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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCCA NO 1 OF 2025
IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)
APPLICATION BY THE HONOURABLE JAMES NOMANE MP,
MEMBER FOR CHUAVE OPEN &
DEPUTY LEADER OF THE OPPOSITION
WAIGANI : SALIKA CJ, CANNINGS J,
HARTSHORN J, KARIKO J, DINGAKE J
21, 31 MARCH 2025
CONSTITUTIONAL LAW – motion of no confidence in Prime Minister – whether motion of no confidence in Prime Minister brought within 12 months after unsuccessful motion of no confidence in same Prime Minister can be disallowed under s 165 of the Standing Orders –whether decision to disallow motion of no confidence in Prime Minister made by Private Business Committee or acting Speaker of the Parliament – whether s 165 of the Standing Orders unconstitutional – whether s 165 of Standing Orders inconsistent with Constitution, ss 108, 111, 118, 141, 142 or 145 – whether disallowance of motion of no confidence in the Prime Minister under s 165 of the Standing Orders was unconstitutional.
CONSTITUTIONAL LAW – remedies – whether Supreme Court has and should exercise power to order recall of the Parliament to remedy a breach of the Constitution.
On 27 November 2024 a decision was made in the National Parliament to disallow a motion of no confidence in the Prime Minister that was compliant with s 145 of the Constitution on the ground that it was brought within 12 months after a motion of no confidence in the same Prime Minister was defeated on 12 September 2024. The decision was based on s 165 of the Standing Orders, which allows the Speaker to disallow any motion that is the same in substance as any question that has in the previous 12 months been resolved in the affirmative or negative. The applicant filed an application in the Supreme Court under s 18(1) of the Constitution, seeking a declaration that s 165 of the Standing Orders is, in so far as it is invoked in relation to a motion of no confidence in the Prime Minister, unconstitutional, and that the decision to rely on it to disallow the motion of no confidence in the Prime Minister of 27 November 2024 was unconstitutional. The applicant also sought orders that the Speaker recall the Parliament within seven days to debate the motion of no confidence of 27 November 2024. The Speaker of the National Parliament and the Attorney-General were granted leave to intervene in the proceedings. They opposed all relief sought by the applicant, arguing that the applicant’s case was confusing and inadequately pleaded, that s 165 of the Standing Orders provided for a reasonable restriction on the exercise of a member of the Parliament’s entitlement to introduce a motion of no confidence in the Prime Minister and was not unconstitutional and that the acting Speaker had lawfully exercised the discretion in s 165 of the Standing Orders to disallow the motion. The following issues arose: (1) was the application properly pleaded?; (2) who made the decision to disallow the motion of 27 November 2024? (3) is s 165 of the Standing Orders unconstitutional? (4) was the decision of 27 November 2024 to disallow the motion of no confidence unconstitutional? (5) can and should the Court grant the relief sought by the applicant?
Held:
(1) The application was properly pleaded.
(2) The decision to disallow the motion of 27 November 2024 was made by the Private Business Committee and conveyed to the Parliament by the Deputy Speaker.
(3) The period within which a motion of no confidence in the Prime Minister can be made and other requirements for moving a motion of no confidence are exclusively provided by s 145 of the Constitution. Section 165 of the Standing Orders provides for an unauthorised and unreasonable restriction on the entitlement of a member of the Parliament to bring a motion of no confidence in the Prime Minister. Section 165 of the Standing Orders is, in so far as it operates in respect of a motion of no confidence in the Prime Minister, inconsistent with ss 50(1)(e), 110(1) and 145 of the Constitution and is invalid, ineffective and unconstitutional.
(4) The decision of 27 November 2024 of the Private Business Committee to disallow the motion of no confidence was unconstitutional. If the decision had been made by the Speaker, it would also have been unconstitutional.
(5) Declarations made amongst other things that s 165 of the Standing Orders to the extent that it purports to apply to motions of no confidence in the Prime Minister is unconstitutional. Orders sought by the applicant regarding the Speaker, the Private Business Committee and the Clerk of the Parliament, granted.
