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SCR No 2 of 1976; Re Motion of No Confidence [1976] PNGLR 228 (2 June 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 228 - SCR No 2 of 1976; Re Motion of No Confidence 

[1976] PNGLR 228

SC97

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REFERENCE NO. 2 OF 1976

IN THE MATTER OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND

IN THE MATTER OF A SPECIAL REFERENCE TO THE SUPREME COURT PURSUANT TO S. 19 OF THE CONSTITUTION

Waigani

Frost CJ Raine Saldanha JJ

27-28 May 1976

2 June 1976

CONSTITUTIONAL LAW - Independent State of Papua New Guinea - Whether motions of no confidence may be validly moved during the life of the First Parliament - The Constitution of the Independent State of Papua New Guinea s. 105[cclxxii]1, s. 145[cclxxiii]2 and s. 269 (4)[cclxxiv]3.

A motion of no confidence as provided for in s. 145 of the Constitution of the Independent State of Papua New Guinea cannot be moved successfully against the Government of the Independent State of Papua New Guinea during the life of the First Parliament, which under s. 269(b) of the Constitution extends from Independence Day, 16th September, 1975, until May or June 1977, subject only to a general election under s. 105(1)(c) of the Constitution.

The provisions of s. 145(2)(b) relating to no confidence motions are incapable of operation in relation to the First Parliament, because they refer only to motions of no confidence moved in a Parliament elected at a previous general election held pursuant to the Constitution and for a five year term; they are therefore not intended to apply to the First Parliament.

Reference

This was a special reference to the Supreme Court of Justice pursuant to s. 19 of the Constitution of the Independent State of Papua New Guinea which provides:

19.     SPECIAL REFERENCES TO THE SUPREME COURT

(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 ...

(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 question referred by the Parliament was:

Can a motion of no confidence be successfully moved against the Government during the life of the present Parliament?

Counsel

Pokwari Kale, for the Parliament: A motion of no confidence cannot be moved during the life of this Parliament without coming to a stalemate as to the alternative consequences of a motion being passed. Section 145 of the Constitution is directed at a properly elected Parliament for a term of 5 years and does not apply to the present Parliament: s. 269 (4) is a special provision and a general election could be held only under s. 105 (1) (c) because words in that paragraph leave no ambiguity as to their application to the opening words of s. 269 (4). In fact Pt. XIII as a whole is a special provision and it applies notwithstanding anything in the previous provisions of the Constitution (s. 264), but that does not mean that s. 105 (1) (b) (i) accords s. 269 (4) as the s. 105 (1) (b) (i) provision has to accord s. 145 (2) for the purposes of this exercise.

J. Aoae and B. Narokobi, to argue the affirmative case: In this submission, the reference before the Court is taken to mean “may a motion of no confidence in the Prime Minister or the Ministry be moved during the life of the present Parliament”. For the sake of brevity, such a motion is referred to throughout as a “motion of no confidence in the Government”. Constitution s. 145 governs motions of no confidence. Constitution s. 145 (2)(a) requires a motion of no confidence in the Government to nominate a new Prime Minister if it is moved — “during the first four years of the life of Parliament”. While s. 145 (2) (b) prohibits such a motion nominating a new Prime Minister being moved — “within 12 months before the fifth anniversary’ of the date fixed for the return of the writs at the previous general election,” Constitution s. 105 (1) (b) requires a general election to be held if (amongst other things) a motion of no confidence in the Government is passed “during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election.” The expression “general election” is not specially defined, but by virtue of Sch. 1.2 (3) it must mean a general election to the Parliament. There being no earlier “Parliament” the life of the present Parliament commenced on 16th September, 1975 by virtue of the commencement of the Constitution itself, without reference to the Transional Provisions. The expression “life of Parliament” is not defined, but it clearly takes its obvious meaning and has not necessarily a relation to what may be the specific term prescribed for Parliament in any particular case. The complementary prohibition of motions that do not include such a nomination provided by Constitution s. 145 (2) (b) is unfortunately not in literally complementary terms. However, it should be read by reference to s. 145 (2) (a) and so relates to the balance of the “life of the Parliament”. It is thus submitted that Constitution s. 145 (2) (a) would allow a motion of no confidence which nominates a new Prime Minister to be moved before 16th September, 1979 (if the life of the present Parliament extended so long). It would seem fruitless to consider the position in relation to a motion moved during the balance of the “life” (see para. 9) as no doubt the life of this Parliament will be curtailed by the operation of Constitution s. 269 (4). Constitution s. 105 (1) (b) cannot operate unless there has been a general election to the Parliament, and therefore has no application in this context.

