preamble of the Organic Law expresses that it operates to implement s 124 of the Constitution.
143. The procedure for the calling of the first meeting of the Parliament after a general election is set out in s 1 of the Organic Law. In respect of other meetings, s 2 provides:
2. Calling of other meetings
(1) In relation to any meeting of the Parliament, other than the first meeting after a general election, the time and date for the meeting -
(a) shall –
(i) be fixed by the Parliament on motion without notice by a Minister; or
(ii) where the Parliament has failed to fix a time and date, be fixed by the Head of State, acting with and in accordance with, the advice of the National Executive Council; and
(iii) where a state of emergency has been declared or the Head of State, acting with, and in accordance with, the advice of the National Executive Council, is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament, be fixed by the Head of State, acting with and in accordance with the advice of the National Executive Council; or
(iv) where the Speaker has received a request from the Emergency Committee under Section 242(3) (functions, etc., of Emergency Committees) of the Constitution, be fixed by the Speaker after consultation with the Emergency Committee; and
(b) shall be notified in the National Gazette.
(2) The Speaker shall, not less than 14 days before the date fixed under Subsection (1)(a)(i) or (ii) or not less than seven days before the date fixed under Subsection (1)(a)(iii) or (iv) for a meeting of the Parliament, cause a notice to be forwarded by telegram and pre-paid post to each member of the Parliament. [Underlining for emphasis]
144. It is very obvious that s 2 concerns itself with the calling of meetings of the Parliament. There is nothing in the provision that either expressly or impliedly speaks of the conduct of the business and the proceedings of the Parliament, including adjournment of meetings or sittings.
145. Those matters are catered for in the Standings Orders made pursuant to s 133 of the Constitution which empowers the Parliament to make Standing Orders in relation to the conduct of its business and proceedings and those of its committees. It is relevant to again note that s 124(3) of the Constitution confirms that Standing Orders shall provide for the sittings of the Parliament.
146. Mr Yalo, for the second intervener, submitted that by virtue of s 2(1)(a)(i) of the Organic Law, only a Minister is entitled to move a motion to adjourn the sittings of the Parliament, and therefore the motion by Mr Namah for adjournment breached that Constitutional Law. When asked whether the adjournment was to a new meeting date or to a date to continue the sittings, counsel tentatively suggested the adjournment in effect set the date for the next meeting of the Parliament, and therefore amounted to a breach of s 2(1)(a)(i).
147. Mr Mende, for the first intervener, insisted the motion for adjournment was moved contrary to s 2(1)(a)(i). He was unable to properly point to the part of the provision that refers to adjournment of a sitting or a meeting of the Parliament.
148. Neither counsel for the interveners was able to persuasively explain how s 2 can be construed to refer to adjournments of the Parliament.
149. Mr Sheppard, for the applicant, argued for adoption of the interpretation of the terms “meeting” and “sitting” discussed by Amet CJ in SC Ref No 3 of 1999 Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285, who after noting the definition of the two terms in the Standing Orders, suggested that “meeting” refers to the period in which the Parliament conducts its business while “sitting” refers to when the Parliament is in session or sitting to conduct its business. I note that this proposition was not contradicted by the other members of the Court, although they differed from his Honour’s interpretation of the requirement under s 124(1) of the Constitution for the Parliament to meet in principle for not less than 9 weeks.
150. Clearly, a “meeting” of the Parliament referred to in s 124(2) is distinct from “sittings” of the Parliament that is referred to in 124(3). Applying the definitions of the two terms provided in the Standing Orders, and explained by Amet CJ, it is clear that during the November meeting, the sittings were adjourned on 13 November 2020 to resume on 1 December 2020, when the remaining business was expected to be dealt with. The evidence is that the business for 13 November 2020 listed on the Notice Paper for that day, which included matters referred to a couple of Permanent Parliamentary Committees, were not all reached before the Parliament adjourned. I think it also significant to note that the 2021 National Budget, the top priority agenda item for the November meeting of the Parliament, had yet to be tabled and debated.
151. In my view, it is a stretch to suggest that on 13 November 2020, Parliament called its next meeting. To my mind, the sittings of the November meeting were adjourned to 1 December 2020.
152. I accept the applicant’s assertion that the adjournment of the sittings was within the purview of the decision-making power of the Parliament under s 114(1) of the Constitution, which states:
Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.
153. It is also important to note that any question as to whether or not proper procedures were followed in respect of Mr Namah’s motion for adjournment, and in particular if Standing Orders 43 (adjournment of the Parliament) and 47 (adjournment on last day of meeting) were complied with, cannot be reviewed by this Court as that is non-justiciable pursuant to s 134 of the Constitution. In the recent case of Application by Namah (2020) SC2040 the Supreme Court re-affirmed the principle pronounced by Sheehan J in Haiveta v Wingti (No 1) [1994] PNGLR 160 that the question of whether or not procedures of the Parliament have been complied with, is non-justiciable, unless there is a Constitutional Law that provides the procedure for Parliament to follow.
