|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE
SC REF NO.3 OF 2011
BETWEEN:
REFERENCE PURSUANT TO CONSTITUTION SECTION 19
AND:
REFERENCE BY THE EAST SEPIK PROVINCIAL EXECUTIVE
Referor
AND:
HON. DR ALLAN MARAT, MP
as the Minister for Justice and Attorney - General
First Intervenor
AND:
HON. JEFFERY NAPE MP,
as Speaker of Parliament
Second Intervenor
AND:
THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Intervenor
AND:
HON. SAM ABAL MP
Fourth Intervenor
AND:
HON. PETER O'NEILL MP,
as Prime Minister of Papua New Guinea
Fifth Intervenor
AND:
HON. BELDEN NAMAH MP,
as the Deputy Prime Minister of Papua New Guinea
Sixth Intervenor
AND:
NATIONAL ALLIANCE INC.
Seventh Intervenor
AND:
GRAND CHIEF SIR MICHAEL SOMARE MP
Eighth Intervenor
Waigani: Injia CJ, Kirriwom J and Gavara-Nanu J (Salika DCJ and Sakora J dissenting)
2011: 12th December
Special Reference s19 (3)(b) of the Constitution – Removal of Prime Minister – Appointment of Prime Minister – Removal of Member of Parliament - Constitution, . s142 (2), (3), (4) (5); s103(3)(b), s104 (2) (d), s 133, s 134, s 135, s 141 (a), s 86 (4), Schedule 1.10 (3) .̶ Organic Law on National and Local-Level Government Elections (OLNLLGE), Part XVIII, Division 2 (ss 228 – 233).
FACTS
Prime Minister Sir Michael Somare was absent from the country and in Singapore from 24th March 2011 to 26th August 2011 for medical treatment. During that time there were 3 meetings of the Parliament in May, June and August. Sir Michael had leave of the Parliament to be absent from the May meeting. On 2nd August 2011, Parliament passed a motion declaring that there was a vacancy in the office of Prime Minister and immediately thereafter elected the Hon Peter O'Neill as Prime Minister. There was a further meeting of the Parliament in September and Sir Michael attended that meeting on 6th September. Subsequently on that day the Speaker declared that Sir Michael Somare had lost his seat in Parliament by virtue of having been absent from Parliament without leave for 3 consecutive sittings of the Parliament.
HELD
Injia CJ, Salika DCJ, Kirriwom J and Gavara- Nanu J, (Sakora J dissenting)
1. The occasions and methods for removing a Prime Minister are restricted to those specified in constitutional laws;
2. Sir Michael Somare was not lawfully removed from office as Prime Minister;
Injia CJ, Salika DCJ, Kirriwom J and Gavara- Nanu J, (Sakora J dissenting):
3. A Prime Minister can only be elected on a day following the day of the Speaker's advice to Parliament that there is a vacancy in the office of Prime Minister.
4. Mr Peter O'Neill was not lawfully elected as Prime Minister, the election was unconstitutional and invalid;
5. The National Court has exclusive jurisdiction as to whether the seat of a member has become vacant by reason of facts arising under Section 104(2)(d) of the Constitution;
6. The declaration made by the Speaker on 6th September 2011 that Sir Michael Somare had lost his seat by reason of being absent from Parliament for three consecutive meetings of Parliament pursuant to Section 104(2)(d) of the Constitution is unconstitutional and invalid.
7. The meaning of "person of unsound mind" in Section 103(3)(b) of the Constitution is the meaning given by Section 81 of the Public Health Act Chapter 226
NOTE: The questions raised in the Reference and the answers of the members of the Court appear at the end of the judgment.
Cases Cited:
Papua New Guinea Cases
Alois Kingsly Golu v National Executive Council [2011] PGNC 134; N4425
Application by Francis Gem (2010) SC1065
Avia Aihi v The State (No.1) [1981] PNGLR 81
Burns Philp v The State & Ors [1989] PGNC 24, N769
Constitution: Application by Gabriel Dusava (1998) SC581;
Derbyshire v Tongia [1984] PNGLR 148
Douglas Charles Dent v Thomas Kavali [1981] PNGLR 488
Ex parte Moses Sasakila [1976] PNGLR 491
Francis Koimanrea v Alois Sumunda, the Electoral Commissioner & Paul Tiensten, Unreported, March 2003
Hagai Joshua v Aron Meya [1998-89] PNGLR 188
Haiveta v Wingti (No. 3) [1994] PNGLR 197
Haivila Kavu v Mark Maipakai [2011] PGNC 82; N4094
In re Election of the Governor General (2010) SC1085
Isidore Kaseng v Namaliu and The State [1995] PNGLR 481
James Mopio v The Speaker [1977] PNGLR 420
Kaguel Koroka v Phillip Kapel & Ors [1985] PNGLR 117
Kaseng v Namaliu [1995] PNGLR 481
Kekedo v Burns Philp (PNG) Ltd [1988 – 89] PNGLR 122,
Kila Wari and others v Gabriel Ramoi and Another [1986] PNGLR 112,
Launa v Alphonse Willie (2004) N2595
Lionel Gawi v The State (2006) SC850,
Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe
Yuwi v Sir Michael T Somare (2007) SC854
Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty. Ltd (No.1) [1977] PNGLR 80
Minister for Lands v Frame [1980] PNGLR 433
Morobe Provincial Government v Minister for Village Courts & The State (1994) N1215,
Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNLR 608
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
New Guinea Cocoa (Export) Pty. Ltd v Basis Vedbaek [1980] PNGLR 205
Paru Aihi v Sir Moi Avei & The Electoral Commission of PNG, Unreported, SC720
Paul Kipo v Rova Maha [1994] PGNC 15; N1252
Peter Makeng & Ors v Timbers (PNG) Limited N3317
Premdas v The State [1979] PNGLR 329.
Public Prosecutor v John Aia of Mondo and Peter Pino of Idu [1978] PNGLR 224
Public Service Commission v Independent State of Papua New Guinea [1994] PNGLR 603
Re Election of Governor General; Reference by Morobe Provincial Executive (2010) SC1085
Re Election of Governor–General (No 1) (2003) SC721
Re Election of Governor–General (No 2) (2004) SC728
Re Election of Governor-General (No 3) (2004) SC752
Re Election of Governor-General (No 4) (2004) SC773
Re Joseph Auna [1980] PNGLR 500
Re Reference by Ken Norae Mondiai (2010) SC1087
Re Sitting Days of the Parliament and Regulatory Powers of Parliament (2002) SC722
Reference No 2 of 1976 [1976] PNGLR 228
Reference by the Ombudsman Commission of PNG (2010) SC1027
Reference by the Ombudsman Commission of PNG (2010) SC1058
Rundle v MVIT [1987] PNGLR 44
Rundle v MVIT [1988] PNGLR 20
Safe Lavao v The Independent State of Papua New Guinea [1978] PNGLR 15
SC Ref by Ombudsman Commission re Amendments to Forestry Act (2010) SC1088.
SC Reference No 4 of 1990 Special Reference Pursuant to Section 19 of the Constitution in the Matter of a Reference By The Acting
Principal Legal Adviser Re Meeting of Parliament [1994] PNGLR 141
SC Reference No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 261
SCR No 1 of 1992; re Constitutional Amendment No 15 [1992] PNGLR 73
SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336;
SCR No 3 of 1999:Re Calling of the Parliament [1999] PNGLR 285
SCR No. 1 of 1997 Re s 19 of the Constitution Reference by the Principal Legal Advisor [1998] PNGLR 453
SCR No. 2 of 1982; Re Kunangel [1991] PNGLR 1
Special Reference by Fly River Provincial Executive, re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057
The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417
The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491
Titi Christian v Rabbie Namaliu (1996) OS No 2 of 1995, Unreported and Unnumbered Judgement of Amet CJ, Kapi Dep CJ, Salika, Doherty & Andrew JJ dated 18 July
1996
Titus Taber v Keran Rimbao (1998) N1767
Tom Korea v Sepoe Karawa [1989] PGNC 33; N791
Overseas case
Armstrong v Budd (1969) 71 SR (NSW) 386
Begum Nusrat Bhutto Case (1977) (Pakistan)
Beswick v Beswick [1967] UKHL 2; [1968] AC 58
Boettcher v Boettcher [1948] 8 St R Qd 74
Bryan v Arthur 11 A & E 117
Cosham v Cosham [1899] ArgusLawRp 140; (1899) 5 ALR 291;
Ex parte Cranmer [1806] EngR 278; (1806) 12 Ves 445; 33 ER 168;
Hanbury v Hanbury [1807] EngR 158; (1892) 8 TLR 559, CA.
Howard v Bodington [1877] UKLawRpPro 14; (1877) 2 P. D. 203
J v J [1957] VicRp 69; [1957] VR 523; [1957] ALR 1017;
Jilani v State of Punjab (PLD) 1972, SC139 (Pakistan)
Kirby v Leather [1965] 2 All ER 441
Lakanmi Case, (1970) (Nigeria)
Madzimbamuto Case 1968 (Zimbabwe)
Mustafa Ibrahim case, (1964) (Cyprus)
M'Naghten's Case (1843) [1843] EngR 875; [1843-60] All ER Rep 229; (1843) 8 ER 718
Murphy v Doman [2003]58 NSWLR 51
Nelsovil v Minister of Housing (1962) 1 All E.R. 423
Owners-Strata Plan No.23007 v Cross – in the matter of Cross [2006] FCA 900
Pepper v Hart [1992] UKHL 3; [1993] AC 593; [1993] I All ER 42;
Poynton v Walkey [1951] SASR 191,
R v S (1979) 2 NSWLR 1
R v Ndhlovu [1968] (4) SA 515 (Zimbabwe)
Re Barnsley (1944) 23 Atk. 168; 36 ER 899).
Re Holmes [1827] EngR 857; (1827) 4 Russ 182; 38 ER 774;
Regina v Secretary for State for Transport, Ex parte Factortame Ltd and Others (No. 5) [1999] UKHL 44; [2000] 1 AC 524
Ridgeway v Darwin [1802] EngR 423; (1802) 8 Ves 65; ER 275
SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229
The State v Dosso (PLD) 1958, SC533 (Pakistan)
Uganda v Prison Commissioner, Ex p Matavu [1966] EA 514 (Uganda)
Warner v Metropolitan Police Commander [1969] AC 256
PNG Statutes & Subordinate legislation referred to:
Constitution,
Criminal Code Act,
Education Act 1983,
Frauds and Limitations Act 1988
Marriage Act 1963,
Medical Registration Act 1980
National Court Rules 1983
Organic Law on National and Local-Level Government Elections.
Parliament Standing Orders
Parliamentary Powers and Privileges Act (Ch 24)
Partnership Act 1951,
Professional Engineers (Registration) Act 1986,
Public Health (Mental Disorders) Regulation 1962
Public Health Act Chapter 226
Supreme Court Rules 1987
Trade Licensing Act 1969,
Underlying Law Act 2000
PNG Books and Articles and Reports referred to:
CPC Final Report 1974
Overseas Statutes & Subordinate legislation referred to:
Constitution Act 1902 (Australia),
European Communities Act 1972 (UK)
Legislative Assembly Standing Order 29 of New South Wales, Australia,
Merchant Shipping Act 1988 (UK)
Papua New Guinea Act 1943 – 1973 (Australia)
Papua New Guinea Independence Act 1975
Overseas Books and Articles and Reports referred to:
Constitutional and Administrative Law, 5th Ed., O. Hood Philips
Cross on Evidence, 7th Australian Ed ( 2004), Butterworths
Evatt and Forsey on the Reserve Power, Legal Books, 1990
Expulsion of Members of NSW Parliament, Briefing Paper No. 17 /2003, Gareth Evans; NSW Parliamentary Library Research Service publications August 2003.
Halsbury's Laws of Australia.285-85.
Halsbury's Laws of England
Judicial review in New Democracies: Constitutional Court in Asian Cases, Tom Ginsberg, Cambridge University Press at p 1-10
Oxford Concise Dictionary of Politics, Oxford University Press, Third Edition, 2009, page 391.
REC Jewel: British Constitution, Hodder & Stoughton, London, 1975
S A de Smith, Constitutional and Administrative Law, Harry Street & Rodney Brazier (eds), Penguin Books, 1985
Sir Asher Joel, Australian Protocol & Procedures, 2nd ed, Angus & Robertson, 1988
Statutory Interpretation in Australia, 4th Ed. DC Pearse and RS Geddes
The Parliamentary Mandate – A Global Comparative Study, Marc Van der Hulst, Inter-Parliamentary Union, Geneva, 2000
Steven H Gifis, Law Dictionary, Barron's, 1996
Writings of Thomas Jefferson (1897) vol.8; Oxford Dictionary of Quotations (7th ed.), 2009, Oxford University Press.
Counsel:
I Molloy & W Thomas, for the Referor
J A Griffin QC with P Tabuchi, for the First Intervenor
R J Webb SC with K Frank, for the Second Intervenor
V L Narakobi, for the Third Intervenor
D Kerr, for the Fourth Intervenor
M M Varitimos with F Griffin, for the Fifth and Sixth Intervenors
J K Gawi, for the Seventh Intervenor
M Cooke QC with J Wohiunangu, for the Eighth Intervenor
12 December, 2011
Standard of Pleading Constitutional Questions
Constitutional Interpretation
"105. We appreciate that the Constitution, though law, is a document derived from a political process and that many of its components contain political statements. ....
107. It is therefore difficult for Judges to be totally divorced from considering socio-political considerations which permeate the Constitution. The CPC considered this difficulty but counseled against judges withdrawing from taking into account political considerations in appropriate cases. The CPC stated in Chapter 8, paragraphs 5 - 6, as follows:
5. The Courts do not, however exist in a vacuum. Like other institutions of government of a country, they are caught up in political reality, and often their decisions have political consequences.
6. In carrying out their judicial role, judges... must take full account of society in which they live; they must be attuned to the wishes of the society and to that extent must be politically conscious (although not party politically conscious).
108. In the past, this Court has been conscious of the potential risk of politicization of the Court in deciding politically charged cases and taken great care in staying within the limits of law and reason. That has always been the approach of this Court and this Court will continue that path."
Facts
"Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of the fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it."
Onus of Proof
Hansard
Non-justiciability - Proceedings of Parliament
142. The Prime Minister.
(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 s 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.
133. Standing Orders.
The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings
and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed
or provided for by the Standing Orders of the Parliament
.
134. Proceedings non-justiciable.
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.
Sch.1.7. "Non-justiciable".
Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).
(1)...
(2)...
(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.
"6. The Parliament may be adjourned, if the Parliament so resolves, for up to three sitting days at a time before a motion for election of a Prime Minister is moved."
1. The last general election to the Parliament occurred in 2007. At that election Sir Michael Somare was elected to the seat of East of East Sepik Provincial.
2. Sir Michael Somare was appointed Prime Minister at the first meeting of the Parliament after the 2007 general election pursuant to s.142(2) of the Constitution and in accordance with a decision of the Parliament.
3. On 24 March 2011 Sir Michael travelled to Singapore for medical consultation and returned to PNG on 28 March (August) 2011.
4. As at 2 August Sir Michael had not been removed or dismissed from the Office of Prime Minister within the meaning of s.142(5) of the Constitution.
5. After prayers at the commencement of the sitting of the Parliament on 2August 2011, the first day of the August meeting, the member for Vanimo Green, the Hon Belden Namah, asked the Speaker for leave to move a motion without notice. Leave was granted. Mr Namah then moved a motion that so much of the standing orders be suspended as would prevent the moving of a motion without notice. That motion was carried on the voices.
6. Mr Namah then moved a second motion in terms to the following effect:
"pursuant to s.142(2) of the Constitution and Schedule 1.10(3) of the Constitution and the inherent powers of the Parliament that we declare the Office of the Prime Minister be vacant, and that consequently, in accordance with the provision of s.142(2), this Parliament proceed forthwith to elect and appoint a new Prime Minister." This motion was then carried on the voices.
7. The Speaker then called for nominations for the election of the Prime Minister. Mr Namah moved a motion nominating the Hon. Peter O'Neill, member for Ialibu Pangia Open, as Prime Minister.
8. The motion for the election of the Prime Minister was voted on by a head count involving the members standing and being counted. Seventy (70) members voted in favour of the motion that Mr 0' Neill be elected as Prime Minister. Twenty Four (24) members voted against the motion, including the Hon. Sam Abal and the Hon Sir Arnold Amet.
9. Mr Namah then moved a motion to the effect that Parliament be adjourned to allow the ringing of the bells to allow Mr O'Neill to present himself to the Governor General to be sworn in as Prime Minister.
"FIRST DAY
Tuesday 2 August 2011
The Parliament met at 2:00 pm; according to the terms of Resolution of 24 June, 2011.
The Speaker Mr Jeffrey Nape took the Chair and invited the Member for Finschaffen, Honourable Theo Zurenuoc to say Prayers;
' In the name of the Father, and of the Son and the Holy Spirirt, Mr Speaker and Members of Parliament let us go before our Lord, God, Almighty in prayer by reciting the prayer of our Lord Jesus Christ, Amen.'
BROADCASTING OF PARLIAMENT PROCEEDINGS – STATEMENT BY THE SPEAKER.
Mr SPEAKER - Honourable Members, I have to inform Parliament that the Permanent Parliamentary Committee on Broadcasting of Parliament Proceedings met today and resolved that the National Broadcasting Corporation (NBC), the National Television Service Kundu 2, EM TV and the Australian Broadcasting Corporation (ABC) will be allowed to broadcast live Question Time for these purposes only for the duration of this Meeting.
CERTIFICATION OF ACT
Mr SPEAKER – Honourable Members, I have to inform Parliament that I have in accordance with Section 110 of the Constitution certified the Jiwaka Transitional Authority Amendment Act 2011 made by the National Parliament.
MOTION BY LEAVE
Mr BELDEN NAMAH (Vanimo-Green River) – I ask leave of Parliament to move a motion without notice.
Leave is granted.
Motion (by Belden Namah) agreed to –
(a) That so much of the Standing Orders be suspended as would prevent me from moving a motion without notice.
(b) That pursuant to Section 142, sub-section 2 of the Constitution and schedule 1.10, sub-Section 3 of the Constitution, and in the inherent powers of the Parliament that we declare the Office of the Prime Minister be vacant and consequently in accordance with the provisions of Section 142, sub-Section 2 this Parliament proceeds forthwith to elect and appoint a new Prime Minister.
NOMINATION AND ELECTION OF THE PRIME MINISTER
Mr BELDEN NAMAH – I nominate the Member for Ialibu Pangia, Honourable Peter O'Neill to be the alternate Prime Minister.
MR SPEAKER – Do you accept the nomination?
Mr PETER O'Neill – Yes, I humbly accept the nomination.
Mr WILLIAM DUMA – I second the nomination.
Mr SAM BASIL – I move that the nomination be closed.
Mr JOHN BOTO – I second the motion for the nomination be closed.
02/01
The Parliament voted (the Speaker, Mr Jeffrey Nape in the Chair –
04/01
Mr SPEAKER – Honourable Members, the results of the vote are as follows;
AYES – 70
NOES – 24
Mr SPEAKER – Honourable Members, the Prime Minister-elect will now present himself to the Governor General at Government House.
Motion by (Mr Belden Namah) agreed to –
That the Parliament be suspended until the ringing of the bells so as to allow the Prime Minister -elect to present himself at the Government House to be sworn in as the Prime Minister of Papua New Guinea.
Sitting suspended from 3.20 p.m.
Leave granted."
The submission (Mr Mopio's submission) as we understand it is that the Constitutional right of a Member of Parliament to be elected as Prime Minister and the enforcement of the Speaker's duty in that regard are required to be protected by the National Court, and that this consideration over-rides the provision that certain proceedings are to be non-justiciable. But the Standing Orders deal with the conduct of the Parliament's business and s. 142 (4) does not deal with or affect the rights of Members. Further, s. 22 in its generality must give way to the particular provisions of s. 134. Section 142 (4) provides merely for the time for the question of the appointment of Prime Minister to be considered, and the order of business — whether on one day or more than one day — in which it is to be dealt with by the Parliament.
These are matters which concern the conduct of the business of the Parliament and its procedure. Accordingly as the issues before the Court involve the question whether that procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, this Court has no jurisdiction to entertain the case now before it.
" In the kind of participatory democracy we envisage for Papua New Guinea, with maximum emphasis on consultation and consensus, the national legislature must clearly have a central role. We believe that while the executive must be given every opportunity to provide strong leadership in reshaping our new nation to meet the needs and aspirations of our people, it is important also that this leadership does not become autocratic so that the legislature becomes a mere rubber stamp. If government is to be truly responsive to people, it is vital that those whom the people elect to represent them should be able to contribute actively and effectively to the government of the nation". ( CPC Final Report, Chapter 6 1.)
"It is therefore my view that all along, the founding fathers of our nation did not intend a sudden and discrete election of a Prime Minister. They intended an open, democratic parliamentary process in the election of the Prime Minister by allowing plenty of time.
It is my view that the proper construction of s 142 (3) is that when a Prime Minister resigns, Parliament is to be informed and stands adjourned to the next sitting day. This is because the question of appointment of a Prime Minister arises in Parliament after the notice of resignation of the Prime Minister is tabled in it. Furthermore, it gives effect to the aspirations of the Constitutional Planning Committee and to the National Goals and Directive Principles. On the next sitting day the new Prime Minister is appointed. This is consistent with the original intention of the CPC".
6. Suspension from office of the Prime Minister.
(1) The Head of State, acting on advice, may, on a matter relating to the health of the Prime Minister, request the National Authority responsible for the registration and licensing of medical practitioners to appoint two medical practitioners to examine the Prime Minister and to provide him with full details of the examination, together with their joint certification that the Prime Minister—
(a) is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office, and as to how long they consider that the unfitness or inability will continue to exist; or
(b) is not suffering from any physical or mental incapacity; or
(c) although suffering from physical or mental incapacity, is still able to carry out the duties of his office; or
(d) refuses to be examined.
(2) The Head of State, acting on advice, may, where he has called for a report under Subsection (1), suspend the Prime Minister from office.
(3) The medical practitioners referred to in Subsection (1) shall report to the Head of State as soon as practicable, but in any event no later than 28 days, after the date of their appointment.
(4) If the Prime Minister refuses to be examined by the medical practitioners referred to in Subsection (1), he is guilty of misconduct in office within the meaning of Division III.2. (leadership code) of the Constitution.
(5) Where the medical practitioners referred to in Subsection (1) certify that the Prime Minister—
(a) is not suffering from any physical or mental incapacity; or
(b) although suffering from mental or physical incapacity is still able to carry out his duties,
the Head of State, acting on advice, shall immediately remove any suspension.
(6) Where the medical practitioners referred to in Subsection (1) certify that—
(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and
(b) the unfitness or inability will, in their opinion, continue to exist for a period of more than three months from the date on which he was examined by them,the Head of State shall forward the report of the medical practitioners, together with their certification, to the Speaker for presentation to the Parliament, and the Prime Minister is suspended from office until the Parliament has dealt with the matter.
(7) Where the medical practitioners referred to in Subsection (1) certify that—
(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and
(b) the unfitness or inability will, in their opinion, last for not more than three months from the date on which he was examined by them,
the Head of State, acting on advice, shall direct the medical practitioners to conduct another examination of the Prime Minister at the end of the period for which the unfitness or inability is expected to last, and the Prime Minister is suspended from office until he is certified to be fit to carry out his duties.
(8) Where, on any second or subsequent examination, the medical practitioners referred to in Subsection (1) certify that the unfitness or inability of the Prime Minister will, in their opinion, continue to exist for a period of more than three months measured from the date on which he was first examined by them, the Head of State, acting on advice, shall forward the report of the medical practitioners together with their certification to the Speaker for presentation to the Parliament and the Prime Minister is suspended from office until the Parliament has dealt with the matter.
(9) Where the Speaker has received a report under Subsection (6) or (8), he shall present it to the Parliament on the first sitting day of the Parliament after he receives it.
(10) If the Parliament is not meeting when the Speaker receives the report and is not due to meet for more than 14 days after that time, a meeting shall be called as soon as practicable.
(11) Where a report is presented to the Parliament under Subsection (6) or (8), the Parliament may advise the Head of State to remove the Prime Minister from office.
Step 1
National Executive Council (NEC) (s142(5)(c), 6(1) of the Prime Minister and NEC Act 2002)
(a) NEC determines that a question arises as to the Prime Minister's physical or mental incapacity to carry out the duties of the office, such that an investigation is necessary; and decides to advise the Head of State to request the National Authority responsible for the registration and licensing of medical practitioners, to appoint two medical practitioners to examine the Prime Minister. The relevant authority is the PNG Medical Board established under the Medical Registration Act (Ch 398).
(b) NEC also decides to advise the Head of State whether to suspend the Prime Minister pending the medical examination.
Step 2:
Head of State (Section 6(1) of the Prime Minister and NEC Act 2002)
Head of State, Acting in accordance with NEC's advice, issues the relevant statutory instruments to effect the decisions.
Step 3
National Medical Board (Medical Registration Act (Ch 398)..
Appoints two doctors to conduct examination.
Step 4
Two medical practitioners (Section 6(1), (3) and (4) of the Prime Minister and NEC Act 2002)
Conduct medical examination of the Prime Minister and submit their report to the Head of State. The report sets out full details of the examination, together with their joint certification, that the Prime Minister-
(a) is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office, and as to how long they consider that the unfitness or inability will continue to exist;
or
(b) is not suffering from any physical or mental incapacity; or
(c) although suffering from physical or mental incapacity, is still able to carry out the duties of his office; or
(d) refuses to be examined.