Cases cited
Application by Namah [2015] 2 PNGLR 291
Application by Nomane (2025) SC2705
Application by O’Neill (2020) SC2043
Polye v Zurenuoc (2016) SC2039
SC Ref No 11 of 2008, Reference by Fly River Provincial Government re Organic Law on the Integrity of Political Parties and Candidates (the OLIPPAC case) [2010] 2 PNGLR 319
SC Ref No 4 of 2010, Reference by Morobe Provincial Executive re Re-election of the Governor-General [2010] 1 PNGLR 335
SC Ref No 4 of 2010, Reference by Morobe Provincial Executive re Re-election of the Governor-General [2010] 1 PNGLR 335
Counsel
P Mawa for the applicant
K R Kawat for the first intervener, the Speaker of the National Parliament
L A Jurth, D Mel & C Yaga for the second intervener, the Attorney-General
1. BY THE COURT: The Honourable James Nomane MP, Member for Chuave Open and Deputy Leader of the Opposition, applies under s 18(1) of the Constitution for declarations and orders regarding a motion of no confidence in the Prime Minister, the Honourable James Marape MP.
2. Notice of the motion of no confidence was on 27 November 2024 given to the Deputy Speaker, who was acting Speaker at the time. Though it was compliant with s 145 of the Constitution, it was not placed on the notice paper for deliberation by the Parliament due to s 165 of the Standing Orders.
3. Section 165 provides that the Speaker may in his discretion disallow a motion that is the same in substance as any question that has been resolved during the previous 12 months.
4. The position of the Private Business Committee, which was acted on by the Deputy Speaker, the Honourable Koni Iguan MP, was that a previous motion of no confidence in the same Prime Minister had been resolved in the negative on 12 September 2024, and that the motion of 27 November 2024 was the same in substance as that motion and therefore the motion of 27 November 2024 would not be placed on the notice paper.
5. The applicant seeks a declaration that s 165 of the Standing Orders is, in so far as it is invoked in relation to a motion of no confidence in the Prime Minister, unconstitutional and that the decision to rely on it to disallow the motion of no confidence in the Prime Minister was unconstitutional.
6. The applicant also seeks orders that the Speaker recall the Parliament forthwith to debate the motion of no confidence of 27 November 2024 and that the Private Business Committee deliver the notice of motion of no confidence to the Clerk of the Parliament who shall list the motion of no confidence on the notice paper of the Parliament.
7. Two parties, the Speaker of the National Parliament, the Honourable Job Pomat MP, and the Attorney-General, the Honourable Pila Niningi CMG LLB MP, were granted leave to intervene in the proceedings. They oppose all relief sought by the applicant. They argue the applicant’s case is confusing and inadequately pleaded, that s 165 of the Standing Orders provides for a reasonable restriction on the exercise of a member of the Parliament’s entitlement to introduce a motion of no confidence in the Prime Minister and is not unconstitutional, and that the Deputy Speaker on 27 November 2024 lawfully exercised the discretion in s 165 of the Standing Orders to disallow the motion.
8. The following issues arise:
(1) is the application adequately pleaded?
(2) who made the decision to disallow the motion of 27 November 2024?
(3) is s 165 of the Standing Orders unconstitutional?
(4) was the decision of 27 November 2024 to disallow the motion of no confidence unconstitutional?
(5) should the Court grant the relief sought by the applicant?
(1) IS THE APPLICATION ADEQUATELY PLEADED?
9. We addressed the question of adequacy of the pleadings in our ruling of 3 March 2025, refusing an objection by the second intervener to competency of the application (Application by Nomane (2025) SC2705).
