Application by Allan Bird MP [2025] PGSC 121; SC2816 (28 November 2025)

SC2816

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO 4 OF 2025

IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE ALLAN BIRD MP,
MEMBER FOR EAST SEPIK PROVINCIAL

WAIGANI: SALIKA CJ, MOGISH J,
CANNINGS J, MANUHU J, HARTSHORN J

2 OCTOBER, 28 NOVEMBER 2025

CONSTITUTIONAL LAW – motions of no confidence in Prime Minister – Constitution, s 145 – Constitutional Amendment No 48 (Motions of No Confidence) Law 2025 – whether amendment of s 145 by requiring that no motion of no confidence can be moved within 18 months after unsuccessful motion of no confidence is unconstitutional – whether Constitutional Amendment No 48 failed to comply with procedural requirements of s 14 of the Constitution – whether Constitutional Amendment No 48 is a law that prohibits the exercise of rights of members of Parliament under Constitution, s 50 to vote for and be elected to elective public office – whether Constitutional Amendment No 48 offends against s 141 of the Constitution, rendering it unconstitutional.

On 12 March 2025 the National Parliament made Constitutional Amendment No 48 (Motions of No Confidence) Law 2025. That Law amended s 145 (motions of no confidence) of the Constitution by inserting a new subsection (5), which states “Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful”. The applicant, a member of the Parliament, applied to the Supreme Court under s 18(1) of the Constitution for a declaration that Constitutional Amendment No 48 is unconstitutional in various respects, including that the procedural requirements of s 14 of the Constitution for amending the Constitution were not complied with, that the Law prohibits exercise of the rights under s 50 of the Constitution of all members of the Parliament to vote for and be elected to elective public office but does not comply with s 38 of the Constitution, and that the Law is inconsistent with existing provisions of the Constitution, in particular s 141, which enshrines the principle of accountability of the executive arm of government to the People through the Parliament. The second intervener, the Leader of the Opposition, supported the application. The first intervener, the Attorney-General, opposed the relief sought by the applicant.

Held:

(1) The procedural requirements of s 14 of the Constitution were complied with.

(2) The amendment to the Constitution made by Constitutional Amendment No 48 restricted but did not prohibit the exercise of s 50 rights by members of the Parliament. Constitutional Amendment No 48 did not have to comply with s 38 of the Constitution.

(3) Constitutional Amendment No 48 does not offend against the principle that the Executive is accountable to the People through the Parliament and is not inconsistent with existing provisions of the Constitution.

(4) Constitutional Amendment No 48 is not unconstitutional.

Cases cited
Application by Hon Bill Skate MP (2001) SC678
Application by Nomane (2025) SC2721
Application by Sione (2025) SC2679
Kereme v O’Neill (2019) SC1781
Namah & Geno v O’Neill & Zurenuoc [2015] 2 PNGLR 291
Polye v Zurenuoc (2016) SC2039
Premdas v The State [1979] PNGLR 329
SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214
SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31
SC Ref No 11 of 2008, Reference by Fly River Provincial Government re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319
SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944
SC Ref No 2 of 2020, Reference by Bougainville Executive re ss 89(2) and 91(4)(f) of the Bougainville Constitution [2010] 1 PNGLR 335
The State v NTN Pty Ltd [1992] PNGLR 1

Counsel
N Yalo for the applicant
L A Jurth & D Mel for the first intervener, the Attorney-General
D Dotaona for the second intervener, the Leader of the Opposition

1. BY THE COURT: The Honourable Allan Bird MP, Member for East Sepik Provincial, applies under s 18(1) of the Constitution for a declaration that Constitutional Amendment No 48 (Motions of No Confidence) Law 2025, made by the National Parliament on 12 March 2025, is unconstitutional.

2. That Law amended s 145 (motions of no confidence) of the Constitution by inserting a new subsection (5), which states:

Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.

3. The applicant argues that Constitutional Amendment No 48 is unconstitutional in three respects:

1. the procedural requirements of s 14 of the Constitution for amending the Constitution were not complied with;
   
2. the Law prohibits or at least restricts the exercise of the rights under s 50 of the Constitution of all members of the Parliament to vote for and be elected to elective public office but does not comply with s 38 of the Constitution; and
   
3. the Law is inconsistent with existing provisions of the Constitution, in particular s 141, which enshrines the principle that the Executive arm of Government is accountable to the People through the Parliament, as the effect of the Law is to provide for a period of 36 months of the 60-month life of the Parliament in which there is no accountability of the Executive to the Parliament.
   

