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Application by Hon Belden Namah [2021] PGSC 39; SC2114 (21 May 2021)

SC2114

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 1 OF 2021

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE BELDEN NAMAH MP

Waigani: Salika CJ, Cannings J,
Hartshorn J, Kariko J, Anis J

2021: 13^th, 21^st May

CONSTITUTIONAL LAW – National Parliament – motion of no confidence in Prime Minister – adjournment of Parliament – functions and duties of Speaker upon presentation of motion of no confidence in Prime Minister – whether Speaker obliged to inform Parliament of motion of no confidence before question of adjournment of Parliament is resolved.

On Monday 14 December 2020 there was a sitting of the Parliament in accordance with an order of the Supreme Court. On the same day the Leader of the Opposition presented to the Speaker, who is Chairman of the Private Business Committee (the body responsible for vetting motions of no confidence), a motion of no confidence in the Prime Minister. The Parliament sat for a short time on that day and adjourned to 16 December 2020. When the Parliament sat on 16 December 2020, it decided to change the membership of the Private Business Committee and then passed the 2021 National Budget and then adjourned to 20 April 2021. The Speaker had not convened any meeting of the Private Business Committee from the time of receipt of the notice of the motion on 14 December 2020 to the sitting of 16 December 2020, and did not inform the Parliament of the pending motion of no confidence in the Prime Minister. On 27 March 2021 the applicant applied under s 18(1) of the Constitution for various declarations (one of which was abandoned at the trial of the application) regarding those events, viz declarations that: the Parliament made an unreasonable decision to adjourn to 20 April 2021 for an unsubstantiated reason, which prevented the notice of motion of no confidence being moved on 16 December 2020; the Speaker breached ss 111 and 115 of the Constitution by depriving members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom; and the Speaker breached s 115 of the Constitution by depriving Parliament of its conduct of the motion of no confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on 16 December 2020. Section 111 (right to introduce bills etc) provides that any member of the Parliament is entitled to introduce into the Parliament, in accordance with the Standing Orders, any motion. Section 115 (parliamentary privileges etc) provides for freedom of speech, debate and proceeding in the Parliament. This was the trial of the application for those declarations.

Held:

(1) The Parliament’s decision to adjourn to 20 April 2021 was not unreasonable. The Parliament was under no obligation to provide any reasons for the adjournment, let alone substantiated reasons, for its decision on adjournment.

(2) The Speaker was under an obligation to process the notice of motion in such a way that the motion was not frustrated or rendered nugatory. He did not breach that obligation and did not deprive any members of Parliament of their right to move the motion of no confidence or to debate and vote on it, as the motion remained alive and could be lawfully dealt with when the Parliament resumed on 20 April 2021.

(3) Though the Speaker could have convened a meeting of the Private Business Committee so that it could vet the motion of no confidence, so that the motion could be before the Parliament on 16 December 2020, he was under no express or implied obligation to do so.

(4) All relief sought by the applicant is refused.

Cases Cited

The following cases are cited in the judgment:

Application by Belden Namah (2020) SC2040
Application by Hon Belden Namah MP (2021) SC2082
Application by Hon Belden Namah MP (2021) SC2105
Application by Hon Peter O’Neill MP (2020) SC2043
Haiveta v Wingti (No 1) [1994] PNGLR 160
Haiveta v Wingti (No 3) [1994] PNGLR 197
Namah v O’Neill (2015) SC1617
Polye v Zurenuoc (2016) SC2039
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319
SC Ref No 3 of 1999; Reference by Ombudsman Commission [1999] PNGLR 285
SC Ref No 3 of 2000; Reference by the Head of State on the advice of the National Executive Council (2002) SC722

APPLICATION
This was the trial of an application under s 18(1) of the Constitution for declarations of unconstitutionality of actions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
P Kuman, for the First Intervener, the Attorney-General
L Henao & K R Kawat, for the Second Intervener, the Speaker of the National Parliament

21^st May, 2021

1. SALIKA CJ: This is an application under s 18(1) of the Constitution by the Hon Belden Namah, the leader of the Opposition in the National Parliament and the member of Parliament for the Vanimo Green River Open Electorate.

2. The applicant requests the Court to declare that upon the proper interpretation or application of:

a. [abandoned at the trial of the application] ...

b. sections 11, 111, 115, 142 and 145 of the Constitution, to the facts matters and circumstances of this case, the Parliament made 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 16th December 2020, and deprived members of their right to move the motion of no confidence.

c. sections 111 and 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached these sections 111 and 115 of the Constitution by depriving Members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom.

d. section 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached sections 115 of the Constitution by depriving Parliament of its conduct of the motion of no confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on the 16th December 2020.

3. The applicant was ruled to have standing in this matter.

Evidence

4. The parties tendered into evidence affidavits which were accepted by the Court with no objection. The applicant tendered one affidavit by himself. The Attorney-General filed one affidavit while the Speaker filed four. The facts were extracted from those affidavits.

Facts

5. On Monday 14December 2020, Parliament met in accordance with an order of the Supreme Court made on 9 December 2020.

6. On the same day, the Opposition submitted a valid notice of motion of no confidence under s 145 of the Constitution to the Chairman of the Private Business Committee to be processed by them and presented to Parliament to be deliberated upon. The Chairman of the Private Business Committee acknowledged receipt of the motion of no confidence. The members of Parliament who moved and subscribed to the motion of no confidence have the constitutional right to do so under ss 50, 115, 118 and 145 of the Constitution. By submitting the motion of no confidence to the Chairman of the Private Business Committee, the members of Parliament who subscribed to it, put into motion the constitutional procedure for testing the confidence in the Prime Minister. It is a constitutional motion. Parliament was adjourned to Wednesday 16 December 2020.

7. However, when Parliament reconvened on 16 December 2020, the Leader of Government Business Hon Rainbo Paita MP moved motions to suspend Standing Orders to:

(a) remove and appoint certain members of the Private Business Committee; and

(b) pass the 2021 Budget; and

(c) adjourn Parliament to 20 April 2021.

The Speaker, to whom the notion of no confidence had been submitted, was aware of the motion of no confidence, but:

(a) failed to convene a meeting of the Private Business Committee at any time, so that the motion could go before the Parliament that day; and

(b) failed to deliver the motion of no confidence to the Clerk to table the motion of no confidence under the provisions of s 22(4) of the Standing Orders; and

(c) failed to table the motion of no confidence as priority business on Private Business day.

8. The Speaker allowed the motion to adjourn Parliament to 20 April 2021 without properly informing Parliament that he had received the motion of no confidence, and that the constitutional machinery under s 145 of the Constitution had been engaged. Consequently, and on the applicant’s contention, contrary to the Constitution, the motion of no confidence was not dealt with before the Parliament adjourned to 20 April 2021. Those are the facts and contentions the applicant relies on in making this application.

Applicant’s case and submissions

9. The applicant submits that the Speaker’s action on 16 December 2020 to allow a motion to adjourn Parliament to 20 April 2021 without completing the requirement for dealing with the notice of motion of a vote of no confidence was inconsistent with ss 50, 111, 115, 141, 142(5)(a) and 145 of the Constitution, and is consequently unconstitutional, invalid and ineffective.