Step 5
NEC & Head of State (Section 6(5), of the Prime Minister and NEC Act 2002)
(a) Where the medical practitioners certify that the Prime Minister -
(i) is not suffering from any physical or mental incapacity; or
(ii) although suffering from mental or physical incapacity, is still able to carry out his duties;
the Head of State acting on advice of the NEC, removes any suspension.
(b) The Head of State acts in accordance with the advice and issues the appropriate statutory instrument to remove the suspension (if any). The investigation is concluded.
Step 6
Doctors and NEC & (Section 6(6), (7) and (8) of the Prime Minister and NEC Act 2002
(1) Where the two medical practitioners jointly certify that –
- (a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and
- (b) the unfitness or inability will, in their opinion, continue to exist for a period of more than three months from the date on which he was examined by them;
they submit their report to the Head of State; and the Head of State submits the report to the Speaker. The Speaker receives the report. The Prime Minister may be suspended until Parliament has dealt with the matter.
(2) In the alternative, where the two medical practitioners report to the Head of State that the Prime Minister is unfit or unable, by reason of physical or mental incapacity to carry out his duties; and the unfitness or inability will, in their opinion, last for no more than three months from the date he was examined; the Head of State, on advice of the NEC directs two doctors to conduct another examination. The doctors conduct another examination.
Step 7:
Head of State & Parliament (Section 6(6), (7), (8) and (9) of the Prime Minister and NEC Act 2002)
(a) In the case where the Head of State has submitted a report to the Parliament, the Prime Minister remains suspended from office until dealt with by Parliament.
(b) In the case where the Head of State instructs the two doctors to conduct a further examination, the same doctors who conducted the first examination conduct "another examination" of the Prime Minister. If the doctors further report that the Prime Minister's unfitness and inability will continue for a period of more than three months, the report is presented to the Head of State who forwards the reports to the Speaker. The Prime Minister remains suspended until Parliament has dealt with the matter.
Step 8
Speaker of Parliament (s 142 (5) (c) of Constitution.); Section 6(9)) & (10), of the Prime Minister and NEC Act 2002)
Speaker receives the medical examination report and presents the medical report to Parliament on the first sitting day after receiving the report. If Parliament is not in session and it is not expected to sit in the next 14 days, the Speaker must call the Parliament as soon as possible to consider the matter. In either situation, the Speaker advises 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 opinion, the Prime Minister is unfit by reason of physical or mental incapacity, to carry out the duties of his office.
Step 9
Parliament (s 142 (5)(c ) of Constitution & s 6 (11) of PM &NEC Act).
(a) Where the Parliament receives the reports under Step 7 (a) or (b), and based on advice of the Speaker, Parliament makes a decision to remove the Prime Minister under s 142 (5)(c ) of the Constitution.
(b) The Speaker of Parliament informs the Head of State of Parliament's decision to remove the Prime Minister under s 142 (5) (c) for the stated reason that the Prime Minister is unfit to carry out the duties of the office due to his mental or physical incapacity.
Step 10
Head of State (s 142 (5) (c ))
Upon receiving the advice from the Speaker, the Head of State by issuing the necessary statutory instrument to that effect, removes the Prime Minister from office for the reason stated by Parliament in its decision (s 142 (5) (c )). The decision of Parliament takes effect. Copies of the signed instrument are returned to Parliament through the office of the Speaker.
Step 11
Parliament (s 142(2))
Upon receiving the signed instruments effecting the removal from the Head of State, the Speaker informs Parliament of the removal of the Prime Minister and tables the instrument of removal issued by the Head of State. A vacancy in the office of the Prime Minister exists giving rise to an occasion for the appointment of a new Prime Minister.
"The people of Papua New Guinea have been praying for our Prime Minister since he was admitted to hospital for surgery in Singapore. Mr. Acting Speaker, in the interest of the people of Papua New Guinea, I take the opportunity to explain to Parliament the condition of the Prime Minister, Grand Chief Sir Michael Somare.
Following Sir Michael's suspension from Office last month, he took leave to address a condition in his heart last month that has prevailed over a long period of time. Sir Michael had a successful valve replacement surgery. The surgery was successful but Sir Michael developed complications in the post operative period that required corrective surgery. Consequently, corrective surgery has taken place and Sir Michael is in recovery. Due to the nature of surgery, the period of recovery will be longer than anticipated. Mr Acting Speaker, our senior cardiologist and Dean of the University of Papua New Guinea Medical School, Professor Isi Kevau who has been managing Sir Michael's valves overmany years is involved in the management decisions in a consultative manner with his Singapore cardiologist and the nursing staff.
Professor Kevau is satisfied with the progress so far and has informed me that the medical staff are providing good medical care and good progress is being made at this time. " (quoted from the Hansard)
"If due participation of office is a matter of right, how are vacancies to be obtained? Those by death are few; by resignation none."
On the occasion of his first inaugural address on 4 March 1801, President Jefferson said about retirement:
"I have learned to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and favour which bring him into it."
(letter to E. Shipman and others, 12 July 1801, in P.L. Ford (ed.) Writings of Thomas Jefferson (1897) vol.8. Quoted in Oxford Dictionary of Quotations (7th ed.), 2009, Oxford University Press.
"A person is not qualified to be, or remain a member of the Parliament if ... he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind".
104. Normal term of office.
(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2) The seat of a member of the Parliament becomes vacant—
(a) if he is appointed as Governor-General; or
(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
(g) on his death; or
(h) if he is dismissed from office under Division III.2 (leadership code).
(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days. (underlining is my emphasis)
135. Questions as to membership, etc.
The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament; or
(b) the validity of an election to the Parliament.
Division 2.—Qualifications and Vacancies.
228. Reference of question of qualification or vacancy.
A question respecting the qualifications of a member or respecting a vacancy in the Parliament may be referred by resolution to the National Court by the Parliament and the Court shall thereupon have jurisdiction to hear and determine the question.
229. Speaker to state case.
When a question is referred to the National Court under this Division, the Speaker shall transmit to the Court a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports or documents relating to the question in the possession of the Parliament.
230. Parties to the reference.
The National Court may allow a person who, in the opinion of the Court, is interested in the determination of a question referred to it under this Division to be heard on the hearing of the reference, or may direct notice of the reference to be served on a person, and a person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.
231. Powers of courts.
On the hearing of a reference under this Division, the National Court shall sit as an open court and has the powers conferred by Section 212 so far as they are applicable, and in addition has power—
(a) to declare that a person was not qualified to be a member; and
(b) to declare that a person was not capable of being chosen or of sitting as a member; and
(c) to declare that there is a vacancy in the Parliament.
232. Order to be sent to the Parliament.
After the hearing and determination of a reference under this Division, the Registrar of the National Court shall promptly forward to the Clerk of the Parliament and the Electoral Commissioner a copy of the order or declaration of the National Court.
233. Application of certain sections.
The provisions of Sections 217, 218, 219, 220, 221 and 222 apply so far as they are applicable, to proceedings on a reference to the National Court under this Division.
18. During the period from 24 March to September 2011 the Parliament sat on the following dates:
a. On 10, 11, 12, 13, 17, 18, 20, 24. 25, 26, and 27 May 2011.
b. On 14, 16, 17, 21. 22, 23, and 24 June 2011
c. On 2 and 9 August 2011.
19. Sir Michael did not attend any day of sitting set out in paragraph 18 above.
20. On the first day of the May meeting, 10 May 2011, the Hon. Sam Abal made a statement to the Parliament on the health of Sir Michael Somare as a matter of public importance. He said that:
"The people of Papua New Guinea have been praying for our Prime Minister since he was admitted to hospital for surgery in Singapore. Mr Acting Speaker, in the interest of the people of Papua New Guinea, I take the opportunity to explain to Parliament the condition of the Prime Minister, Grand Chief Sir Michael Somare.
Following Sir Michael" suspension from Office last month, he took leave to address a condition in his heart last month that has prevailed over a long period of time. Sir Michael had a successful valve replacement surgery. The surgery was successful but Sir Michael developed complications in the post operative period that required corrective surgery. Consequently, corrective surgery has taken place and Sir Michael is in recovery. Due to the nature of surgery, the period of recovery will be longer than anticipated. Mr Acting Speaker, our senior cardiologist and Dean of the University of Papua New Guinea Medical School, Professor Isi Kevau who has been managing Sir Michael's valves over many years is involved in the management decisions in a consultative manner with his Singapore cardiologist and the nursing staff. Professor Kevau is satisfied with the progress so far and has informed me that the medical staff are providing good medical care and good progress is being made at this time. "
21. On the fifth day of the May meeting, 17 May 2011, the Hon. Paul Tiensten without notice, moved a motion, passed by the Parliament, that:
"That leave of absence be granted to the Prime Minister Sir Michael Somare for the duration of this meeting."
23. Sir Michael did not obtain any (other) leave from the Parliament other than the leave granted 17 May 2011.
28. Meetings of the Parliament occurred on the following dates:
a. On 10, 11, 12, 13, 17, 18, 20, 24, 25, 26 and 27 May 2011 ("the May meeting")
b. On 14, 16, 17, 21, 22, 23 and 24 June 2011 ("the June meeting")
c .On 2 and 9 August 2011 ("the August meeting")
29. The three meetings referred to were consecutive meetings of the Parliament. The August meeting was the first meeting of the fifth year of the current Parliament. The August meeting of Parliament concluded on 9 August 2011.
42. On 6th September 2011 Sir Michael attended the sitting of Parliament in the Parliament Chamber on that day.
43. On 6 September 2011 the Clerk of Parliament, Mr Don Pandan wrote a letter to Posman Kua Aisi Lawyers advising as follows:
" I confirm that my records constituting the minutes of proceedings of the Parliament as required by Standing Orders 30 for 2011 show that Sir Michael has been absent for only the June and August meetings of Parliament. He was granted leave by the Parliament for the May 2011 meetings.
I confirm that when Sir Michael attends today's meeting of Parliament he will avoid being absent for three consecutive meetings of Parliament and thus being disqualified as the member of Parliament for the East Sepik Regional Seat, pursuant to the requirements of Section 104 (2) (d) of the Constitution.
44. On 6 September 2011 the Second Intervenor (Speaker) ruled in Parliament that the Eighth Intervenor (Sir Michael Somare) had ceased to be a member of Parliament, for reasons given in Parliament. (Those reasons are contained in the Hansard and before the trial Judge, amongst them vacating the leave of absence granted for the May sittings as having been made without authority).
75. Between 6 August and 6 September 2011 Sir Michael did not make any request to the Parliament in respect of his absences from meetings of the Parliament in 2011 or provide any information to the Parliament in respect of his likely future attendances at meetings of the Parliament.
" 27. The Papua New Guinea Act specifies, as a third ground for disqualification of a member of Parliament, absence without leave from three consecutive meetings of the House. We recommend that this be reduced to two consecutive meetings".
" (4) A person is not qualified to continue as a member of the House of Assembly if –
(a) he is absent at all times during each of three consecutive meetings of the House of Assembly, and permission has not been granted to him by the House of Assembly to be absent from any of those meetings" (underlining is my emphasis).
"Questions as to membership
20. (1) Any questions as to whether a person has been validly elected as a member of the National Parliament or whether the seat of a member become vacant shall be determined by a Judge of the National Court constituted as the Electoral Court.
(2) An appeal against a decision of the Electoral Court made under clause (1)above shall lie to the Supreme Court."
"39.
(1) A question respecting the qualifications of a member of the House of Assembly, or respecting a vacancy in the House of Assembly, not being a question of a disputed election or of a disputed return in connexion with an election, may be determined by the House of Assembly or may be referred by resolution of the House of Assembly to the Supreme Court, which shall thereupon hear and determine the question.
(2) When a question is referred to the Supreme Court under the last preceding sub-section, the Speaker or, if the Speaker is not present at the meeting of the House of Assembly at which the reference is made, the member presiding at the meeting in his absence shall transmit to the Supreme Court a statement of the question upon which determination of the Court is desired together with any record of proceedings or any papers, reports or documents relating to the question in the possession of the House of Assembly." (underlining is my emphasis).
(a) member is appointed Governor-General;
(b) upon the expiry of day fixed for return of writ for the general election after he last became a member of the Parliament);
(c) resignation;
(d) death; and
(e) dismissal under leadership code.
SALIKA: DCJ
Introduction
THE COURTS DUTY TO INTERPRET CONSTITUTIONAL LAW
Section 141
141. Nature of the Ministry: collective responsibility.
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.
Section 142
142. The Prime Minister.
(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.
Section 143
143. Acting Prime Minister.
(1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister when—
(a) there is a vacancy in the office of Prime Minister; or
(b) the Prime Minister is suspended from office; or
(c) the Prime Minister is—
(i) absent from the country; or
(ii) out of speedy and effective communication; or
(iii) otherwise unable or not readily available to perform the duties of his office.
(2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—
(a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and
(b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.
(3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable.
Section 145
145. Motions of no confidence.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister.
Section 146
146. Resignation.
(1) The Prime Minister may resign from office by notice in writing to the Head of State.
(2) A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.
Section 147
147. Normal term of office.
(1) Unless he earlier—
(a) dies; or
(b) subject to Subsection (2), resigns; or
(c) subject to Subsection (3), ceases to be qualified to be a Minister; or
(d) is dismissed or removed from office,
a Minister (including the Prime Minister) holds office until the next appointment of a Prime Minister.
(2) Notwithstanding Subsection (1)(b)—
(a) a Prime Minister who resigns; and
(b) a Ministry that resigns collectively,
shall continue in office until the appointment of the next Prime Minister.
(3) Notwithstanding Subsection (1)(c), a Minister who—
(a) ceases, by reason of a general election, to be a member of the Parliament; but
(b) remains otherwise qualified to be a member of the Parliament, shall continue in office until the next appointment of a Prime Minister.
Section 148
148. Functions, etc., of Ministers.
(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
(2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.
(3) Subsection (2) does not confer on a Minister any power of direction or control.
Subdivision C.—The National Executive Council.
Section 149
149. The National Executive Council.
(1) A National Executive Council is hereby established.
(2) The Council shall consist of all the Ministers (including the Prime Minister when he is present as Chairman).
(3) The functions of the Council are—
(a) to be responsible, in accordance with this Constitution, for the executive government of Papua New Guinea; and
(b) such other functions as are allocated to it by this Constitution or any other law.
(4) Except where the contrary intention appears, nothing in this Constitution prevents the powers, functions, duties or responsibilities of the Council from being exercised, as determined by it, through a Minister.
(5) Subject to any Organic Law or Act of the Parliament, the procedures of the Council are as determined by it.
Section 134
134. Proceedings non-justiciable.
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.
Section 138
138. Vesting of the executive power.
Subject to this Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 (functions, etc., of the Head of State).
Section 139
139. The National Executive.
The National Executive consists of—
(a) the Head of State acting in accordance with Division V.2 (functions, etc., of the Head of State); and
(b) the National Executive Council.
Section 103
103. Qualifications for and disqualifications from membership.
(1) A member of the Parliament must be not less than 25 years of age.
(2) A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f) he is otherwise disqualified under this Constitution.
(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.
(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—
"appeal" includes any form of judicial appeal or judicial review;
"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.
Section 104
104. Normal term of office.
(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2) The seat of a member of the Parliament becomes vacant—
(a) if he is appointed as Governor-General; or
(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
(g) on his death; or
(h) if he is dismissed from office under Division III.2 (leadership code).
(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.
"24. Use of certain materials as aids to interpretation.
(1) The official records of debates and of votes and proceedings—
(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and
(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.
(2) An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Subsection (1).
(3) In Subsection (1), "the report of the Constitutional Planning Committee" means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974."
PRIME MINISTER AND NATIONAL EXECUTIVE COUNCIL ACT
Section 6
6. Suspension from office of the Prime Minister.
(1) The Head of State, acting on advice, may, on a matter relating to the health of the Prime Minister, request the National Authority responsible for the registration and licensing of medical practitioners to appoint two medical practitioners to examine the Prime Minister and to provide him with full details of the examination, together with their joint certification that the Prime Minister—
(a) is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office, and as to how long they consider that the unfitness or inability will continue to exist; or
(b) is not suffering from any physical or mental incapacity; or
(c) although suffering from physical or mental incapacity, is still able to carry out the duties of his office; or
(d) refuses to be examined.
(2) The Head of State, acting on advice, may, where he has called for a report under Subsection (1), suspend the Prime Minister from office.
(3) The medical practitioners referred to in Subsection (1) shall report to the Head of State as soon as practicable, but in any event no later than 28 days, after the date of their appointment.
(4) If the Prime Minister refuses to be examined by the medical practitioners referred to in Subsection (1), he is guilty of misconduct in office within the meaning of Division III.2. (leadership code) of the Constitution.
(5) Where the medical practitioners referred to in Subsection (1) certify that the Prime Minister—
(a) is not suffering from any physical or mental incapacity; or
(b) although suffering from mental or physical incapacity is still able to carry out his duties,
the Head of State, acting on advice, shall immediately remove any suspension.
(6) Where the medical practitioners referred to in Subsection (1) certify that—
(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and
(b) the unfitness or inability will, in their opinion, continue to exist for a period of more than three months from the date on which he was examined by them,
the Head of State shall forward the report of the medical practitioners, together with their certification, to the Speaker for presentation to the Parliament, and the Prime Minister is suspended from office until the Parliament has dealt with the matter.
(7) Where the medical practitioners referred to in Subsection (1) certify that—
(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and
(b) the unfitness or inability will, in their opinion, last for not more than three months from the date on which he was examined by them,
the Head of State, acting on advice, shall direct the medical practitioners to conduct another examination of the Prime Minister at the end of the period for which the unfitness or inability is expected to last, and the Prime Minister is suspended from office until he is certified to be fit to carry out his duties.
(8) Where, on any second or subsequent examination, the medical practitioners referred to in Subsection (1) certify that the unfitness or inability of the Prime Minister will, in their opinion, continue to exist for a period of more than three months measured from the date on which he was first examined by them, the Head of State, acting on advice, shall forward the report of the medical practitioners together with their certification to the Speaker for presentation to the Parliament and the Prime Minister is suspended from office until the Parliament has dealt with the matter.
(9) Where the Speaker has received a report under Subsection (6) or (8), he shall present it to the Parliament on the first sitting day of the Parliament after he receives it.
(10) If the Parliament is not meeting when the Speaker receives the report and is not due to meet for more than 14 days after that time, a meeting shall be called as soon as practicable.
(11) Where a report is presented to the Parliament under Subsection (6) or (8), the Parliament may advise the Head of State to remove the Prime Minister from office.
"In my opinion these provisions amount to a direction to the Court that in carrying out its functions under constitution s.18(1) the words actually used in the Act do not have to be strictly adhered to but are to be construed with the assistance of the materials referred to Constitution s.24, so as best to attain what Parliament intended. When Constitution ss.109(4) and 158(2) are themselves interpreted with the aid of s.24, this view is fortified; there are several references in Chapter 8 of the Report of the Constitutional Planning Committee which point against the Court taking a "narrowly legalistic" or 'literal' approach, and thus sacrificing the 'spirit for the letter of the Constitution'. The 'dynamic character' of the Constitution is emphasized; in interpreting the laws, the judges are urged to use 'judicial ingenuity' in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or 'plain meaning' test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not of legislation, and one in which the best guide remains the provisions of the Act itself."
"In order to find the answer to this question one needs to interpret the provisions of the Constitution itself. For the purpose of the interpretation of the constitution the provisions of Sch.1 (Rules for Shortening and Interpretation of the Constitution it is necessary to read the Constitution, being a constitutional law in itself, as a whole (see Sch 1.5(1) of the Constitution) and to give to all provisions thereof and all words, expressions and propositions therein "their fair and liberal meaning (see Sch.1.5(2) of the Constitution."
FACTUAL BACKGROUND
AGREED FACTS
"The people of Papua New Guinea have been praying for our Prime Minister since he was admitted to hospital for surgery in Singapore. Mr Acting Speaker, in the interest of the people of Papua New Guinea, I take the opportunity to explain to Parliament the condition of the Prime Minister, Grand Chief Sir Michael Somare.
Following Sir Michael's suspension from Office last month, he took leave to address a condition in his heart last month that has prevailed over a long period of time. Sir Michael had a successful valve replacement surgery. The surgery was successful but Sir Michael developed complications in the post operative period that required corrective surgery. Consequently, corrective surgery has taken place and Sir Michael is in recovery. Due to the nature of the surgery, the period of recovery will be longer than anticipated. Mr Acting Speaker, our senior cardiologist and Dean of the University of Papua New Guinea Medical School, Professor Isi Kevau who has been managing Sir Michael's valves over many years is involved in the management decisions in a consultative manner with his Singapore cardiologist and the nursing staff. Professor Kevau is satisfied with the progress so far and has informed me that the medical staff are providing good medical care and good progress is being made at this time".
"That leave of absence be granted to the Prime Minister Sir Michael Somare for the duration of this meeting."
LEADERSHIP TRIBUNAL PROCEEDINGS OF MARCH 2011
"In a democratic Society, a leader, even with the slightest misdemeanor, would step down from the position in order to retain integrity of the office he or she holds. In PNG too much precedence has been set; democracy would survive if our leaders make the change".
In PNG with regret and respect, this is foreign language and unheard of.
SIR MICHAEL'S ABSENCE FROM PARLIAMENT IN 2011
STEPS TAKEN BY THE NATIONAL EXECUTIVE COUNCIL REGARDING SIR MICHAELS ABSENCE AND HIS HEALTH.
141. Nature of the Ministry: collective responsibility.
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. (emphasis added)
PERTINENT FINDINGS BY CANNING, J
(c) During what period, if any, was Sir Michael unable to perform the duties of the Office of the Prime Minister?
He was admitted to hospital as a matter of urgency, when he started experiencing breathlessness. He remained in hospital for five months. He underwent major surgery on three separate occasions and for long periods was unable to communicate. In these circumstances I find that during the whole period of hospitalization, from 30 March to late August 2011, Sir Michael was unable to perform the duties of the Office of Prime Minister.
EVENTS OF 2 AUGUST 2011
ISSUES
A VACANCY IN OFFICE OF PRIME MINISTER.
Section 142(5)(c) of the Constitution is materially concerned with the process of removal of the Prime Minister who has serious health concerns which in the end may lead to a vacancy in the office of the Prime Minister. However it is not limited to being the only instance when an occasion arises for the appointment of a Prime Minister.
25. We recommend that the Parliament itself should elect the Prime Minister by means of an ordinary resolution when Parliament meets after a general election. If a vacancy occurs at other times the election of a new Prime Minister by the same procedure would take place at the next sitting if Parliament is in session, or, if it is not, at a meeting to be convened within fourteen days of the vacancy.
This may include the death of the Prime Minister, or loss at sea or forest, or as a result of a decision by Parliament as in this case.
For instance where he resigns (s 146) or where he dies (s. 147).
Tenure of office of Prime Minister
19. The Speaker shall revoke the appointment of the Prime Minister
(a) If he ceases to be a member of the National Parliament for any reason other than that there has been a dissolution of the Parliament;
(b) If he delivers to the Speaker a signed letter of resignation from that office;
(c) If another person is elected Prime Minister at the first meeting of the National Parliament following a general election,·
(d) If a motion of no confidence in the National Executive Council in which a new Prime Minister is designated is passed by an absolute majority of the National Parliament under recommendation 20 below,·
(e) If a motion for the removal of the Prime Minister from office, 111 which a new Prime Minister is designated is passed by
- (i) A simple majority of the National Parliament under recommendation 16(2)(c) above, or
- (ii) An absolute majority of the National Parliament under recommendation 25(2) below. (emphasis added)
(f) If his removal from office is ordered by the tribunal provided for in Part E of chapter 8 as a result of a breach of the Leadership Code.
Vacancy in Office of Prime Minister
21. (1) Subject to recommendation 22 below, if a vacancy occurs in the office Prime Minister due to-
(a) his ceasing to be a member of the National Parliament for any reason other than that there has been a dissolution of the Parliament.
(b) his resignation from that office; or
(c) his removal from office as a result of a breach of the Leadership Code.
there shall be an election of a new Prime Minister by ordinary resolution of Parliament as provided for in clause (2) below.
"It is necessary to set out SS.17, 19, 20 and 21 which I consider to be relevant, in full".
Section 17(2) of OLPLLG states:
1. The Provincial Government –
(4) An office of the Provincial Governor in each province is hereby established.
(5) Subject to this Organic Law, the Member of the National Parliament representing the provincial electorate shall be the Provincial Governor."
Section 19 states:
19. Vacation of office of the Provincial Governor.
(1) If the Provincial Governor –
(a) Is dismissed from office in accordance with Section 20; or
(b) Is appointed –
(i) a Minister or a Vice-Minister in the National Government; or
(ii) the Speaker or Deputy Speaker of the Parliament; or
(iii) the Leader or Deputy Leader of the Opposition in the Parliament; or
(iv) the Chairman of the Permanent Parliamentary Public Works Committee; or
(v) the Chairman of the Permanent Parliamentary Public Accounts Committee; or
(vi) to an office which has powers and privileges equivalent to those of a Minister; or
(c) resigns his office by written notice to the Minister responsible for provincial government and local-level government matters; or
(d) is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reasons of physical or mental incapacity, to carry out the duties of his office; or
(e) deliberately and persistently disobeys applicable laws, including the Constitution, an Organic Law (including this Organic Law) or any national legislation applying in the province; or
(f) is negligent in exercising his powers or performing his functions, duties and responsibilities; or
(g) does an act that is or is likely to bring into disrepute or call into question the integrity of his office;
the Provincial Assembly may, by a two-thirds absolute majority vote dismiss the Provincial Governor or Deputy Provincial Governor.