10. We were not persuaded by the argument that the application was non-compliant with the Supreme Court Rules.
11. We ruled that the question of whether the applicant sought a proper interpretation of Constitutional Laws could only be determined at the hearing of the application. We acknowledged that there may indeed be some confusion, arising from the manner in which the Deputy Speaker announced in the Parliament that the motion of no confidence would not be placed on the notice paper, as to who made the decision and in what capacity. However, we were satisfied that it was adequately pleaded that a decision was made on 27 November 2024 to not place the notice of motion on the notice paper. We ruled that any lack of clarity as to who made the decision and the precise nature of the decision can be resolved at the trial.
12. The second intervener argues that despite the Court’s indication that such issues need to be clarified, the applicant has made no attempt to plead or particularise the decision that he seeks to impugn or to put it into evidence. Consequently the nature and effect of the decision(s) made on 27 November 2024 (who made the decision? in what capacity?) remain unclear. It is argued that those questions require determination as a threshold issue.
13. We agree that those questions are significant issues that should be, and will be, determined by the Court. However, we do not agree that it was incumbent on the applicant to further plead or particularise the decision that he seeks to impugn.
14. The applicant has adequately pleaded that a decision was made on 27 November 2024 to not place on the notice paper a motion of no confidence despite the motion being compliant with s 145 of the Constitution. He has adequately pleaded that the decision was made pursuant to s 165 of the Standing Orders, as a motion of no confidence in the same Prime Minister had been defeated on 12 September 2024.
15. There is evidence before the Court and we have heard submissions from counsel relevant to those questions and we are able to determine them. We remain satisfied as to the adequacy of the pleadings.
(2) WHO MADE THE DECISION TO DISALLOW THE MOTION OF 27 NOVEMBER 2024?
16. It is not in dispute that a decision was made in the Parliament on 27 November 2024 to disallow the motion of no confidence in the Prime Minister dated 27 November 2024 and that the basis of the decision was s 165 of the Standing orders. What is in dispute is who made that the decision. The applicant asserts that it was the Private Business Committee. The interveners assert that it was the Deputy Speaker of the Parliament.
17. The interveners rely on an affidavit of the Deputy Speaker filed in these proceedings on 10 March 2025. He deposes that:
18. No objection was taken by the applicant to the use of that affidavit in the proceedings. However the applicant asserts that what is more illuminating are the statements of the Deputy Speaker in the proceedings of the Parliament, which are recorded in Hansard, and annexed to various affidavits. We agree that it is relevant to consider Hansard to determine the question of who made the decision to disallow the motion of no confidence in the Prime Minister dated 27 November 2024.
19. We now set out what is recorded in Hansard under the heading “DECISION OF THE PRIVATE BUSINESS COMMITTEE ON NOTICE OF MOTION OF NO CONFIDENCE – STATEMENT BY THE DEPUTY SPEAKER”:
Mr DEPUTY SPEAKER – Honourable Members, I must inform the Parliament in regards to a notice of motion of no confidence in the Prime Minister, Honourable James Marape, member for Tari-Pori Open, was delivered to me today on the 27th of November 2024 at 9.40 am.
The Private Business Committee deliberated on the notice of motion of no confidence at 1230 pm at the Speaker’s Lounge. The Committee is aware of the very important constitutional motion and the process for it. We also note that earlier this year, a motion of no confidence was placed on the notice paper and moved on the floor of Parliament against the same Prime Minister on the 12th of September 2024, and an absolute majority vote was decided against it.
We also note that this is our constitutional right under s 111(1) of the Constitution, which states that, and I quote, ‘any member of Parliament is entitled to introduce into the Parliament in accordance with and subject to any reasonable restriction contained in the Standing Orders of the Parliament a petition, a question, a bill, resolution or motion’. Standing Order 165 is a renewable [sic] restriction that states under the heading renewal of motion and et cetera.
The Speaker is subject to Standing Order 213, the Chairman of Committee, may in his discretion disallow any motion or amendment that is the same in substance as any question that during the previous 12 months has been resolved in the affirmative or negative unless the order, resolution or motion has been rescinded. This motion of no confidence motion meets the requirements of s 145 of the Constitution.