Provisions of Constitution allegedly breached

10. Section 50 of the Constitution relevantly provides:

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

11. The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

12. Section 111 of the Constitution provides:

(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.

13. Section 115 of the Constitution provides:

(1) The powers (other than legislative powers), privileges and immunities of the Parliament and of its members and committees are as prescribed by or under this section and by any other provision of this Constitution.

(2) There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).

(3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).

(4) No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.

(5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—

(a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or

(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.

(6) Members of the Parliament are free from arrest for civil debt during meetings of the Parliament and during the period commencing three days before, and ending three days after, a meeting when they are travelling from their respective electorates to attend the meeting or are returning to their electorates from the meeting.

(7) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament (as defined by or under an Act of the Parliament) while it is sitting.

(8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—

(a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and

(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.

(9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purposes of this section that are triable within the National Judicial System.

14. Section 141 of the Constitution provides:

The Ministry is a Parliamentary Executive, and therefore:

(a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and

(b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and

(c) it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.

15. Section 142 of the Constitution provides:

(1) An office of Prime Minister is hereby established.

(2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

(3) If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(4) If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(5) The Prime Minister—

(a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election; and

(b) may be dismissed from office in accordance with Division III.2 (leadership code); and

(c) may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.

(6) The Prime Minister may be suspended from office—

(a) by the tribunal appointed under an Organic Law made for the purposes of Section 28 (further provisions), pending an investigation into a question of misconduct in office within the meaning of Division III.2 (leadership code), and any resultant action; or

(b) in accordance with an Act of the Parliament, pending an investigation for the purposes of Subsection (5)(c), and any resultant action by the Parliament.

(7) 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 provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Prime Minister.

16. Section 145 of the Constitution provides:

(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 thirty months commencing on the date of the appointment of the Prime Minister.

The motion of no confidence in this case

17. There is no dispute that the motion of no confidence was served on the Chairman of the Private Business Committee, who is the Speaker, on 14 December 2020, and is deemed to be received by that committee. The applicant submits that under Standing Order 130, the Private Business Committee is required to sit and deliberate on the notice of motion of no confidence to determine whether it is parochial in nature or a matter of national importance. The constitutional importance of a notice of motion of vote of no confidence in a Prime Minister is to be accorded to it by Parliament (and its committees).

18. The motion of no confidence need only satisfy five technical requirements for it to be cleared by the Private Business Committee. They are:

(a) It is to be expressed to be a motion of no confidence in a named Prime Minister (Constitution s 145(1)(a)).

(b) It must state the name of the alternative Prime Minister (Constitution s 145(2)(2)(a)).

(c) It must name the person and contain the signature of the person moving the motion (Standing Order 130(2)).

(d) It must name person and contain the signature of the person seconding the motion (Standing Order 130(2)).

(e) It must name the persons and contain the signature of not less than one tenth of the Members of Parliament that support the Motion (Constitution s 145(1)(b)).

19. The Supreme Court in Polye v Zurenuoc (2016) SC2039 was absolutely clear and defined the operation of Section 130 of the Standing Orders, especially in reference to motions of no confidence, including the following observations:

(a) it is not parochial in nature, and

(b) as long as the five technical requirements have been met, the Committee and the Clerk are duty bound to table it in Parliament without unreasonable delay.

20. In the Polye case the Supreme Court said at paragraph 42:

the Notice of Motion of No confidence in the Prime Minister is a Constitutional motion that is required by Section 145(3) of the Constitution to be given in accordance with the procedures in Parliament contained in the Standing Orders and it should not be treated in the same vein and manner as ordinary notices of motion that are required to be given by the Standing Orders.

21. A notice of no confidence is not parochial in nature but one of national importance because of its ability to change a government if it is successfully moved. Granted the five technical requirements are met on the face of the notice, so it should be cleared by the Private Business Committee with no difficulty in little time in order for it to be tabled in Parliament by the Clerk without delay. This must happen regardless of whether the majority of Members of Parliament cannot be found.

22. In the Polye case, although the Government had successfully moved a motion of confidence in Prime Minister Peter O’Neill on 29 October 2015 by 78 votes in favour and 2 against, the Supreme Court was still of the view that the motion of no confidence is far too important to be left waiting.

23. The applicant submitted that Parliament cannot consistently adjourn without dealing with the motion of no confidence at hand. When Parliament adjourned to 20 April 2021 without dealing with the motion of no confidence the applicant contends that the following provisions of the Constitution were breached by the Speaker and the Private Business Committee:

(a) The Speaker breached ss 141, 142, 145 of the Constitution by failing to convene a meeting to clear the notice of motion of no confidence. Regardless of the change in composition of the members of the Private Members Committee the motion of no confidence was duly served on the Private Members Committee and the Speaker, and the Committee were constitutionally obliged to and should have deliberated on it.

(b) The Speaker also breached ss 142 and 145 of the Constitution by failing to inform Parliament that a motion of no confidence had been received and Parliament should deal with it.

(c) The Speaker also breached ss 111 and 115 of the Constitution by:

depriving members of Parliament of their right to move the motion and debate, (s 111 of the Constitution), and

depriving members of Parliament of their right to vote on the motion with complete freedom (ss 115 and 145 of the Constitution).

(d) The Speaker also breached s 115 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.

(e) Parliament itself acted inconsistently with ss 111, 115, 142 and 145 of the Constitution by making an unreasonable decision to adjourn parliament, especially when a notice of motion of no confidence has been served on the Private Members Business Committee and was still extant.

(f) The Supreme Court in SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319 (OLIPAC case) widened the meaning of s 50 of the Constitution and held:

The right guaranteed by s 50(1)(e) is for the purpose of performing one of the most fundamental of the member’s representative duties, as a legislator. Upon election of office, a member has a right to hold that office for the duration of his term subject to those qualifications provided in s 103 of the Constitution. Apart from its primary function. It is Parliament’s function to elect the heads of the legislature (Speaker of Parliament), the executive (Head of State) and the executive government (Prime Minister), debates and vote on motions to pass a law and to vote on the proposed law is essential to the performance of its legislative function.

The issue

24. The central issue is whether the decision of Parliament to adjourn the meeting of Parliament from 16 December 2020 to 20 April 2021 was unconstitutional and invalid.

Circumstances leading up to the allegations

25. This issue arose because of events that took place on 14 and 16 December 2020. On 14 December the applicant submitted a notice of motion of a vote of no confidence to the Chairman of the Private Business Committee, for the removal of the Prime Minister from office.

26. Section 142(5) provides for the removal of a Prime Minister from office and s 145 provides for the process. Standing Order 22 also provides for the procedure how such a notice of motion of vote of no confidence is to be dealt with once the notice of motion is with the Private Business Committee. Standing Orders 130 provides the process to guide the Private Business Committee in its deliberations of a notice of motion of vote of no confidence.

27. In this case the notice of a motion of vote of no confidence was served on the Chairman of the Private Business Committee. The notice was signed by the member and seconded. If the notice of motion is in order, the Private Business Committee shall deliver a copy of its terms to the Clerk of Parliament. The applicant complains that this did not happen in this case.

28. The Chairman did not convene a meeting of the Private Business Committee which is usually held every Wednesday during meetings of Parliament. Parliament has a practice that the Private Business Committee is to meet during the lunch hour from 12 noon to 1.00 pm. As events turned out Parliament was adjourned at 11:35 am on 16 December 2020 and the notice of motion of vote of no confidence was not discussed and deliberated on by the Private Business Committee.