B. Kidu, to argue the negative case: The Constitution came into effect on 16th September 1975, and cannot have a retrospective operation; it created a new order, and the present Parliament came into being by virtue of the commencement of Parliament on that date. Under s. 269 (4) of the Constitution the life of the First Parliament was from 16th September, 1975 to May/June 1977 when an election must take place unless there is a general election. Section 145 (2) (a) of the Constitution refers to motions of no confidence to be moved during the first four years of the life of the Parliament Read together with s. 269 (4), s. 145 (2) (a) is rendered ineffective. It cannot be said that the present Parliament is in the first four years of the life of the Parliament, because s. 269 (4) says it is a special period, only to be affected if Parliament dissolves itself and a new election is held. It is after that general election (there being no previous “general elections” under the Constitution see s. 105) that a normal five year life of Parliament will run and that s. 145 (2) (a) may then be applicable.

Cur. adv. vult.

2 June 1976

FROST CJ:  This is a reference under the Constitution of the Independent State of Papua New Guinea s. 19, by the Parliament to the Supreme Court for its opinion on a question relating to the interpretation of certain provisions of the Constitution, the question being:

Can a motion of no confidence be successfully moved against the Government during the life of the present Parliament

It is the first such reference to come before the Supreme Court. The point involved is whether the constitutional provisions relating to a motion of no confidence which are plainly applicable to any Parliament after the first Parliament also apply to the first Parliament.

There are two preliminary matters to be mentioned for the purposes of defining a motion of no confidence in the Government. First, under the Constitution the Ministry, which although not defined, must mean the Prime Minister and the other Ministers, is a Parliamentary Executive (s. 141) and therefore “it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea” (s. 141 (b)), and “it is liable to be dismissed from office, either collectively or individually, in accordance with” Subdivision 4 of Part VI, The National Government (s. 141 (c)). It is thus clear that a no confidence motion, the provisions for which are to be found in that subdivision, is one procedure designed by the Constitution to enable the Parliament to bring about a general election or a change in the Government. Of course it is always open to the Parliament to register strong opposition to or dissatisfaction with a particular government policy by passing a motion falling short of one of no confidence, such as a motion of censure, as was recognized by the Constitutional Planning Committee (Final Report, Ch. 7, p. 6, para. 45), the Constitution s. 24. But under this reference the Court is concerned only with motions of no confidence as provided for in the Constitution.

Secondly, subdivision 4 deals with motions of no confidence in the Prime Minister, Ministry or a Minister other than the Prime Minister. But the Court is concerned only with motions of no confidence in the Prime Minister or the Ministry, which are together referred to in the question as “the Government”. I should add that there is no doubt, as was accepted by all counsel, that the Constitution s. 144 (4) (a) which provides for the dismissal from office of a Minister other than the Prime Minister if the Parliament passes in accordance with the prescribed requirements under s. 145 (1) a motion of no confidence in him, applies to the First Ministers under s. 270, and to any Minister in office during the present Parliament.

The relevant section relating to the First Parliament is s. 269 (4)[cclxxv]⁴ as follows:

The effect of this section is that the term of the First Parliament extends from Independence Day, 16th September, 1975, until May or June, 1977, which is approximately 21 months, subject only to a general election under s. 105.[cclxxvi]⁵

This provision for the holding of elections is the section to which one must turn to discover the term of all Parliaments after the first Parliament, for there is no express provision in the Constitution providing that the term of such Parliaments shall be five years or any other period.

It will be noted that in paragraphs (1) (a) and (b) the time for the holding of a general election depends on the date fixed for the return of the writs for the previous general election. It was also on this point accepted by all counsel that the term “previous general election” refers to the previous general election of a Parliament held under the Constitution, and, in my opinion, this is clearly correct.