Although the motion of no confidence names a different alternative for the Prime Minister, its main purpose or question is the same substance. It is a notice of motion of no confidence against the same incumbent Prime Minister, Honourable James Marape. This was answered by Parliament with a majority vote of 75 against 32 for it on the 12th of September 2024, during the previous 12 months.
For this, the above reason, it will not be placed on the notice paper. Thank you.
Mr Kerenga Kua – Point of order! My point of order is the continuous perversion of the processes of this Parliament by the so-called Private Business Committee. Now, earlier this morning, in support of various debates we said –
Mr DEPUTY SPEAKER – Honourable member for Sinasina-Yongomugl, I would ask you to withdraw this statement “the so-called Private Business Committee”. This committee is not privately appointed by the Speaker. It’s something that the Standing Orders has allowed for.
Mr Kerenga Kua – No, I was referring to the Private Business Committee. Are we talking about the proceedings of the Private Business Committee? If so, I am trying to explain the Opposition’s response to the ruling through this point of order.
Mr DEPUTY SPEAKER – Honourable member if you want to explain then I won’t allow that.
Mr Kerenga Kua – It’s a point of order.
Mr DEPUTY SPEAKER – I am only delivering what the Committee has decided for.
Mr Kerenga Kua – Well we are entitled to raise a point of order to any pronouncement you make from the Chair. Whether it’s in order or not we have an entitlement. Whether it’s a pronouncement of the government or any committee of the Parliament we as His Majesty’s Royal Opposition over here and loyal we have an entitlement to raise a point of order and you ought to listen to us, we have that right.
Mr DEPUTY SPEAKER – What’s your point of order?
Mr Kerenga Kua – So the point of order is this: (1) This is a constitutional motion so keep that in mind. (2) There are restrictions on what matters the PBC can consider and not consider. Your jurisdiction as the PBC under Standing Order 22 is confined to just two limited areas: (1) You have to consider whether it’s parochial, (2) Whether it’s in the national interest.
You can’t consider any legal provisions outside of the requirements of Standing Order 22. You cannot rely on the other provisions of the Standing Orders. So here your ruling is very clear and you are not saying this matter is parochial therefore it’s rejected, you haven’t said that.
You are relying on Standing Order 165, which you cannot, to say that it’s the same substantive motion so the committee have decided to reject it, no, it’s wrong. You can’t even go to Standing Order 165, but you are confined to Standing Order 22, and the only basis on which you can reject or the PBC can is tell this Parliament that it’s parochial and you have not used that word. You have gone well outside the jurisdiction or the Committee has. And that’s wrong we have been saying that we are a country of lost which we mentioned this morning.
So, we must stick to the laws and the laws, if the laws decide that it is not parochial then you just got to allow it to go through.
You can’t raise a point of order on a point of order.
Mr DEPUTY SPEAKER – Honourable member for Sinasina-Yongomugl, I have already informed the Parliament of the decision of the Committee.
Mr Kerenga Kua – I am registering it because I will rely on it if it’s taken to court. You have to understand that. When we go to court the court will not tell us that you waived your right or stopped by your silence from raising in the chamber therefore you cannot raise it in court. So, I am recording my objection here to pave the way for me to raise it in court.
So, you must allow me to complete my point of order and the final point is this Standing Order 165.
Mr DEPUTY SPEAKER – The Honourable member has mentioned that he wants to place on record in Parliament so allow him to complete but the Committee has already made a decision.
Mr Kerenga Kua – Thank you Mr Deputy Speaker, so s 165 talks about the rejection of motions that are of the same substance. This motion is not the same motion in substance as it names a completely different alternative Prime Minister. So, you cannot rely on 165 of the Standing Order to say it’s the same motion in substance or material form. You can’t say that, it names completely different alternative Prime Minister. So, you have taken the other side of the coin to say it has not named a different Prime Minister but the current one remains. But that’s one side of the coin and the other side which varies by virtue of the character of the motion is that you have a new alternative so that makes it substantially different. Thank you.