29. The applicant’s attack on the Speaker is that the Speaker should have convened a meeting of the Private Business Committee on the morning of 16 December 2020 between 8.00 am and 10.00 am for the Private Business Committee to deliberate on the notice of motion of a vote of no confidence.

Alleged breaches of the Constitution

30. Did the Speaker breach ss 50, 111, 115, 141, 142(5)(a) and 145 of the Constitution by not convening a meeting of the Private Business Committee and not stopping Parliament from adjourning?

Did the Speaker breach s 50 of the Constitution?

31. Section 50 of the Constitution provides that every citizen who is of full capacity and has reached voting age has the right to take part in public affairs etc. Section 50 appears not to be relevant here, with respect. Section 50 refers to citizens wishing to contest elections to get into Parliament which is a totally different matter and not a matter pertaining to a motion of no confidence. I find no breach of s 50 of the Constitution.

Did the Speaker breach s 111 of the Constitution?

32. Section 111 gives rights to all members of Parliament to introduce motions including a motion of no confidence. The motion is to be dealt with in accordance with the Standing Orders of Parliament. Standing Orders 22 and 130 provide the procedure for MPs to introduce motions including motions of no confidence. Parliament adjourned before the motion of confidence could be dealt with.

33. The argument is that the Speaker should have stopped the Parliament from being adjourned. Was the Speaker obliged to exercise his discretion under s 108(1) of the Constitution? The Speaker is responsible for upholding the dignity of Parliament, maintaining order in it and regulating its proceedings. The Speaker’s actions are subject to the Constitution. This was a Court-ordered sitting of the Parliament but the Court did not say how long the Parliament meeting should be. The Speaker’s actions in that regard were not unreasonable.

34. The applicant did serve his notice of motion of vote of no confidence but it was superseded by other events before it could be acted on. Was s 111 of the Constitution breached? The simple answer is “No”. Why? Sections 115(2) and 134 of the Constitution do not permit the Court to inquire into the proceedings of Parliament. Section 134 says:

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.

Did the Speaker breach s 115 of the Constitution?

35. Section 115 of the Constitution provides for privileges and immunities of Parliament and its members and committees. The fact that the Speaker did not convene a meeting of the Private Business Committee is not a matter this Court can inquire into. Moreover, the fact the Speaker did not exercise his powers to refer the motion to the Clerk of Parliament is not an unreasonable act, with respect. This Court cannot question the Speaker’s actions. See s 115(2) and s 134 of the Constitution.

Did the Speaker breach s 141 of the Constitution?

36. This issue did not arise and therefore s 141 was not breached by the Speaker. The provision deals with the nature of the Ministry and that it is liable to be dismissed from office.
Did the Speaker breach s 142(5) of the Constitution?

37. Section 142(5) says the Prime Minister shall be dismissed from office in accordance with a vote of no confidence in him or that he may be removed from office in accordance with a decision of Parliament. The argument by the applicant is that the Speaker ought to have allowed the motion of no confidence to be tabled on the floor of Parliament on 16 December 2020. The facts are that Parliament was adjourned before the notice of motion of vote of no confidence could be processed by the Private Business Committee and put on the floor of Parliament.

38. Moreover, proceedings in Parliament are non-justiciable under s 134 of the Constitution. This Court should not and cannot interfere with proceedings of Parliament. I find that the Speaker did not breach s 142(5)(a) of the Constitution. There was no motion for a vote of no confidence before Parliament.

Did the Speaker breach s 145 of the Constitution?

39. The answer to this question is, with respect, the same as the answer that I gave in relation to whether the Speaker breached s 142(5)(a) of the Constitution. The answer is “No” for the same reason.

40. I was a member of the Court in Polye v Zurenuoc (2016) SC2039. The circumstances in the Polye case were different but the facts are similar. The Court in the Polye case made the following findings:

(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 8June 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 7June 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 8June 2016 was unreasonable and inconsistent with or in breach of Sections 111, 142 and 145 of the Constitution and declared invalid pursuant to s 11 of the Constitution.

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

41. With respect, I do not think we addressed s 115 and s 134 of the Constitution well in that decision. Having now given more thought to s 115 and s 134 I have come to the conclusion that by virtue of s 115 and s 134 of the Constitution, the procedures prescribed for Parliament or its committees are non-justiciable.

42. CANNINGS J: The Leader of the Opposition, the Honourable Belden Namah MP, applies under s 18(1) of the Constitution for various declarations regarding events of December 2020 when he presented to the Speaker of the National Parliament, Hon Job Pomat MP, notice of a motion of no confidence in the Prime Minister, Hon James Marape MP. The applicant claims that the Speaker did not process the motion and did not inform the Parliament about it, before the Parliament was adjourned to 20 April 2021.

43. He seeks declarations that the adjournment was unconstitutional and that the Speaker’s failure to expedite presentation of the notice of motion to the Parliament was also unconstitutional.

Interveners

44. Two parties were granted leave to intervene in the proceedings:

first intervener, the Attorney-General, Dr Eric Kwa; and
second intervener, the Speaker of the National Parliament, Hon Job Pomat MP.

45. Both interveners oppose the application and all relief sought by the applicant. Their position is that the adjournment of the Parliament from 16 December 2020 to 20 April 2021 was not unconstitutional and that the Speaker did not breach any constitutional requirements in dealing with the motion of no confidence.

Facts

46. The facts on which the application is based are uncontentious:

47. On Monday 14 December 2020 there was a sitting of the Parliament in accordance with the order of the Supreme Court in proceedings, SCCOS No 7 of 2020.

48. That was an application under s 18(1) of the Constitution by the member for Ialibu-Pangia Open, Hon Peter O’Neill MP, which challenged the constitutionality of a sitting of the Parliament on 17 November 2020. The Supreme Court held that the Speaker’s decision to overrule the Parliament’s decision of 13 November 2020, which had the effect of recalling Parliament on 17 November 2020, was unconstitutional and that all decisions made by the Parliament on 17 November 2020 were unconstitutional. The Supreme Court ordered that the next sitting of the Parliament shall be on 14 December 2020 (Application by Hon Peter O’Neill MP (2020) SC2043).

49. On the same day, 14 December 2020, at 2.10 pm, the Leader of the Opposition (the applicant) presented to the Speaker, in his capacity as Chairman of the Private Business Committee (the body responsible for vetting motions of no confidence), a letter under the letterhead of the Leader of the Opposition, containing notice of a motion of no confidence in the Prime Minister, Hon James Marape MP. The applicant’s letter and the notice of the motion stated:

Date 14^th December 2020

The Chairman

Private Business Committee

Parliament House

WAIGANI

National Capital District

My dear Speaker,

SUBJECT: NOTICE OF MOTION OF NO CONFIDENCE IN THE PRIME MINISTER

Pursuant to Standing Orders, Section 130, I, Leader of Opposition and mover of this motion, together with other signatories hereby present to you this Notice of Motion for a Vote of No Confidence on the Prime Minister, Honourable James Marape, MP.