The expression cannot mean the previous general election of the House of Assembly constituted under the Papua New Guinea Act of the Australian Parliament for two reasons: first, the autochthonous nature of the Constitution (The State v. John Mogo Wonom[cclxxvii]⁶), which in the absence of any contrary intention precludes any reference to that statute (now repealed by the Papua New Guinea Independence Act 1975 of that Parliament); and secondly, the provisions of the Constitution Sch. 1.2. (3), under which there being no contrary intention shown in s. 105, the reference in the Constitution to a thing such as “previous general election” is to be read as a reference to that thing as provided for in the Constitution, that is, a previous general election of the Parliament.

The result of this interpretation is that until the general election for the First Parliament is held, subparagraphs (a) and (b) of s. 105 (1) are incapable of operation, and therefore do not apply to the First Parliament. This means that the term of the First Parliament cannot be cut short by an early election caused by a no confidence motion in the Prime Minister or the Ministry. Further, the only provision that can affect the term of the First Parliament is para. 1 (c) which provides for a general election to be held if the Parliament, by an absolute majority vote, so decides.

I shall refer now to the other constitutional provisions relating to a motion of no confidence which are to be found in Division 4B of Part VI — The National Government. By way of introduction, under s. 142 an office of Prime Minister is established (para. (1)), and the Prime Minister is to 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 (para. (2)). The motion of no confidence is first mentioned in s. 142 (5) (a) which is as follows:

“(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;.”

The overriding effect to be given, as required by s. 264, to s. 269 (4) as one of the transitional provisions to be found in Pt. XIII does not, as the subject of that section is confined to the term of the First Parliament, in itself prevent the application of the above sections to the First Parliament.

It will be seen that so far s. 145[cclxxviii]⁷ is concerned para. (1) is concerned with formal matters, and the provisions relevant to the question before the Court are confined to para. (2), and possibly para. (4). The notion behind s. 145 (2) (a) is “the constructive vote of no confidence” as it was referred to by the Constitutional Planning Committee (see Final Report (supra), at Ch. 7, p. 6, paras. 41-45). Under the Constitution, for the first four years of the life of the Parliament a motion of no confidence may only be moved if it nominates the next Prime Minister. If the motion is successful, it thus also constitutes a decision of the Parliament entitling the person nominated to be appointed the next Prime Minister under s. 142 (2). This explains the term “constructive”. In the meantime that person becomes the Acting Prime Minister until he is appointed Prime Minister (s. 143 (2) (a)). The main advantages which the Constitutional Planning Committee saw in this procedure are that it reduces the element of uncertainty that might follow the fall of a government, the Parliament has a real choice, the members knowing who would become Prime Minister if the motion was successful, and it should ensure that such a motion is moved in all seriousness (op. cit., para. 45). It is appropriate that such a motion moved in the fifth and final year of the life of the Parliament, as provided in sub-s. 145 (2) (b), should not nominate the next Prime Minister because under s. 105 (1) (b) if the motion is passed, the consequence is different for a general election is to be held.

Both counsel who argued the affirmative case submitted that s. 145 (2) (b) was incapable of operation so far as the First Parliament is concerned, for the same reason as applies to s. 105 (1) (a) and (b), that is to say, because it refers only to notions of no confidence moved in a Parliament elected at a previous general election, and there can be no general election until the first general election held after Independence Day at the expiration of the term or the life of the First Parliament. It was then argued that as the term of the First Parliament was less than 4 years, its life must be confined within that period, and the conditions of s. 145 (2) (a) are met if a motion of no confidence in the Prime Minister or the Ministry is moved at any time during the life of the First Parliament so long as it nominated the next Prime Minister.

Mr. Narokobi relied on various rules of construction to support this interpretation, including the provisions of the Constitution that each Constitutional Law is intended to be read as a whole, and all provisions of a Constitutional Law shall be given their fair and liberal meaning, Sch. 1.5. Thus he argued that the fair and liberal meaning of s. 145 (2) (c) is to facilitate rather than prohibit from being passed a motion of no confidence with a view to changing the government without a general election. He submitted that s. 145 (2) was regulatory and should not be given a prohibitory operation, Sch. 1.20. He referred to the rule of construction that the words of a statute must be construed so as to give to them a sensible meaning and to further their object, which he submitted in this case was to permit motions of no confidence to change the government during any Parliament. He argued that an answer in the negative would cause injustice, absurdity and inconvenience, in that the democratic process would be frustrated if the only remedy to remove a government that no longer commanded the confidence of the Parliament was the costly one of a resort by an absolute majority vote to a general election, and that the Constitution should be construed in such a way as to avoid such a result.

