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Ere v Enga Provincial Government [1994] PGNC 22; N1284 (6 December 1994)

Unreported National Court Decisions

N1284

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 399 OF 1994
SALAN ERE - Plaintiff
v
ENGA PROVINCIAL GOVERNMENT - Defendant

Mount Hagen

Woods J
30 November 1994
6 December 1994

PROVINCIAL ASSEMBLY - Vote of No Confidence - Justiciability - A Constitutional provision - No grace period.

Cases Cited:

Gulf Provincial Government v The State [1994] Unreported

Haiveta v Wingti [1994] Unreported N1188

Counsel:

S Norum for the Plaintiff

A Peraki for the Defendant

6 December 1994

WOODS J: This is an application for certain Declarations related to a vote of no confidence in the Enga Provincial Assembly against the Deputy Premier Salan Ere.

The Declarations sought are:

1. A Declaration that the Deputy Premier did face a vote of no confidence and did survive the no confidence motion moved against him on the 17th August 1994 by 18 votes to 4.

2. A Declaration that the Deputy Premier Salan Ere is entitled to a grace period of 18 month before a note of no confidence is taken against him for the second time.

3. A Declaration that the purported vote of no confidence taken against the Deputy Premier on the 21st October 1994 is/was null and void.

The first matter to be considered is whether these matters within the Provincial Assembly are justiciable. There have been numerous occasions when matters have come before the Courts over procedures within the Parliament or Provincial Assemblies. The clearest statements of the question of the justiciability and Separation of powers as between the Legislature and the Court have been highlighted by Sheehan J in Haiveta v Wingti & Os 1994 Unreported N1188.

“Non-justiciability stems from an acknowledgement of the separate roles of the Parliament and the Judiciary. This is commonly referred to as the separation of powers.”

The Constitutional function of the Courts is succinctly described in terms apt for PNG by Salleh Abas President of the Malaysia High Court in Lim Kit Sianf v Dato Seri Dr Mahathir Mohammed in 1988 LRC 29 & p. 36. “When we speak of government it must be remembered that this comprises of three branches, namely the legislature, the executive and the judiciary. The Courts have a constitutional function to perform and they are the guardian of the Constitution within the terms and structure of the Constitution itself; they not only have the power to construction and interpretation of legislation but also the power of judicial review - a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators, but of the Constitution over both”.

Cognisant of their roles and authority under the Constitution, both the National Parliament and the Courts are at all times sensitive, as they must be, to any incursion on their jurisdiction. Just as the judiciary maintains its independence, so too, the National Parliament maintains the prerogative of having exclusive say over its own proceedings and procedures. It is therefore with care and precision that questions relating to the boundaries of Court and Parliamentary jurisdiction must be determined.

The Constitution Section 134 defines the proceedings of Parliament as non justiciable but expresses itself to be subject to the Constitution thus:

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.

The nett 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.

There are many examples of what are Constitutional Laws relating to procedures within the Parliament. For example see Gulf Provincial Government (in suspension) V The Minister for Village Services and the State OS 212 of 1994 where the Judge said: “This court has no jurisdiction to consider the merits or otherwise of the report or the adequacy of debate on it. All that is open to the Court is to see that Constitutional procedures are met. It is not open to the Court to question the internal proceedings of Parliament. It cannot investigate the manner in which the Parliament has exercised its function. And no claim can succeed before a Court which impugns the manner in which the Parliament exercised its function since this would, or might lead to other Courts being obliged to rule and be in conflict on issues which are the Prerogative of Parliament and on issues which the Parliament has already made a determination.”

In this case before me now there is clearly a Constitutional Law which relates to the matter namely Section 39 of the Enga Constitution.

S. 39. Vote of No Confidence

(1) Subject to Subsection (3) the Premier, and Deputy Premier, and Enga Ministers, may be dismissed from office by a vote of no confidence passed by the Assembly in accordance with this section.

(2) For a vote of the Assembly to be a vote of no confidence:

(a) it must be expressed to be a vote of no confidence; and

(b) written notice, signed by at least five Members must have been given to the Speaker at least two weeks before the vote was taken; and

(c) a copy of the wording of the vote, together with the names of the Members signing the notice, must have been given to the Members of the Assembly at least two weeks before the vote was taken; and

(d) the vote must be supported:

in the case of the Premier by a two-thirds absolute majority vote; or

in the case of the Deputy Premier or an Enga Minister by an absolute majority vote.

(3) A vote of no confidence in the Premier passed in accordance with this section shall be of no effect until confirmed by a further two-thirds absolute majority vote of the Assembly taken not sooner than two weeks nor later than 3 months after the first vote.

There is no reference in Section 39 to any grace period. The Plaintiff is asking the Court to find that there is or should be a ‘grace period’ by analogy to the equivalent provision in the National Constitution where in Constitution Section 145 (4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of 18 months commencing on the date of the appointment of the Prime Minister.

I have been presented with no authorities as to how and why this Court should in effect add a provision to the Constitutional Law to provide what is not there.

Whilst it is submitted that commonsense suggests that there should be some grace period otherwise Parliament could raise such a matter every week or every sitting and thereby cause confusion surely that is within the power or prerogative of the Parliament or Assembly. If members wish to create the aura of bad government and indecision that is their right and there is nothing in the Constitution which allows a Court to direct how members should behave.

There is no grace period stated in the Enga Constitution and I can find no principles or law or authority which allows me to add or read in such a restriction to this Constitution.

There is no dispute as to the first declaration sought.

I am unable to make the second declaration sought.

The third declaration fails from my ruling on the second declaration sought.

I dismiss the Summons.

Lawyer for the Plaintiff: S Norum

Lawyer for the Defendant: P Peraki