I am satisfied that my Notice of Motion meets the five mandatory requirements, which are:

The notice of motion is expressed to be Motion of No Confidence in the Prime Minister.
The notice of motion names the Prime Minister.
The notice of motion is signed by myself, (Honourable Belden Namah, MP, and Member for Vanimo-Green Open) as the mover of the motion.
The notice of motion is signed by the Honourable Puka Temu, MP, Member for Abau Open, as the Seconder of the motion.
The notice of motion is signed by more than one-tenth of the Members of Parliament.

I therefore, thank you for your cooperation on this significant matter of national importance and trust that you as the Speaker and Chairman of the Private Business Committer are committed to the cause of the Principle of Executive Accountability to the Legislature.

Yours sincerely

[signed]

HONOURABLE BELDEN NAMAH, MP

Member for Vanimo-Green Open

________________

MOTION –

NO CONFIDENCE IN THE PRIME MINISTER

Pursuant to Section 145 of the Constitution and Standing Order 130, I move- that, this Parliament has no confidence in the Prime Minister and Member for Tari Open, Honourable James Marape, MP and nominates the Member for Aitape-Lumi Open, Honourable Patrick Pruaitch, MP to be elected Prime Minister for the Independent State of Papua New Guinea.

Mover: [signed]

HONOURABLE BELDEN NAMAH, MP

Member for Vanimo-Green Open

Seconder: [signed]

HONOURABLE PUKA TEMU, MP

Member for Abau Open

________________

SIGNATURES BY MEMBERS OF PARLIAMENT

(As required under Section 145(1)(b) of the Constitution)

The motion is supported by;

[signed]

HONOURABLE JULIUS CHAN, MP

Member for New Ireland Provincial

[signed]

HONOURABLE PAIAS WINGTI, MP

Member for Western Highlands Provincial

[signed]

HONOURABLE PETER O’NEILL, MP

Member for Ialibu-Pangia Open

[signed]

HONOURABLE CHRIS HAIVETA, MP

Member for Gulf Provincial

[signed]

HONOURABLE ALLAN MARAT, MP

Member for Rabaul Open

[signed]

HONOURABLE JOHN PUNDARI, MP

Member for Kompiam Ambum Open

[signed]

HONOURABLE FABIAN POK, MP

Member for North Wahgi Open

[signed]

HONOURABLE DAVIS STEVEN, MP

Member for Esa’ala Open

[signed]

HONOURABLE JOSEPH LELANG, MP

Member for Kandrian-Gloucester Open

[signed]

HONOURABLE LEKWA GURE, MP

Member for Rigo Open

[signed]

HONOURABLE PATRICK BASA, MP

Member for Kabwum Open

[signed]

HONOURABLE RIMBINK PATO, MP

Member for Wapenamanda Open

[signed]

HONOURABLE ROBERT ATIYAFA, MP

Member for Henganofi Open

[signed]

HONOURABLE RICHARD MASERE, MP

Member for Ijivitari Open

[signed]

HONOURABLE JAMES DONALD

Member for North Fly Open

50. The Parliament sat for only a short time on 14 December 2020 as an issue arose as to the qualifications of one of the members, due to the member being at one stage adjudged insolvent, which needed to be resolved. The Parliament adjourned to 16 December 2020.

51. The Parliament sat on 16 December 2020, commencing at 10.50 am. It decided to change the membership of the Private Business Committee and then passed the 2021 National Budget and then adjourned, at 11.35 am, to 20 April 2021.

52. The Speaker did not inform the Parliament, either on 14 or 16 December 2020, that there was a pending motion of no confidence in the Prime Minister; and the Parliament was not informed in any formal way, of the motion of no confidence.

53. The Speaker had not convened any meeting of the Private Business Committee from the time of receipt of the notice of the motion on 14 December 2020 to the sitting of 16 December 2020.

54. On 18 December 2020 the applicant filed an application under s 18(1) of the Constitution, SCCOS 9 of 2020, in similar terms to the present application, challenging the constitutionality of the 2021 National Budget passed by the Parliament on 16 December 2020 and the decision of the Parliament on that day to adjourn to 20 April 2021.

55. On 15 March 2021 this Court upheld an objection to competency of that application and dismissed SCCOS 9 of 2020 on the grounds that it failed to plead the facts out of which the request for interpretation of Constitutional Law provisions arose and failed to plead whether a question of fact arises for determination by the Court, and therefore was non-compliant with the Supreme Court Rules (Application by Hon Belden Norman Namah MP (2021) SC2082).

56. The present application was filed on 17 March 2021. A declaration that the applicant had standing to make the application was made by the Supreme Court on 14 April 2021. Objections by both interveners to competency of the application were heard and dismissed by this Court on 12 May 2021 (Application by Hon Belden Namah MP (2021) SC2105).

57. The trial of the application took place on 13 May 2021.

Relief

58. The relief sought by the applicant is set out in paragraph 3 of his application:

The applicant requests the Court to declare that upon the proper interpretation or application of:

a. [abandoned at the trial of the application] ...

d. section 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached sections 115 of the Constitution by depriving Parliament of its conduct of the motion of no Confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on the 16th December 2020.

59. The applicant is seeking declarations that:

(1) the Parliament made an unreasonable decision to adjourn Parliament for an unsubstantiated reason, which prevented the notice of motion of no confidence being moved on 16 December 2020, and deprived members of their right to move the motion of no confidence;

(2) the Speaker breached ss 111 and 115 of the Constitution by depriving members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom;

(3) the Speaker breached s 115 of the Constitution by depriving Parliament of its conduct of the motion of no confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on 16 December 2020.

Issues

60. The issues for determination are driven by the relief sought by the applicant, and can be stated as follows:

(1) Was the Parliament’s decision, to adjourn Parliament from 16 December 2020 to 20 April 2021, unreasonable as being made for an unsubstantiated reason, which prevented the notice of motion of no confidence being moved on 16 December 2020, and deprived members of their right to move the motion of no confidence?

(2) Did the Speaker breach ss 111 and 115 of the Constitution by depriving members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom?

(3) Did the Speaker breach s 115 of the Constitution by depriving Parliament of its conduct of the motion of no confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on 16 December 2020?

(4) What orders or declarations should the Court make?

Was the Parliament’s decision to adjourn to 20 April 2021 unreasonable or made for an unsubstantiated reason?

61. The applicant argues that the Parliament’s decision of 16 December 2020 to adjourn to 20 April 2021 was “unreasonable” and made “for an unsubstantiated reason”, having regard to ss 11, 111, 115, 142 and 145 of the Constitution.

62. 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.

63. Section 111 (right to introduce bills etc) states:

(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.

64. Section 115 (parliamentary privileges etc) states:

(5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—

(a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or

(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.

(8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—

(a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and

(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.

65. Section 142 (the Prime Minister) states:

(1) An office of Prime Minister is hereby established.

(5) The Prime Minister—

(b) may be dismissed from office in accordance with Division III.2 (leadership code); and

(6) The Prime Minister may be suspended from office—

(b) in accordance with an Act of the Parliament, pending an investigation for the purposes of Subsection (5)(c), and any resultant action by the Parliament.

66. Section 145 (motions of no confidence) states:

(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

(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.

(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty months commencing on the date of the appointment of the Prime Minister.