In a written argument counsel for the Parliament after an analysis of the relevant sections submitted that s. 145 (2) was directed to a properly elected Parliament for a term of five years and does not apply to the present Parliament. The State Solicitor in arguing the negative made a similar submission that it was only during any period after a general election to Parliament has eventually been held, that is during the life of a Parliament of a normal five-year term, that either of the provisions contained in s. 145 (2) could be applicable.

In my opinion the submissions of counsel who put the negative case are correct. The reason can be simply put and indeed does not admit of elaboration to any extent. At the outset, it is apparent that s. 145 (2) is ancillary to s. 142 (5) (a) which is the operative provision, for s. 145 (2) only states the further procedural requirements for a motion of no confidence to result in the dismissal of the Prime Minister, and consequentially of the Ministry which holds office only until the further appointment of a Prime Minister following, to take one case, the dismissal of the Prime Minister, s. 147 (1), (2) and (3).

Then when one looks at the express distinction which is drawn in both s. 142 (5) (a) and s. 145 (2) between motions of no confidence moved during the first four (4) years of the life of the Parliament, and those moved in the fifth year, a distinction which is basic to both provisions, it is quite clear in my opinion that in order to give the subsections the entire operation which was intended they can apply only to a motion of no confidence relating to a Prime Minister or a Ministry in office during a Parliament elected for a five-year term, and they were thus not intended to apply to the First Parliament. (A somewhat similar consideration affords an additional reason why s. 105 (1) (b) does not apply to the First Parliament).

I have given full consideration to the arguments submitted by Mr. Narokobi but, in my opinion, there is no ambiguity in meaning, and consequently there is no room for the operation of the rules of construction he relied upon. I would add that Mr. Narokobi’s concern that a negative answer would involve a weakening of the democratic process fails to take account of the very great probability that a government which ceased to command the support of the Parliament could not remain in office. It is sufficient to refer to the situation posed by Mr. Narokobi in which a majority of the members felt strongly enough that the government should be removed so as to commence the process, which remains open under the Constitution, of passing motions of no confidence in the individual Ministers one by one. As Mr. Narokobi himself said this process would in practice inevitably lead to the resignation of the Prime Minister, and thus secure a change of government.

It follows from my reasoning that s. 145 (4), so far as the first Parliament is concerned, is unnecessary and can have no application.

Whether the conclusion I have reached is caused by a gap in the Constitution, as suggested in argument by the State Solicitor, or whether the omission by the Constituent Assembly of any provisions in relation to the First Parliament for the use of motions of no confidence to secure a change of government was intentional, is a matter which can be one of speculation only.

For the reasons I have set out, I would answer the question, No.

RAINE J:  I entertain no doubts about this reference. The question asked should be answered in the negative.

Those who framed the Constitution and brought it to life performed a massive task. With great respect to them they left a gap so far as the first House, the present, short-term, or Rump style House, is concerned. This might have been inadvertent, and who could be critical if this be so, for, as I have said, the task was such a formidable one and the time pressures were great. Or, the gap that was left might have been deliberately left. Mr. Kidu drew the Court’s attention to references in the Constitutional Planning Committee’s report which could suggest that the Constitutional Planning Committee envisaged a general election before June this year, in which event it would not be surprising if an embargo was placed on a no confidence motion directed at a Government which would only be in power for nine or ten months. Indeed, the need to give a Government time to settle in and prepare its legislative programme was clearly recognized by the Founding Fathers. See s. 145 (4) of the Constitution, which bans no confidence motions in the Prime Minister and Ministry for the first six months after the former’s appointment.

But it matters not why there is this gap in the Constitution. The fact is, the gap exists.