(2) The dismissal of the Provincial Governor or the Deputy Provincial Governor shall be by motion –
(a) which shall be expressed to be a motion to dismiss the Provincial Governor or the Deputy Provincial Governor, as the case may be; and
(b) of which not less than one week's notice signed by the number of members of the Provincial Assembly, being not less than one quarter of the total number of seats in the Assembly, has been given in accordance with the procedures of the Assembly.
Section 21 states:
Election of the Provincial Governor in the event of vacancy.
(1) Subject to Subsection (3),if the Provincial Governor vacates his office in accordance with Section 19(1), or is dismissed from office in accordance with Section 20, the Provincial Assembly shall, from amongst the members of the Assembly who are Members of the Parliament, elect the Provincial Governor.
(2) Subject to Subsection (3), if the Provincial Governor elected under Subsection (1) vacates his office in accordance with Section 19(2), or is dismissed from office in accordance with Section 20, the Assembly shall elect another Member of the Parliament to be the Provincial Governor.
(3) If—
(a) a vacancy exists in the office the Provincial Governor; and
(b) all of the Members of the Parliament—
(i) are appointed to any of the offices referred to in Section 19(1)(b); or
(ii) are otherwise disqualified by law,
the Assembly shall, from amongst the members referred to in s.10(3)(b) and (c), elect the Provincial Governor.
The same reasoning applies to SI9(2)(e). A person who is a member of Parliament elected under S 21(1) or (2) who dies in office creates a vacancy in the office under S 19(2)(e) which must be filled by an election held under S21.
The second important issue is whether the election of the Defendant as the Provincial Governor was proper and lawful. In my view. for reasons I have stated above. the Defendant was du1y elected under S21 (1) to fill a vacancy in the office of the Provincial Governor created by the death of the late Governor Fr. Louis Ambane under S 19(1)(e).
The third important issue is whether by virtue of the Plaintiff's automatic assumption of office as the Provincial Governor under S 17(2), the Defendant is deemed to have vacated office as the Provincial Governor, under any of the situations in S 19(2).
In my view, the situation is clearly covered by S 19(2)(e). That is, the incumbent Provincial Governor elected under S21 (1) holds office, until he is "otherwise disqualified by law": Also see Simeon Waia v Fr Louis Ambane, supra. The phrase "otherwise disqualified by law" has a broad meaning. It is intended to cover situations not enumerated in S 19(1). It is no different from the phrase otherwise disqualified by "operation of law" from holding office as the Provincial Governor. In my view, a person elected as the Provincial Member in a By-Election or General Election, automatically assumes office by virtue of S 17(2). As a result, by operation of law, the incumbent Governor elected under S21(1) to fill a vacancy arising under S19(1)(e) or any of the situations enumerated in S 19(1) for that matter, is disqualified from holding office under S19(2)(e). His disqualification from holding office comes by operation of law. In other words, the assumption of office by the new Provincial Member is automatic, by virtue of the operation of both S 17(2) and also under S 19(2)(e). In this situation, the election provision in S21 is irrelevant or inapplicable. Also, S 19(4) which refers to an "election" under S21, is inapplicable. The new Provincial Member cannot go through another election process in the Provincial Assembly under S 21(1), (2) or (3) because he is the Provincial Member and the Provincial Governor, having been so elected directly by the people of the entire Province. He is not an ordinary member of the National Parliament representing an Open electorate or an ordinary member of the Provincial Assembly, who has to go through an election by the Provincial Assembly to become the Governor (to fill a vacancy left by an Open Electorate Member) under the three (3) different election procedures enumerated in S21. Indeed, there is no longer any vacancy in law, for the new Provincial Member to fill, nor should he be required to create an opportunity of a vacancy for himself, by resorting the vacancy provisions in s. 19 or any other provision in the OLPLLG or even the Standing Orders of the Provincial Assembly". (emphasis added).
For example s.142(5)(c), s.146 (resignation), s.145 (motion of no confidence), s.147 (normal term of office).
B. THE VOTE ON THE FLOOR OF PARLIAMENT
"Except as is specifically provided by a Constitutional Law the question, whether the procedures prescribed for Parliament or its Committees, have been complied with, is non justiciable .........." Simply put, everything that goes on in Parliament is prima facie non justiciable, unless the Constitutional Law specifically says the procedure in a Constitutional law must be followed by Parliament."
"Where a procedure for the conduct of an action of the Parliament is provided by a Constitutional Law, the question, whether that procedure is followed is justiciable, by virtue of the words introducing s.134 of the Constitution (Except as is specifically provided by a Constitutional Law)...."
115. Parliamentary privileges, etc.
(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).
"24. Subject to 25 below, the Deputy Prime Minister shall act on behalf of the Prime Minister:
(a) when empowered in the written document signed by the Prime Minister to do so;
(b) when the National Executive Council, after considering a written report signed by two medical practitioners, has resolved that the Prime Minister is physically or mentally incapable of performing the tasks of his office; or
(c) in an emergency situation, when effective communication with the Prime Minister is impossible.
25. (1) If it appears to the National Executive Council that the Prime Minister may not be able to resume the duties of his office within three months of the Deputy Prime Minister assuming his duties under recommendation 24 (b) above, the National Executive Council may fix a time at which the Speaker shall summon the National Parliament in accordance with the Constitution, and shall report on the situation on the first day of the Parliament's meeting;
But in any event, the Speaker shall summon the National Parliament to meet within fourteen days of the expiration of a period of three months after the Deputy Prime Minister has assumed the duties of the Prime Minister under recommendation 24 (b) above;
And the first item of business at any meeting of the National Parliament called under this provision shall be consideration of whether the Deputy Prime Minister shall continue to act on behalf of the Prime Minister for a further period of not more than three months.
(2) In the circumstances provided in clause (1) above, a motion for the removal of the Prime Minister and designating his successor may be moved at any time, provided that
(a) the motion is signed by at least one-tenth of the total membership of the Parliament; and
(b) at least one week's prior notice of the intention to move such a motion is given."
These recommendations found their way into s.6 of the Prime Minister and National Executive Council Act.
Mandatory and Directory Provisions. Is s.6 of the Prime Minister and National Executive mandatory or directory?
"The Privy Council ill Montreal Street Railway Co v Normandin [1917] UKPC 2; [1917] AC 170 said at 175:
When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.
This statement was applied by the NSW Court of Appeal in Attorney-General; Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. The Court held that a requirement that a council consult with the State Planning Authority before dealing with a development application was directory only as it was beyond the power of the applicant to control the action of the council. Like thinking underlies the decisions reached in Australian Broadcasting Corp v Redmore Pty Ltd (1989) 98 ALR 199 and Yates Security Services Ply Ltd v Keating (1990) 98 ALR 68. A similar approach was adopted by the High Court in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 in regard to the procedure for passing a Bill to abolish the New South Wales Legislative Council. The court said at 247: 'the performance of a public duty or the fulfillment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges'. The former was to be regarded prima facie as directory while the latter was more probably mandatory"
(2) In the case of Safe Lavao v. The Independent State of Papua New Guinea [1978] PNGLR 15, the court adopted the following principles:
"Secondly, Lord Penzance, in Howard v Bodington (1877) 2 PD 2003 at 211 said:
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject -matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. "
(3) Perhaps the principles applied by Brunton J in the case of NCDIC V Crusoe Pty Ltd [19931 PNGLR at p. 152 would clarify better the rule relating to directory and mandatory provision especially in the scope of a Public Duty and Private Duty. He said:
"It is noted that these broad principles have been applied in planning cases.
In SS Constructions Pty Ltd v. Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229 at 2237, Gillard J said:
"In order to decide whether legislative provisions are mandatory and directory it would appear there are certain guides to indicate, but there is no conclusive test to decide into which category legislation may fall. The scope and object of the statute, it is said in the cases, are of primary and possibly of vital importance. Secondly, provisions creating public duties and those conferring private rights or granting powers must be distinguished. The former generally are regarded as directory, whereas the latter are generally accepted as mandatory (emphasis mine), particularly where conditions are attached to the exercise of the duty or the power, as the case may be. Thirdly, in the absence of an express provision, the intention of the legislature has to be ascertained by weighing the consequences of holding a statute to be directory or imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at that same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
"Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminster. I am not sure that it is the most fortunate language that could have been adopted to express the idea that it is intended to convey, but still that is the recognized language and I propose to adhere to it. The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequences if it is not done? In the case of statutes that are said to be imperative, the courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the courts hold a provision to be directory, they say that, although such provisions may not have been complied with, the subsequent proceedings do not fail, still whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject matter to which they refer as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that substantially follow must come to an end."
Lord Penzance further at p.21 discussed certain criteria that must be used when he said:-
"I believe, as far as any rule is concerned, you cannot safely go farther than that in each case you must look to the subject-matter,' consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act,' and upon a review of the case in that aspect decide whether the matter is what is called Imperative or only directory. "
Did the NEC exceed, and abuse its powers?
D. SHOULD PARLIAMENT HAVE ADJOURNED TO THE NEXT SITTING DAY AFTER 2 AUGUST, 2011?
PARLIAMENTARY PRACTICE IN ENGLAND
"In 1923 Bonar Law, the conservative Prime Minister was so ill that he sent his resignation to George V. the choice of successor lay between Lord Curzon, Foreign Secretary and former Viceroy of India, a statesman of brilliant gifts and vast experience; and Mr Baldwin who, although recently appointed Chancellor of the Exchequer, had little political experience and was not so well known either inside or outside the House. After the King or his Private Secretary had consulted Lord Balfour (former Prime Minister) and Lord Salisbury (Lord President of the Council) and members of the government party, the King chose Baldwin both on personal grounds and because he was in the Commons, although the latter reason was emphasized in breaking the news to Curzon.
When Sir Anthony Eden, Conservative Prime Minister, resigned in 1957 because of serious ill-health, the succession lay by common consent between Mr R A Butler (Lord Privy Seal and leader of the House of Commons) and Mr Harold Macmillan (Chancellor of Exchequer). All that was publicly known was that the Queen consulted two elder statesmen of the conservative Party – Lord Salisbury (Lord President of the Council and son of the adviser of 1923) and Sir Winston Churchill, the former Prime Minister and selected Macmillan. We now know that they both recommended Mr Macmillan, and that only one member of the Cabinet supported Mr Butler.
In 1963 (after the Peerage Act had been passed) Mr Macmillan became ill, entered hospital for an operation and announced his intention to resign. In accordance with the practice of the conservatives at that time "soundings" were taken in the party. The result of these soundings were communicated by the Lord Chancellor to the Prime Minister, who then sent a letter of resignation to the Queen, presumably intimating that he had advice to give if requested. The Queen (who is not known to have sought any other advice) visited Mr Macmillan in hospital, and immediately afterwards sent for Lord Home and invited him to form an Administration. (She might have invested him with office straight away, as was done with Eden and Macmillan). A day or two later Lord Home informed the Queen that he was able to form an Administration.
In 1964 the Conservatives adopted a new method of selecting their party leader. A ballot is taken of the party in the Commons. The candidate so selected is then presented for election at a party meeting. On Sir Alec Douglas – Home's resignation (out of office this led to the election of Mr Heath.)
It ought to be possible, if a Prime Minister dies or resigns on personal grounds and the succession is not clear, for the government party to be allowed a few days in which to elect a new leader, without appearing to force the Sovereign's hand. This would keep the Crown out of politics in a delicate situation, and has been the practice in Australia and New Zealand.
THE COURTS POWER TO CONTROL EXECUTIVE ACTS
"In some Constitutions, it is left to the legislature to interpret the meaning of these principles, but in other types of constitutions, of which ours is one, the Judiciary is clothed with the power and charged with the duty of ensuring, upon the application of aggrieved parties, that the legislature and the executive, and, indeed, the judiciary as well, do not transgress the limits set upon their powers.
In Papua New Guinea it has come to be accepted that the judiciary is the guardian of the Constitution. Sections 18 and 19 provide for the original interpretative jurisdiction of the Supreme Court. Sections 22 and 23 provide for the enforcement of constitutional rights and sanctions, respectively, and ss 57 and 58 then complete these powers by providing for enforcement of guaranteed rights and freedoms and compensation, respectively. Section 11 declares that the Constitution is the Supreme Law of Papua New Guinea, and subject to s10 (construction of written laws), all acts, whether legislative, executive, or judicial, that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective".
"I remind myself of the nature of the question with which this Court is asked to deal with. As I said so in earlier reference, the decision as to the number of days the Parliament sits is by nature of question of politics. That is to say, it is determined by voting in the Parliament. It is no secret that this type of decision is taken on political grounds.
That is no reason for this Court to turn a blind eye and come to the view that it should not enter the arena of politics. This is a proper caution that this Court must bear in mind when faced with the issues involving political considerations. I gave this caution in Kapal v. The State [1987] PNGLR 417 at 429-426. The Constitution has made this clear in adopting the doctrine of separation of powers under s 99 of the Constitution. The independence of each of the three arms of government is fundamental. This Court must observe and uphold this principle.
However, the Constitution of Papua New Guinea is unique in many respects. It has subjected many political or policy issues to the scrutiny of the Courts. It is the duty of this Court to take up these issues without fear and favour within the strict confines of the powers given by the Constitution. This Court has had a proud tradition of addressing such issues: becoming involved in the policy decisions on television broadcasting (see The State v. NTN Pty Ltd & Another [1992] PNGLR 1); resignation and appointment of the Prime Minister (see Haiveta v Wingti (No 3) [1994] PNGLR 197 to mention only but few."
"We who constitute the Judiciary hold no sword or purse but it is comforting to know that like the National Executive Council and the Parliament we are mere agents of the people. We as agents have no greater power and the authority than the people. The Judiciary should not therefore shrink from declaring breaches of the constitutional duties by the Parliament irrespective of its enforceability. "
"It is not Courts' function to interfere with the functions of the National Executive Council to carry out its duties. However, the Courts, as guardians of the law, are duty bound to ensure that the letter of the law is adhered to."
"There is no general rule of law that the Head of State is immune from control by the Courts. That was decided by the Supreme Court in Kila Wari and Others v. Gabriel Ramoi and Sir Kingsford Dibela [1986] PNGLR 112. Likewise, the National Executive Council is not inviolable from control by the courts. If the Constitution or a statute gives it limited powers and it acts outside those powers then Court orders will lie against it. In the State v Philip Kapal [1987] PNGLR 417, Kidu CJ and Woods J at 420-421 held that judicial review would lie against the National Executive Council where it had (a) exceeded its powers, (b) abused its powers, or (c) made a decision which no reasonable authority could have made. "
Constitutional Interpretation:
So long as there is law, there must always be the need for interpretation. The task of interpretation is more acute in interpreting a written constitution such as ours. Judicial interpretation and pronouncements are as important as the decisions and policies of the executive and the legislature. When the judiciary makes a decision and pronounces it, it is laying down a standard for the community. The judiciary, therefore, cannot divorce itself from the consideration of public national interest.
One task of judicial interpretation is to uphold the cause of justice. What is the interpretation that will best achieve a sense of fairness and justice? The test or standard must be an objective one. It is not what I believe to be right. It is what I may reasonably believe that ordinary Papua New Guineans, of normal intellect, understanding, and conscience might reasonably look upon as right. It must be interpretation that gives cognizance to, and accords with, the ordinary person's objective perception of the public or national interest. The national and public interests are, in this context, synonymous.
Because constitutional interpretation is the sole preserve of the Supreme Court, the highest judicial authority in the nation, as delegated by the People to it through the Constitution, the Court has to be responsive to the constitutional values. The social philosophy of the Constitution must inspire the judicial decision-making process to adopt a broad goal-oriented and purposive approach directed towards advancing the constitutional objectives when interpreting the Constitution."
The Business Paper signed by the Acting Prime Minister recommended that:
AUTOCHTHONOUS CONSTITUTION
"We start from the premise asserted in the Preamble to the Constitution "that all power belongs to the people". As Frost CJ said in The State v Mogo Wonom [1975] PNGLR 311 at 315-306:
"The Constitution itself is a truly autochthonous Constitution established, as the preamble recites, by the will of the people, to whom 'all power belongs '. Its authority is thus original and in no way derivative from any other source. Unlike the case of Australia where the first settlers brought with them the common law there is, to use the words of Sir Owen Dixon speaking of the American Constitution, 'no anterior law providing the source of juristic authority' for the institutions of government now established."
In the words of Pratt J in SCR No 1 of 1982; Re Bouraga (1982) PNGLR 178 at 202:
"...The Powers wielded by any servant of the public, be he Minister, civil servant, judge or whatever stems from a delegation from the people ..."
I add that the Head of State similarly is delegated powers and functions from the people, the source of all powers, through the Constitution. Thus s. 138 of the Constitution on Vesting of the Executive Power – provides:-
"Subject to this Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 (functions, etc., of the Head of State)."
Under s 139 the National Executive consists of:
(a) The Head of State acting in accordance with advice; and
(b) The National Executive Council.
The executive power of the people in reality is vested in the National Executive Council, which in many instances acts through the Head of State. In my view therefore, whenever the National Executive Council performs an executive act through the Head of State, or put another way, when the Head of State performs an executive act upon advice from the National Executive Council, he is in fact acting on behalf of the people of Papua New Guinea who are collectively known by their corporate name as "The State."
"Pursuant to the Constitution, s 99, also, the power, authority and jurisdiction of the People is to be exercised by the National Government which consists of the National Parliament, the National Executive and the National Judicial System. Consistently with this it was held in The State v Mogom that:
"the judicial authority of the people is vested in the National Judicial System ... The power of judicature in this country lies in the people at large. This has been invested by the people in the Courts established under the Constitution ... it is appropriate that proceedings be brought by the people in their collective corporate name 'The State' (s 1)."
The Court thus held that the criminal prosecution upon indictment should be in the collective corporate name of the people from whom the power to prosecute for offences against it is derived, that is "The State"
It is in my view also, therefore, that because the executive power exercised by the Head of State, in accordance with the advice of the National Executive Council, is vested in him by the People through the Constitution, it is appropriate that proceedings brought against the exercise of that executive power by the Head of State on behalf of the People, should be against the People in their collective corporate name "The State". This view is, I consider, affirmed by the Claims By and Against the State Act (Ch No 30), which by s 2 and s 3, provides for suits against and by the State respectively to be brought in the name of "The State". Consistently with this spirit of the autochthonous nature of the Constitution is the ruling I have referred to earlier in The State v Mogo Wonom".
GAP IN LAW
Sch 2.3 Development
(1) "If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard-
(a) In particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
(b) To Division III. 3 (basic rights), and
(c) To analogies to be drawn from relevant statutes and custom, and
(d) To the legislation of, and to relevant decisions of the court of any country that in the opinion of the court has a legal system similar to that of Papua New Guinea, and
(e) To relevant decisions of courts, exercising jurisdiction to or in respect of all or any part of the country at any time.
and to the circumstances of the country from time to time."
(2) If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant-.
- (a) In the case of the National Court the court may; and
- (b) In the case of any other court (not being a village court) the court shall,
refer the matter for decision in the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate."
In the case SC Reference No 4 of 1990 Special Reference Pursuant to Section 19 of the Constitution in the Matter of a Reference By The Acting Principal Legal Adviser Re Meeting of Parliament,[1994] PNGLR 141, Kapi DCJ (as he then was) at page 156-157 discussed vividly the method of the Judiciary filling in a gap in the course of interpreting Constitutional provisions. He said:
""that, as a matter of interpretation, there is a gap in the law. In Papua New Guinea, we are not left without a remedy. Schedule 2.3 of the Constitution empowers this Court to formulate a rule of law tofill the gap. This Court has already done this in SCR No 4 of 1980,' Re Petition of Somare (No 1) [1981] PNGLR 265. ...I have reached the conclusion that the court may have regard, amongst other things:
(c) to analogies to be drawn from relevant statutes and custom; and
(d) to the legislation of. and to relevant decisions of the courts of. any country that in the opinion of the court has a legal system similar to that of Papua New Guinea. ..
Ordinarily, where there is a gap in a legislation, such as in this case, it would not be proper to fill the gap by way of judicial act. It would be more appropriate to enable the Parliament to fill the gap (Sch 2.4 of the Constitution). See State v Kor [1983] PNGLR 24. The Parliament could do this by amending s 124 of the Constitution, enacting an Act of Parliament, or including this in the Standing Orders (s 124(3) of the Constitution).
However, in this case, I would fill the gap for the following reasons. First, there is an urgent need to do something to determine the current period. If the Parliament does not like the formulation, they can always abolish the rule of law (underlying law) by legislation. Second, as I have pointed out earlier, the National Parliament considered the issue on 9 November 1989. The Speaker, recognizing the gap, advised the Parliament:
"The first question to address concerns in each period of 12 months. My advice is that this period should refer to the 15th July, the date of return of writs until 14th July in the next year. Members should note that whilst each is not specific, it does not refer to any period."
The advice was not challenged by any member of the present Parliament. Therefore, I have some indication as to what the Parliament would do.
As required under Sch 2.3(1)(c) of the Constitution, I may have regard to analogies from relevant legislation. I have already indicated that s.41(3) of the Papua New Guinea Act 1947 – 73 adopts the first meeting of the Parliament as the commencement of the 12 months period and not the day after the return date of the writs.
Under Sch 2.3 (1) (d), I may have regard to legislation and decisions of any country that has a legal system similar to Papua New Guinea. There are no relevant decisions, but there is legislation from the Commonwealth countries which are relevant. I have examined constitutions in Australia, the Caribbean countries, and African countries which can be said to have a similar legal system to PNG and, without having to refer to all of them, they adopt the first sitting of the Parliament as the commencement of the 12-months period. Only from this date can the Parliament fix any other meeting of the Parliament. There can be no meeting of the Parliament before the first meeting. See s I of the Organic Law on the Calling of Meetings of the Parliament. Therefore, it would be more appropriate to commence the period from the first meeting of the Parliament.
However, it has been pointed out that if the period of 12 months begins from the first sitting of the Parliament, the last period in the life of Parliament will fall short of 12 months. The same can be said of the first period of the 12 months begins from the day after the return of writs after a general election.
There is very little difference in effect between the day after the return of the writs and the first sitting of the Parliament after the general election. It is a difference of, at the most, 21 days. If I rule that the period begins from the day after the return of the writs, the Parliament only has II months 10 days to fit the three meetings in the first period of 12 months. If I rule that the period begins to run from the first meeting of the Parliament after the general election, the Parliament will have only II months 10 days to have the three meetings in the last 12 months period.
As to the third alternative, that is, "any period of 12 months beginning with one meeting of the Parliament and ending with the third meeting of the Parliament ", it is uncertain and may not be consistent with the term of Parliament.
As to fourth alternative, that is, "the period of 12 months commencing 1st January and ending 31st December in each ", as the term of the present Parliament begins on 15 July 1987, it would not be possible to fit in all the 12 months period within the whole term of this Parliament.
Having regard to the fact that the majority adopts the day after the return of the writs as the commencement date, I would formulate the rule that the 12-months period referred to in s 124 of the Constitution should begin from the day after the return of the writs after a general election.
I have come to this conclusion not by way of interpretation but by way of judicial legislation permitted under Sch 2.3 of the Constitution. "
PROCEDURE IN PARLIAMENT - JUSTICIABILITY
134 Proceedings non-justiciable.
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.
These submissions immediately raise the question of whether or not these are matters which are justiciable. Section 134 of the Constitution provides:-
134. Proceedings non-justiciable
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.
There has never been a definition of what is "procedures" or procedural in this context.
Firstly, it has been emphatically laid down that the settled practice is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law, and that the proper time for the Court to intervene is after the completion of the law-making process: see Hughes & Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203; Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 235; and per Gibbs J in Cormack v Cope (1974) 131 CLR 432 at 467.
The courts in the United Kingdom have traditionally refrained from any interference in the law-making activities of the Parliament. But in Papua New Guinea (and in Australia), the law-making process of the Parliament is controlled by a written Constitution. It has been pointed out by the Privy Council in unequivocal language in the case of Bribery Commissioner v. Ranasinghe [1965] AC 172, that where the law-making process of a legislature is laid down by its constituent instrument, the courts have a right and duty to ensure that the law making process is observed; per Barwick CJ in Cormack v Cope (supra) at p 452 and further at p 453: "where the Constitution requires that various steps be validly taken as part of the law-making process .... the Court has a duty to see that the Constitution is not infringed and to preserve it inviolate ... it has the right and duty to interfere if the constitutionally required process of law making is not properly carried out."
It is a firmly established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority includes the completion of the parliamentary process to turn a bill into an act. See also Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 92. Further, s 109 of the Constitution provides that the general law-making power of the Parliament is subject to the Constitution and the authority of SCR No 2 of 1982; Re Organic Law (supra) makes it quite clear that the requirements of s 14 of the Constitution are mandatory.