Mr DEPUTY SPEAKER – Thank you, Honourable member for Sinasina-Yongomugl for your point of order. Your point of order is noted.
However, the decision I have delivered is a decision of the Committee which I will not deliberate further, so we will move on the order of the day. ...
20. Having considered the Deputy Speaker’s affidavit and the contents of Hansard, it is clear that the decision to disallow the motion of no confidence in the Prime Minister was made by the Private Business Committee.
21. The Deputy Speaker chaired the Committee meeting at 1230 pm on 27 November 2024 and, as explained in his affidavit, he advised its members regarding s 165 of the Standing Orders. The Committee resolved that he should exercise his discretion to disallow/reject the motion dated 27 November 2024. That decision would be endorsed by the other members of the Committee and would constitute the decision of the Committee.
22. When making his opening statement to the Parliament, the Deputy Speaker prefaced his explanation of why the motion of no confidence would not be placed on the notice paper by stating that the Private Business Committee had deliberated on the notice of motion of no confidence at 1230 pm. He was for all intents and purposes explaining the decision of the Private Business Committee.
23. When responding to the point of order of the member for Sinasina-Yongomugl, Hon Kerenga Kua (regarding the “continuous perversion of the processes of this Parliament by the so-called Private Business Committee”), the Deputy Speaker responded repeatedly that it was a decision of the Private Business Committee: He stated that:
“I am only delivering what the Committee has decided for”,
“I have already informed the Parliament of the decision of the Committee”,
“the Committee has already made a decision”, and
“the decision I have delivered is a decision of the Committee”.
24. At no point during his opening statement or in his responses to the point of order of Mr Kua did the Deputy Speaker say that the decision to not place the motion of no confidence on the notice paper was his.
25. The only reasonable inference to be drawn from his statements as recorded in Hansard, consistently with the depositions in his affidavit, is that the decision was that of the Private Business Committee. What he conveyed to the Parliament was that decision.
26. We find that, though the Deputy Speaker was, according to his affidavit, responsible for the Committee making that decision, he made no such decision himself. Nothing that he stated in the Parliament is evidence that he made any decision or exercised any discretion under s 165 of the Standing Orders to not place the motion of no confidence on the notice paper.
27. We find that the Private Business Committee made the decision to disallow the motion of no confidence of 27 November 2024.
(3) IS SECTION 165 OF THE STANDING ORDERS UNCONSTITUTIONAL?
28. Section 165 states:
The Speaker, or subject to Standing Order 213 the Chairman of Committees, may, in his discretion, disallow any motion or amendment that is the same in substance as any question that, during the previous 12 months, has been resolved in the affirmative or negative, unless the order resolution or vote on the question has been rescinded.
29. The applicant does not assert that s 165 is unconstitutional per se, but that it is unconstitutional to the extent that it applies to a motion of no confidence in the Prime Minister as its use to prevent a motion of no confidence going before the Parliament is inconsistent with ss 50(1)(e), 111(1) and 145 of the Constitution.
30. The interveners argue that the use of s 165 of the Standing Orders to disallow a motion of no confidence in the Prime Minister less than 12 months after another motion of no confidence in the same Prime Minister had been defeated is reasonable and justified, especially in the present case where the motion of no confidence was attempted to be introduced just two and a half months after a motion of no confidence in the same Prime Minister had been defeated.
31. They argue that s 165 is not in conflict with s 111(1) of the Constitution. Section 111 (right to introduce bills etc) states:
(1) Subject to Section 210 (executive initiative) and to an Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties), any member of the Parliament is entitled to introduce into the Parliament, in accordance with, and subject to any reasonable restrictions contained in, the Standing Orders of the Parliament, a petition, question, bill, resolution or motion.
(2) The petition, question, bill, resolution or motion shall be dealt with as provided by the Standing Orders of the Parliament.