67. The first thing to note about those provisions is that none of them imposes any express obligation on the Parliament to make ‘reasonable’ decisions as to adjournment of its sittings or meetings. As to whether there is an implied obligation to make reasonable decisions on adjournment, I have been persuaded that there is, in the sense that the Parliament is obliged to make decisions on adjournment in a way that does not put it in conflict with any Constitutional Law.

68. For example, the Parliament must be aware of and have regard to its obligation to meet not less frequently than three times and for a minimum of 63 days in each parliamentary year. That obligation arises under s 124 (calling etc) of the Constitution, which states:

(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.

69. The practical effect of s 124, including the requirement that the period of nine weeks equals 63 days, was explained by the Supreme Court in SC Ref No 3 of 1999; Reference by Ombudsman Commission [1999] PNGLR 285 and reaffirmed in SC Ref No 3 of 2000; Reference by the Head of State on the advice of the National Executive Council (2002) SC722. It was emphasised by a majority of the Court in each of those cases that the obligation of the Parliament to meet for the minimum periods prescribed by s 124 is real and enforceable.

70. If the Parliament were to adjourn to a date that would make it impossible to discharge its obligations under s 124, its decision on the adjournment would be susceptible to a charge that it was unreasonable or unconstitutional and it is conceivable that the Court could order the Parliament to meet sooner than planned in order not to put itself in breach of s 124.

71. Likewise if the Parliament were to adjourn its next meeting by making a decision contrary to the procedures prescribed by the Organic Law on the Calling of Meetings of the Parliament, it would also be susceptible to a charge that its decision on adjournment was unreasonable or unconstitutional; and it could be ordered by the Supreme Court to sit earlier than planned.

72. Getting back to the present case, there is no suggestion that the Parliament’s decision of 16 December 2020 to adjourn to 20 April 2021 offended against s 124 of the Constitution or the Organic Law on the Calling of Meetings of the Parliament.

73. The applicant’s argument is that the decision was unreasonable because there was a pending motion of no confidence in the Prime Minister, which had not been processed by the Speaker and because the adjournment was for an unsubstantiated reason.

74. The short and effective response to these allegations is to highlight the fact that the Parliament was not informed, before it decided to adjourn to 20 April 2021, of the motion of no confidence. Though individual members of the Parliament might have known about the pending motion of no confidence, the Parliament, as an institution, had not been informed. It cannot profitably be argued that the adjournment decision was unreasonable based on an event (lodging with the Speaker of the motion of no confidence in the Prime Minister) of which the Parliament had no knowledge.

75. The applicant’s allegation that the Parliament’s decision to adjourn to 20 April 2021 was made for an unsubstantiated reason is misconceived, as the Parliament is, in my opinion, under no obligation, express or implied, to give any reasons for its decisions on adjournment, let alone reasons that are “substantiated”.

76. I would answer the first issue in the negative: the Parliament’s decision of 16 December 2020 to adjourn to 20 April 2021 was not unreasonable and was not made for any unsubstantiated reason. I would decline to make the declaration sought by the applicant in paragraph 3(b) of his application.

Did the Speaker breach ss 111 and 115 of the Constitution by depriving members of the Parliament of their right to move the motion of no confidence, and vote on it with complete freedom?

77. The applicant argues that ss 111 and 115 of the Constitution impose an obligation on the Speaker to deal with any notice of a motion of no confidence in the Prime Minister as a matter of priority and to facilitate the vetting of such a notice by the Private Business Committee for compliance with the technical requirements. The applicant argues that a motion of no confidence in the Prime Minister is a constitutional motion and that the Speaker is obliged to give it the priority it commands and inform the Parliament of any pending motion of no confidence in the Prime Minister, especially when there is a motion before the Parliament for adjournment of the Parliament.

78. I uphold, in general terms, most of those propositions as they were at the heart of the unanimous decision of this Court, constituted by Injia CJ, Salika DCJ and Makail J, in Polye v Zurenuoc (2016) SC2039. In that case the notice of a motion of no confidence in the Prime Minister, Hon Peter O’Neill MP, was served on the office of the Speaker on 7 June 2016. The Parliament was due to sit at 10.00 am on 8 June 2016. In fact, it resumed at 11.00 am on that day. It sat until 11.55 am, and then decided to adjourn until 2 August 2016. In the meantime, the Deputy Speaker (the second respondent in that case, who had assumed all functions of the Speaker in the absence of the Speaker) had done nothing to progress the motion through the Private Business Committee, did not convene an urgent meeting of that Committee and did not inform the Parliament of the pending motion of no confidence in the Prime Minister.

79. The Supreme Court was highly critical of the Deputy Speaker, and also the Parliament, and concluded that the following constitutional breaches had been committed:

(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 8th 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 27th July 2016 to enable Parliament to make an informed decision on whether or not to adjourn to 2nd 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 27th July 2016 thereby rendering the notice of motion of no confidence given to him on 7th 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 8th 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 8th of June 2016 and deprived members of their right to move the motion.

80. The Supreme Court went on to order the Speaker to recall the Parliament within five days and to order the Clerk of the Parliament to place the motion of no confidence in the Prime Minister as the first item of business on the first day that the Parliament met. The Court also ordered that the motion of no confidence in the Prime Minister be “introduced, debated and voted on in accordance with ss 111, 115, 141, 142 and 145 of the Constitution, as a matter of national importance and national urgency”.

81. It is not difficult to see why the applicant relies on Polye v Zurenuoc (2016) SC2039 as a precedent. The facts are very similar to the present case. But there is an important distinguishing feature. In Polye v Zurenuoc, the Parliament adjourned on 8 June 2016 to 2 August 2016 and therefore put itself in a position where the motion of no confidence in the Prime Minister became ineffective. This was because of s 145(2)(b) of the Constitution:

A motion of no confidence in the Prime Minister or the Ministry ... 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.

82. The date fixed for the return of the writs for the previous general election was 27 July 2012. The fifth anniversary of that date was 27 July 2017. The date 12 months before the fifth anniversary was 27 July 2016. Any motion of no confidence in the Prime Minister moved after 27 July 2016 could not be allowed if it nominated the next Prime Minister. The motion of no confidence in the Prime Minister that the applicant, Mr Polye, had presented to the Deputy Speaker on 7 June 2016 had nominated the next Prime Minister. That motion of no confidence in the Prime Minister lost its utility after 27 July 2016. It was impossible for it to be voted on, even if there was a will to do so, if Parliament were to meet next on 2 August 2016.

83. The strident criticism by the Supreme Court of the Deputy Speaker must be understood with a keen appreciation of those facts. The present case is different. As at 16 December 2020, the date fixed for the return of the writs for the previous general election was a date in July 2017. The precise date in July 2017 is unclear from the evidence. So I make these comments, on the assumption that it was a date in July 2017. The fifth anniversary of that date is a date in July 2022. The date 12 months before the fifth anniversary is a date in July 2021. Any motion of no confidence in the Prime Minister moved after that date in July 2021 cannot be allowed if it nominates the next Prime Minister. The motion of no confidence in the Prime Minister that the applicant, Mr Namah, presented to the Speaker on 14 December 2020 nominated the next Prime Minister: Hon Patrick Pruaitch MP. That motion of no confidence in the Prime Minister remained effective until a date in July 2021. It was still possible for it to be voted on, when Parliament was due to resume on 20 April 2021.