But whilst this Court has jurisdiction in matters involving the constitutionality of the law-making process, including the amendment of the Constitution itself, it does not have jurisdiction to enquire into what has been described as "intra-mural" deliberative activities of the Parliament or the intermediate procedures of Parliament. These are matters which are procedural of the proceedings of Parliament, and whilst there has never been a complete definition of this term, in its wider sense it has been used to include matters connected with, or ancillary to, the formal transaction of business in the Parliament: see Halsbury Laws of England (4th edn) vol 34 para 1486. The power to make the law, as it has emerged from the law-making process, is one thing, but the actual process of law-making is another thing. "
Standing Orders of Parliament.
"In deciding any question relating to procedure or the conduct of the business of Parliament in the absence of sessional or other orders or practice of the Parliament, Mr Speaker may resort to the usage and practice of the House of Representatives in the Parliament and not inconsistent with these Standing Orders or with the practice of the Parliament."
Simultaneously, the scheme under the Constitution is that the Prime Minister must not be way for more than three months.
It is my view that s.142(2) is wide enough to cover situations where the Prime Minister is unavailable to perform his duties for some reason or other causing an emergency or necessity situations.
"The rationale for non-justiciability of Parliamentary proceedings is an aspect of the broader principle of comity between the judicial and legislative organs of government."
"The Supreme Court can exercise jurisdiction where it is alleged that the requirements of the Constitution relating to constitutional amendments are breached, but where it is alleged that the passage of amendments through the Parliament breached parliamentary procedures, these matters are non-justiciable under s.134 of the Constitution."
"Whether or not debate in fact, takes place and, if so, for how long and by whom and what the subject matter of that debate is, are matters that are non-justiciable as pertaining to internal procedures of Parliament. Further issues as to whether attempts were made to gag debate and the motion and vote to end debate are also matters of internal procedures of Parliament that cannot be the subject of scrutiny by the Court."
SAKORA J
Introduction
General Comments - Preliminary
(Convenience and brevity rather than disrespect dictate the omission of formal titles here)
We must not, however, attempt to fix the present pattern of responsible government as a thing to be clung to for all time; we must allow scope for its development – for its being moulded to fit the political ideas of each successive generation. Responsible government as we know it, is a new thing, and a changing thing; it depends largely upon unwritten rules which are constantly varying, growing, developing, and the precise direction of whose development it is impossible to forecast. To try to crystallize this fluid system into a hard and fast code of written law would spoil its chief merit; we must be careful to lay down only the essential principles of popular government, leaving the details of form as elastic as possible. Some fundamental principles must be fixed by the Constitution (subject to a more or less difficult process of amendment); whilst the great mass of merely accidental, and not essential, characteristics of government may be left at large, to be controlled from time to time by the Parliament and the will of the people, as is the case today in Great Britain and in every self-governing British colony. ( Executive Government, ibid, extracted from The Coming Commonwealth, 1897, p 149)
of the force of public opinion and because disobedience of a convention (resulting, for example, in Parliament perpetuating itself without recourse to general election) would, in the last resort, lead to revolution.
Except as provided by Section 96 (2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.
(underlinings provided)
It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.
The Reference: Preliminary Issues
Justiciability
Sch.1.7. "Non-justiciable"
Where a provision of a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division 111.2 (leadership code).
134. Proceedings non-justiciable
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 (certificate as to making of laws)is conclusive as to the matters required to be set out in it.
Onus of Proof
Constitutional Interpretation
"Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form"
(Extracted from The Living U.S Constitution, by Saul K Padover (3rd revised ed by Jacob W Landynski, Meridian, 1995)
I want . . . an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written. It does not mean a judiciary so independent that it can deny the existence of facts universally recognised (ibid)
The Reference: Substantive Issues
It (the country) did not fall to pieces since then; however, there have been signs that the Constitution of Papua New Guinea is not holy writ, and adjustments may be necessary. (Sir Julius Chan, in Law, Politics and Government in the Pacific Island States, edited by Yash H Ghai, IPS, USP, 1988).
Appointment and Removal of a Prime Minister
99. STRUCTURE OF GOVERNMENT
(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
35. We have taken particular care to provide for procedures to ensure that the country has a national government at all times. Thus, during the period when Parliament is dissolved and there is a general election, the National Executive Council stays in office until either the present Prime Minister or a successor is appointed following his election by the new Parliament. Whoever becomes Prime Minister would then have the right to construct a new Ministry. He may or may not choose any of the former Ministers. These procedures are similar to those found in most parliamentary systems.
36. We have provided separately, in paragraphs 38 and 39 below, for the procedures to be followed should there be a vacancy in the office of Prime Minister arising, for example from the death or resignation of the incumbent. However, it would be possible for all Ministers to resign so that, in effect, there is a resignation by the National Executive Council as a whole. A government might decide to do this if the Parliament rejected its Budget or other major legislation, but it need not necessarily do so. We have made specific provision for Parliament to replace a government that appears to have lost majority support, but we expect that Parliament itself will evolve its own convention in respect of the circumstances in which a government ought to resign. If the Ministry as a whole does resign, we propose that the resignations take effect from the time of the appointment of a new Prime Minister following his election by Parliament.
Pursuant to Section 142 (2) of the Constitution and Schedule 1.10(3) of the Constitution, and the Inherent Powers of the Parliament that we Declare the Office of the Prime Minister to be Vacant, and that consequently,in accordance with the provisions of Section 142 (2), this Parliament proceed to elect and appoint a new Prime Minister.
The minority group in the Parliament and comprises those members who do not support the Government. If there is more than one non-Government party, the largest such party is recognised as the official Opposition. . . . The role of the Opposition is very important. Its functions are to bring the actions of the Government under critical review, to analyse and debate legislative proposals and to draw attention to any maladministration by the Government.
The Doctrine of State Necessity
but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.
The defence under s 32 (1) (CCA) can be compared and contrasted with the defence available under s 26: Extraordinary emergencies.
. . . one must acknowledge in certain circumstances a breach of legal continuity, be it peaceful or accompanied by coercion and violence, may have to be treated as superseding the constitutional and legal order and replacing it by a new one. Legal theorists have no option but to accommodate their concepts to the facts of political life. Successful revolution sooner or later begets its own legality. If, as Hans Kelsen has postulated, the basic norm or ultimate principle underlying a constitutional order is that the constitution ought to be obeyed, then the disappearance of that order, followed by acquiescence on the part of officials, judges and the general public in laws, rules and orders issued by the new holders of power, will displace the old basic norm or ultimate principle and give rise to a new one. Thus, might becomes right in the eye of the law.
We have come to the brink of a chasm with only three alternatives before us: to turn back the way we came by; to cross the gap by a legal bridge; to hurtle into the chasm beyond any hope of rescue.
". . . in the circumstance prevailing at the material time, the enactment of the new Law was legally justified, notwithstanding the provisions of Articles 133 (1) and 153 (1) of the Constitution . . . The same conclusion results . . . from the application of the law to the circumstances pertaining to the promulgation of the enactment in question . . . notwithstanding the provisions of Articles 47 (47) (e) and 52 . . ."
"This court now, in its all-important and responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity . . . should or should not be read in the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view, and unhesitating answer to this question, is in the affirmative." (Underlinings supplied)
"It seems to me that this summing up of the law of necessity by one of the learned judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application".
". . . Inasmuch as necessity has been held to justify a major deviation, its importance as a constitutional concept is very substantial".
Orders
KIRRIWOM J
Section 104
(6) What meetings of the Parliament have been held since 1 March 2011 within the meaning of S.104(2)(d) of the Constitution?
(7) Was Sir Michael Somare absent from the whole of any, and if so which, of those meetings of the Parliament?
(8) Do the meetings of Parliament identified in answer to paragraph (7) above include three consecutive meetings of the Parliament?
(9) If the answer to paragraph (8) is "yes", did Sir Michael Somare have leave of the Parliament in respect of any, and if so which, of those three consecutive meetings of the Parliament?
(10) In the event Sir Michael did not have the leave of Parliament in respect of his absence for all three of those consecutive meetings of the Parliament, was he absent without that leave during the whole of three consecutive meetings of the Parliament within the meaning of Section 104 (2)(d) of the Constitution?
(11) Did Sir Michael cease, and if so when, to be a member of the Parliament?
Section 103
(12) What are the laws referred to in s.103 (3)(b) of the Constitution as "any law relating to the protection of the persons and property of persons of unsound mind'?
(13) What is the meaning of the expression "unsound mind" in the laws identified in answer to paragraph (12)?
(14) Has Sir Michael Somare been of "unsound mind" within the meaning of the law referred to in s.103 (3)(b) at any time in the period from April 2011 to the present time?
(15) In the event the answer to (14) is yes, when in the said period has he been of unsound mind?
(16) In light of the answers to (14) and (15) when did Sir Michael Somare become unqualified to remain a member of the Parliament within the meaning of s.103 (3)(b) of the Constitution?
(17) Did Sir Michael Somare cease to be a member of the Parliament on the date identified in paragraph (16) by reason of S.104(2)(f) of the Constitution?
Section 142 (occasion for decision)
(18) Does the office of Prime Minister become vacant, by the operation of s.141(a) of the Constitution or otherwise, when the incumbent ceases to be a member of the parliament by the operation of s.104 (2)(d) of the Constitution?
(19) If the answer to (18) is yes, having regard to the answers to (14) and (15) above, did the office of Prime Minister become vacant in August 2011, and when?
(20) Does the Office of Prime Minister become vacant by the operation of S.141(a) of the Constitution or otherwise when the incumbent becomes unqualified to be a member of the Parliament pursuant to s.103 (3)(b) and s.104 (2)(f) of the Constitution?
(21) If the answer to (20) above is yes, having regard to the answers to (16) and (17) above did the office of Prime Minister become vacant on or prior to 2 August 2011?
(22) If the answer to (23) is yes, when did it become vacant?
(23) If the answers to (18) and (20) are both no, did the Parliament nevertheless have power or authority pursuant to s.142 (2) and Schedule 1.10(3) of the Constitution or otherwise, to declare that the office of Prime Minister was vacant on 2 August 2011?
(24) If the answers to (19) and (21) are both no, was there nevertheless an occasion for the appointment of a Prime Minister within the meaning of S.142(2) of the Constitution by 2 August 2011.
Section 142 (next sitting day)
(25) Was the Parliament required to consider the question of appointment of a Prime Minister on 2 'August 2011 under one of s.142 (3) or 142 (4) of the Constitution?
(26) If the answer to (25) is yes, was the Parliament in session when a Prime Minister was to be appointed within the meaning of S.,142 (3) and s.142 (4) of the Constitution?
(27) What is the meaning of the expression "the next sitting day" where used in s.142 (3) of the Constitution?
(28) What is the meaning of the expression "the next sitting day" where used in s.142 (4) of the Constitution?
(29) If the answer to (25) is yes, is the requirement in either, and if so in which, of S.142 (3) and s.142 (4) of the Constitution that the question of the appointment be considered on the "next sitting day" mandatory?
Appointment
(30) Was the appointment of Mr. Peter O'Neill as Prime Minister by the Head of State on 2 August 2011 in accordance with a decision of the Parliament?
Justiciability
(31) Is the question whether the consideration of the Parliament to appoint Mr. Peter O'Neill to the Office of Prime Minister occurred on "the next sitting day" within the meaning of s.142 (3) or s.142(4) of the Constitution justiciable?
(32) Is the question whether there was a proper basis for the appointment of the Prime Minister as Head of State justiciable having regard to Section 86(4) of the Constitution?
(33) Is the question whether there was a proper basis for the appointment of the Deputy Prime Minister by the Head of State justiciable having regard to Section 86(4) of the Constitution?
Other
(34) Ought the Court decline to answer any question in the reference pursuant to S.19(4)(c) of the Constitution and Order 4 Rule 16 of the Supreme Court Rules having regard to the circumstances including any of the following:
- The vote of the Parliament on 2 August 2011 deciding to appoint the Honourable Peter O'Neill Prime Minister by majority of 70 votes to 24;
ii. The answers to any of the questions above;
(35) iii. The time by which the next election is to be held in accordance with s.105 of the Constitution; the terms of s.145 of the Constitution." Whether, on a true construction of the words 'without leave of the Parliament during the whole of the three consecutive meetings of the Parliament', as such words are contained in section 104(2)(d) of the Constitution such words mean:
- (a) Firstly, that the grant of leave at any meeting of the Parliament pursuant to such section shall be for the duration of that meeting only, or alternatively;
- (b) Secondly, that the grant of leave at any meeting of the Parliament pursuant to such section may be for one or more meetings, or alternatively;
- (c) Thirdly, that the grant of leave at any meeting of the Parliament pursuant to such section shall be for 'the whole of three consecutive meetings'?
(36) Given the determination of the Speaker on 6 September, 2011 that the East Sepik Provincial Seat in the Parliament (held by Sir Michael) had become vacant, was Sir Michael nevertheless entitled to remain as elected member for the said seat until such time as the Parliament:
- (a) Had given to Sir Michael a reasonable opportunity, in accordance with section 59 of the Constitution, to provide a 'satisfactory reason' to the Parliament for his absences; and thereafter;
- (b) Decided, after considering such reasons, whether to "waive" pursuant to section 104(2)(d) of the Constitution the rule that the said seat was vacant by reason of such absences?
(37) If the answer to Q36 is in the affirmative, whether Sir Michael remained a member of Parliament notwithstanding the decisions of the Speaker and the Parliament under section 104(2)(d) of the Constitution on 6 September, 2011?
(38) Is the jurisdiction of the National Court to determine any question as to the qualifications of a person to remain a member of the Parliament under section 135 of the Constitution exclusive or is the power to do so shared by the Parliament?
"The people of Papua New Guinea have been praying for our Prime Minister since he was admitted to hospital for surgery in Singapore. Mr. Acting Speaker, in the interest of the people of Papua New Guinea, I take the opportunity to explain to Parliament the condition of the Prime Minister, Grand Chief Sir Michael Somare.
Following Sir Michael's suspension from Office last month, he took leave to address a condition in his heart last month that has prevailed over a long period of time. Sir Michael had a successful valve replacement surgery. The surgery was successful but Sir Michael developed complications in the post operative period that required corrective surgery. Consequently, corrective surgery has taken place and Sir Michael is in recovery. Due to the nature of surgery, the period of recovery will be longer than anticipated. Mr. Acting Speaker, our senior cardiologist and Dean of the University of Papua New Guinea Medical School, Professor Isi Kevau who has been managing Sir Michael's valves over many years is involved in the management decisions in a consultative manner with his Singapore cardiologist and the nursing staff. Professor Kevau is satisfied with the progress so far and has informed me that the medical staff are providing good medical care and good progress is being made at this time."
(xxi) On the fifth day of the May meeting, 17th May 2011, the Hon. Paul Tiensten without notice, moved a motion, passed by the Parliament, that:
"That leave of absence be granted to the Prime Minister Sir Michael Somare for the duration of this meeting."
(xxii) That motion of 17th May 2011 was not revoked or varied by the Parliament.
(xxiii) Sir Michael did not obtain any leave from the Parliament other than the leave granted 17th May 2011.
(xxiv) On about 28th July 2011 the Hon. Sam Abal submitted a business paper to the NEC a copy of which is Annexure SA1 to the affidavit of Mr. Abal made 8th August 2011.
(xxv) On 28th July 2011 pursuant to the recommendation of the Hon. Sam Abal the NEC communicated to the Governor General the advice which is Annexure SA5 to the said affidavit of Mr. Abal.
(xxvi) On 1st August 2011, the Governor General pursuant to the advice from the NEC by instrument requested the Papua New Guinea Medical Board to appoint two medical practitioners. The Governor General did not suspend Sir Michael from office.
(xxvii) No doctors were appointed pursuant to the instrument of the Governor General on 1st August 2011.
"(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."
'"SUSPENSION OF STANDING ORDERS
Motion (by Mr Belden Namah) agreed to-
(a) That so much of the Standing Orders be suspended as would prevent me from moving a motion without notice.
(b) That pursuant to section 142, sub-section 2 of the Constitution and schedule 1.10, sub-section 3 of the constitution, and in the inherent power of the Parliament that we declare the Office of the Prime Minister be vacant and consequently in accordance with the provisions of section 142, subsection 2 this Parliament proceeds forthwith to elect and appoint a new Prime Minister.
NOMINATION AND ELECTION OF PRIME MINISTER
MR BELDEN NAMAH – I nominate the Member for Ialibu Pangia, Honourable Peter O'Neill to be the alternate Prime Minister.
MR SPEAKER – Do you accept the nomination?
MR PETER O'NEILL – Yes, I humbly accept the nomination.
MR WILLIAM DUMA – I second the nomination
MR SAM BASIL – I move the nominations be closed
MR JOHN BOITO – I second the nomination for the nominations be closed.
The Parliament voted (the Speaker, Mr Jeffrey Nape, in the Chair)
MR SPEAKER – Honourable Members, the results of the vote are as follows:
AYES – 70
NOES - 24
MR SPEAKER – Honourable Members, the Prime Minister-elect will now present himself to the Governor-General at the Government House.
Motion by (Mr Belden Namah) agreed to-
That the Parliament be suspended until the ringing of the bells so as to allow the Prime Minister-elect to present himself at the Government House to be sworn in as the Prime Minister of Papua New Guinea.
Sitting suspended from 3:10pm."
(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.
(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.
(3) The following authorities only are entitled to make application under Subsection (1):—
(a) the Parliament; and
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c) the Law Officers of Papua New Guinea; and
(d) the Law Reform Commission; and
(e) the Ombudsman Commission; and
(ea) a Provincial Assembly or a Local-level Government; and
(eb) a provincial executive; and
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).
(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—
(a) the form and contents of questions to be decided by the Court; and
(b) the provision of counsel adequate to enable full argument before the Court of any question; and
(c) cases and circumstances in which the Court may decline to give an opinion.
(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.
The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed or provided for by the Standing Orders of the Parliament.
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.
The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament; or
(b) the validity of an election to the Parliament.
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.
(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.
(1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister when—
(a) there is a vacancy in the office of Prime Minister; or
(b) the Prime Minister is suspended from office; or
(c) the Prime Minister is—
(i) absent from the country; or
(ii) out of speedy and effective communication; or
(iii) otherwise unable or not readily available to perform the duties of his office.
(2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—
(a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and
(b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.
(3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable.
(1) There shall be such number of Ministers (other than the Prime Minister), not being less than six or not exceeding 32 from time to time, as is determined by or under an Organic Law.
(2) The Ministers, other than the Prime Minister, shall be appointed by the Head of State, acting with, and in accordance with, the advice of the Prime Minister.
(3) A Minister, other than the Prime Minister, may be suspended from office in accordance with an Organic Law made for the purposes of Section 28(2) (further provisions).
(4) A Minister other than 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; and
(b) may be dismissed from office—
(i) by the Head of State, acting with, and in accordance with, the advice of the Prime Minister; or
(ii) in accordance with Division III.2 (leadership code).
(5) An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Minister.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister.
(1) The Prime Minister may resign from office by notice in writing to the Head of State.
(2) A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.
(1) Unless he earlier—
(a) dies; or
(b) subject to Subsection (2), resigns; or
(c) subject to Subsection (3), ceases to be qualified to be a Minister; or
(d) is dismissed or removed from office,
a Minister (including the Prime Minister) holds office until the next appointment of a Prime Minister.
(2) Notwithstanding Subsection (1)(b)—
(a) a Prime Minister who resigns; and
(b) a Ministry that resigns collectively,
shall continue in office until the appointment of the next Prime Minister.
(3) Notwithstanding Subsection (1)(c), a Minister who—
(a) ceases, by reason of a general election, to be a member of the Parliament; but
(b) remains otherwise qualified to be a member of the Parliament,
shall continue in office until the next appointment of a Prime Minister.
(1) A member of the Parliament must be not less than 25 years of age.
(2) A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f) he is otherwise disqualified under this Constitution.
(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.
(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—
"appeal" includes any form of judicial appeal or judicial review;
"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.
(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2) The seat of a member of the Parliament becomes vacant—
(a) if he is appointed as Governor-General; or
(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
(g) on his death; or
(h) if he is dismissed from office under Division III.2 (leadership code).
(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.
(1) A general election to the Parliament shall be held—
(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
(b) 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—
(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or
(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or
(c) if the Parliament, by an absolute majority vote, so decides.
(2) The Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall fix the first and last days of the period during which polling shall take place and the date by which the writs for a general election shall be returned.
(3) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that—
(a) in a case to which Subsection (1)(a) applies—the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election; and
(b) in a case to which Subsection (1)(b) or (c) applies—the date for the return of the writs is fixed as soon as may reasonably be after the date of the relevant decision of the Parliament.
If the office of an elected member of the Parliament becomes vacant otherwise than by virtue of Section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurs—
(a) within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or
(b) after the writ has been issued for an election under Section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first-mentioned writ shall be deemed to have been revoked.
(1) Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.
(2) Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.
(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.
(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.
(5) The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.
(1) There shall be offices of Speaker and Deputy Speaker of the National Parliament.
(2) The Speaker and the Deputy Speaker must be members of the Parliament, and shall be elected by the Parliament by secret ballot in accordance with the Standing Orders of the Parliament.
(3) The Speaker and the Deputy Speaker hold office, and their offices become vacant, in accordance with the Constitutional Laws and the Standing Orders of the Parliament.
(4) No Minister or Parliamentary Leader of a registered political party may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes a Minister or Parliamentary Leader of a registered political party he vacates his office as Speaker or Deputy Speaker, as the case may be.
(1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.
(2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.
(3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.
APPOINTMENT OF PRIME MINISTER
"(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."
"(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision."
"(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place."
"Sch.1.1. Application of Schedule 1
(1) The rules contained in this Schedule apply, unless the contrary intention applies, in the interpretation of the Constitution and of the Organic Laws.
(2) Unless adopted by law for the purposes, they do not apply to any other law."
"Mr Donigi urged us to consider Schedules 1.9 (provision where no time prescribed) and 1.10 (exercise and performance of powers and duties) of the Constitution but those aids to interpretation do not lead to any conclusion other than the obvious one: a special reference under Section 19(1) – or more precisely an application to the Supreme Court under Section 19(1) of the Constitution – is made when an authority files the reference or application in the Registry of the Supreme Court. On the date of filing, the person making the application must have authority to do so. For the purposes of this case, such authority comes from holding one of the offices in Section 19(3)(c)."
"The appointment of a Prime Minister by the Head of State involves a number of steps, which must be taken in accordance with the Constitution and the Standing Orders of the Parliament. The occasion which triggers off, or puts into motion, all the steps necessary for appointment of a new Prime Minister by the Head of State is a vacancy in the office of Prime Minister.
In my view, the words "when a Prime Minister is to be appointed" appearing in ss 142 (3) and (4) of the Constitution have the same meaning as "the occasion for the appointment of a Prime Minister arises" in s 142 (2). That is to say, the occasion which gives rise to the need to appoint a Prime Minister or when a Prime Minister is to be appointed, is a vacancy in the office of Prime Minister. When a vacancy occurs, it can be said "the occasion for the appointment of a Prime Minister arises" in accordance with s 142 (2) or "when a Prime Minister is to be appointed" in accordance with s 142 (3) and (4).
There are number of ways in which a vacancy may occur. These are:
1. dismissal from office in accordance with a vote of no confidence (see s 142 (5) (a) ),
2. dismissal from office in accordance with the Leadership Code (see s 142 (5) (b) ),
3. dismissal from office on the grounds of unfitness (see s 142 (5) (c) ),
4. resignation (see s 146).
Here, we are concerned with a vacancy created by resignation."
CREATION OF VACANCY
Is the election of the Prime Minister "on the next sitting day" a mandatory requirement?
" 145. Motions of no confidence.
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister."
"We are not interpreting an ordinary statute but the supreme law of the land, a Constitution which was drafted with great idealism as seen in the words used in the Preamble and the National Goals and Directive Principles. We must give all parts of the Constitution a fair and liberal interpretation..."
"Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. In this jurisdiction these rules are subject to two very important constitutional provisions: (a) fair and liberal interpretation (Sch 1.5 (2) ) and (b) the paramountcy of justice (s 158 (2) ). Schedule 1.5 (2), I know, relates to the interpretation of constitutional laws, but if constitutional laws, which are higher laws than Acts of Parliament, must be given their fair and liberal meaning, it is my view that that means that ordinary laws must be given their "fair and liberal meaning". Section 158 (2) says that in interpreting laws the courts must "give paramount consideration to the dispensation of justice".
Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact Parliament's legislative power, subject to the Constitution, is unfettered (the Constitution, s 109 (1) ), and laws made by Parliament "shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit" (s 109 (4) ). I have said the above to emphasise that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to over-ride clear and explicit parliamentary intent in legislation. This is not saying that I support "the strict literal and grammatical construction of the words, heedless of the consequences" approach to statutory interpretation: see PLAR No 1 of 1980 [1980] PNGLR 326.
The "purposive" rule of interpretation urged by Wilson J and Andrew J in PLAR No 1 of 1980 must not be used by the courts to nullify laws which are clearly constitutional and which clearly and unambiguously state the intentions of the legislature. What I am saying can be stated simply this way: Where Parliament says in an Act that "dogs" are to be registered if they are pets, a court cannot say that "dogs" means "pigs" simply because pigs are sometimes raised as pets."