4. The second intervener, the Leader of the Opposition, supports the application. The first intervener, the Attorney-General, opposes the relief sought by the applicant.

SECTION 145 OF THE CONSTITUTION

5. To put Constitutional Amendment No 48 in context, we cite the whole of s 145 of the Constitution, inclusive of the new subsection (5). It 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

(b) of which not less than one month’s week's notice, signed by a number of members of the Parliament being not less than one-fifth 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 18 months commencing on the date of the appointment of the Prime Minister.

(5) Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.

We now address the three primary arguments of the applicant.

APPLICANT’S FIRST ARGUMENT: PROCEDURAL REQUIREMENTS NOT COMPLIED WITH

6. The applicant contends that the procedural requirements for amendment of s 145 of the Constitution were not complied with. The requirements are set out in Subdivision II.2.B (constitutional alteration and Organic Laws) of the Constitution, which contains ss 13 to 17.

7. These provisions relevantly state:

13. Alterations of the Constitution.

This Constitution may be altered only by [a] law made by the Parliament that—

(a) is expressed to be a law to alter this Constitution; and

(b) is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws).

14. Making of alterations to the Constitution and Organic Laws.

(1) Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 ("prescribed majority of votes") expressed on at least two occasions after opportunity for debate on the merits.

(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—

(a) during different meetings of the Parliament; and

(b) separated in time by at least two months,

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament.

(3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.

(4) Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.

(5) The certificate referred to in Subsection (4) shall state—

(a) the date on which each vote was taken; and

(b) in relation to each vote—

(i) the number of seats in the Parliament at the time; and

(ii) the respective numbers of members of the Parliament voting for and against the proposal, and where the requirements of Subsection (2) were waived under Section 15 (urgent alterations) for and against the motion for the waiver,

and is, in the absence of proof to the contrary, conclusive evidence of the matter so stated.

(6) Unless the Parliament decides otherwise in any particular case, Subsection (1) does not apply where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice for the purpose, certifies that the proposed law—

(a) does not affect the substance of any provision to be altered by it; or

(b) is designed to correct a self-evident error or omission; or

(c) is merely incidental to or consequential on some other alteration of this Constitution or of any other law,

and such a law may be made in the same way as Acts of the Parliament.

(7) The Supreme Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (6) or such further time as a Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive.

15. Urgent alterations [Section 15 is irrelevant as it was expressed to cease to have effect at the first moment of the fourth anniversary of Independence Day, ie 16 September 1979.]
    

16. Indirect alterations.

(1) No Constitutional Law takes effect so as to affect the operation of any provision of such a law in force immediately before the commencement of the first-mentioned law unless it was made in the manner and form required for the alteration of that provision.

(2) For the avoidance of doubt, it is hereby declared that Subsection (1) extends to Schedule 1 (Rules for Shortening and Interpretation of the Constitutional Laws) in its application to any provision of this Constitution.

17. "Prescribed majority of votes".

(1) Subject to this section, in relation to a proposed law to alter any provision of this Constitution the prescribed majority of votes for the purposes of Section 14 (making of alterations to the Constitution and Organic Laws) is the majority of votes prescribed by this Constitution in relation to that provision, or if no majority is prescribed a two-thirds absolute majority vote.

(2) For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 3, 6, 8, 20, 21, 23, 24, 26 to 31 (inclusive), 63, 68, 69, 73, 77 to 98 (inclusive), 101, 103, 104, 110, 117, 138, 139, 150, 156, 165, 167, 171, 184 to 187 (inclusive), 206, 248 to 252 (inclusive), 264 to 268 (inclusive), Sch 1.21, Sch 2.1 to Sch 2.14 (inclusive), Schedules 3, 4 and 5 is an absolute majority.

(3) For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 35, 36, 50, 57, 105, 106, 109, 113, 125, 126, 155, 157, 160, 163, 217, 235, 239, 243, 244, 245 and 269 is a three-quarters absolute majority.

(4) Subject to this section, for the purpose of a proposed law to add a new provision to this Constitution the prescribed majority of votes is the same as the prescribed majority of votes that would be required to alter that provision if it was already enacted.