(3) The Standing Orders of the Parliament may make provision for priority to be given to Government business at certain times or in
certain circumstances.
32. The first intervener suggested that members of the Parliament aligned with the applicant (the Opposition) had abused the
process of motions of no confidence in the Prime Minister during 2024 as the intended motion of no confidence of 27 November was
the seventh in respect of the same Prime Minister. It was a responsible and reasonable decision to disallow this seventh motion.
33. In determining the constitutionality of s 165, it is necessary to appreciate the importance of the principle of parliamentary democracy in Papua New Guinea, which is enshrined in 141 (nature of the Ministry: collective responsibility) of the Constitution, which states:
The Ministry is a Parliamentary Executive, and therefore—
(a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and
(b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and
(c) it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.
34. The Executive arm of government is accountable to the People through the Parliament. The most effective way of enforcing accountability is by providing for motions of no confidence in the Prime Minister. Section 145 (motions of no confidence) of the Constitution, which was recently amended, allows such motions to be made. It regulates their timing and imposes other restrictions on the rights of members of the Parliament to bring them.
35. Section 145 stated, on 27 November 2024:
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one month’s week's notice, signed by a number of members of the Parliament being not less than one-fifth one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty 18 months commencing on the date of the appointment of the Prime Minister.
36. If the Parliament passes a motion of no confidence in the Prime Minister, the Prime Minister must be dismissed from office under s 142(5)(a) of the Constitution, unless the motion is moved within the last 12 months of the five-year period provided for the duration of the Parliament after a general election.
37. Section 142(5)(a) provides:
The Prime Minister ... shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145
(motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary
of the date fixed for the return of the writs at the previous general election.
38. The critical role of s 145 in enforcing the principle of collective responsibility of the Executive to the People through the
Parliament has been emphasised by the Supreme Court in two recent cases.
39. In Application by Namah [2015] 2 PNGLR 291 the Court (Injia CJ, Salika CJ, Sakora J, Kirriwom J, Davani J) declared unconstitutional amendments to s 145 made by Constitutional Amendment No 41 (Motions of No Confidence) Law 2013 that increased the grace period after a general election in which a motion of no confidence cannot be brought from 18 months to 30 months and that increased the notice period in s 145(1)(b) from one week to one month and that increased the number of members of the Parliament who must sign a notice of the motion from one-tenth to one-fifth.
40. The Court held that those amendments were contrary to the enforceable principle of collective responsibility of the Executive to the People through the Parliament under s 141 of the Constitution. In the leading judgment of Injia CJ, which was endorsed by the other members of the Court, his Honour stated:
81. The principle of individual and collective responsibility of the Ministry to Parliament pronounced in s 141 is a fundamental principle that underpins Parliamentary democracy. It is not a mere philosophical statement of no real practical application. Its interpretation and application to other provisions of the Constitution that define the relationship between the Parliamentary executive and Parliament and MPs that comprise those two arms of government must be real and serious consequences must flow from a breach of that principle. For unless the contrary intention were expressed in the provision itself that the statement in s 141 is one of principle and non-justiciable, and there is none in s 141, the principle must be given full effect. ...
94. The notion of a responsible ministry entails a Ministry that is prepared and willing to account, in the true spirit of a responsible government, to its appointing authority for the manner in which it is administering the affairs of the nation. When MPs raise serious issues concerning matters of governance through a motion of no confidence, the government should welcome the motion with open arms because it gives a real opportunity for the executive government to explain its position. A vote on the motion of no confidence may or may not be successful but it is healthy for Parliamentary democracy because it gives the best opportunity for MPs to express their concerns and for the government to account and provide a response to those concerns. A performing government should be able to maintain the confidence of the majority of MPs to vote down the motion. The government using its numerical strength should not fear the unknown and erect barricades around its hold on power to protect itself, through compulsion of law, through Constitutional amendments that restrict Parliamentary process, that make it difficult for such Motions of no confidence to be given notice, debated and voted on.