"The consideration and the appointment of a Prime Minister is, nevertheless, not on "the next sitting day" after the question first arises before Parliament. I believe that, consistent with the general spirit behind the framing of the Constitution, to ensure open democratic parliamentary government and an executive responsible and accountable to Parliament, and to avoid the appearance and accusation of conspiracy, unfairness, and manipulation for personal benefit, the most important question of the appointment of a Prime Minister first arises for consideration when Parliament is informed formally by the Speaker, reading the relevant advice to Members of Parliament on the floor of Parliament, when Parliament is formally sitting. Consistently, then, after Parliament is so informed of the question or the issue of the need to appoint a Prime Minister, the question is deferred until "the next sitting day". This accords with the need to give Members of Parliament the barest minimum time to consider the issue and the candidate or candidates most suitable to be considered for election to this high office. If Parliament considers that time to be inadequate, then it has the ability within its procedures to enable itself more time, by adjourning — Standing Order 6. This, of course, is a matter for the internal procedure of Parliament."
"The third matter which arises for consideration out of the recommendations of the CPC is that the proviso to enable Parliament to adjourn election of Prime Minister for three sitting days at a time was not adopted by s 142 of the Constitution. In my view, when the Constitution left out the proviso dealing with adjournment of the Parliament and by adopting the words "next sitting day", it adopted a compromise situation. And that is that the Parliament should not elect a Prime Minister on the first day of sittings of the Parliament, but the election should take place on the "next sitting day". This gives everyone one day to prepare for the election of the Prime Minister. This is not only fair and just but it gives everyone an equal opportunity to participate."
"That interpretation, in my view, finds favour with s 142 (4) of the Constitution. The procedure under that provision is that when Parliament is not sitting when a Prime Minister is to be appointed, the Speaker is to call a meeting of Parliament immediately. The appointment of the Prime Minister is not on the first day, it takes place on the next sitting day. That procedure is necessary because on the first sitting day Parliament is informed, and then on the next sitting day the Prime Minister is appointed. The next sitting day is suitable because, on the first sitting day after being informed of the vacancy of the position of Prime Minister, all the other members of Parliament then start the lobbying process and determine who would be possible candidates for the Prime Minister. This procedure makes good sense and is not unfair and unjust on any party."
OVERVIEW OF ASSERTIONS OF INTERVENORS 1, 2, 5 & 6
699. The first, second, fifth and sixth Intervenors' case was based on unsoundness of mind and absences from three consecutive meetings of the Parliament by Sir Michael Somare that gave rise to a vacancy situation thereby justifying the resolution of the Parliament on 2nd August, 2011. I do not accept the argument on the unsoundness of mind put forward by the First Intervenor et al. At the outset, that was not the basis for the motion of 2nd August, 2011. It was an after-thought following the event of 2nd August 2011 on the floor of Parliament when in futile pursuit of reason the First Intervenor and those supporting him obtained a favourable advice from a clinical psychologist whose professional and expert opinion based on earlier reports of Sir Michael's conditions and treatment given was that Sir Michael was of "unsound mind" when he was in that critical condition in the hospital according to those reports from his Singapore doctors.
700. On the question of Sir Michael's mental condition for the purpose of section 142(5)(c) the manner of soliciting evidence to establish that fact on behalf of the Intervenors relying on this ground was in my mind intrusive, destructive and very demeaning in relation to a person of Sir Michael's calibre. That is not the proper and correct procedure to be adopted to deal with our leaders in Parliament and was therefore already an ill-fated journey that did not assist the Court in the end except unduly persecuted and harassed a sick leader who had undergone three serious life-threatening surgeries that has left him badly scarred and physically and mentally weak. No person in such condition could continue to hold office while this court battle raged on. In ordinary situations in any given democracy where common decency and respect prevailed, no leader of any State anywhere in the world except where there is military rule, would be subjected to such disrespectful and harsh treatment such as to even declare him insane outside the procedures provided by law.
701. I will accept the conclusions reached by Cannings J on this issue and say no more on it as I am firmly of the view that no amount of evidence tendered now and expert opinion obtained describing Sir Michael as being of unsound mind will validate or justify what occurred on the floor of Parliament on 2nd August, 2011. That evidence must be given in accordance with the procedure laid down in the Public Health Act 1977 and the expert opinion that Dr Kerr provided must be given in that forum to lay a basis for a Prime Minister to be declared as of unsound mind. One must go to that Act to achieve the end result that the First, Second, Fifth and Sixth Intervenors were pursuing, not in this fashion. Otherwise, the Chief Justice has already gone into great length to address this issue and I say no more.
702. In saying this, I note for the record that this was not an easy case especially for the lawyers representing 1st, 2nd and 5th Intervenors, namely, the Attorney-General Hon Dr Allan Marat, the Deputy Prime Minister, Hon Belden Namah and the Speaker, Hon Jeffrey Nape, MP who are the three principal parties in this reference. Instructing lawyers and overseas counsel representing these principal parties had the most difficult case and applied every inch and breadth of their wide and extensive experience in the profession to give their best efforts in this hearing on behalf of their clients. They could not have done any better than what they did nor could anyone else have done better. They left no stones unturned as it were to give their clients the best of their legal expertise in this most difficult case.
ABSENT FROM THREE CONSECUTIVE MEETINGS OF PARLIAMENT
703. There are actually two issues under this heading. First is whether Sir Michael Somare missed three consecutive meetings of the Parliament without leave and second is whether Sir Michael's dismissal by the Speaker on 6th of September, 2011 as elected Member for East Sepik Regional is valid? On the first issue, my position is the same as I took earlier on the issue of unsoundness of mind, this is just an after-thought, to give justification to what happened on 2nd August, 2011. This is therefore an irrelevant consideration that unnecessarily protracted the hearing of this matter. Otherwise, for the same detailed reasons given by the Chief Justice which I endorse I dismiss this assertion as baseless.
704. The second issue was whether the Speaker's action to dismiss Sir Michael on 6th September, 2011 was valid? The action of the Speaker was uncalled for and ridiculed the office of the Speaker and the integrity of that office. This is so when he had earlier acknowledged the presence of Sir Michael in the chamber and secondly when it was known to him that Sir Michael had overcome three consecutive absences by being present on 6th September, 2011.
705. The evidence tendered and as found by Justice Cannings showed clearly that Sir Michael did not miss three consecutive sessions of Parliament. He left for Singapore in March 2011. During his absence overseas there were Parliament meetings held in May, June, August and September. He was given leave in May, and no leave was sought in June and this entire saga commenced in the August sitting. He attended on 6 September, 2011 and was in the Parliament when the Speaker purportedly dismissed him under section 104 (2)(d) as Member of East Sepik Regional for missing three consecutive sessions of Parliament quite contrary to the overwhelming evidence.
706. The relevant law is section 104 of the Constitution which provides:
"104. Normal term of office.
(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2) The seat of a member of the Parliament becomes vacant—
(a) if he is appointed as Governor-General; or
(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
(g) on his death; or
(h) if he is dismissed from office under Division III.2 (leadership code).
(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.
707. Was he given any opportunity to explain the reasons for his absence? Did the Parliament hear and consider his reasons for his absence and decide not to waive this rule in his favour? Is the Speaker the Parliament? These are pertinent questions because this 'absence during three consecutive sessions of Parliament' rule does not accord automatic power of dismissal to the Parliament, let alone to the Speaker to dismiss an elected Member of Parliament at his whim.
708. Even if he did, there is a procedure that must be followed to have a Member scrutinised for being absent from three consecutive meetings of the Parliament. If the Member is dissatisfied with the decision of the Parliament, he is entitled to seek re-dress in the National Court, an avenue provided under section 135 of the Constitution. The Speaker exercises no judicial power to make this determination in denying the people's right to have an elected representative in the Parliament.
709. Section 135 provides as follows:
"135. Questions as to membership, etc.
The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament; or
(c) the validity of an election to the Parliament.
710. Section 135(a) makes it quite plain that a question as to qualifications of a person to be or to remain a Member of Parliament fall squarely within the jurisdiction of the National Court. Whether the three consecutive absences justified removal as member was clearly a justiciable issue for the court. The Speaker had no discretion in this regard.
711. If the dismissal on 6th September, 2011 had any relation to justifying what happened on 2nd August, 2011, it certainly did not bring any such effect and logically it could not. It was an isolated incident that the Speaker exercised to satisfy his own misguided reasoning.
JUSTICIABILITY
712. The First Intervenor et al raised the issue of justiciability or non-justiciability under sections 142(3), 142(4) and section 86(4) of the Constitution. Subsections (3) and (4) per se do not raise any questions of justiciability. Section 86(4) which relates to functions of the Head of State raises justiciability. The relevant section is section 134 which provides:
"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 to be set out in it."
713. The Court was asked to avoid answering the question because the events that happened on the floor of the Parliament on 2nd August, 2011 were non-justiciable and this Court had no jurisdiction to delve into those matters.
714. Under section 134 of the Constitution the Courts are precluded from delving into the question of compliance or otherwise of the procedures prescribed for the Parliament or its committees. And section 143(3) provides that the question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable.
715. In invoking this argument the First Intervenor and those supporting him say that the Court cannot question or investigate how the Parliament elected Hon. Peter O'Neill as the Prime Minister because its processes and procedure of election are outside the jurisdiction of the Courts. And they rely on the case of James Eki Mopio v. The Speaker of Parliament [1977] PNGLR 420 where the Supreme Court (Frost CJ, Prentice DCJ and Williams, J) held that the proceedings by the Plaintiff James Eki Mopio seeking a declaration that the appointment of the Prime Minister was null and void on the ground that s. 142(4) of the Constitution had not been complied with, involved the question whether the procedure in section 142(4) of the Constitution had been complied with and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, were non-justiciable under s.134 of the Constitution and jurisdiction ought to be refused.
716. Mr. Mopio was questioning the validity of the appointment of Hon. Sir Michael Somare as the Prime Minister, which followed immediately after the election of the Speaker. But the Court while examining the combined operations of section 115(3) of the Constitution was of the view that those were matters which concern the conduct of the business of the Parliament and its procedure. And as the issues before the Court involve the question whether that procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, the Court had no jurisdiction to entertain the case.
717. On the question of justiciability, Mopio was the authority for almost two decades until Haiveta v. Wingti (No. 3) [supra]. In this case Hon Paias Wingti who was then the Prime Minister and fearing an imminent motion of no-confidence resigned as Prime Minister and became re-elected again. As the Leader of the Opposition, Hon Christopher Haiveta filed proceedings in the National Court seeking nullification of the appointment of Paias Wingti under section 142 and 143 of the Constitution.
718. The Referor and those Intervenors supporting it argue that Mopio is already over-ruled by a Five-Men Bench in Haiveta v. Wingti (No. 3) (supra) and is no longer good law. Dr. Duncan Kerr submitted that Mopio cannot provide an authoritative statement of law on justiciability because the opinion given by the Three-Men Bench can only be described as obiter, the reason being that Mopio was not a person authorized by the Constitution to bring a section 19(3) reference. In that case as a layman and appearing without counsel or assistance of a lawyer, Hon. James Mopio, MP filed his application pursuant to s. 19(3) of the Constitution.
719. The Court in Haiveta v Wingti (supra) appears to have taken the view that the issues raised in the Reference were of National interest and justice demanded that the Court needed to go behind or past the immunity wall of the non-justiciability doctrine and held that if the Constitution itself placed a duty on someone to comply with it, it is mandatory for compliance by that authority. Hence, if the Constitution prescribed that the election of a Prime Minister takes place on the next sitting day after the Parliament is informed of the occasion giving rise to this, it is mandatory that the election must take place on the next sitting day.
720. And the same view was held in Isidore Kaseng v. Rabbie Namaliu & The State (No.1) [1985] PNGLR 481 in which the Supreme Court said 'where the Constitution places a duty on a person to comply whether it is natural person or entity, failure to attend to those duties attracts sanction by the Courts.'
721. So the writing was already on the wall eight years later after Mopio was decided, that the tide was changing on the question of justiciability until Haiveta v. Wingti (No.1) [1994] PNGLR 160 when Sheehan, J held that a specific duty imposed by the Constitution directing the election of the Prime Minister on the next sitting day must be complied with. A view confirmed by a 5 judge bench of the Supreme Court: Haiveta v Wingti (No.3) [1994] PNGLR 197.
722. Since then there have been several cases that went before this Court where matters exclusive to the internal procedures of the Parliament such as the election of the Governor General were placed before the Court and critically scrutinised such as the Re-Election of the Governor General Sir Paulias Matane for Second Term, Reference by Morobe Provincial Executive [2010] SC1085. Although no direct objections were raised on the basis of non-justiciability under section 134 of the Constitution, the Court examined what exactly took place on the floor of the Parliament, the evidence from the Hansard showed very clearly that there was something terribly wrong and the Speaker contributed enormously to this error in more than one respect leading to non-compliance with the Constitution. It seems therefore that truth and justice prevailed in that case clearly showing that the public interest, interest of justice and good governance rose above that of non-justiciability.
723. The Speaker's handling of the proceedings in the Parliament on 2nd August, 2011 as per the Hansard has the resemblances of what happened in the floor of Parliament on 25th June 2010 when Sir Paulias Matane, the Government's Nominee for the Governor General for the Second Term, was prematurely elected because the Speaker failed to get proper legal advice. Not only that he did not get proper legal advice, by law he was supposed to be the Acting Governor General when this important constitutional event was taking place and yet he presided as the Speaker while ex officio he was the Acting Governor General and was supposed to be in the Government House.
724. In the circumstances, this is an appropriate case where this court's inherent powers and jurisdiction must not be subdued by section 134 of the Constitution in its inquiry into what happened on the floor of Parliament on 2nd August, 2011 in the interest of good governance and in the interest of justice as the truth is revealed.
CONSTITUTION MUST PREVAIL
725. The court was also asked to leave things as they are rather than interfering with all the good work that this Government is doing since Hon Peter O'Neill became the Prime Minister in view of the overwhelming majority that voted 70-24 on the floor of the Parliament favouring the change and the closeness of the National Elections being to six or seven months away, by refusing to answer the questions in the Reference posed by the Referor in particular. This submission finds its source from what has come to be known as the OLIPPAC Case or Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates [2010] PGSC 3; SC1057 (7 July 2010).
726. The Special Reference by the Fly River Provincial Government was a case in which the Supreme Court declined to answer some questions in the reference because either the questions were too convoluted, ambiguous or unclear. The Supreme Court had made it plain in those cases when it can exercise its discretion to refrain from answering questions in a reference. And this is what the Court said:
"15. The referring authority must state the specific question that the Court is required to express an opinion on. The question must be stated in the reference in the appropriate manner. As a matter of good practice, reference questions should be stated in a clear and concise manner with sufficient particularity by reference to specific sections or parts of sections of a Constitutional law that the law or proposed law is said to be in conflict with. Constitutional questions should not be framed in a general, ambiguous, convoluted and duplicitous manner. Statement of reference questions in this manner makes the Court's task difficult in identifying the precise question to be answered and leads counsel into "an ambitious goose chase in a jungle of provisions", so to speak, that results in the waste of the Court's time. It is in the Court's discretion to strike out such questions or decline to answer the question as offending O 4 r 16 of the Supreme Court Rules 1987."
727. So the basis upon which the Court can decline to answer has been clearly defined as per the above passage. The questions posed by the Referor are concise and straight-forward to the point with no ambiguity. Truth and honesty must prevail above subversion and disquiet. The case before the court is one of enormous national importance of historical significance that the court cannot shirk from it's duty to perform its function and suppress its findings by pretending that all is well regardless of what happened. This is a case of an illegal take-over of government in a very clever and carefully crafted motion disguised in terms of the Constitution that could pass the test it did on the uninformed human minds, particularly when the tension on both sides of the Parliament was already high, not only by reason of Sir Michael's prolonged absence in a Singapore Hospital but also exacerbated by the political instability in the country contributed by the leadership tussle in the National Alliance Party, the major political party in Somare-Abal Government.
728. This court has a duty to the people of Papua New Guinea to chart the correct course for our country and by ensuring that the Constitution prevails above everybody and everything else and only those who have met the constitutional requirements lead the nation, must run the country.
THE SPEAKER
729. I would like to make some observations about the position of the Speaker whose office is established by the Constitution, section 107. Under s.108, the Speaker is responsible for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs.'
730. As the person responsible for the orderly conduct of the proceedings in the Parliament, the Speaker played a pivotal role in this significant event of 2nd August 2011 because it was his duty to guide the House. If he was not sure he should have sought advice from the Clerk of Parliament.
731. Dismissal of a Prime Minister, election of a Prime Minister or change of government midstream during the life of a Parliament are a most serious business of the Parliament that must be dealt with by having proper notices given and all Members of Parliament afforded adequate time to study the motion and take appropriate positions in their choice of the most suitable candidate for the job. That is why a motion of no confidence has elaborate procedures to be complied with before such motion can be put to vote. No such motion is moved by suspension of standing orders because of the serious nature of the parliamentary business. Dismissal of a Prime Minister or election of a Prime Minister are not trivial businesses of the Parliament so that it can allow its Standing Orders to be suspended so that this business can be rushed through with the speed of lightning in accordance with a pre-designed plan to win at all costs.
732. The Court must be very careful in determining the legality and constitutionality of what transpired here because we don't want to lay down a precedent for any disgruntled members of Parliament to abrogate the Constitution by hijacking it's no confidence motion procedure in the guise of a section 142(2) procedure.
733. Throughout this proceeding, the Speaker took no particular stance on his involvement and participation in the conduct of the affairs of the Parliament that day. His entire action appeared to have been one-sided and lacking neutrality and impartiality in the discharge of his functions as Speaker. This case illustrates a repeat scenario of the events that unfolded in Re-Election of the Governor General Sir Paulias Matane for Second Term, Reference by Morobe Provincial Executive (2010) SC1085 where the Court was heavily critical of the way the Speaker performed in that event.
734. In my opinion, this sad scenario would not have eventuated if the Speaker remained neutral and impartial and performed his function according to the dictates of the Constitution. Consequently he misled the Parliament by collaborating with the proponents of this motion to over-throw a legitimate government in power when they were not content to await the process already commenced under section 142(5) as the only avenue under section 145 (motion of no confidence) was not open to them.
SUMMARY
735. The upshot of what I am saying in my judgment in summary is this. In so far as the motion itself is concerned, it was not worth anything. It did not convey the serious business for the day's deliberation of the Parliament akin to what should happen in a motion of no confidence in the Prime Minister, as it was patently defective in that it lacked factual support.
736. The declaration of vacancy in the office of the Prime Minister by the Parliament in that same motion was a nullity for a number of reasons:
737. The resolution of the Parliament was a nullity as it emanated from an ill-fated motion that had neither legal nor factual backing for it to be moved.
738. Consequently it followed that subsequent election of Hon Peter O'Neill as Prime Minister was already tainted and though it may have been seen to be in accordance with section 142(2), that appointment cannot stand the test of validity when Sir Michael Somare also continued to remain the Prime Minister in law and in fact. The Constitution does not allow for two Prime Ministers in any one life of a Parliament in any democracy or any government for that matter.
739. Non-compliance with section 142(3) of the Constitution on the requirement for the Parliament to sit on the next sitting day after the Parliament is informed of the vacancy according to Haiveta v Wingti (No.3) (supra) is conclusive evidence that the appointment of Hon Peter O'Neill as the Prime Minister is legally and constitutionally flawed and as such unconstitutional.
740. All questions posed in the Reference by the Referor raise issues of public importance and of national interest and are therefore correctly and properly justiciable before this Court, as the highest court of the land. Mopio case on justiciability does not apply, if not, Mopio is no longer good law for the reasons given in the judgment.
741. The First Intervenor's relentless efforts to find proof of disqualification of Sir Michael Somare as Prime Minister and as Member of Parliament to sustain his assertion of Sir Michael being of unsound mind and also of having missed three consecutive meetings of the Parliament on 2nd August, 2011 failed to stand up in the end. They have not followed proper processes to adduce evidence to ground these assertions. On the other hand, evidence produced in court showed the opposite.
742. The Speaker was devoid of power to dismiss Sir Michael Somare as Member of Parliament on 6th September, 2011, only the Parliament had power to refer the issue to the National Court for determination. In any event, reliance on section 104(2)(d) of the Constitution to dismiss Sir Michael was a gross misuse of power when evidence clearly showed that Sir Michael avoided missing three consecutive meetings of Parliament by being present in the Parliament on 6th September, 2011, which the Speaker did acknowledge but nevertheless proceeded to dismiss him.
743. The end does not justify the means. The fact that Hon Peter O'Neill since taking office as Prime Minister has performed in that role as Prime Minister and his government has done some good work for the people and the country is not the yardstick to determine this Reference. What is in issue here is what happened to the Constitution: (i) Whether the Constitution was abused and violated or infringed or even sabotaged for the sake of elevating him to the office of Prime Minister? (ii) Whether his assumption of that office fulfilled the aspirations of the Constitution that our Founding Fathers have put together? As a democratic country, any change of Government must comply with the Constitution. To not answer the questions posed is condoning the breach and setting a bad precedent that can be repeated again in the future.
744. The role played by the Speaker contributed enormously to this crisis. Two cases in the history of this Parliament and since Independence that stand out clearly are re Election of Governor General (supra) and this case where the Speaker's impartiality left much to be desired.
745. For all these foregoing reasons, I answer the Referor's five questions as follows:
Q: Was there vacancy in the office of the Prime Minister on 2 August, 2011 within the meaning of Constitution section 142?
A: No. There never was.
Q: If 'yes' to Q.1, how and when did that vacancy arise?
A: Not necessary to answer
Q: Did the resolution of Parliament on 2 August, 2011 that there is a vacancy in the office of the Prime Minister have any and if so what constitutional validity, force or effect?
A: None
Q: Was Hon Peter O'Neill MP validly appointed to the office of the Prime Minister on 2 August, 2011 pursuant to Constitution section 142(2), Schedule 1.10(3) or at all?
A: No. There can be no valid appointment of another Prime Minister without there being valid removal of Sir Michael Somare as the current Prime Minister.
Q: Does Sir Michael Somare continue to hold office of Prime Minister and does Hon Sam Abal MP continue to be the Acting Prime Minister?
A: Yes, but subject to inhibitions illustrated at the hearing of his fitness to resume duties and perform the functions of the office of the Prime Minster and Hon Sam Abal continues as the Acting Prime Minister.
746. For whatever they are worth, my short answers to the questions in the Special Reference appear in the Appendix at the back of the judgments.
GAVARA-NANU J
747. This is a special Reference made by the East Sepik Provincial Executive ('the Referor"), an authority referred to in s. 19 (3) (eb) of the Constitution for an opinion by the Court on thirty eight (38) questions relating to the interpretation and application of various constitutional law provisions.
Central issues arising from questions posed by the Reference
748. Having had a closer look at the questions posed by the Reference, all these questions in my opinion revolve around two central issues. The two issues in the order of the chronology of the events are firstly - whether the East Sepik Provincial seat held by Sir Michael Somare ("Sir Michael") who is the Eighth Intervener here is vacant as declared or announced by the Speaker on 6 September, 2011. This issue is linked to the question of whether Sir Michael was absent for three consecutive meetings of the Parliament, viz. meetings for May, June and August, 2011, without leave of the Parliament. The issue is concerned with the application of s. 104(2)(d) of the Constitution. A related issue is - whether Sir Michael is no longer a Member of the Parliament and secondly - whether the appointment of Mr. Peter O'Neill as Prime Minister on 2 August, 2011, is constitutionally valid. This issue is linked to the question of whether an occasion for the appointment of a Prime Minister arose on 2 August, 2011. The issue also raises the question of whether there was a vacancy in the office of the Prime Minister on 2 August, 2011. This issue is concerned with the interpretation and application of s. 142 (2) of the Constitution.
749. The answers given to these two central issues will determine the answers to the questions posed by the Reference.
750. All the questions arising in the Reference ultimately raise one single question – whether Sir Michael is still the Prime Minister.
Brief background facts
751. It is convenient at this juncture to state the background facts of the Reference in brief compass because the facts of the case have been covered already by my brother Judges. Sir Michael was elected as Member for East Sepik in the 2007, general election. He was subsequently appointed Prime Minister at the first meeting of the Parliament after the general election.
752. On 24 March, 2011, Sir Michael travelled to Singapore for medical consultation. He was the incumbent Prime Minister at that time. In about mid April, 2011, he was admitted at the Raffles Hospital in Singapore and underwent corrective heart surgery. He did not return to Papua New Guinea until on or about 4 September, 2011. On 6 September, 2011, he attended the special sitting of the Parliament. It is to be noted that to attend that sitting, he was pushed into the Parliament in a wheel chair and was seated in the opposition side of the Chamber. He stayed only for a short time then left the Chamber in the wheel chair.
753. These facts are not in dispute.
754. The period between 24 March, 2011 and 6 September, 2011, is critical because the events which gave rise to the issues before the Court occurred during that period.
First central issue - Whether Sir Michael's East Sepik Provincial seat is vacant as declared or announced by the Speaker on 6 September, 2011.
755. In regard to this issue, the first Intervener and those aligned with him claim that, by operation of s.104(2)(d), Sir Michael's East Sepik Provincial seat automatically became vacant after Sir Michael was absent for the whole of three consecutive meetings of the Parliament viz. meetings for May, June and August, 2011, without leave of the Parliament. The purported consequence of this is that Sir Michael is no longer a Member of the Parliament.
756. The effect of s.104(2)(d) of the Constitution is that if a Member of the Parliament is absent during the whole of three consecutive meetings of the Parliament without leave of the Parliament, the seat of the Member will automatically become vacant unless satisfactory reasons are given for such absences, in which case the Parliament may decide to waive the rule in the subsection.
757. The issue of whether Sir Michael was absent from the May, June and August, 2011, meetings of the Parliament without leave of the Parliament requires proper interpretation of s.104(2)(d) of the Constitution then applying it to the facts of the case.