154. Accordingly, I find the motion for adjournment passed by the Parliament on 13 November 2020, was constitutional and valid.
OVERRULING THE DEPUTY SPEAKER
155. It is evident from the foregoing discussions that the Speaker was plainly wrong in concluding that s 2(1)(a)(i) of the Organic Law was breached on 13 November 2020. As Mr Pomat relied on an incorrect interpretation of s 2(1)(a)(i) to purportedly overrule the Chair’s (the Deputy Speaker’s) rulings, and recall the Parliament to sit on 17 November 2020, it necessarily follows that the overruling and the recall were unlawful and unconstitutional, which in turn means that the sitting of the Parliament on 17 November 2020 and the business conducted by the Parliament that day is rendered unlawful as unconstitutional.
156. As I have found that the adjournment by the Parliament on 13 November 2020 was lawful and valid, it is not necessary to discuss at great length if the Speaker was lawfully permitted to annul the rulings of the Deputy Speaker that day. Suffice to state, it is my opinion that the Speaker does not have such power. The applicant submitted that there are no Constitutional Laws that permit the Speaker to overrule the Deputy Speaker’s decisions, while neither of the interveners was able to point to such a law. I accept the applicant’s contention.
157. If the Speaker is absent from the Parliament, s 108(2) of the Constitution provides that the Deputy Speaker has “subject to Section 95 (acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker”. On 13 November 2020, the Deputy Speaker exercised the rights, privileges, powers, functions, duties and responsibilities of the Speaker.
158. Counsel for the Speaker also argued that his client only overruled the rulings of the Deputy Speaker as the Chair, and not the decision of the Parliament to adjourn the sittings. I consider this submission mischievous and misconceived. The rulings led to the adjournment, so the purported invalidation of the Chair’s rulings was in effect a purported nullification of the decision of the Parliament.
159. It must be stressed that the Speaker has no power under any Constitutional Law to set aside a resolution of the Parliament made in accordance with its powers prescribed by s 114 of the Constitution. I believe the Speaker was cognizant of this legal position, and therefore he purposely avoided directly intimating that the adjournment of the Parliament was unconstitutional.
160. Furthermore, I agree with the assertion that if the Speaker was seriously concerned that issues of interpretation and application of the Organic Law as a Constitutional Law arose from the events on the floor of the Parliament on 13 November 2020, the proper course to address those perceived issues would have been to seek legal advice and, if warranted, to seek determination of the issues by this Court, including by way of an application similar to the present under s 18(1) of the Constitution. Mr Sheppard also properly suggested that relief could have been sought by relying on ss 22 and 23 of the Constitution for the enforcement of and remedy for the alleged breach of the Organic Law.
161. It was not within the Speaker’s legal powers to take the actions he did on 16 and 17 November 2020.
CONCLUSION
162. I decide the application in favour of the applicant, the net effect of which is that the Parliament lawfully adjourned its sittings to 1 December 2020, and the purported meeting of the Parliament on 17 November 2020 was constitutionally invalid. Noting that 1 December 2020 has now passed, it is proper that the Parliament convene and continue its November sittings as soon as practicable. In that regard, I agree with the orders proposed by my brother Cannings J.
163. BY THE COURT: For the above reasons the Court makes the following order, pursuant to s 155(4) and s 11 of the Constitution:
(1) it is declared that the Speaker’s decision of 16 November 2020 is unconstitutional, invalid and ineffective;
(2) it is declared that the sitting of the Parliament on 17 November 2020 is unconstitutional, invalid and ineffective;
(3) it is declared that the National Budget passed at the sitting of 17 November 2020 is unconstitutional, invalid and ineffective;
(4) it is declared that the decision of the Parliament at its sitting on 17 November 2020 to adjourn to 20 April 2021 is unconstitutional, invalid and ineffective;
(5) it is declared that the decision of the Parliament regarding changes to the Members’ Private Business Committee made at its sitting on 17 November 2020 is unconstitutional, invalid and ineffective;
(6) it is declared that the sitting of the Parliament on 13 November 2020 and the decisions made during that sitting, including the decision to adjourn to 1 December 2020, are constitutional, valid and effective;
(7) the Parliament shall convene and sit on 14 December 2020 at 10.00 am;
(8) the Speaker and the Clerk of the Parliament shall do all things necessary to call and convene the Parliament to sit on 14 December 2020 at 10.00 am;
(9) the interveners shall pay the applicant’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
__________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Wantok Legal Group: Lawyers for the First Intervener
Nemo Yalo Lawyers: Lawyers for the Second Intervener
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