(5) Subject to Section 12(3) (Organic Laws), in relation to a proposed Organic Law the prescribed majority of votes is—

(a) in the case of a proposed Organic Law to alter a provision of an Organic Law—the same as the majority that would be required for the making of the provision proposed to be altered; and

(b) in any other case—

(i) the majority of votes (not being less than an absolute majority) prescribed by this Constitution for the making of the Organic Law; and

(ii) if no majority is prescribed, a two-thirds absolute majority.

(6) Where, by virtue of the operation of the preceding provisions of this section, there are different prescribed majorities in relation to different provisions of a proposed law, the prescribed majority of votes in relation to the law as a whole is the greatest of those majorities.

(7) Nothing in this section prevents different majorities being prescribed in respect of different aspects or subject-matters of a provision.

(8) No Organic Law may require a majority of votes for the alteration of a provision of an Organic Law greater than that by which the first-mentioned law was made.

(9) Notwithstanding anything in this section, until 16 September 1980—

(a) for the purpose of a proposed law to add a new provision to this Constitution, the prescribed majority of votes is an absolute majority; and

(b) for the purpose of making an Organic Law for which there was provision in this Constitution when adopted the prescribed majority of votes is an absolute majority.

8. The term “absolute majority" is defined by schedule 1.2(1) of the Constitution:

"absolute majority vote", in relation to proceedings in the Parliament, means—

(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; or

(b) if not so qualified, affirmative votes equal to more than one half of the total number of those seats.

9. The procedural requirements for amending s 145 of the Constitution are therefore as follows:

• the proposed law to alter s 145 must be published by the Speaker in full in the National Gazette and circulated in accordance with the Standing Orders of the Parliament not less than one month before it is formally introduced into the Parliament (s 14(2));
  
• the proposed law must be supported on a division in accordance with the Standing Orders;
  
  • ➢ by the prescribed majority of votes (s 14(1)), which in the case of amendment of s 145 is a two-thirds absolute majority (s 17(1));
    
  • ➢ expressed on at least two occasions (s 14(1));
    
  • ➢ after opportunity for debate on the merits (s 14(1));
    
  • ➢ during different meetings of the Parliament (s 14(2)(a)); and
    
  • ➢ separated in time by at least two months (s 14(2)(b));
    
• the law that alters the Constitution must:
  
  • ➢ be expressed to be a law to alter the Constitution (s 13(a)); and
    
  • ➢ be certified in accordance with s 14 (s 13(b)) (this means that when the Speaker gives the certificate under s 110 (certification of the making of laws) that the law has been made by the Parliament, the dates and details of the votes must be stated as required by s 14(5)).
    

10. The applicant contends that strict compliance with those procedures was necessary and that there was a breach of s 14(1) in this case. He argues that there was no opportunity for debate on the second occasion, on 12 March 2025, that the proposed law to amend s 145 was supported by a two-thirds absolute majority.

11. We agree with the proposition that strict compliance with the procedures for amending the Constitution is necessary (Kereme v O’Neill (2019) SC1781).

12. As to the claim that there was no opportunity for debate on 12 March 2025, we make the following findings of fact.

13. According to Hansard (which has been accepted by all parties as an accurate record of the proceedings of the Parliament of that day) what happened was:

• after a long session dedicated to pay tribute to the late Sir Julius Chan, the Leader of Government Business, Hon Peter Tsiamalili MP, moved a motion to suspend Standing Orders that would prevent the third reading of the proposed law to be called forthwith without notice, which motion was passed;
  
• the Minister for Justice and Attorney-General, Hon Pila Niningi MP, tabled the proposed law;
  
• the chairman of the Permanent Parliamentary Committee on Constitutional Laws and Acts, Sir Peter Ipatas, presented that Committee’s report on the proposed law, recommending that the proposed law be made;
  
• the Leader of Government Business then proposed that the Parliament vote on the proposed law; and
  
• there was no further debate and the vote was taken: 81 members voted for the proposed law, four voted against it.
  

14. The applicant contends that there was no debate on the merits of the proposed law. Members who did not support the proposed law were caught by surprise, the vote was called without notice, the Standing Orders were suspended. It all happened in a rush. This, the applicant contends, was in violation of s 14 of the Constitution, which calls for measured, careful and meaningful debate of the crucial question whether the Constitution should be amended.