84. It is an uncontested fact that the motion of no confidence in the Prime Minister, which was presented to the Speaker on 14 December 2020, has not since been carried. The Parliament in fact sat on 20 April 2021, but it is not in evidence, at least not in any detail, as to what has happened to that motion; and, frankly, it is irrelevant what has happened to it, for the purposes of this case. The critical point is that the motion of no confidence in the Prime Minister was not nullified or rendered nugatory by the Speaker’s failure to progress it or inform Parliament about it, from the time he received it on 14 December 2020 to the time that the Parliament adjourned on 16 December 2020, to 20 April 2021.

85. I find that the Speaker was under an obligation to process the notice of motion in such a way that it was not frustrated or rendered nugatory. He did not breach that obligation and did not breach ss 111 or 115 of the Constitution. The Speaker did not deprive any members of Parliament of their right to move the motion of no confidence or to debate and vote on it, as the motion remained alive and could be lawfully dealt with when the Parliament resumed on 20 April 2021.

86. The second declaration sought by the applicant ought to be refused.

Did the Speaker breach s 115 of the Constitution by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on 16 December 2020?

87. I agree with the submissions of the applicant that the Speaker could have convened a meeting of the Private Business Committee so that it could vet the motion of no confidence, so that the motion could be before the Parliament on 16 December 2020. I agree with what the Supreme Court said in Polye v Zurenuoc (2016) SC2039 about the duty of the Private Business Committee to deal with such motions expeditiously.

88. However, I uphold the submissions of the interveners that the Speaker was under no express or implied obligation to convene a meeting of the Committee, so that he could inform the Parliament of the motion at its sitting on 16 December 2020. In the circumstances of this case, which are quite different from those in Polye v Zurenuoc (2016) SC2039, the Speaker’s failure to expedite the processing of the motion and to inform the Parliament of its existence did not have the effect of rendering the motion nugatory. The Speaker did not breach s 115 of the Constitution.

89. The third declaration sought by the applicant ought to be refused.

What orders should the court make?

90. I would refuse all relief sought by the applicant and, subject to any other costs orders made in the proceedings, order that he pay the interveners’ costs of the proceedings.

91. HARTSHORN J: I agree with the Chief Justice and my brother Judges that this application should be dismissed with costs. I make some additional observations. In his application, the applicant claims that the Parliament made an unreasonable decision to adjourn Parliament for an unsubstantiated reason and further, that the Speaker breached s 111 and s 115 of the Constitution by depriving members of Parliament of being able to deal with a motion of no confidence and by depriving Parliament of its conduct of the motion of no confidence. For the applicant’s claims to be successful, first the applicant has to overcome s 115(1), (2) and (3) and s 134 of the Constitution. These sections are:

115. Parliamentary privileges, etc.

134. Proceedings non-justiciable.

92. Sections 115 and 134 of the Constitution were interpreted by Sheehan J in Haiveta v Wingti (No 1) [1994] PNGLR 160 at 177 as follows:

The net effect of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

93. This interpretation was a different approach to s 134 of the Constitution and significantly diminished its effect and purpose. I refer to [157] – [162] of the Application by Belden Namah (2020) SC2040 in this regard.

94. Notwithstanding this different approach, the interpretation by Sheehan J, in essence, has been followed in subsequent cases. This broader view is that whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

95. The applicant did not submit that this is not the current status of the law but placed significant reliance upon the decision of Polye v Zurenuoc (2016) SC2039. In Polye v Zurenuoc (supra), although the Court considered prima facie, a similar fact situation to that presently before this Court, the subject motion of no confidence became ineffective by virtue of the adjournment of the Parliament to a date which was after the time limited for bringing a motion of no confidence in the Prime Minister under s 145(2)(b) of the Constitution. In the fact situation before this Court, the motion of no confidence remained live following the adjournment of the Parliament. Further, unlike in this case, in Polye v Zurenuoc (supra), the Deputy Speaker of Parliament or the committee chaired by him, had on at least three occasions rejected notices of motion of no confidence in the Prime Minister. It is in this context that the hearing and decision in Polye v Zurenuoc should be considered in my respectful view.

96. The Court in Polye v Zurenuoc held that the Deputy Speaker and the Parliament committed numerous breaches of ss 111, 115, 141, 142 and 145 of the Constitution. The Court also held that Standing Orders 130(4) and 22 were breached but that the facts did not support a breach of s 134 of the Constitution.

97. To my mind, Polye v Zurenuoc may be distinguished from the case presently before this Court for the reasons referred to. It is to be noted with respect, that from a perusal of the judgment of the Court, it does not appear that the Court gave due consideration to s 115 and s 134 of the Constitution and the natural and ordinary meanings of these sections. Further, there is no discussion or explanation concerning the Court’s apparent departure from the interpretation of s 115 and s 134 in Haiveta v Wingti (No 1) by Sheehan J.

98. In this instance, the sections of the Constitution which in the application are alleged to have been breached, s 111 and s 115, do not specifically provide a procedure that must have been followed in the circumstances pertaining to this case. More specifically, they do not provide a procedure to the effect that a notice of motion of no confidence in the Prime Minister must be dealt with before Parliament may be adjourned. Further, they do not provide any fetter upon the Parliament being adjourned such as, for instance, that a decision to adjourn must be reasonable. There are therefore no such procedures in Constitutional Laws which are justiciable in this instance.

99. Consequently, the application should be dismissed with costs.

100. KARIKO J: On 16 December 2020 the Parliament passed the Budget and adjourned to its next sittings on 20 April 2021, without considering the notice of motion of no confidence in the Prime Minister (the notice) that was submitted to the Speaker of the Parliament on 14 December 2020.

101. This is an application by Honourable Belden Namah MP, Leader of the Opposition, made pursuant to s 18(1) of the Constitution, whereby he seeks this Court’s interpretation and application of provisions of the Constitution in relation to the passing of the Budget and the adjournment of the sittings by the Parliament.

The application

102. The applicant’s request in respect of the Budget was abandoned, so the Court is only asked to declare that on the proper interpretation and application of:

a. [abandoned at the trial of the application] ...

c. sections 111 and 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached these sections 111 and 115 of the Constitution by depriving Members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom.

d. section 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached sections 115 of the Constitution by depriving Parliament of its conduct of the motion of no Confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on the 16th December 2020.

The interveners

103. The interveners in this application are:

the Secretary for Justice and the Attorney-General, Dr Eric Kwa – the first intervener; and
the Speaker of the Parliament, Honourable Job Pomat MP – the second intervener.

104. Both interveners oppose the application.

Evidence

105. The parties tendered affidavits into evidence without objection.

106. For the applicant:

Affidavit of Honourable Belden Norman Namah, MP, the applicant, filed 9 April 2021 (Exhibit 1).

107. For the first intervener:

Affidavit of Dr Eric Kwa, the first intervener, filed 27 April 2021 (Exhibit I1).

108. For the second intervener:

Affidavit of Honourable Job Pomat, MP, the second intervener, filed 9April 2021 (Exhibit I2A).
Affidavit of Honourable Job Pomat, MP, the second intervener, filed 27April 2021 (Exhibit I2B).
Affidavit of Kala Aufa, Clerk of the Parliament, sworn 11May 2021 (Exhibit I2C).
Affidavit of Honourable Job Pomat, MP, the second intervener, filed 13 April 2021 (Exhibit I2D).