Section 105 (1) (a) and (b) cannot apply to the present House by any stretch of the imagination, because both (a) and (b) are so plainly dealing with a five-year Parliament. As my brother Saldanha pointed out during argument, s. 105 (1) (c) is applicable to the present House. Thus, on an absolute majority vote of the House the House can decide that there will be a general election. In passing, I would observe that this rather makes Mr. Narokobi’s submissions about dictatorship sound a little extravagant, although I see the virtue in the point he makes that this is an expensive way to oust the Government when such could be otherwise effected by the simple expedient of a vote of no confidence passed in the House by a duly elected majority of the representatives of the people. Mr. Narokobi said that one such s. 105 (1) (c) motion for a general election had failed. Perhaps so, but, although it obviously does not follow of necessity, so perhaps would a motion of no confidence have failed, had it been permissible for it to have been put.

I now turn to s. 145 (2) (a) and (b). These provisions cannot apply to the present House, for it is a House with a life span of only about twenty-one months, whilst (a) and (b) deal with Houses, subsequent Houses with lives of five years, subject, of course, to earlier extinction. Standing alone, so it seems to me, (a) and (b) cannot possibly apply to the present House. However, if there was any doubt in my mind, and such is not the case, then it would probably be dispelled by the provisions of s. 269 (4), which seems to make a distinction between this first, and very special Parliament and subsequent five-year ones. By “special” I mean that it is, as it were, a creature transmuted from one thing into another, but it was not desired, in that transmutation, to tack five years on to its old, pre-existing life.

Mr. Narokobi urged us to hold that s. 145 (4), while on the one hand granting a sensible period of grace for six months, then opened the doors to motions of no confidence. With respect to counsel, I simply cannot read the subsection thus. It is the tail end subsection for a start. Why, if Mr. Narokobi’s submission is valid, was there any need for the preceding sub-s. (2) (a) and (b)? All that sub-s. (4) does is to ban any attack on the Government by way of a motion of no confidence for six months after the Prime Minister assumes Office. When I say the subsection “ban(s)” such a motion, I mean to express myself in this absolute way. The words “may not be moved” very clearly mean “(shall) not be moved.”

There is only one other matter to which I need advert. Mr. Narokobi was at considerable pains in his address and in his written submissions to draw our attention to the fact that Judges should, to the extent possible, resolve ambiguities in statutes and seek to make statutes work. Of course, I entirely agree that this is so. However, there are limits to this. It is true that sometimes one is able to remedy an omission but the omission here is not the sort of omission that can be rectified by us. Our task is not to legislate. As I have said, Mr. Narokobi’s argument on the effect of s. 145 (4) fails, in my opinion completely fails, and to such an extent that it cannot possibly be said that there is any ambiguity in the subsection at all and it is impossible for us to remedy to the omission that I believe exists by straining the meaning of the sub-section.

I have already indicated the answer which I would give, namely, that the question should be answered in the negative.

SALDANHA J:  Under s. 19 of the Constitution Parliament has asked this Court for its opinion as to whether a motion of no confidence can be successfully moved against the Government during the life of the present Parliament.

The provisions regarding motions of no confidence against the Government are contained in s. 145 (2) and are as follows:

“145(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.”

Section 145 (2) (a) provides for a change of Government without the holding of a general election, and, this can only be achieved during the first four years of the life of Parliament. The reason for providing for a change of Government without the holding of a general election, or, in other words, providing for “the constructive vote of no confidence” referred to by the Constitutional Planning Committee (Final Report, Ch. 7, p. 6, paras. 41-45) has been given by the Chief Justice at p. 234 of this judgment which I have had the advantage of reading. Section 145 (2) (b) when read with s. 105 (1) (b) (i) (cited below) provides for the holding of a general election with a view to effecting a change in the Government, and, this can only be achieved in the fifth year. It is clear therefore that under s. 145 (2) a five-year life for Parliament is envisaged, this being also the life provided by the Constitution, not specifically but by implication. (Vide ss. 105 (1) (a) and 105 (1) (b).)