15. We agree that on 12 March 2025 there was no debate on the merits of the proposed law. This contrasted with the first occasion, on 27 November 2024, on which the vote was taken in support of it. On that occasion there was extensive and vigorous debate of the pros and cons of the proposed law.

16. However, s 14 does not require that there be meaningful debate, or any debate. The requirement is only that there be the opportunity for debate. Hansard shows that when the Leader of Government Business moved for suspension of the Standing Orders and when he proposed that the vote be taken, no member objected or made a point of order. No member stated that they opposed the proposed law. The Speaker did not prevent debate.

17. We are satisfied therefore that the requirement that there be opportunity for debate was met. There was no breach of s 14. The applicant’s first argument fails.

APPLICANT’S SECOND ARGUMENT: FAILURE TO COMPLY WITH SECTION 38 OF THE CONSTITUTION

18. The applicant argues that Constitutional Amendment No 48 prohibits or at least restricts the rights of all members of the Parliament to vote for and to be elected to elective public office, namely the office of Prime Minister.

19. The applicant further argues:

• that those rights of all members of the Parliament are conferred by s 50 of the Constitution;
  
• that Constitutional Amendment No 48 failed to comply with s 38 of the Constitution;
  
• that compliance with s 38 of the Constitution was mandatory; and
  
• that therefore Constitutional Amendment No 48 is unconstitutional.
  

Restrictions on voting

20. We agree with the proposition that Constitutional Amendment No 48 imposes restrictions on the exercise by members of the Parliament of the right to vote for and to be elected to the office of Prime Minister.

21. However, we reject the argument that Constitutional Amendment No 48 prohibits the exercise of those rights. It does not impose a blanket prohibition. It restricts and regulates the exercise of rights (The State v NTN Pty Ltd [1992] PNGLR 1, SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214).

22. The new s 145(5) of the Constitution prevents members of the Parliament from moving or supporting a motion of no confidence in the Prime Minister only in the 18-month period after an unsuccessful vote of no confidence; and it prevents them during that same period from being elected to the office of Prime Minister.

Right to vote for and be elected Prime Minister

23. We also agree with the proposition that the rights of members of the Parliament to vote for and to be elected to elective public office, including the office of Prime Minister are conferred by s 50 of the Constitution.

24. In SC Ref No 11 of 2008, Reference by Fly River Provincial Government re Organic Law on the Integrity of Political Parties and Candidates (the OLIPPAC case) [2010] 2 PNGLR 319 the Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J) unanimously emphasised that s 50(1)(e) confers a constitutional right to freedom of all members of the Parliament to exercise their public function of debating and voting on all matters within the jurisdiction of the Parliament.

25. Section 50 (right to vote and stand for public office) states:

(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.

26. Section 50 confers on citizens including members of the Parliament a bundle of rights, which form part of the Basic Rights or human rights conferred by the Constitution (SC Ref No 2 of 2020, Reference by Bougainville Executive re ss 89(2) and 91(4)(f) of the Bougainville Constitution [2010] 1 PNGLR 335, Application by Sione (2025) SC2679).

27. Section 50 provides that all citizens including members of Parliament shall be given a reasonable opportunity to exercise these rights:

• to directly take part in the conduct of public affairs (s 50(1)(c));
• to take part in the conduct of public affairs through freely chosen representatives (s 50(1)(c));
• to vote for elective public office at genuine, periodic, free elections (s 50(1)(d));
• to be elected to elective public office at genuine, periodic, free elections (s 50(1)(d));
• to hold public office (s 50(1)(e)); and
• to exercise public functions (s 50(1)(e)).
  

Did Constitutional Amendment No 48 comply with s 38 of the Constitution?

28. The applicant asserts that Constitutional Amendment No 48 is a significant law amending an important provision of the Constitution. It substantially curtails the exercise of the rights of all members of the Parliament under s 50 of the Constitution, and it was necessary for it to comply with s 38 of the Constitution. But there was no compliance.

29. Section 38 (general qualification on qualified rights) states:

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

30. The applicant maintains that Constitutional Amendment No 48 had to satisfy the three requirements arising from s 38(1).