758. Firstly, it should be noted that, Mr. Marshall Cooke QC of counsel for Sir Michael conceded that Sir Michael was not able to attend the three meetings of the Parliament for May, June and August, 2011, because he was hospitalized at the Raffles Hospital in Singapore to undergo heart surgery and to receive related medical treatment. Mr. Cooke however, qualified his concession by submitting that in regard to the May meeting, Sir Michael was granted leave by the Parliament. Mr. Cooke therefore submitted that, Sir Michael having attended the September meeting of the Parliament, the only meetings Sir Michael was absent from without leave of the Parliament were meetings for June and August, 2011. In other words, Sir Michael was absent for only two meetings without leave of the Parliament, it was therefore submitted further by Mr. Cooke that the decision by the Speaker to declare Sir Michael's East Sepik Provincial seat vacant because Sir Michael failed to attend three consecutive meetings of the Parliament for May, June and August, 2011, was misconceived and had no legal basis. Mr. Cooke therefore submitted that the declaration by the Speaker on 6 September, 2011, that Sir Michael's East Sepik Provincial seat was vacant is null and void and is of no legal effect.
759. Mr. Manual Varitimos of counsel for the Fifth and Sixth Intervenors had argued that Sir Michael was absent during the whole of the three consecutive meetings of the Parliament for May, June and August, 2011, without leave of the Parliament. He therefore argued that by operation of s. 104(2)(d), Sir Michael's East Sepik Provincial seat automatically became vacant and as a result Sir Michael is no longer a Member of the Parliament. This argument was in support of the decision by the Speaker to declare the East Sepik Provincial seat vacant for the same reasons.
760. Whether Mr. Varitimos' argument can succeed or not depends on whether the decision by the Speaker on 6 September, 2011, to declare the East Sepik Provincial seat vacant is constitutionally valid. In other words, if the decision by the Speaker to declare the East Sepik Provincial seat vacant on 6 September, 2011, is invalid and unconstitutional then it would follow that Mr. Varitimos' argument cannot succeed and must fail.
761. The pertinent question therefore is – was Sir Michael absent during the whole of the three consecutive meetings of the Parliament in May, June and August, 2011? In my opinion, the answer to this question lies in the letter written by the Speaker to Sir Michael, which is Annexure 'D' to Sir Michael's affidavit sworn on 20 September, 2011. In that letter, the Speaker informed Sir Michael, inter alia, that according to the Hansard and the attendance records of the Parliament, he (Sir, Michael) was absent from February, 2011, without leave of the Parliament ... "In those circumstances, the Constitution operates to automatically cause your seat to be vacant."
762. The Speaker further advised Sir Michael in the letter that the leave granted to him by the Parliament for the May meeting was defective because under s.104(2)(d) of the Constitution, the leave was supposed to have been granted for three consecutive meetings of the Parliament, not just for the May meeting. In other words, the leave granted to Sir Michael for the May meeting pursuant to s.104(2)(d) was meant to be or was supposed to have been granted for the three consecutive meetings of the Parliament for May, June and August, 2011.
763. Other relevant parts of the letter read:
"I note that on 17th May 2011, the Parliament granted you leave of absence for the duration of that meeting only. Regrettably, the motion of the 17th May, 2011 was defective, and ineffective to avert the operation of section 104 (2) (d) of the Constitution, because the only leave of absence contemplated by that section is a leave of absence 'for three consecutive meetings. For reasons best known by your advisers, no such leave was sought, and no such leave was granted. The motion of 17th May, 2011 operated in respect of only one meeting of the Parliament.
In deciding whether your seat is vacated by operation of section 104(2)(d) of the Constitution, I have sought the advice of eminent legal counsel. In accordance with that advice, I ask myself the following question when determining this issue; did you have the leave of the Parliament to be absent for three consecutive meetings of the Parliament? Unless you are able to answer "YES" to that question, your seat is automatically vacated by operation of section 104 (2) (d) of the Constitution. It follows from the foregoing that if a member is absent for the whole of three consecutive meetings of the Parliament but has been granted leave only in respect of the first of them, his seat is vacant. I also note for the sake of completeness that the Parliament has not decided to waive this rule. "
764. It is plain from this passage of the letter that the Speaker's decision to declare the East Sepik Provincial seat vacant was made after he had received legal advice or opinion that the leave granted to Sir Michael for the May meeting was defective because it did not comply with s. 104(2)(d) of the Constitution. That advice appears to have been given after the event, viz. after Sir Michael had been granted leave for the May meeting of the Parliament. When exactly the advice was given is unclear.
765. The Court in using its power under Order 3 r3 of the Supreme Court Rules directed Cannings J, to conduct a hearing for purposes of taking evidence and to make findings of fact in this Reference, then to state those facts for the Court. The purpose and the rationale behind adopting the procedure provided under Order 3 r 3 of the Supreme Court Rules was explained by the Supreme Court in the case of Enforcement Pursuant to Section 57 of the Constitution, Application by Francis Gem (2010) SC 1065. The procedure was adopted for the first time in that case, the purpose of which was for the single judge of the Supreme Court to conveniently and speedily take evidence and make findings of fact for and on behalf of the Court.
766. The findings of fact made by Cannings J, in respect of the disputed facts from the Agreed and Disputed Facts in this Reference were also made for and on behalf of the Court. The hearing before Cannings J, was as such part of the proceedings in this Reference.
767. The Court has a wide discretion in regard to the exercise of its power under Order 3 r3 of the Supreme Court Rules whether to adopt the facts found by Cannings J. In other words, the Court is not bound by the findings made by Cannings J, regarding facts. This is plain from the directory nature of the Rule.
768. The findings of fact made by Cannings J, appear at pages 17 to 35 of his judgment, at pages 35 to 45 of the judgment his Honour gives the summary of his findings on each issue of fact appearing in paragraphs 28 to 75 of the Statement of Agreed and Disputed Facts.
769. Based on the materials before the Court, particularly paragraph 16 and Annexure marked as "AM-6" to the affidavit of the Attorney General, Dr Allan Marat, sworn on 13 September, 2011, which is the Hansard for the 27 May, 2011, sitting of the Parliament, it is noted that during that sitting, an attempt was made by the Member for Wewak Open, Honourable Moses Manwau to raise concerns raised by members of the public regarding Sir Michael's state of health at that time. That attempt was ruled out of order by the Deputy Speaker after a point of order was raised by Honorable Patrick Pruaitch.
770. It is to be noted that between 24 March, 2011 and 6 September, 2011, Sir Michael did not make any requests to the Parliament for leave to be absent from future meetings of the Parliament due to his illness, nor did he provide any information to the Parliament in respect of his likely future absences from the meetings of the Parliament. It is also to be noted further that in the above period, Sir Michael did not provide or release any information to the Parliament or to the people of Papua New Guinea the nature of his illness and the type or types of medical treatment he was receiving and undergoing in Singapore and the likely effect of his illness on his political career and when he was likely to return to work.
771. From the findings of fact made by Cannings J, it is also noted that in the period Sir Michael was hospitalized at Raffles Hospital in Singapore, his son Mr. Arthur Somare paid him at least three visits.
772. Obviously, as a result of Mr. Arthur Somare's personal assessment of Sir Michael's state of health during those visits, on 28 June, 2011, Mr. Arthur Somare made a public statement on behalf of the Somare family through the media, including EMTV that their desire was for Sir Michael to retire from politics on medical grounds. Following that announcement the then Acting Prime Minister, Mr. Sam Abal took steps to invoke the processes set out under s. 142 (5) (c) of the Constitution and s. 6 of Prime Minister and National Executive Act, 2002. As part of that process, a Statutory Business Paper No. 58 of 2011 was then prepared for the National Executive Council ("the NEC"). As further part of that process Sir Isi Kevau, who is Sir Michael's personal doctor prepared a preliminary medical report on Sir Michael. On 29 July, 2011, the NEC advised the Governor General, Sir Michael Ogio to request the PNG Medical Board to appoint two specialist doctors to conduct medical examinations on Sir Michael and to not suspend Sir Michael and for the two doctors to report to the Governor General within 28 days, after the date of their appointment. The Governor General acting with and in accordance with the advice of the NEC, made a decision in those terms on 1 August, 2011, the decision was published in the National Gazette the same day.
773. On or about 4 September, 2011, while still receiving medical treatment at Raffles Hospital in Singapore Sir Michael became aware that a special meeting of the Parliament was scheduled for 6 September, 2011. As a result he travelled to Port Moresby to attend that meeting. According to Sir Michael's affidavit material, it was his understanding that, if he did not attend the 6 September meeting of the Parliament, he would have been absent for three consecutive meetings of the Parliament, viz. meetings for June, August and September, 2011, in which case he would have been caught by s.104(2)(d) of the Constitution thus resulting in his East Sepik Provincial seat automatically becoming vacant. Clearly this understanding was based on his belief that he had been granted leave by the Parliament for the May meeting of the Parliament.
774. When Sir Michael attended the sitting of the Parliament on 6 September, 2011, the Speaker in his speech welcomed him to the meeting. In the same breath though, the Speaker read his letter to Sir Michael dated 6 September, 2011, in which he informed Sir Michael that because he had been absent from three consecutive meetings of the Parliament for May, June and August, 2011, his East Sepik Provincial seat had by virtue of s. 104(2)(d) automatically become vacant. According to Sir Michael, there were interjections in the Chamber by some Members protesting over the letter but those interjections were overruled by the Speaker. The letter was later given to Sir Michael's lawyers, Posman Kua Aisi by the Clerk of the Parliament.
775. The following points which arise from the leave granted to Sir Michael for the May meeting of the Parliament and the decision by the Speaker to declare the East Sepik Provincial seat vacant for the alleged failure by Sir Michael to attend three consecutive meetings of the Parliament, are worth noting:-
(i). Leave was not requested by Sir Michael, it was granted to him by the Parliament at Parliament's own volition.
(ii). Sir Michael was the incumbent Prime Minister when leave was granted to him and the mover of the motion to grant leave to Sir Michael was Honorable Paul Tiensten who was the Minister for National Planning and Monitoring in the Somare led government. The motion was carried on the voices.
(iii). Straight after leave was granted to Sir Michael, the Member for Wewak Open Honorable Moses Manwau tried to raise concerns raised by the members of the public regarding Sir Michael's state of health but the Member was overruled by the Speaker when another Member in the Somare led government raised a point of order.
(iv). No notice or warning was given to Sir Michael before 6 September, 2011, to inform him that leave granted to him for the May meeting of the Parliament was defective because it did not comply with the requirements of s. 104(2)(d).
(v). The issue regarding the validity of the leave granted to Sir Michael for the May meeting of the Parliament was raised for the first time by the Speaker on 6 September, 2011, on the floor of the Parliament when he read his letter to Sir Michael informing him that leave granted to him for the May meeting was defective and by operation of s.104(2)(d) his seat had automatically become vacant.
(vi). The Speaker also told Sir Michael that the Parliament had not waived the rule in s. 104(2)(d).
776. The Speaker's speech to the Parliament on 6 September, 2011, is contained in the copy of the Hansard which is annexed to Sir Michael's affidavit as Annexure "E".
777. Apart from arguing that Sir Michael was not absent for three consecutive meetings of the Parliament, Mr. Cooke also argued that the Parliament had acted in breach of s. 59 of the Constitution which embodies the principles of natural justice which are part of the underlying law. Mr. Cooke submitted that s.59 guarantees protection to persons in similar position as Sir Michael by ensuring that they are given the opportunity to be heard. Mr. Cooke argued that as this protection is guaranteed by a constitutional law, the failure by the Parliament to accord Sir Michael the opportunity to be heard before declaring his seat vacant was in breach of the Constitution.
778. Mr. Webb SC of counsel for the Second Intervenor on the other hand had argued that s. 59 of the Constitution does not apply in the circumstances of this case because the rules of natural justice as stated in s. 59 are meant for the control of judicial and administrative proceedings. Mr. Webb argued that proceedings of the Parliament are not proceedings of a judicial and administrative character and the law has always been that proceedings of Parliament are not amenable to judicial review. No doubt Mr. Webb advanced these arguments also on behalf of other Intervenors who are aligned with his client.
779. Having regard to the factors that arise from the leave granted to Sir Michael for the May meeting of the Parliament to which I have alluded and the other materials before the Court, including submissions made by counsel regarding the application of s. 59 of the Constitution, I have come to a conclusion that the East Sepik Provincial seat held by Sir Michael is not vacant. I reached this conclusion on two grounds. Firstly, in my view, upon a fair and liberal interpretation of s.104(2)(d), which includes due consideration of the purpose for which leave was granted to Sir Michael, and the fact that the only type of leave that the Parliament could grant to Sir Michael under s.104(2)(d) was leave for three consecutive meetings of the Parliament, I find that the leave granted to Sir Michael was by operation of law ( s.104(2)(d)) deemed to be for three consecutive meetings of the Parliament, namely meetings for May, June and August 11. Secondly, I am of the firm opinion that the circumstances of the case attracted s.59 of the Constitution, thus I find that the Parliament through the Speaker breached s.59 of the Constitution when the Speaker without giving Sir Michael the opportunity to be heard declared Sir Michael's East Sepik Provincial seat vacant.
780. Firstly, in regard to the leave granted to Sir Michael, it is to be noted that the decision by the Parliament to grant leave to Sir Michael for the May meeting was a deliberate decision, made pursuant to s. 104 (2)(d) of the Constitution. The intention of the Parliament in granting leave to Sir Michael is obvious viz. to accord Sir Michael the protection that was available to him under s.104(2)(d) so that he did not lose his seat or get disqualified for being absent from the meeting of the Parliament. Indeed that is the purpose of leave being granted to a Member of the Parliament under s. 104(2)(d). The important point to note again is that the only type of leave that could be granted to Sir Michael under s.104(2)(d) was leave for three consecutive meetings of the Parliament, which in this case were meetings for May, June and August, 2011.
781. In this case Sir Michael was granted leave by the Parliament at Parliament's own volition. Sir Michael did not request the leave. Although the only type of leave the Parliament could grant under s. 104(2)(d) was for the whole of three consecutive meetings of the Parliament, the Parliament inadvertently or by mistake granted leave for the May meeting only. Therefore, as a matter of law, I find that Sir Michael was given leave for three consecutive meetings of the parliament, namely meetings for May, June and August, 2011.
782. I make this finding pursuant to the inherent power of the Court granted by s. 155 (4) of the Constitution, which provides:
(4) Both the Supreme Court and the National Court have an inherent power to make, in the circumstances as seems to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
783. I therefore find and declare pursuant to the inherent power of the Court under s.155(4) of the Constitution, that once the Parliament by its deliberate decision decided to grant leave to Sir Michael by invoking to s.104(2)(d), but for, the mistake the Parliament made in giving leave for the May meeting only, Sir Michael was entitled to and was granted the type of leave that was available under s.104(2)(d), which was leave for three consecutive meetings of the Parliament: Re Election of the Governor General; Reference by the Morobe Provincial Executive (2010) SC1085. . The Parliament was in my view by law bound to grant such leave once it invoked s.104(2)(d) by its deliberate decision, because the provision does not prescribe any other form of leave than leave for three consecutive meetings of the Parliament. The case therefore justifies the Court's readiness to exercise its equitable jurisdiction under s.155(4) of the Constitution to protect Sir Michael's primary right that was availed to him by s.104(2)(d), which was the right to have leave for three consecutive meetings of the Parliament, viz. meetings for May, June and August, 2011: Avia Aihi v. The State (No.1) [1981] PNGLR 81 and Peter Makeng and Ors v. Timbers (PNG) Limited N3317. I consider that the finding and the declaration I have made are permitted by the latter part of s.155(4) viz. "and such other orders". This is consistent with the approach taken in other cases by the courts to protect rights and equitable interests of parties before them: Mauga Logging Company Pty. Ltd. V. South Pacific Oil Palm Development PTY. LTD (No.1) [1977] PNGLR 80. In that case Frost C.J, gave equitable relief to the plaintiff to prevent the defendant from skipping the country with its assets before the trial of a cause of action, the action was based on a claim for damages for breach of contract. In New Guinea Cocoa (Export) Co. Pty. Ltd. v. Basis VedBaek [1980] PNGLR 205, the court using it inherent power ordered arrest of a ship which owed money to the plaintiff, the arrest order was the interim equitable relief for the plaintiff, pending trial. In Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488, the plaintiff was the holder of a State Lease. The lease was forfeited by the defendant and the forfeiture was duly gazetted. The plaintiff did not appeal the forfeiture as provided under the Land Act, instead the plaintiff opted to seek a declaration by invoking Order 4 r 11 of the National Court Rules. The court held that although the plaintiff did not appeal the forfeiture under the relevant provisions of the Land Act, it had power under s. 155(4) to declare the forfeiture void.
784. In coming to the decision that I have reached regarding leave, I have "deemed" that leave granted to Sir Michael was by law for three consecutive meetings of the Parliament, in so doing I have construed the word "deemed" as meaning "to be treated as" which is the meaning given to the word by Osborn's Concise Legal Dictionary, which I adopt. Thus, the leave granted to Sir Michael is to be treated as or 'deemed' as leave for the three consecutive meetings of the Parliament. The end result is that Sir Michael is also deemed or is to be treated as having been absent from May, June and August, 2011, meetings of the Parliament with leave of the Parliament. This in my opinion is consonant with the utterance by this Court in Avia Aihi v. The State (supra) per Kearney DCJ at page 91, of the equitable jurisdiction of the Court under s.155(4) of the Constitution to protect primary rights of parties before it. The Court said:
"...Constitution, s. 155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case so to ensure that the primary right of parties before them are protected".
785. In Peter Makeng and Ors v. Timbers (PNG) Limited (supra), Injia DCJ (as he then was) said:
"...Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by statute or subordinate legislation enacted under the enabling statute".
786. In this case the type of leave conferred by s.104(2) (d) is leave for three consecutive meetings of the Parliament. This Court therefore has the power to protect and enforce that primary right as availed to Sir Michael by Constitution, s.104(2)(d).
787. I am also of the opinion that, even if Sir Michael had been absent for three consecutive meetings of the Parliament without leave of the Parliament, given the serious medical condition Sir Michael had at that time, which the Parliament was fully aware of, it was still within Parliament's power to treat Sir Michael's medical condition as a "satisfactory reason(s)" so as to accord Sir Michael the further protection that was available to him under s.104(2)(d), which was for the Parliament to waive the rule in s.104(2)(d). Sir Michael's medical condition was a matter which was within public knowledge, including the Parliament, thus Parliament was at liberty and had the discretion to waive the rule under s.104(2)(d) if it had wanted to.
788. It is to be further noted that s.104(2)(d) does not specify who should have provided the "satisfactory reasons" for the Parliament to waive the rule, therefore the Parliament having been fully aware that Sir Michael was ill, could have, as it did when it granted leave to Sir Michael for the May meeting, on its own volition moved to waive the rule in s.104(2)(d).
789. The other reason why the Parliament could have exercised its discretion in favour of Sir Michael by waving the rule s.104(2)(d) is that the mistake in the type of leave it granted to Sir Michael during its May meeting was made by the Parliament. Therefore fittingly, it was Parliament's responsibility or duty to correct its own mistake and in my view the only fair way for the Parliament to correct the mistake was by waving the rule in s.104(2)(d).
790. Whilst I do not wish to engage in drawing speculative conclusions, I think it is reasonable to conclude that given the key issue upon which this case is being fought, which is the removal of Sir Michael as Prime Minister by those who are now in the government, Sir Michael's predicament in respect of leave of absence granted to him arose only because of the change in the government. In other words, had the government remained under Sir Michael, the Parliament would have opted to correct its mistake by either extending his leave of absence or waived the rule under s.104(2)(d). I should also state that, the actions of the Parliament and the Speaker appear to have been motivated by power and political expediency. I consider their actions as lacking dignity, propriety and decorum.
791. In that regard, I find the actions of the Parliament and the Speaker were pursuant to s.41(1)(c) of the Constitution harsh and oppressive and not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
Whether decisions of the Parliament are amenable to judicial review
792. In regard to the argument that decisions of the Parliament are not amenable to judicial review, I find the argument untenable because the Parliament is a public body made up of individual Members who discharge public functions, its decisions are collectively made by that body of Members therefore any decisions made by the Parliament which either go beyond or are outside of its powers are amenable to judicial review. In any case, it suffices to say that there are precedents where this Court has reviewed decisions of the Parliament: Haiveta v. Wingti (No.3) [1994] PNGLR 197; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC 722.
Whether Sir Michael had the right to be heard before his seat could be declared vacant
793. Secondly, in regard to the question of whether s.59 of the Constitution which embodies the principles of natural justice has been breached by the Parliament when declaring Sir Michael's East Sepik Provincial seat vacant without giving Sir Michael opportunity to be heard, I am of the firm opinion that there has been such breach by the Parliament. There cannot be any doubt that the declaration has adversely affected Sir Michael's right to hold public office as a Member of Parliament. Needless to say that the decision by the Speaker to declare East Sepik Provincial seat vacant appears to have been made arbitrarily by the Speaker without first informing the Parliament and the issue being debated in the Parliament. This appears to be the case when one looks at the letter written by the Speaker to Sir Michael on 6 September, 2011, and the Hansard which shows that the Speaker appears to have had the view that he had power to declare Sir Michael's seat vacant without giving Sir Michael the opportunity to be heard.
794. I consider the actions of the Speaker on 6 September, 2011, contrary to and in direct violation of s. 108 of the Constitution, which imposes a duty on the Speaker to be responsible when discharging his functions. The Speaker does not have absolute power to make decisions of the type he made on 6 September, 2011. He has the duty to not only maintain order in the Parliament which includes ensuring proper and sensible debates of issue by Members, but perhaps more significantly, maintaining the integrity of the Parliament, which includes the manner in which he as the Speaker conducts himself and the business of the Parliament.
795. The fact that Sir Michael's right to hold public office was inevitably going to be affected by his East Sepik Provincial seat being declared vacant, was in my opinion a good reason why the Parliament should have informed Sir Michael that leave granted to him for the May meeting was defective, because it did not comply with s.104(2)(d) of the Constitution. The Speaker should have done that as soon as he received his legal advice. There is undisputed evidence that Sir Michael believed that leave that was granted to him for the May meeting had met the requirements of s.104(2)(d). He was therefore misled by the Parliament to believe that he had missed only the June and August, 2011, meetings of the Parliament, which according to his affidavit material was the reason why he was determined to attend the September, 2011, meeting to avoid missing three consecutive meetings of the Parliament. In the circumstances, the decision by the Speaker to declare Sir Michael's seat vacant without first giving Sir Michael an opportunity to be heard was in clear breach of the principles of natural justice as embodied in s.59 of the Constitution. The decision was also pursuant to s.141(a) of the Constitution harsh and oppressive.
796. The decision by the Speaker to declare Sir Michael's East Sepik Provincial seat vacant was binding on the Parliament because the decision related to the leave granted to Sir Michael by the Parliament for the May, 2011, meeting of the Parliament. The Parliament was therefore responsible for the decision made by the Speaker to declare Sir Michael's seat vacant. The Parliament therefore had the duty to accord Sir Michael the opportunity to be heard by informing him that the leave granted to him was defective and more importantly its consequences. Had Sir Michael been given such an opportunity, he might have for example asked for the leave to be extended to cover the next two future meetings of the Parliament. Or he could have discussed the matter with the Speaker and the issue could have been resolved amicably. I am sure if Sir Michael was not able to exercise these rights, his agents such as his lawyers or his family members or someone on his behalf would have taken steps to address the issues. Giving Sir Michael the opportunity to be heard was the minimum the Parliament could have done under s. 59 of the Constitution, given that its decision would or was likely to have adverse effect on his right to hold public office, which is a right guaranteed by s. 50 of the Constitution. It was therefore imperative for the Parliament to inform Sir Michael of the error in the type of leave granted to him before taking the extreme measure by declaring his East Sepik Provincial seat vacant. The Parliament had a duty not only to act fairly to Sir Michael but also to be seen to act fairly to him. Thus the Parliament's failure to give Sir Michael an opportunity to be heard before declaring his seat vacant was in breach of s. 59 of the Constitution.
797. For the foregoing reasons I find that the declaration or the announcement made by the Speaker on 6 September, 2011, that Sir Michael's East Sepik Provincial seat was vacant was unlawful and unconstitutional. The end result is that Sir Michael is still the Member for East Sepik.
Second central issue - Was Mr. Peter O'Neil's appointment as Prime Minister on 2 August, 2011, constitutionally valid?
798. This issue revolves around the interpretation and application of s. 142(2), (3) and (4) of the Constitution. Sir Michael was the incumbent Prime Minister when Mr. Peter O'Neill was appointed Prime Minister on 2 August, 2011. Sir Michael as noted was appointed Prime Minister by the Parliament at the first meeting of the Parliament after the general election in 2007, that appointment was made pursuant to what I will hereon refer to as the 'first leg' of s.142(2). Then on 2 August, 2011, Mr. O'Neill was appointed Prime Minister by the Parliament, that appointment was made pursuant to what I will from hereon refer to as 'the second leg' of s. 142 (2). In Ref. No.1 of 1997 by Principal Legal Advisor [1998] PNGLR 453, Kapi DCJ (as he then was) took a similar approach when discussing and applying s. 142(2), but in so doing, his Honour referred to what I call the two legs of s. 142 (2) as- "two sets of circumstances" or - "two distinct categories". At 459 this is how his Honour applied the subsection:
One starts with the premise that s. 142(2) of the Constitution recognizes two distinct set of circumstances; (a) election of the Prime Minister following a general election and (b) election of a Prime Minister from time to time as the occasion for the appointment of a Prime Minister arises. It is important to keep these two distinct categories in mind because as it will be apparent from my reasoning, the provisions of the Constitution treats (sic.) the two categories differently". (my underlining).