41. In Polye v Zurenuoc (2016) SC2039 the Court (Injia CJ, Salika CJ, Makail J) held that the Private Business Committee of the Parliament had exceeded its powers and responsibilities by subjecting the notice of a motion of no confidence in the Prime Minister to rigorous scrutiny and technical defects. The Court remarked:
It defeats the principle of a reasonable Parliament, a responsible and accountable parliamentary Executive, is in usurpation of the functions of the Parliament and in violation of the rights of members of Parliament, for a notice of motion of no confidence to the Committee or its Chairman to subject the Notice to rigorous scrutiny and examination for technical defects in form and substance and terminate the notice before it reaches Parliament.
42. Though s 145(1) provides that a motion of no confidence must be “given in accordance with the Standing Orders”, that does not mean that the Standing Orders can remove rights from members of the Parliament that are conferred by s 145, and other provisions of the Constitution, especially ss 50(1)(e) and 111(1).
43. Section 50 (right to vote and stand for public office) states:
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
44. In SC Ref No 11 of 2008, Reference by Fly River Provincial Government re Organic Law on the Integrity of Political Parties and Candidates (the OLIPPAC case) [2010] 2 PNGLR 319 the Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J) unanimously emphasised that s 50(1)(e) confers a constitutional right to freedom of all members of the Parliament to exercise their public function of debating and voting on all matters within the jurisdiction of the Parliament.
45. That right can only be regulated, nor prohibited, by a law that complies with s 50(2): the law must be “reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”.
46. We are satisfied that s 165 of the Standing Orders, to the extent that it constrains the exercise of the right of a member of the Parliament to bring a motion of no confidence in the Prime Minister, is not reasonably justifiable in the context of s 50(2). Section 165 breaches s 50(1)(e) of the Constitution.
47. Section 111(1) of the Constitution entitles any member of the Parliament to introduce any motion into the Parliament “subject to any reasonable restrictions contained in, the Standing Orders”. We are satisfied that s 165 of the Standing Orders imposes an unreasonable restriction on the exercise by members of the Parliament of their entitlement – subject only to the restrictions imposed by s 145(1) of the Constitution – to introduce into the Parliament a motion of no confidence in the Prime Minister.
48. We consider that s 145 provides a procedural code for bringing a motion of no confidence in a Prime Minister.
49. Mr Mawa, for the applicant, mentioned in his submission a Latin maxim that is relevant to our interpretation and application of s 145: expressio unius est exclusio alterius (the express mention of a thing implies exclusion of others).
50. Section 145 expressly refers to the timing of motions of no confidence. It imposes restrictions on when a motion of no confidence can be made. On 27 November 2024 it said nothing about not allowing a motion of no confidence if a motion in respect of the same Prime Minister had been resolved in the previous 12 months.
51. We digress at this point to note that very recently, the Parliament made a law that amended s 145 of the Constitution. We understand that by Constitutional Amendment No 48 (Motions of No Confidence) Law 2025, s 145 has been amended by insertion of a new s 145(5). The new subsection provides that where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister shall not be moved for a period of 18 months commencing on the date that the motion of no confidence was unsuccessful.
52. We understand that Constitutional Amendment No 48 is not expressed to operate retrospectively. Therefore under s 110(1) of the Constitution it came into operation on the date of certification by the Speaker. We understand that it was certified on 17 March 2025.
53. None of the parties made submissions on the effect of Constitutional Amendment No 48 on these proceedings. We consider that it has no effect. We will interpret and apply the law, including s 145 of the Constitution, as it was on 27 November 2024.
54. We return to the maxim expressio unius est exclusio alterius. Section 145 contained express provisions about the timing of motions of no confidence. It must necessarily be inferred, given the absence from s 145, as it was stated at 27 November 2024, of any restriction on moving a motion of no confidence within 12 months after an unsuccessful motion of no confidence in the same Prime Minister, that there was no such restriction.