Facts

109. The evidence discloses the following relevant and undisputed facts.

110. The Parliament sat on 14 December 2020 but adjourned at 11.50 am to 10.00 am on 16 December 2020. The adjournment was to allow for the Speaker to seek legal clarification regarding the qualification of the member for Kerowagi to remain as a member of the Parliament. Later that day, at 2.10 pm, the applicant served on the Speaker, as the Chairman of the Parliamentary Committee on Private Business (the Private Business Committee), the notice.

111. When the Parliament resumed sitting on 16 December 2020, it only conducted two items of business:

membership of the Private Business Committee was changed; and
the Budget was passed.

112. The Parliament then adjourned at 11.35 am to 20 April 2021 for its next meeting.

113. However, the National Executive Council recalled the Parliament to sit on 11 March 2021 in honour of Grand Chief Sir Michael Somare after his passing. No other business was conducted that day, and the Parliament adjourned again to 20 April 2021.

114. The next sittings did commence on that day. On 21 April 2021, the Private Business Committee convened and considered the notice, and it was rejected upon the Committee finding it to be defective.

Issues

115. The Court is essentially being requested to resolve whether or not the adjournment of the Parliament on 16 December 2020 to 20 April 2021, was unconstitutional, and therefore invalid, void and of no effect.

Constitutional Law provisions

116. The provisions of the Constitution cited for interpretation and application and which are relevant to the issue, are ss 11, 111, 115, 142 and 145.

117. Section 11 describes the supremacy of the Constitution, and states:

Constitution, etc., as Supreme Law.

(1) This Constitution and the Organic Law 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 provision of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

118. Section 111 speaks of the right of members of the Parliament to introduce bills etc.

111. Right to introduce bills, etc.

(1) Subject to Section 210 (executive initiative) and to an Organic Law made for the purposes of Subdivision V1.2H (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.

119. Section 115 concerns the powers, privileges and immunities of the Parliament and its members, and provides in s 115(2) that members shall have freedom of speech and debate.

Parliamentary privileges, etc.

120. Section 142 establishes the Office of the Prime Minister, and provides in s 142(5) for dismissal of the Prime Minister by way of motion of no confidence.

The Prime Minister.

(5) The Prime Minister—

121. Section 145 deals with motions of no confidence.

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.

(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.

122. Standing Orders 22 and 130 of the Standing Orders of the National Parliament are also pertinent in considering this application.

123. Standing Order 22 provides for the Private Business Committee.

Private Business Committee.

(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 on each Wednesday during meetings of the Parliament to examine all notices of motion submitted to the Committee under Standing Order 130, and to determine whether the terms of the motion are of a parochial nature or of a matter 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 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 and duties of the Committee under Subsection (3)(a), (b) and (c) shall be carried out by Mr Speaker.

124. Standing Order 130 covers private notices of motion:

Private notices of motion.

(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 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 the purpose of this Standing Order, a notice of motion of no confidence given under Section 145 of the Constitution is a private notice of motion and shall have precedence on Private Business day.

125. In submissions, the applicant also referred to s 12 of the Permanent Parliamentary Committee Act 1994, which deals with meetings of permanent parliamentary committees, and that includes the Private Business Committee.

Power to sit, etc.

A Committee may—

(a) sit and transact business during a meeting of the Parliament; and

(b) sit at such times and in such places, and conduct its proceedings in such manner, as it thinks proper; and

(c) make its deliberations in public unless the Committee otherwise determines.

Applicant’s submissions

126. The applicant relies heavily on the judgement of the Supreme Court (Injia CJ, Salika DCJ and Makail J) in Polye v Zurenuoc (2016) SC2039, which he contends is authoritative on the issue before this Court.

127. In that case, the Parliament adjourned for nearly two months, the day after the Speaker received a notice of motion of no confidence in the Prime Minister. Similar to the present case, the notice of motion was not considered and cleared by the Private Business Committee, and the Parliament was not informed by the Speaker that he had received the notice.

128. The Court found the Speaker breached the Constitution:

by not convening a meeting of the Private Business Committee; and
in not facilitating the notice of motion to be tabled and debated before the adjournment.

129. The Court also held that the reason for the adjournment was unreasonable and based on unsubstantiated grounds, and the Parliament thereby deprived the members from considering the notice of motion, in breach of the Constitution.

130. Based on the observation of the Court in Polye v Zurenuoc (supra), the applicant argues that:

The Speaker ought to have convened a meeting of the Private Business Committee before the Parliament resumed sitting at 10 am on 16 December 2020. There was time between receipt of the notice and the resumption of the sitting, to attend to that.
Notwithstanding s 22 of the Standing Orders, which states that the Private Business Committee shall meet on Wednesdays (and 16 December was a Wednesday), and the practice of the Committee to meet during lunchtime, the Permanent Parliamentary Committee Act 1994 permits the Private Business Committee to meet at any time. The Speaker therefore breached ss 141, 142, 145 of the Constitution.
The Speaker should have ensured the notice was cleared and tabled in the Parliament, and debated and voted upon by the members. By failing to do so, he also breached ss 111 and 115 of the Constitution.
Given the significance of a motion of no confidence in the Prime Minister, the Speaker was obliged to inform the Parliament that he had received the notice, so that the members could, with that knowledge, properly decide whether the Parliament should adjourn or whether it should consider the notice. The Speaker thereby breached ss 142 and 145 of the Constitution.
The Parliament itself acted inconsistently with ss 111, 115, 142 and 145 of the Constitution by making an unreasonable decision to adjourn Parliament, especially when the notice was with the Private Business Committee.

Interveners’ submissions

131. The interveners urge the Court to find that there was no breach of any Constitutional Law by either the Speaker or the Parliament, in relation to how the notice was treated or the adjournment of the Parliament on 16 December 2020. They stress that the applicant failed to point to a provision of the Constitution:

that obligated the Speaker to convene a meeting of the Private Business Committee before 16 December 2020 or before the Parliament commenced its session on the morning of that day; or
that obligated the Speaker to clear the notice for it to be tabled on 16 December 2020 for the Parliament’s consideration;
that obligated the Speaker to inform the Parliament that he had received the notice, in order for the members of the Parliament to consider that fact before voting on the motion to adjourn the sitting to 20 April 2021; or
that prevents the Parliament from deciding to adjourn its sitting.

132. The interveners ask that this Court distinguish this case from Polye v Zurenuoc (supra) on the facts and circumstances. In the cited case, there were three other notices of motion of no confidence in the Prime Minister submitted in the preceding eight months that were never cleared for tabling in the Parliament. This was because either the Speaker or the Acting Speaker disallowed them for unmerited reasons. The Court viewed this as a pattern of unfounded rejections. Further, the Parliament adjourned to a sitting date that prevented the pending notice of motion from being processed and voted upon. The date was after the occurrence of the fourth anniversary of the Parliament’s term, when a motion of no confidence cannot be moved: s 145(2)(b) of the Constitution.

133. The interveners accept that in those circumstances, the Court correctly found the conduct of the Speaker and the Parliament in frustrating the proper process for dealing with the notice of motion of no confidence, to be inconsistent with the Constitution and therefore unconstitutional.