799. I respectfully agree with his Honour that the subsection presents two distinct scenarios, and I adopt a similar approach in interpreting and applying the subsection but I prefer to refer to the two scenarios as 'first and second leg' of s.142(2).
800. In regard to the question of whether Mr. O'Neill's appointment as Prime Minister on 2 August, 2011, is constitutionally valid, Mr. Cooke and other counsel representing those Intervenors aligned with Sir Michael argued that the appointment was unlawful and unconstitutional, thus it was argued that Sir Michael is the legitimate Prime Minister.
801. Mr. O'Neill's appointment as Prime Minister on 2 August, 2011, was made by the Parliament after the current Deputy Prime Minister Mr. Belden Namah moved a motion without notice for the Parliament to declare the office of the Prime Minister vacant. The motion was purportedly moved pursuant to s. 142(2) and Schedule 1.10 (3) of the Constitution and the inherent power of the Parliament. When the Parliament voted on the motion, the result was 70 Members voted in favour of the motion and 24 against.
Whether events of 2 August, 2011, are justiciable
802. A preliminary issue relating to the events of 2 August, 2011, arises to be determined first viz. the issue of whether the proceedings before the Parliament on 2 August, 2011, including the appointment of Mr. O'Neill as Prime Minister are justiciable. This issue is directly concerned with the interpretation and application of s.142 (2), (3) and (4) of the Constitution.
803. Dr Duncan Kerr of counsel for the Fourth Intervenor argued that whether Mr. O'Neill's appointment as Prime Minister complied with the requirements of s. 142(3) and (4) raises questions of law, therefore it is justiciable and the Court can look into and determine whether the appointment of Mr. O'Neill on the same sitting day, viz. 2 August, 2011, and not "on the next sitting day" on 3 August, 2011, as re quired by s.142 (3) and (4) was constitutionally valid. Dr Kerr relied on the more recent decisions of the Supreme Court in Haiveta v Wingti (supra) and SCR No.1 of 1997 by the Principal Legal Advisor [1998] PNGLR 453. In these two cases the Supreme Court held that where a provision of the Constitution provides a precondition for the exercise of power either by the Parliament or the Speaker, the issue of whether that precondition has been fulfilled and complied with is a legal issue, thus the issue becomes justiciable. He submitted that this approach was reaffirmed by the Supreme Court in the recent case of In re Re--Election of the Governor General [2010] PGSC32; SC 1085.
804. Dr Kerr argued that given the decisions of the Supreme Court in above cases, the early post-Independence decision of the Supreme Court in Mopio v. Speaker of Parliament [1977] PNGLR 420 which seemingly stands for the proposition that all proceedings relating to the conduct of the Parliament, regarding inter alia, the appointment of a Prime Minister are non-justiciable, was obiter dicta and has no binding effect and should not be followed.
805. Mr. Webb on the other hand had argued that the decision by the Supreme Court in Mopio that the question of whether the appointment of a Prime Minister or the decision to appoint a Prime Minister occurred the "next sitting day" as stated by s.142(3) and (4) of the Constitution is non justiciable being a matter within s.134 of the Constitution. Mr. Webb submitted that they raise matters of procedure, therefore the decision in Mopio remains the law and it has not been overturned by Haiveta v. Wingti.
806. It should be noted that in Haiveta v. Wingti, which was an appeal against the decision of the National Court, justiciability was not a ground of appeal. The issue therefore did not arise before the Court, thus any observations made on the issue were obiter dicta. This was acknowledged by Amet CJ and Kapi DCJ in their respective judgments.
807. Mr. Webb submitted that the decision in Mopio is the correct statement of the law regarding justiciability and should be followed. In that regard, he argued that s. 142 (4) of the Constitution prescribes "procedures ... for the Parliament" within the meaning of s. 134 of the Constitution, he further submitted that as a matter of procedure s.142(4) merely states that the question of the appointment of the Prime Minister is to be considered on the next sitting day. Mr. Webb stressed that the subsection does not say the appointment of the Prime Minister is to be made on the next sitting day. This distinction was also stressed by the Court in Mopio.
808. In Mopio, although the issue of justiciability did not arise directly before the Court, it became the determinative issue because the Court eventually decided the case on this issue. The issue was raised as a preliminary ground of objection to the application made by Mr. Mopio, and the issue was fully considered by the Court. In its final determination of the issue, the Court came to the view that s.142(4) raised matters of procedure within the meaning of s.134, it was therefore non- justiciable. The pertinent part of the Court's judgment appears at page 421 where the Court said:
"Mr. Mopio contends that the section (142 (4)) goes further than to prescribe the order of business for the next sitting day after the meeting of Parliament has been called, and requires that the election of the Prime Minister is to be conducted on the day following the appointment of the Speaker. If that were the proper construction of the section it would not be the end of the matter because Mr. Mopio would then need to establish that the section was mandatory and not merely directory so that non-compliance would have the effect in law of validating the appointment." (my underlining).
809. The part of the passage I have underlined appears to me to be the ratio decidendi of the decision.
810. At page 423 of the judgment, the Court said:
"Section 142 (4) provides merely for the time for the question of the appointment of Prime Minister to be considered, and the order of business- -whether on one day or more than one day - in which it is to be dealt with by the Parliament.
These are matters which concern the conduct of the business of the Parliament and its procedure. Accordingly as the issues before the Court involve the question whether the procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, this Court has no jurisdiction to entertain the case now before it." (my underlining).
811. The Court also relied on s. 115(3) to say that debates in Parliament and the exercise of powers and functions of the Speaker in regard to the conduct of election of the Prime Minister were non - justiciable. The decision in Mopio has been followed in many National Court and Supreme Court decisions. For instance see, Kaguel Koroka v. Phillip Kapal and Others [1985] PNGLR 117; Paul Kipo v. Rova Maha N1252; Havila Kavo v. Mark Maipakai N4094 and Tom Koraea v. Sepoe Karawa N791. In Reference by the Ombudsman Commission (2010) SC 1027, the Supreme Court also said debates, votes taken in the Parliament and certification of a law by the Speaker are non - justiciable.
812. In Kaguel Koroka v. Phillip Kapal and Others (supra), Woods J, in following Mopio held that what occurred within the walls of the Western Highlands Provincial Assembly was outside the jurisdiction of the court because they were matters which concerned procedures and business of the Assembly. Thus they fell within s.134 of the Constitution and were non-justiciable. His Honour in that case was hearing an application challenging the result of a vote of No Confidence.
813. In the subsequent case of Hagai Joshua v. Aron Meya [1988-89] PNGLR 188, Andrew AJ, held the opposite view. The issue before the court was whether the Members of the Morobe Provincial government were validly suspended and whether a motion for a vote of No Confidence was validly moved. His Honour held that the issue was properly justiciable before the court. His Honour said the court had the power to determine the legality of the vote of No Confidence because the issue was really about the rights of the Members to hold public office and to exercise public functions and duties pursuant to such office, as guaranteed by s. 50 of the Constitution. The court distinguished Kaguel Koroka and Mopio which the court said were about interpretation of procedural matters. The court also said it had jurisdiction under s. 135 of the Constitution to deal with questions relating to the qualification of a person to be or to remain a Member of a Provincial government. This same point was emphasised and pressed by the Referor and those aligned with it in this case, they argued that the issue of whether Sir Michael is still a Member of Parliament should be decided by the National Court under s.135. In my opinion, whilst the National Court does have jurisdiction to deal with the matter, it is already properly before this Court and this Court can deal with it. In any case this Court has the inherent power to deal with the matter because it raises constitutional issues.
814. In Mopio, the Supreme Court adopted and relied upon a passage from Dingle v. Associated Newspapers Ltd. & Ors [1960] 2 Q.B 405 at 410, an English case in which the court applied the Bill of Rights 1688, s. 1, art. 9, which is substantially similar in terms to s. 115 (2) of our Constitution. In that case, the court also adopted a passage from the head note of an earlier case of Bradlaugh v. Gossett (1884)12 Q.B.D 271.The Supreme Court said:
"Whilst full recognition is to be given to the autochthonous nature of the
Constitution of Papua New Guinea, this passage is helpful in illustrating the meaning of s. 115 (2). It is as follows;
"Reference was also made to Bradlaugh v. Gossett, and it is sufficient to read a short portion of the headnote: "The House Of Commons is not subject to the control of her Majesty's Courts in its administration of that part of the statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law.... There is a clear affirmation of the exclusive right of Parliament to regulate its own internal proceedings." (my underlining).
815. In Hagai Joshua v. Aron Meyer, Andrew AJ, in distinguishing Mopio and Kaguel Koroka v. Phillip Kapal and Others, said:
"In my view, the position here is distinguishable from the case of James Eki Mopio [1977] PNGLR 420 for the questions raised go further than the interpretation of procedural matters. They involve rights pertaining to the holding of public office and to the exercise of public functions as guaranteed by s. 50 of the National Constitution. Further, by s. 135 of the Constitution, the National Court has an inherent power of review where, in its opinion there are overriding considerations of public policy in the circumstances of a particular case. In my judgment, the issues raised here- the questions are substantial ones involving rights to hold public office which involve the representatives of many persons in government- as a matter of public policy should be reviewed by the National Court. I think the position here is distinguishable from Kaguel Koroka v. Philip Kapal [1985] PNGLR 17 where the result of a No Confidence motion was challenged where all the requirements pertaining to the No Confidence motion had been complied with. Here, as will become apparent later in this judgment, those requirements had not been complied with.
I find that both questions are properly justiciable before the National Court." (my underlining).
816. In my opinion this passage sums up the gist of the argument by the Referor and those aligned with it, that what happened on 2 August, 2011, is justiciable.
817. Having considered all the arguments put forward by counsel representing both sides of the Reference, I have come to a final view that argument put forward by the Referor and the parties aligned with it has merit. However, the view I hold does not completely overturn Mopio. I consider Mopio to be still the correct and good law but only in respect of the matters which relate strictly to procedure and business of the Parliament: In the Matter of Constitutional Reference by Ombudsman Commission (supra). But in cases where matters arising in the Parliament require compliance with preconditions for the exercise of power either by the Parliament or the Speaker and that such exercise of power will or may result in the guaranteed right or rights of a Member or Members of Parliament to hold public office under s. 50 of the Constitution, being adversely affected Mopio is to be distinguished, because such matters would not be limited to procedure, they will also raise questions of law.
818. Having regard to the principles applied in the line of cases referred to above, I consider that the events of 2 August, 2011, go further than mere interpretation of procedural matters. In my opinion the events also raise issues of law, thus they are justiciable. The Court therefore has the jurisdiction to decide whether the appointment of Mr. O'Neill as Prime Minister on 2 August, 2011, was valid and constitutional. This task involves the interpretation and application of s. 142 (2), (3) and (4) of the Constitution.
Appointment of Mr. Peter O'Neill as Prime Minister on 2 August, 2011
819. As noted, the motion that was moved by Mr. Namah on 2 August, 2011, for Mr. 0'Neill to be appointed Prime Minister was moved pursuant to s. 142 (2), Schedule 1.10 (3) of the Constitution and the inherent power of the Parliament. I do not think Schedule 1.10 (3) could grant power to Mr. Namah to move such motion and as it will be seen later, I also do not think the Parliament had the inherent power to move and declare the position of the Prime Minister vacant. But in regard to s. 142 (2), I consider that the second leg of this subsection, which is pertinent to the issue at hand could grant such power. However, I consider that the second leg of Subsection (2) has to be read and applied together with Subsections (3) and (4) of s. 142. The operative words in the second leg of Subsection (2) are: "....otherwise from time to time as the occasion for the appointment of a Prime Minister arise ... " In this regard, I consider that the second leg of s. 142 (2) grants power to Parliament to appoint a Prime Minister when an occasion arises and it is an enabling provision to Subsections (3) and (4).
820. The effect of the second leg of Subsection (2) therefore is that it empowers the Parliament to appoint a Prime Minister when the position of the incumbent Prime Minister who was appointed after the general election in accordance with the first leg of Subsection (2) has become vacant (upon an occasion arising). In other words, the second leg of Subsection (2) empowers the Parliament to exercise the same power it exercised when it appointed a Prime Minister after the general election. The second leg of Subsection (2) therefore provides the legal basis for the Parliament to exercise the same power it had exercised when it appointed a Prime Minister after the general election. The process of appointing a Prime Minister under the second leg of Subsection (2) can be repeated whenever an occasion for the appointment of a Prime Minister may arise during the life of the Parliament. In that sense the second leg of Subsection (2) gives a special power to the Parliament to appoint a Prime Minister at times other than after the general elections.
821. The precondition for the Parliament to exercise this special power is that an occasion for the appointment of a Prime Minister has arisen or must arise. If no such an occasion arose, the Parliament would have no legal basis to appoint a Prime Minister and if the Parliament were to appoint a Prime Minister without an occasion for the appointment of a Prime Minister arising, such an appointment would be unconstitutional and the appointment would be void of any legal effect. The occasion arising for the appointment of a Prime Minister relates the position of the Prime Minister becoming vacant. In other words, there must be a vacancy in the office of the Prime Minister for the Parliament to exercise its special power of appointing a Prime Minister under the second leg of s. 142 (2).
822. A vacancy in the position of the Prime Minister may arise in various ways. For instance, it may arise as a result of the Prime Minister becoming of unsound mind (s.103(3)(b); or as a result of a successful vote of no confidence against the Prime Minister (s.145); or the Prime Minister resigning (146); or the Prime Minister being dismissed from office (Division 111.2 (Leadership Code); or the Prime Minister upon a report prepared by two medical doctors being declared unfit by the Parliament to perform his duties due to physical or mental incapacity s.142(5)(c) of the Constitution and s. 6 (6) and (8) of Prime Minister and National Executive Council Act.
823. Applying s. 142 (2) (3) and (4) to the facts of this case, once an occasion for the appointment of a Prime Minister arose, the next step for the Parliament to take was to appoint a Prime Minister. In my view the processes to invoke by the Parliament when appointing a Prime Minister are those processes prescribed in Subsections (3) or (4), but as to which of the two subsections the Parliament could invoke depended on whether the Parliament was in session or not. Full compliance with the requirements of Subsection (3) or (4), as the case may be, were the precondition to the valid exercise of power by the Parliament to appoint a Prime Minister. What had to be complied with in the two subsections was that the consideration of the question of the appointment of a Prime Minister had to take place on the next sitting day of the Parliament. That was the precondition to the valid exercise of power by the Parliament to appoint a Prime Minister. It is a mandatory requirement under both subsections because of the use of the word "shall" in the two subsections. This process takes the two subsections beyond mere procedural requirements. This appears to be the point Mr. Mopio put forward to the Court, which the Court rejected. With greatest of respect, this is where I think the Court in Mopio fell into error. The precondition in Subsections (3) and (4) is therefore not the appointment of a Prime Minister on the next sitting day of the Parliament. The decision in Haiveta v. Wingti also appears to have fallen into the same error.
824. I find that the primary source of aid in interpreting s. 142 (2) (3) and (4) to give the subsections their intended meaning is the report by the Constitutional Planning Committee (CPC), the relevant part is at page 7/3 paragraph 25, which reads:
Appointment of the Prime Minister
25. We recommend that the parliament itself should elect the Prime Minister by means of an ordinary resolution when Parliaments meets after a general election. If a vacancy occurs at other times the election of the new Prime Minister by the same procedure would take place at the next sitting if the Parliament is in session, or if it is not, at a meeting to be convened within fourteen days of the vacancy. (my underlining)
825. In my opinion this passage from the CPC report puts beyond doubt that the second leg of s. 142 (2) is meant to be read and applied together with s142 (3) and (4). Therefore I have no doubt that the processes prescribed for the appointment of a Prime Minister under s.142 (3) and (4) relate to the appointment of a Prime Minister made pursuant to the second leg of s142 (2). The passage from the CPC in fact incorporates Subsections (2), (3) and (4) and prescribes the manner in which they may be applied or given effect to.
826. I therefore consider that the decision in Mopio has hitherto been the law regarding justiciability, because even two of the most recent Supreme Court decisions in Haiveta v. Wingti and SCR No.1 1977 by the Principal Legal Advisor (supra) were obita dicta on the issue of justiciability.
827. I consider that the decision in Mopio regarding non-justiciabilty of s.142 (3) and (4) was based on or influenced by considerations applicable to the laws relating to non-justiciability of the processes relating to the Parliamentary privileges in England. This is evident from Court's reliance on a couple of English cases and the English Bill of Right 1688. The Court appears to have applied s115(2) of the Constitution rigidly for the same reason. This seems obvious from what the Court said at page 422:
"Whilst full recognition is to be given to the autochthonous nature of the Constitution of Papua New Guinea, this passage is helpful in illustrating the meaning of s. 115 (2)".
828. The passage the Court was referring to here was a passage from a judgment it quoted from an English case of Bradlaugh v. Gosset (supra), that passage has been cited in this judgment.
829. In Papua New Guinea, whilst the Parliament is the supreme law making body, unlike in England it has no absolute power because it is made subject to the Constitution: Application by Gabriel Dusava (1998) SC581; Re Calling of Meeting of the Parliament [1999] PNGLR 285 and Isidore Kaseng v. Rabbie Namaliu (No.1) [1995] PNGLR 481. This is also made very plain by various constitutional provisions, such as ss. 100,101,108,109, 110,111,112 and 114. Section 108 is significant and relevant here, it expressly makes the Speaker and Deputy Speaker subject to the Constitution in the performance of their functions and responsibilities.
830. In my opinion, the autochthonous nature and the whole scheme of the Constitution allows for the decisions of the Parliament, and the Speaker to be amenable to the review jurisdiction of the Court where their decisions raise issues of law, as in this case.
831. Turning again to the interpretation and application of the second leg of s. 142(2) of the Constitution, the phrase "from time to time" in the subsection is also significant in its meaning and application, because it helps in the construction of the subsection and gives true meaning to the subsection. This phrase has been judicially construed in a number of cases, and the meaning given to the phrase by these cases reinforces my construction of the second leg of s142 (2) and how it is applied here. In Bryan v. Arthur 11A. & E. 117, the court considered the exercise of power by the governor regarding revocation of remissions on prison terms for prisoners pursuant to a statutory provision which provided for the governor to exercise such power "from time to time". In defining the phrase, William J, said this:
"I see nothing wrong in the governor having the power, though he might not think a remission of the punishment adviseable (sic.), to revoke an assignment to a master who might turn out to be as bad as the convict himself. "From time to time" means "as occasion may arise" for the exercise of the governor's discretion. There is nothing in the words of the Act, or the reason of the thing, to restrict the power of revocation". (my underlining).
832. Then in Boettcher v. Boettecher [1948] 8 St. R. Qd .74, the court considered s. 2 of The Deserted Wives and Children Act11840, which gave power to justices to postpone or adjourn inquiries made under the Act, "from time to time". At 77, Stanley A.J, said:
" ... The complete answer to the appellant's submission is to be found in the special power of adjournment given to justices by s. 2 of The Deserted Wives and Children's Act of 1840: "Provided that upon any application by or on behalf of the husband or the wife or for any other cause it shall be lawful for the justices to postpone or adjourn the inquiry from time to time as they shall deem it expedient.
"From time to time" is a well - known phrase which occurs in various statutes and documents. The words have been held to mean "as occasion may arise"-- per William J~ in Bryan v. Aythur [1839J 11 A. & E. 168, at p. 117; [1839] EngR 1073; 113 E.R. 354~ at p. 358).
"The words 'from time to time' are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction." The meaning of the words "from time to time" is that after once acting, the donee of the power may act again"- per Lord Penzance in Lawrie v. Leeds (1881) 7 App. Cas. 19). (my underlining)
833. This statement lends support to the construction I have given to the second leg of s142 (2) as well as s142 (3) and (4) of the Constitution.
834. As I said, whilst s142(3) and (4) prescribe procedures for the Parliament to follow when appointing a Prime Minister under the second leg of s142(2), because the processes under these respective subsections involve a precondition for the exercise of power by the Parliament to appoint a Prime Minister, I consider that the processes under the two subsections are justiciable. It follows that, an appointment of a Prime Minister by the Parliament without these preconditions being complied with would render the appointment unconstitutional and void of any legal effect. This is the essence of what the Court said in Haiveta v. Wingti more particularly in Supreme Court Reference No.1 of 1997 [1998] PNGLR 453, albeit without deciding the issue of justiciability. See, also Hagai Joshua v. Aron Meya (supra).
835. In the instant case, Sir Michael was appointed Prime Minister after the general election in 2007, pursuant to the first leg of s.142(2). Mr. O'Neill's appointment as a Prime Minister on the other hand was made pursuant to the second leg of s.142(2) on 2 August 2011, upon a motion being moved by Mr. Namah who at that time was the Leader of the Opposition. Pursuant to the second leg of Subsection (2), one has to assume that the motion was moved after an occasion for the appointment of a Prime Minister had arisen. That was the precondition to the proper exercise of power by the Parliament to appoint a Prime Minister under the second leg of Subsection (2). This precondition raises a point of law, thus it is not a mere procedural requirement.
836. In regard to the onus to prove that an occasion for the appointment of a Prime Minister arose on 2 August, 2011, it was submitted by Mr. John Griffin of counsel for the First Intervenor that the onus lies on the Referor and those aligned with it being the ones who claim invalidity regarding the appointment of Mr. O'Neill as Prime Minister on 2 August, 2011. Mr. Griffin relied on the decision of this Court in SCR No. 11 of 2008 [2010] SC1057 (the OLIPPAC case). That was a case involving a statute affecting basic rights. It was in that context that the Court said the onus is on the party alleging the invalidity. A passage commencing at paragraph 37 of the judgment in OLLIPAC has been cited by Mr. Griffin in support of his contention. In that same passage though, the Court in reiterating the principle also adopted the statement made by Kapi J (as he then was) in SCR No. 2 of 1982 at page 238, where his Honour in discussing the law on onus of proof said:
"It would be sufficient for the party who alleges that a law is unconstitutional merely to prove that his right is infringed. He is only required to show a prime facie case. Where this is shown, then the onus is on the party who relies on the validity of the law to prove that it is within the limitation provided by the Constitution." (my underlining).
837. Applying that principle to this case, in my opinion the onus to prove that an occasion arose or that there was a vacancy in the office of the Prime Minister on 2 August, 2011, being the date when Mr. O'Neill was appointed Prime Minister now, lies on the First Intervenor and those aligned with him, more particularly Mr. Namah who is the Sixth Intervenor in this Reference and who was the mover of the motion on 2 August, 2011, for Mr. O'Neill to be appointed Prime Minister. I consider that the onus has shifted to them because the Referor and those aligned with it have prima facie shown, that the matters which would have constituted or given rise to "an occasion" or a vacancy in the office of the Prime Minister) which would have provided the basis to appoint a Prime Minister on 2 August, did not exist.
838. It is to be noted that when the Members voted on the motion moved by Mr. Namah on 2 August, 2011, which led to the appointment of Mr. Namah, Mr. Sam Abal who was then the Acting Prime Minister and who is the Fourth Intervenor in this Reference was one of those who voted against the motion. Mr. Abal has continued to maintain his position that there was no vacancy in the office of the Prime Minister or that no occasion for the appointment of a Prime Minister arose when Mr. O'Neill was appointed Prime Minister on 2 August, 2011.
839. So the key question is – did an occasion for the appointment of a Prime Minister arise on 2 August, 2011? A related question is – was there a vacancy in the office of the Prime Minister, on 2 August, 2011, because Mr. O'Neill could not be validly appointed as Prime Minister without there being a vacancy in the office of the Prime Minister?
840. The First Intervenor and those aligned with him have to answer these questions to discharge the onus they carry to prove that Mr. O'Neill's appointment was valid and constitutional.
841. The incumbent Prime Minister before the appointment of Mr O'Neill as Prime Minister on 2 August, 2011, was Sir Michael. It was therefore Sir Michael's position that was affected by Mr. O'Neill's appointment as Prime Minister and the "occasion" or the vacancy in the office of the Prime Minister that purportedly arose or existed had to relate to Sir Michael's position as Prime Minister.
842. There is no question that Mr. O'Neill was appointed Prime Minister when Sir Michael was away in Singapore recovering at Raffles Hospital from corrective heart surgery. But that is not a valid ground for Mr. O'Neill to be appointed Prime Minister.
843. The Constitution is expressly specific in providing and stating grounds upon which a Prime Minister may be removed from office. In this instance, there are only two possible grounds upon which Sir Michael could be removed as Prime Minister, viz. which could constitute an occasion arising for the appointment of a Prime Minister, thus providing a valid basis for the Parliament to appoint a new Prime Minister. The first ground is the Prime Minister being of unsound mind under s. 103(3)(b) of the Constitution. The second ground is the Prime Minister being declared physically or mentally unfit to carry out the duties of his office under s. 142(5)(c) of the Constitution. The First Intervenor and those aligned with him have to demonstrate that one of these grounds existed on 2 August, 2011, in order to prove that Mr. O'Neill's appointment as Prime Minister was constitutionally valid.