55. The effect of s 165 of the Standing Orders is to provide for a restriction on the bringing of a motion of no confidence in the Prime Minister that was not at the relevant time provided for by s 145 of the Constitution. It is an unauthorised restriction.
56. We uphold the applicant’s submission that, to the extent that s 165 of the Standing Orders is invoked in connexion with a motion of no confidence in the Prime Minister, it is inconsistent with ss 50(1)(e), 110(1) and 145 of the Constitution.
57. Section 11(1) of the Constitution provides for enforcement of the supremacy of the Constitution. It states:
This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
58. We find that s 165 of the Standing Orders, to the extent that it is invoked in connexion with a motion of no confidence in the Prime Minister, is invalid and ineffective. It is unconstitutional.
(4) WAS THE DECISION OF 27 NOVEMBER 2024 TO DISALLOW THE MOTION OF NO CONFIDENCE UNCONSTITUTIONAL?
59. The answer to this question is yes, for the following reasons.
60. The decision of 27 November 2024 to disallow the motion of no confidence in the Prime Minister was clearly unconstitutional.
(5) SHOULD THE COURT GRANT THE RELIEF SOUGHT BY THE APPLICANT?
61. The applicant seeks nine declarations and orders:
62. That the relief numbered (1) to (4), (6) and (7) should be granted follows naturally from the conclusions we have reached as to the unconstitutionality of s 165 and its improper use in this case. We will grant that relief. As to (5), the issue of justiciability was addressed in our ruling on the objection to competency (Application by Nomane (2025) SC2705). We will grant the declaration sought.
63. As to (8) and (9), we hesitate. It is a significant decision for the Supreme Court to order the recall of the Parliament and it is not to be made lightly. However, there is precedent for such a course of action. It is the sort of order that the Supreme Court has made in a number of cases.
64. For example:
In SC Ref No 4 of 2010, Reference by Morobe Provincial Executive re Re-election of the Governor-General [2010] 1 PNGLR 335, the Court declared that the re-election of Sir Paulias Matane as Governor-General was unconstitutional. The Court ordered the recall of the Parliament as soon as practicable to remedy deficiencies in the nomination and election of the Governor-General.
In Polye v Zurenuoc (2016) SC2039, the Court declared that it was mandatory for the process prescribed by s 145 of the Constitution to be fully complied with when a motion of no confidence in the Prime Minister is submitted to the Private Business Committee and that breaches of ss 111, 142 and 145 of the Constitution had resulted in a motion of no confidence in the Prime Minister, the Honourable Peter O’Neill MP, being unconstitutionally prevented from being debated. The Court ordered the Speaker to recall the Parliament within five days to allow the motion of no confidence in the Prime Minister to be introduced, debated and voted on.
In Application by O’Neill (2020) SC2043, the Court declared that the decision of the Parliament at its sitting on 17 November 2020 to adjourn to 20 April 2021 was unconstitutional, invalid and ineffective and ordered that the Parliament shall convene and sit on 14 December 2020 at 10.00 am and the Speaker and the Clerk of the Parliament to do all things necessary to call and convene the Parliament to sit on that day and time.
65. We draw upon the precedent provided by those decisions. After careful consideration, we have decided that it is necessary and appropriate to order the recall of the Parliament to remedy the unconstitutional acts and omissions that resulted in a constitutionally proper motion of no confidence in the Prime Minister not being placed on the notice paper of the Parliament on 27 November 2024.
66. We make that order fully cognisant of the amendment to s 145 of the Constitution which recently came into effect. We re-emphasise that we have interpreted and applied the Constitution as at 27 November 2024.
Costs will follow the event.
ORDER
67. We declare and order as follows:
_____________________________________________________________
Lawyers for the applicant : Mawa Lawyers
Lawyers for the first intervener : Kawat Lawyers
Lawyers for the second intervener: Mel & Hennry Lawyers
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