31. First, the law must be made and certified in accordance with s 38(2).

32. Secondly, the law must:

(a) regulate or restrict the exercise of a right or freedom, only to the extent that the regulation or restriction is “necessary”—

“(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or
(B) public safety; or
(C) public order; or
(D) public welfare; or
(E) public health (including animal and plant health); or
(F) the protection of children and person under disability (whether legal or practical); or
(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others”; or

(b) make “reasonable provision for cases where the exercise of one such right may conflict with the exercise of another”.

33. Thirdly, the regulation or restriction of the exercise of rights or freedoms (s 38(1)(a)) or the provision for cases where the exercise of one right may conflict with the exercise of another right (s 38(1)(b)) must only be to the extent that is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”.

34. The applicant argues that Constitutional Amendment No 48 failed to comply with all three requirements, in that:

• it was not made and certified in accordance with s 38(2);
  
• it imposed restrictions on the exercise of the s 50 rights members of the Parliament that were not necessary; and
  
• the restrictions it imposed on the exercise of those rights was not reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.
  

35. We agree that Constitutional Amendment No 48 was not made and certified in accordance with s 38(2). It was not expressed to be a law made for the purpose of regulating or restricting the s 50 rights of members of the Parliament. It did not specify the rights or freedoms it was regulating or restricting.

36. Constitutional Amendment No 48 therefore did not comply with the first requirement. It can be seen, without considering the second requirement and the third requirement, that it is not a law that complies with s 38.

Was compliance with s 38 necessary?

37. However, we uphold the submission of the Attorney-General that Constitutional Amendment No 48 did not have to comply with s 38.

38. We adopt the position of the Supreme Court in Application by Sione (2025) SC2679 that:

• it is not the case that every law that restricts or regulates the exercise of Basic Rights conferred by Division III.3 of the Constitution has to comply with s 38 of the Constitution (Premdas v The State [1979] PNGLR 329, SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944); and
  
• it is only necessary to comply with s 38 when a section of the Constitution that confers a right expressly provides for its regulation or restriction by a law that complies with s 38.
  

39. We note that in Application by Hon Bill Skate MP (2001) SC678 the Supreme Court held that a law that regulates the exercise of s 50(1) rights does have to comply with s 38. Each of the three Judges who constituted the Court (Amet CJ, Injia J and Sawong J) indicated that a law regulating s 50(1) rights had to comply with s 38. However, the Court in Sione (which was constituted by five Judges, Salika CJ, Kandakasi DCJ, Cannings J, Hartshorn J, Makail J) expressly declined to follow Skate, and we do likewise.

40. We adopt the reasoning in Sione. Effect must be given to the absence of any reference to s 38 in s 50, especially when it is considered that many of the other human rights provisions in Division III.3 of the Constitution expressly refer to s 38. For example, the following sections confer human rights but state that the exercise of the right may be regulated or restricted by a law that complies with s 38:

s 43 (freedom from forced labour);
s 44 (freedom from arbitrary search and entry);
s 45 (freedom of conscience, thought and religion);
s 46 (freedom of expression);
s 47 (freedom of assembly and association);
s 48 (freedom of employment);
s 49 (right to privacy);
s 51 (freedom of information); and
s 52 (right to freedom of movement).

41. We invoke the maxim of statutory interpretation expressio unius est exclusio alterius: the express mention of a thing (s 38) in some provisions (ss 43 to 49 and 51 and 52) implies that its absence in another provision (s 50) is deliberate (SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31).

42. A law that restricts or regulates the rights conferred by s 50(1) of the Constitution does not have to comply with s 38 of the Constitution.

43. Constitutional Amendment No 48 therefore did not have to comply with s 38 of the Constitution.

Is Constitutional Amendment No 48 invalid because of its failure to comply with s 38 of the Constitution?

44. The answer is no. Its failure to comply with s 38 is of no consequence. The applicant’s second argument fails.

APPLICANT’S THIRD ARGUMENT: CONSTITUTIONAL AMENDMENT NO 48 IS INCONSISTENT WITH EXISTING PROVISIONS OF THE CONSTITUTION

45. The applicant argues that when it amends the Constitution the Parliament cannot tamper with the essential structure of the Constitution.

46. It is further argued:

• that the principle of accountability of the executive arm of Government to the People through the Parliament is a fundamental pillar of constitutional democracy in Papua New Guinea;
  
• that Constitutional Amendment No 48 provides for a 36-month grace period in which a Prime Minister is shielded from motions of no confidence and creates an environment in which a corrupt government can escape accountability to the Parliament and the People; and
  
• that Constitutional Amendment No 48 undermines the principle of accountability of the executive to the Parliament.
  