The term or life — and it does not matter which expression one uses — of the present Parliament is specifically provided for by s. 269 (4) which reads:

“269(4)         Unless a general election to the Parliament is held earlier under Section 105 (general elections) the term of the first Parliament is:

(a)      the balance of the term of the pre-Independence House of Assembly remaining unexpended immediately after Independence Day; and

(b)      the period up to the first general election held after Independence Day and the first general elections shall be held, as directed by the Head of the State, acting with, and in accordance with, the advice of the Electoral Commission, in the months May and June, 1977.”

The life of the present Parliament started on Independence Day, that is, the 16th September, 1975. It will terminate in the months of May and June, 1977, when the first general election must be held. It cannot be longer than about 21 months. As, in my opinion, s. 145 (2) is meant to apply to a Parliament with the normal five-year life span it can have no application to the present Parliament which has a duration of some 21 months only.

It will be noticed that s. 269 (4) provides for the term to be brought to an end “unless a general election to the Parliament is held earlier under Section 105 (general elections)”. The relevant provisions of s. 105 are contained in subsection (1) and this reads:

“105    General elections

(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 s. 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.”

Under ss. 105 (1) (a) and 105 (1) (b) the time for the holding of general elections is fixed by reference to the “fifth anniversary of the day fixed for the return of the writs for the previous general election” (emphasis mine). These two sub-sections can have no application for two reasons; firstly, because general elections can only be held in the fifth year, and, this Parliament having a life of about 21 months only can never reach its fifth year; secondly, because the words “previous general election” can only mean a previous general election under the Constitution, and, there has been none. Under s. 105 (1) (c), however, Parliament, by an absolute majority vote, can decide to hold a general election.

The short answer, therefore, is that during the life of the present Parliament, that is, until May/June, 1977, when the first general election will be held, a motion of no confidence in the Prime Minister or the Ministry — in other words the Government — cannot be moved, and, a general election can only be held if Parliament, by an absolute majority vote, so decides.

We have been referred to s. 145 (4) which provides:

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

I agree with my brother Raine that the words “may not be moved” can only mean shall not be moved, but, as will appear hereafter for present purposes that question has only academic interest. Unless one is careful the interpretation and application of this sub-section could be perplexing and confusing. In a normal five-year Parliament Government has no immunity from motions of no confidence and a six months’ period of grace is allowed to enable the Prime Minister to appoint his Ministers and to enable the Government generally to settle down. But as I have said earlier the effect of s. 145 (2) is that motions of no confidence “constructive” or otherwise cannot be brought at any time against the present Parliament, so that, s. 145 (4) has no effect. Another point that ought to be made is this. In a normal five-year Parliament the Government has immunity against motions of no confidence for the first six months under s. 145 (4). It has no immunity against a decision, by an absolute majority vote, to hold a general election under s. 105 (1) (c).

Having regard to the provision that the Ministry “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” (s. 141 (b)) and “is liable to be dismissed from office ... collectively ... “ (s. 141 (c)) it may seem odd, and, perhaps, it is unfortunate, that this Parliament cannot effect a change in the Government by a simple majority vote of no confidence. If this is due to a gap in the Constitution unhappily it is one that cannot be filled by this Court. However, members of Parliament may derive comfort from the fact that this problem is a consequence of the transitional nature of the present Parliament and will not arise after its demise in May/June, 1977. Subsequent Parliaments will no doubt have other problems but this will not be one of them.

The question referred by the Parliament for the opinion of the Supreme Court is answered as follows:

Question: Can a motion of no confidence be successfully moved against the Government during the life of the present Parliament?

Answer: No.

Solicitor for the Parliament: Pokwari Kale.

[cclxxii]Section 105 of the Constitution provides:

General Elections.

(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.

[cclxxiii]Section 145 of the Constitution provides:

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.

...”

[cclxxiv]Section 269(4) of the Constitution provides:

“(4)       Unless a general election to the Parliament is held earlier under Section 105 (general elections) the term of the first Parliament is-

(a)        the balance of the term of the pre-Independence House of Assembly remaining unexpended immediately after Independence Day; and

(b)        the period up to the first general election held after Independence Day and the first general elections shall be held, as directed . . . in the months May and June 1977.”

[cclxxv]Infra p. 229 footnote.

[cclxxvi]Infra p. 228 footnote.

[cclxxvii][1975] P.N.G.L.R. 311.

[cclxxviii]Infra p. 228 footnote.