134. However, the interveners argue that in the present case, there is no history of unjustified refusals by the Speaker to process notices of motions of no confidence. Further and importantly, the process for dealing with the notice had commenced and was still alive when the Parliament adjourned, and the notice was subsequently and duly dealt with on 21 April 2021.

Consideration

135. Section 11 of the Constitution declares the supremacy of the Constitution. The structure of government which is established by the Constitution comprises three arms of government - the legislature (the National Parliament), the executive (the National Executive) and the judiciary (the National Judicial System): s 99.

136. The doctrine of separation of powers, which calls for each arm of government not to interfere with the others in the exercise of their respective powers, is in principle affirmed by s 99(3).

137. The Courts have however, determined in certain cases that the decisions of the Parliament are justiciable and that Parliament must comply with the provisions of the Constitution. Polye v Zurenuoc (supra) is one such instance. Other occasions include:

• Haiveta v Wingti (No 3) [1994] PNGLR 197 – where the issue was whether the Prime Minister can resign and be re-elected the same day.
• SC Ref No 3 of 2000; Reference by the Head of State on the advice of the National Executive Council (2002) SC722 – where calculation of the number of sitting days of the Parliament in a year came under scrutiny.
• Application by Hon Peter O’Neill MP (2020) SC2043 – where the recall of the Parliament by the Speaker, which overruled the decision of the Parliament to adjourn while being presided over by the Acting Speaker, was considered.
138. Is the current case, one that is appropriate for the Supreme Court to intervene in the business of the Parliament? Put another way, has the Speaker or the Parliament itself, acted contrary to or inconsistent with the Constitution?

139. The facts and circumstances of Polye v Zurenuoc (supra) are comparable to those in the matter before this Court, but only to this extent:

A notice of motion of no confidence in the Prime Minister was submitted to the Speaker.
The notice was not put to the Private Business Committee.
The Speaker did not convene a meeting of the Committee to consider the notice.
The Parliament adjourned before the notice was cleared for tabling in the Parliament.

140. The Court affirmed at [40] in Polye v Zurenuoc that there are five technical requirements that need to be met for a notice of motion of no confidence to be cleared by the Private Business Committee:

(1) The motion is to be expressed to be a motion of no confidence in a named Prime Minister: (Constitution s 145(1)(a)).

(2) The motion must state the name of the alternate Prime Minister; (Constitution s 145(2)(a)).

(3) The notice It must state the name and contain the signature of the member moving the motion (Standing Order 130(2)(d)).

(4) The notice must state the name and contain the signature of the member seconding the motion (Standing Order 130(2)(e)).

(5) The motion must name the persons and contain the signatures of not less than one tenth of the members who endorse the motion (Constitution s 145(1)(b)).

141. The Court stressed in [41] – [44] that a motion of no confidence in the Prime Minister is of national and constitutional importance because, if successful, it could change government. The motion is not parochial in nature, and provided the five technical requirements have been satisfied, the Private Business Committee and the Clerk of the Parliament are obliged to process it without unreasonable delay so that it may be tabled in the Parliament. The notice of motion should not be terminated by the Private Business Committee unless it does not meet the technical requirements.

142. In the present case, the notice was not terminated by either the Speaker or the Private Business Committee. The notice was alive and was awaiting to be processed according to established practice adopted pursuant to Standing Orders 22 and 130, and that is:

A notice of motion is placed before the Committee at its next meeting which is held on a Wednesday during meetings of the Parliament and in practice, the meeting is usually held between 12 pm and 1 pm.
If there is no quorum for the meeting before 1.45 pm, the Speaker shall act in place of the Committee.
Upon deciding that the motion is in order, a copy of it is delivered to the Clerk for tabling in the sitting.
A motion of no confidence under s 145 of the Constitution shall take precedence on Private Business day.

143. In line with this practice, the Private Business Committee would have met between 12 pm and 1 pm on 16 December 2020 (being a Wednesday), but that did not eventuate for the obvious reason that the Parliament adjourned at 11.35 am to 20 April 2021 for its next meeting. The Committee only sits during meetings of the Parliament (Standing Order 22(3)(a)).

144. I do not accept the submission that the Speaker had a duty to convene a meeting of the Private Business Committee before the Parliament sat on the morning of 16 December 2020, and that he failed to facilitate the process to have the notice tabled. There is no evidence to suggest that the Speaker was aware that the Parliament was going to adjourn before lunchtime to 20 April 2021. There is also no evidence that the Speaker did not intend to have the notice processed that day. The process was unable to advance to the next stage only because the Parliament voted to adjourn to the next meeting.

145. The reference by the applicant to s 12 of the Permanent Parliamentary Committees Act 1994 does not add to his case. Section 118(2) of the Constitution empowers the Parliament to provide for procedures of Permanent Parliamentary Committees, among others, by way of Standing Orders. Standing Orders 22 and 130 specifically relate to the Private Business Committee, so it overrides s 12 of the Permanent Parliamentary Committees Act 1994, which is a general provision.

146. I also reject the contention that the Speaker should have informed the Parliament of the notice. He was not obliged to do so under any Constitutional Law or the Standing Orders. The evidence is that the notice had yet to be cleared by the Private Business Committee. It had not even reached the stage where it was ready to be tabled in the Parliament. If cleared at the next meeting of the Parliament, it could then be tabled.

147. It is within the powers of the Parliament under s 115 of the Constitution to adjourn its sittings and its meeting as it deems necessary, provided it is not done in contravention of the Constitution. It is also noted that Standing Orders 42 states that the Parliament can adjourn by its own resolution, while Standing Order 43 provides that only a Minister can move for an adjournment.

148. I find that the applicable Standing Orders in relation to dealing with a notice of motion of no confidence, and adjournment of the Parliament, were not breached. In any case, questions regarding whether the procedures of the Parliament provided by the Standing Orders have been complied with, are non-justiciable under s 134 of the Constitution: Application by Belden Namah (2020) SC2040.

149. I agree with the interveners’ submissions that there is no Constitutional Law provision that obliged the Speaker:

(1) to convene a meeting of the Private Business Committee before the sittings of the Parliament on 16 December 2020; or

(2) to have the notice tabled in the Parliament on 16 December 2020; or

(3) to inform the Parliament before it voted on the motion for adjournment on 16 December 2020, that he had received the notice.

150. In my opinion, the Speaker and the Parliament did do not deprive the members of the Parliament of their rights under ss 111 and 115 of the Constitution nor did they breach any other Constitutional Law provision.

Conclusion

151. The onus is on the applicant to prove his claim on the balance of probabilities: Namah v O’Neill (2015) SC1617. I am not persuaded to the requisite standard of proof that the conduct of the Speaker and the Parliament on 16 December 2020, constituted breaches of the Constitution as alleged by the applicant.

152. I dismiss the application with costs to follow the event.

153. ANIS J: I have had the benefit of reading the draft judgments of the Chief Justice and my other brother Judges. I am in agreement with their Honours’ reasoning and conclusions. I have nothing further to add.

154. BY THE COURT: For the above reasons the Court makes the following order:

(1) All relief sought by the applicant is refused.

(2) Subject to any other costs orders made in the proceedings, the applicant shall pay the interveners’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kuman Lawyers: Lawyers for the First Intervener
Kawat Lawyers: Lawyers for the Second Intervener

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