The essential structure of the Constitution

47. We agree with the proposition that amendments to the Constitution cannot alter the essential structure of the Constitution. This is a significant restriction on the power of the Parliament to amend the Constitution. It was first recognised in the OLIPPAC case, and reinforced in Namah & Geno v O’Neill & Zurenuoc [2015] 2 PNGLR 291.

Principle of accountability of the executive to the Parliament

48. We also agree that the principle of accountability of the executive to the Parliament is part of the essential structure of the Constitution. It is enshrined in s 141 (nature of the Ministry: collective responsibility) of the Constitution, which states:

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.

49. The Executive arm of government is accountable to the People through the Parliament. The most effective way of enforcing accountability is by providing for motions of no confidence in the Prime Minister. Section 145 of the Constitution allows such motions to be made.

50. If the Parliament passes a motion of no confidence in the Prime Minister, the Prime Minister must be dismissed from office under s 142(5)(a) of the Constitution, unless the motion is moved within the last 12 months of the five-year period provided for the duration of the Parliament after a general election.

51. Section 142(5)(a) provides:

The Prime Minister ... 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.

52. The role of s 145 in enforcing the principle of collective responsibility of the Executive to the People through the Parliament has been emphasised by the Supreme Court in three recent cases.

53. In Namah & Geno v O’Neill & Zurenuoc [2015] 2 PNGLR 291 the Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Davani J) struck down as unconstitutional two amendments to s 145:

• Constitutional Amendment No 36 of 2012, which increased the grace period in s 145(4) from 18 months to 30 months; and
  
• Constitutional Amendment No 41 of 2013, which amended s 145(1)(b) by increasing the period of notice required to be given for a motion of no confidence from one week to one month and increased the number of members of the Parliament required to sign a motion of no confidence from one-tenth to one-fifth of the total number of seats in the Parliament.
  

54. The Court held that those amendments were contrary to the enforceable principle of collective responsibility of the Executive to the People through the Parliament under s 141 of the Constitution. In the leading judgment of Injia CJ, which was endorsed by the other members of the Court, his Honour stated:

81. The principle of individual and collective responsibility of the Ministry to Parliament pronounced in s 141 is a fundamental principle that underpins Parliamentary democracy. It is not a mere philosophical statement of no real practical application. Its interpretation and application to other provisions of the Constitution that define the relationship between the Parliamentary executive and Parliament and MPs that comprise those two arms of government must be real and serious consequences must flow from a breach of that principle. For unless the contrary intention were expressed in the provision itself that the statement in s 141 is one of principle and non-justiciable, and there is none in s 141, the principle must be given full effect. ...

94. The notion of a responsible ministry entails a Ministry that is prepared and willing to account, in the true spirit of a responsible government, to its appointing authority for the manner in which it is administering the affairs of the nation. When MPs raise serious issues concerning matters of governance through a motion of no confidence, the government should welcome the motion with open arms because it gives a real opportunity for the executive government to explain its position. A vote on the motion of no confidence may or may not be successful but it is healthy for Parliamentary democracy because it gives the best opportunity for MPs to express their concerns and for the government to account and provide a response to those concerns. A performing government should be able to maintain the confidence of the majority of MPs to vote down the motion. The government using its numerical strength should not fear the unknown and erect barricades around its hold on power to protect itself, through compulsion of law, through Constitutional amendments that restrict Parliamentary process, that make it difficult for such Motions of no confidence to be given notice, debated and voted on.

55. In Polye v Zurenuoc (2016) SC2039 the Court (Injia CJ, Salika CJ, Makail J) held that the Private Business Committee of the Parliament had exceeded its powers and responsibilities by subjecting the notice of a motion of no confidence in the Prime Minister to rigorous scrutiny and technical defects. The Court remarked:

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

56. In Application by Nomane (2025) SC2721 the Court (Salika CJ, Cannings J, Hartshorn J, Kariko J, Dingake J) held that s 165 of the Standing Orders of the National Parliament, which provided that no motion could be reintroduced within the 12-month period after its rejection, provided an unauthorised and unreasonable restriction on the entitlement of a member of the Parliament to bring a motion of no confidence in the Prime Minister.