844. Section 142(5)(c) of the Constitution is to be considered and applied together with s. 6 of Prime Minister and National Executive Council, Act, 2002, for the latter sets out the process to be followed for the removal of the Prime Minister under s.142(5)(c). Neither of the two provisions can be considered and applied separately from the other. They are intended to be read and applied together because when the process under s. 6 of the Prime Minister and Executive Council Act, is fully complied with and its requirements are met, that would constitute a ground for the removal of the Prime Minister under s. 142(5)(c).
845. The Chief Justice has in his judgment set out s. 6 of the Prime Minister and National Executive Council Act, and outlined the process under the section, which I respectfully adopt.
846. Firstly in regard to the issue of being of unsound mind as a possible ground for the removal of Sir Michael, Mr. Griffin argued that Sir Michael was of unsound mind and was incapable of managing himself and his affairs. It was therefore submitted that pursuant to s.103(3)(b) of the Constitution, Sir Michael is not qualified to be or to remain a Member of Parliament. He submitted that the words "unsound mind" in s.103(3)(b) do not necessarily mean lunacy or idiocy as in the case of a person suffering from mental disorder. He further submitted that the physical and mental condition of Sir Michael at the relevant times did constitute unsoundness of mind. Reliance was placed on Cannings J's several findings. Firstly, that Sir Michael was incapable of managing his affairs in the period from 30 March, 2011 to 26 August, 2011, or a significant part of it. Secondly, Sir Michael lacked the capacity to carry out the functions and duties of the office of the Prime Minister from 30 March, 2011, to date (date of his findings) or significant part of it. Thirdly, Sir Michael lacked the capacity during the period (from) 14 April, 2011, to 2 August, 2011, or a significant part of it, to make an informed decision whether to resign as Prime Minister.
847. Mr. Ian Molloy of counsel for the Referor and those aligned with it on the other hand submitted that proper meaning of "a person of unsound mind" in s103 (3) (b) of the Constitution is to be found in s 81 of Public Health Act, Chapter No. 226, which provides:
Person of unsound mind" means a person who is found under this Part to be of unsound mind and incapable of managing himself or his affairs.
848. Having considered all the submissions put forward by counsel from both sides, more particularly those by Mr. Griffin, I find the argument put forward by the Referor and those aligned with it appealing, for in my opinion a "person of unsound mind" must refer to a person with mental disability. I find the definition given by s. 81 of the Public Health Act, to be in harmony with s. 103 (3) (b) of the Constitution. It is to be noted that s. 81 of the PubIic Health Act, is a provision under PART VIII of the Act, which is headed - MENTAL DISORDERS AND TREATMENT. Division 4 of the Act, is headed - Property Generally and Committees. Sections 93, 94 and 95 are pertinent, they come under Division 4. Section 93 provides for raising money out of the estate of a person of unsound mind to, for example settle debts on his behalf. See, Owners- Stata Plan No. 23007 v. Cross – in the matter of Cross [2006] FCA 900; a case referred to by Mr. Molloy, which I find is a case directly in point and find helpful. Section 94 provides for the appointment of committees to manage properties and affairs of a person who is of - "unsound mind and is incapable of managing himself or his affairs". Section 95 provides for the powers of committees to manage estates of persons of unsound mind. In my opinion these provisions of the Public Health Act, put beyond any doubt that s.81 of the Act, defines "a person of unsound mind" for the purposes of s.103(3)(b) of the Constitution. Thus, having regard to these provisions of the Public Health Act, I am not convinced that Sir Michael has ever been of unsound mind.
849. When one looks at s.103(3)(b) of the Constitution, it is different in its meaning to s. 142(5)(c) of the Constitution. Section 103(3)(b) refers to the protection of a person of unsound mind and the property of a person of unsound mind. To my mind this makes s.103(3)(b) of the Constitution to fall within the scheme of the Public Health Act, more particularly PART VIII of the Act. Section 103(3)(b) also refers to a person of unsound mind not being capable of managing himself or his affairs. The section relates to qualifications for and disqualifications from membership of the Parliament, whilst s.142(5)(c) relates specifically to the Prime Minister being "unfit by reason of physical or mental incapacity, to carry out the duties of his office". This difference is fundamental because the two provisions provide two distinct grounds having different features upon which the Prime Minister may be removed from office. The difference between the two provisions is telling and axiomatic from the terms of the two provisions. And when the two provisions are read in their proper context and are given their true meaning, one cannot mean the other. For example, physical or mental disability which are factors stipulated in s. 142(5)(c) cannot constitute or mean unsound mind under s. 103(3)(b), which refers to a person of unsound mind not being able to manage himself and his property or assets. These factors only relate to s.103(3)(b).
850. I am also of the firm opinion that the Court would be reading s.142(5)(c) out of its proper scope and context, if it was to treat the findings made by Cannings J, that Sir Michael was physically and mentally unfit during the period of his illness to manage his affairs as amounting to unsoundness of mind which is the ground of removal of the Prime Minister under s.103(3)(b). As I said, physical or mental disability are factors which are relevant only to s.142(5)(c), but even then, Cannings J's findings could not constitute the ground to remove Sir Michael as Prime Minister under s.142 (5) (c) because s.6 of Prime Minister and National Executive Council Act, which sets out the process to follow before Sir Michael could be removed under s. 142(5)(c) as set out by the Chief Justice in his judgment, was not followed and complied with.
851. It follows that Cannings J's findings of Sir Michael being physically and or mentally unfit to manage his own affairs during the period of his illness cannot be treated as a valid ground to remove Sir Michael as Prime Minister.
852. The end result is that I am not convinced that Sir Michael was a person of unsound mind within the meaning of s.81 of the Public Health Act, for him to be caught by s.103(3)(b) of the Constitution. On this point, I respectfully agree with the Chief Justice that statutory definition given to "unsound mind" by s. 81 of the Public Health Act, must prevail over any other definition given to it by common law.
853. In regard to the question of whether Sir Michael could be removed from office under s. 142(5)(c) of the Constitution. I am of the firm opinion that he could not be removed from office because the requirements of s.142(5)(c) and s. 6 of Prime Minister and National Executive Council Act, were not followed and met. The process under s. 6 of Prime Minister and National Executive Council is mandatory and had to be followed before Sir Michael could be removed as Prime Minister under s.142(5)(c). The preconditions to be met and complied with under this process before Sir Michael could be removed as Prime Minister are set out neatly by the Chief Justice in his judgment and I respectfully adopt them. There is evidence that a preliminary report compiled by Sir Isi Kevau on Sir Michael's medical condition was gazetted on 1 August, 2011, but that could not provide a valid basis for Sir Michael to be removed on 2 August, 2011, because that was part of the process under s.142(5)(c) and s. 6 of Prime Minister and National Executive Council Act, which was still in progress when Mr O'Neill was appointed Prime Minister on 2 August, 2011.
854. One may argue that the NEC under the leadership of the then Acting Prime Minister should have invoked s.142(5)(c) much earlier. Such an argument is not without reason. Here, the country's Prime Minister was seriously ill and the public had the right to know what was happening with their Prime Minister. The people of Papua New Guinea, more so the people of East Sepik whom Sir Michael represents in the Parliament had the right to know even about his medical condition, whether he was likely to return to work, the fate of his political career and so on. The right of the people to know about Sir Michael's condition emanates from s. 141(b) of the Constitution, which makes the collective Ministry in the Executive arm of the Government headed by the Prime Minister answerable to the people; see, Alois Kingsly Golu v. The National Executive Council and Ors N4425 and S.C.R No. 1 of 1982; Re Bouraga [1982] PNGLR 178. When the Prime Minister became ill, there were two fundamental reasons why the public had the right to know about his illness. Firstly, he was the Prime Minister and the number one public figure who was being treated at the Raffles Hospital in Singapore at the expense of the public, the tax payers. Secondly, he was the Chairman of the NEC which is required by the Constitution, s149 to be responsible. Obviously, his prolonged absence from the country had created uncertainty and instability in the Government, thus the urgent need to bring back and restore stability and certainty in the government had become imperative and was of paramount importance. The NEC had a constitutional duty to act quickly in addressing these issues in the interest of the people to whom it is expressly made accountable by the Constitution.
855. However, that said, the aforesaid matters could not be used as the basis or grounds to remove Sir Michael. Nor can the failure by the NEC to invoke s. 145(5)(c) of the Constitution and s. 6 of Prime Minister and National Executive Act, be the grounds to remove Sir Michael as Prime Minister. The only grounds upon which Sir Michael could be validly removed as Prime Minister and to give legitimacy to Mr. O'Neill's appointment as Prime Minister under the second leg of s.142(2) of the Constitution are those expressly provided under the Constitution, namely ss. 103(3)(b) and 142(5)(c). I am also of the opinion that the then Opposition under the leadership of Mr. Namah was not without remedy. They could have through the court compelled the NEC by way of mandamus to invoke the process under s.6 of the Prime Minister and National Executive Council Act, and s.142(5)(c) or seek declaratory orders. Those avenues were open to them. In my opinion this is a case where mandamus would lie against the NEC or declaratory orders been given: SCR No.1 of 1982; Re; Bouraga (supra); Burns Philip (PNG) Ltd v. The Independent State of Papua New Guinea (1989) N769; The State v. Phillip Kapal [1987] PNGLR 417 and Alois Kingsly Golu v. The National Executive Council and Ors (supra).
856. Express constitutional provisions which set out mandatory requirements and processes must be fully complied with and given effect to. Considerations outside of those constitutional requirements must not be allowed to stand in the way of such express mandatory constitutional requirements and processes so as to compromise and to circumvent those mandatory constitutional requirements and processes. There are no options to the mandatory constitutional requirements. They must be followed and given effect to. This is the essence of the Constitution being the supreme law over any other laws (ss. 9 and 10). For the same reason, any other law which is intended to give effect to a process or requirement under such express constitutional provisions must be fully complied with and given effect to. Section 81 of the Public Health Act, and s. 6 of Prime Minister and National Executive Council Act, are such other laws.
857. The end result is that, no occasion for the appointment of a Prime Minister arose on 2 August, 2011, under the second leg of s. 142 (2) of the Constitution. The First Intervenor and those aligned with him, in particular, Mr. Namah have up to now failed to prove that an occasion for the appointment of a Prime Minister arose or that a vacancy in the office the Prime Minister did exist on 2 August, 2011. It therefore follows that the appointment of Mr. O'Neill as Prime Minister on 2 August, 2011, was unlawful and unconstitutional.
858. In the result, I find that Sir Michael is the legitimate Prime Minister.
Answers to the questions posed by the Reference
859. I would answer the thirty eight questions posed by the Reference in the way set out in the appendix to the Judgment.
APPENDIX TO THE JUDGMENTS OF INJIA CJ, SALIKA DCJ, SAKORA, KIRRIWOM AND GAVARA-NANU JJ 12TH DECEMBER 2011SCR NO 3 OF 2011 REFERENCE
| QUESTIONS | INJIA CJ | SALIKA DCJ | SAKORA J | KIRRIWOM J | GAVARA-NANU J |
| Q1: On 2nd August 2011, Was there a vacancy in the Office of the Prime Minister within the meaning of Constitution s142? | No | Yes, vacancy created as declared by parliament on 2 August 2011 | Yes, a vacancy arose for the appointment of a Prime Minister | No | No |
| Q2: If "yes" to Question (1), how and when did that vacancy arise" | No necessary to answer in view of answer to Q 1 | As above | 2 August 2011 triggered by the events and circumstances which warranted intervention by necessity | Not applicable | Not applicable |
| Q3: Did the resolution of the Parliament on 2 August 2011 that there is vacancy in the Office of the Prime Minister have any (and
if so), what) constitutional validity, force or effect? | No | Yes, discussion in body of judgment | | Decline answer. Question vague | Decline to answer. Question is vague |
| Q4: Was the Honourable Mr. Peter O'Neill validly appointed to the Office of Prime Minister on 2 August 2011, pursuant to Constitution section 142, Schedule 1.10 (3) or at all? | No | No, parliament should have adjourned to the next sitting day – s142 (3) | | No | No |
| Q5: Does Sir Michael continue to hold the Office of Prime Minister, and does the Honourable Sam Abal continue to be the Acting Prime
Minister? | Yes | No | | Yes, but whether Sam Abal continues to be the Acting Prime Minister depends on whether Sir Michael has returned to work | Yes, but whether Sam Abal continues to be Acting Prime Minister depends on whether Sir Michael depends has returned to work |
| Q6: What meetings of the Parliament have been held since 1 March 2011 within the meaning of s104 (2) (d) of the Constitution? | 10th – 13th, 17th – 18th, 20th, 24th – 27th May, 14th, 16th- 17th, 21st – 24th June, 2nd & 9th August,
6th September, 2011 | May, June, August, September 2011 | | Meetings for May, June, August, September 2011 | Meetings for May, June and August 2011 |
| Q7: Was Sir Michael Somare absent from the whole of any, and if so which of those meetings of Parliament? | Sir Michael Somare was absent from the whole of the May, June and August 2011 meetings of Parliament. | Yes, May, June and August | | No, because leave granted to him for the May meeting was deemed by law to be leave for May, June and August, 2011 | No, because leave granted to him for the May meeting was deemed by law to be leave for May, June and August, 2011 |
| Q8: Do the meetings of Parliament identified in answer to paragraph (7) above include three consecutive meetings of the Parliament? | Yes | Yes | | Yes | Yes |
| Q9: If the answer to paragraph (8) is "yes", did Sir Michael Somare have leave of the Parliament in respect of any, and if so which,
of those three consecutive meetings of the Parliament? | Sir Michael had leave of absence for the whole of the May meeting | Yes – May meeting, he was granted leave of absence by Parliament | | Meetings for May, June and August, 2011 | Meetings for May, June and August, 2011 |
| Q10: In the event Sir Michael did not have the leave of Parliament in respect of his absence for all three consecutive meetings of
the Parliament, was he absent without that leave during the whole of three consecutive meetings of the Parliament within the meaning
of Section 104 (2) (d) of the Constitution? | No | No- he had leave of Parliament for the May meeting | | He had leave of the Parliament | He had the leave of Parliament |
| Q11: Did Sir Michael cease, and if so when, to be a member of Parliament? | No | No | | No | No |
| Q12: What are the laws referred to in s 103(3)(b) of the Constitution as "any law relating to the persons and property of persons of unsound mind"? | The Public Health Act | Public Health Act 1973 – s86. Section 86 –Order of Enquiry. Section 87 Notice of Enquiry. Section 88 Examination of person allegedly of unsound
mind Section 89 – Questions to be determined by the Court. | | Public Health Act 2002 | Public Health Act 2002 |
| Q13: What is the meaning of the expression "unsound mind" in the laws identified in answer to paragraph (12)? | A person of unsound mind is defined in s 81 of the Public Health Act to be of unsound mind and incapable of managing himself or his
affairs | Court found Sir Michael not of unsound mind but found that he was incapable of managing his affairs and affairs of the nation | | Mentally disturbed mind | Mentally disturbed mind |
| Q13: What is the meaning of the expression "unsound mind" in the laws identified in answer to paragraph (12)? | A person of unsound mind is defined in s81 of the Public Health Act to be of unsound mind and incapable of managing himself or his
affairs. | Court found Sir Michael not of unsound mind but found that he was incapable of managing his affairs and affairs of the nation. | | Mentally disturbed mind. | Mentally disturbed mind |
| Q14: Has Sir Michael Somare been of "unsound mind" within the meaning of the law referred to in s.103 (3) (b) at any time in the period
from April 2011 to the present time? | No | No – he was not found to be of unsound mind but he was found to be incapable of managing his own affairs and the affairs of
the Nation. | | No | No |
| Q15: In the event the answer (14) is yes, when in the said period has he been of unsound mind? | Unnecessary to answer in view of answer to Q14. | He was found to be incapable of managing his affairs from 1 April to date or up to the date of the decision of Cannings J, but not
of unsound mind. | | Not applicable | Not applicable. |
| Q16: In the light of the answer to (14) and (15) when did Sir Michael Somare become unqualified to remain a member of the Parliament
within the meaning of s103 (3)(b) of the Constitution? | At no time was Sir Michael unqualified to be or remain a member of Parliament | He is still a member of Parliament. | | Not applicable | Not applicable. |
| Q17:Did Sir Michael Somare cease to be a member of the O\Parliament on the date indentified in Q16 by reason of s104(2)(f) of the
Constitution? | No | No | | Decline to answer. Question is vague. | Question is vague. |
| Q18: Does the office of the Prime Minister become vacant by the operation of s141(a) of the constitution or otherwise, when the incumbent
ceases to be a member of the Parliament by the operation of s104(2)(d)? | The member ceases to be eligible to hold office of Prime Minister if the National Court makes an order to that effect following procedures
laid down in s 135 of the Constitution and the Organic Law on National and Local-Level Government Elections, Part XVIII, Division 2 (ss 228 – 233). | Yes, and if Parliament decide not to waive this rule, but here Parliament did grant him leave of absence for the month of May. | | Decline to answer. Question is hypothetical. | Decline to answer. Question is hypothetical. |
| Q19: If the answer to (18) is yes, having regard to (14) and (15) above, did the office of Prime Minister become vacant in August
2011, and when? | Save that it is unnecessary to answer this question in view of the answer to (18), the office of Prime Minister did not become vacant. | No – not on this occasion because Parliament have him leave for the May sittings. | | Decline to answer. Question is vague. | Decline to answer. Question is vague. |
| Q20: Does the office of Prime Minister become vacant by the operation of a141(a) of the Constitution or otherwise when the incumbent becomes unqualified to be a member of the Parliament pursuant to s.103(3)(b) and s104(2)(f)? | No, only by order of the National Court under the Public Health Act Chapter 226 | Yes | | Decline to answer. Question is hypothetical and vague. | Decline to answer. Question is hypothetical and vague. |
| Q21: If the answer to (2) is yes, having regard to the answers to (16) and (17) above did the office of Prime Minister become vacant
on or prior to 2 August 2011? | Save that It is unnecessary to answer this question in view of the answer to (20), the answer is 'no'. | Yes, on 2 August, 2011 but not on account of s,103(3) 6 or s104(2)(f) of the Constitution. | | Not applicable | Not applicable. |
| Q22: If the answer to (23) is yes. When did it become vacant? | It is unnecessary to answer this question in view of answer to (21). | Not necessary to answer in view of answer to question 2 above, | | Decline to answer. Question is vague. | Decline to answer. Question is vague. |
| Q23: If the answers to (18) and (20) are both no did the Parliament nevertheless have power or authority pursuant to s142(2) and Schedule
1.10(3) of the Constitution or otherwise, to declare that the office of Prime Minister was vacant on 2 August 2011? | No. | Not necessary to answer, my answers to both questions are 'yes'. | | Decline to answer. Question is hypothetical and vague. | Decline to answer, question is hypothetical and vague. |
| Q24: If the answer to (19) and (21) are both 'no', was there nevertheless an occasion for the appointment of a Prime Minister within
the meaning of s142(2) of the Constitution by 2 August 2011? | No. | Yes | | Decline to answer. Question is hypothetical and vague. | Decline to answer, the question is vague and hypothetical. |
| Q25: Was the Parliament required to consider the question of appointment of a Prime Minister on 2 August 2011 under one of s142(3)
or 142(2) of the Constitution? | No | Yes | | No because an occasion for the appointment of a Prime Minister did not arise. | No because an occasion for appointment of a Prime Minister did not arise, |
| Q26: If the answer to (25) is yes, was the Parliament in session when a Prime Minister was to be appointed within the meaning of s142(3)
and s142(4) of the Constitution? | The question does not arise but the Parliament was in session on 2 August 2011. | No | | | Decline to answer, not applicable. |
| Q27: What is the meaning of the expression "next sitting day" where used in s142(3) of the Constitution? | The words ..."the next sitting day"...where used in Section 142(3) of the Constitution means the next sitting day after notification by the Speaker to Parliament that a vacancy exists in the office of Prime Minister
as determined in Haiveta v Wingti (no.3) [1994] PNGLR 197. | As determined by the Wingti Case. | | Decline to answer. Question is not necessary. | Decline to answer. Question is not necessary. |
| Q28: What is the meaning of the expression 'next sitting day' where used in s142(4) of the Constitution? | The words "...the next sitting day.." where used in section 142(4) of the Constitution means the next sitting day after the notification
by the Speaker to Parliament that a vacancy exists in the office of the Prime Minister as determined in Haiveta v Wingti (No.3) [1994] PNGLR 197. | As determined by the Wingti Case. | | Decline to answer. Question is not necessary. | Decline to answer. Question is not necessary. |
| Q29: If the answer to 25 is yes, is the requirement in either, and if so in which, of s142(3) and s142(4) of the Constitution that the question of the appointment be considered on the "next sitting day" mandatory? | It is unnecessary to answer in view of the answer to Q25. However the requirement in mandatory. | Both | | Decline to answer. Question is not necessary. | Question is not necessary. |
| Q30: Was the appointment of Mr Peter O'Neill as Prime Minister by the Head of State on 2 August 2011 in accordance with a decision
of the Parliament? | Assuming the question relates to a valid decision of Parliament, the answer is No. | Yes | | Yes, but the decision was unconstitutional. | Yes, but the decision was unconstitutional. |
| Q31: Is the question whether the consideration of the Parliament to appoint Mr Peter O'Neill to the Office of Prime Minister occurred
on the 'next sitting day' within the meaning of s142(3) or s142(4) of the Constitution justiciable? | Yes | On the question of process and procedure for appointment – yes it is justiciable | | Question is not necessary. | Question is not necessary. |
| Q32: Is the question whether there was a proper basis for the appointment of the Prime Minister by the Head of State justiciable having
regard to S86(4) of the Constitution? | Yes, his appointment was unconstitutional and invalid. | Process of appointment is justiciable but whether there was a proper basis for appointment of the Prime Minister is not justiciable. | | Decline to answer. Question is not necessary. | Decline to answer. Question is not necessary. |
| Q33: Is the question whether there was a proper basis for the appointment of the Deputy Prime Minister by the Head of State justiciable
having regard to S86(4) of the Constitution? | Yes | Process and procedure for appointment of Deputy Prime Minister is justiciable but whether was a proper basis for appointment is not
justiciable. | | Decline to answer. Question is not necessary. | Decline to answer. Question is not necessary. |
| Q34: Ought the Court to decline to answer any question in the reference pursuant to s19(4)(c) of the Constitution and Order 4 Rule 16 of the Supreme Court Rules having regard to the circumstances including any of the following: (i)The vote of
the Parliament on 2 August 2011 deciding to appoint the Honourable Peter O'Neill Prime Minister by a majority of 70 votes to 24;(ii)
The answers to any of the questions above; (iii)The time by which the next election is to be held in accordance with s105 of the
Constitution; the terms of s145 of the Constitution? | No | Not applicable. | | Decline to answer. The question is vague and hypothetical. | Decline to answer. The question is vague and hypothetical. |
| Q35: Whether, on a true construction of the words "without leave of the Parliament during the whole of three consecutive meetings
of the Parliament", as such words are contained in Section 104(2)(d) of the Constitution such words mean: (a)Firstly, that the grant of leave at any meeting of the Parliament pursuant to such section shall be for the duration of that meeting only, or alternatively; (b) Secondly, that the grant of leave at any meeting of the Parliament pursuant to such section may be for one or more meetings, or alternatively; (c) Thirdly, that the grant of leave at any meeting of the Parliament pursuant to such section shall be for "the whole of three consecutive meetings"? | | | | Decline to answer. The question is vague and hypothetical. | Decline to answer. The question is vague and hypothetical. |
| Q36: Given the determination of the Speaker and of the Parliament on 6 September 2011, that the East Sepik Provincial seat in Parliament
(held by Sir Michael) had become vacant, was Sir Michael nevertheless entitled to remain sitting in Parliament as elected member
for the said seat until such time as the Parliament: (a)Had given to Sir Michael a reasonable opportunity, in accordance with Section
59 of the Constitution, to provide a "satisfactory reason" to the Parliament for his absences; and thereafter;(b) Decided, after considering such reasons,
whether to "waive" pursuant to section 104(2)(d) of the Constitution the rule that the said seat was vacant by reason on such absences? | | | | Decline to answer. The question is not necessary. | Decline to answer. The question is vague and hypothetical. |
| Q37: If the answer to question 36 is in the affirmative, whether Sir Michael remained a member of Parliament notwithstanding the decisions
of the Speaker and the Parliament under Section 104(2)(d) of the Constitution on 6 September 2011. | | | | Decline to answer. The question is not necessary. | Decline to answer. The question is not necessary. |
| Q38: Is the jurisdiction of the National Court to determine any question as to qualifications of a person to remain a member of the
Parliament under Section 135 of the Constitution exclusive is the power to do so shared by the Parliament | | | | Exclusive | Exclusive. |
ORDERS OF THE COURT:
The Court orders that:-
___________________________________________________________
Thomas & Company Lawyers: Lawyer for the Referor
Young & Williams Lawyers: Lawyer for the First Intervenor
Young & Williams Lawyers: Lawyer for the Second Intervenor
VL Narokobi: Lawyer for the Third Intervenor
Kuman Lawyers: Lawyer for the Fourth Intervenor
Young & Williams Lawyers: Lawyer for the Fifth Intervenor
Young & Williams Lawyers: Lawyer for the Sixth Intervenor
John K Gawi Lawyers: Lawyer for the Seventh Intervenor
Posman Kua Aisi Lawyers: Lawyer for the Eighth Intervenor
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2011/41.html