57. Section 165 of the Standing Orders was held to be inconsistent with ss 50(1)(e), 110(1) and 145 of the Constitution and was invalid, ineffective and unconstitutional. It is important to note that that case was decided according to the state of the law on 27 November 2024 when the Private Business Committee refused to progress a notice of motion of no confidence in the Prime Minister. The Supreme Court noted the making of Constitutional Amendment No 48, but decided that it was not relevant to the case before it.

Does Constitutional Amendment No 48 allow a 36-month grace period?

58. The applicant argues Constitutional Amendment No 48 has the effect of transforming a constitutional democracy into an autocratic system of government. It prohibits any motion of no confidence in the Prime Minister within 18 months after an unsuccessful motion of no confidence, Constitutional Amendment No 48. It adds a further 18 months to the existing 18-month grace period under s 145(4), which provides:

A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty 18 months commencing on the date of the appointment of the Prime Minister.

59. The applicant contends that this “shielding” of the Prime Minister from motions of no confidence is egregious when it is considered that no motion of no confidence can be brought within the final 12 months of the life of the Parliament by virtue of s 145(2)(b), which provides:

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.

60. The applicant argues that Constitutional Amendment No 48 extends the grace period to 36 months, which is six months longer than the grace period of 30 months that was ruled unconstitutional in Namah & Geno. The applicant urges us to follow that case and find that Constitutional Amendment No 48 is invalid.

61. We state clearly that we have no intention of not following what the Court decided in Namah & Geno. It is a decision of this Court that is sound in principle and it remains good law.

62. However, the facts of the present case are different. Constitutional Amendment No 48 does not by itself create a 36-month grace period. The initial grace period enjoyed by a newly appointed Prime Minister under s 145(4) remains intact. The extra 18 months referred to by the applicant is only enjoyed if a motion of no confidence is unsuccessful.

63. The defeat of a motion of no confidence is in effect an affirmation of confidence in the Prime Minister. It operates as a signal that the Prime Minister has earned the privilege of being shielded, for a limited time of 18 months, from any other motions of no confidence.

64. This privilege is the same as that enjoyed by a member who is appointed Prime Minister due to a successful motion of no confidence in their predecessor. Upon appointment, the new Prime Minister would enjoy the grace period provided by s 145(4) of the Constitution.

65. Viewed in this context, the applicant’s argument that Constitutional Amendment No 48 provides for a 36-month grace period is, with respect, without foundation.

66. The related argument about s 142(2)(b) and no motions of no confidence being permitted within the final 12 months of the five-year life of a Parliament, is also flawed. A motion of no confidence in the Prime Minister during that period is permissible, provided that it does not nominate the next Prime Minister. If the motion is passed, a general election is triggered under s 105(1)(b)(i) of the Constitution, which provides:

A general election to the Parliament shall be held ... if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election ... a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence).

67. We reject the argument that Constitutional Amendment No 48 automatically provides for a 36-month grace period in which there can be no motions of no confidence in the Prime Minister. A grace period of that length is only enjoyed if the Prime Minister repels a motion of no confidence. We also reject the argument that a motion of no confidence is prohibited in the final 12-month term of a Parliament.

Does Constitutional Amendment No 48 conflict with existing provisions of the Constitution?

68. Constitutional Amendment No 48 does not tamper with the basic structure of the Constitution. It does not undermine the principle of accountability of the Executive arm of government to the Parliament.

69. We are not persuaded that Constitutional Amendment No 48 is inconsistent with other provisions of the Constitution (including ss 114 (voting in the Parliament) and 115 (parliamentary privileges etc) referred to by the applicant.

70. To the extent that an opinion under s 50(2) of the Constitution is required, we consider that Constitutional Amendment No 48 is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

CONCLUSION

71. The application for a declaration that Constitutional Amendment No 48 is unconstitutional will be refused. As to the question of costs of the proceedings, we do not consider that it would be appropriate to award costs against the applicant or the second intervener. We appreciate the validity of the concerns and the significance of the issues raised by the applicant and the quality of submissions of learned counsel for all parties.

ORDER

1. All relief sought by the applicant is refused.
   
2. The parties shall bear their own costs.

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Lawyers for the applicant: WKY’s Legal Services
Lawyers for the first intervener: Mel & Hennry Lawyers
Lawyers for the second intervener: Dotaona Lawyers