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Koroka v Kapal; Re The Constitution of Western Highlands Provincial Government; Re the Election of the Members of the Executive Committee of the Provincial Assembly [1985] PNGLR 117 (17 May 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 117 - Kaguel Koroka v Philip Kapal; Re The Constitution of Western Highlands Provincial Government; Re the Election of the Members of the Executive Committee of the Provincial Assembly 

[1985] PNGLR 117

N505

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION OF THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT AND IN THE MATTER OF THE ELECTION OF THE MEMBERS OF THE EXECUTIVE COMMITTEE OF THE PROVINCIAL ASSEMBLY

KAGUEL KOROKA

V

PHILIP KAPAL AND OTHERS

Waigani

Woods J

15 May 1985

17 May 1985

PARLIAMENT - Provincial Parliament - Parliamentary procedures - Vote of no-confidence - Validity questioned - Procedure non-justiciable - Constitution of the Western Highlands Province, s 41 - Standing Orders of the Provincial Parliament, Ch 14.

Held

(1)      The control of a parliament over its own internal proceedings is a matter for the particular parliament itself and is not subject to outside judicial interference.

James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420, followed.

(2)      Accordingly, a summons seeking declarations in respect of the application of the Constitution of the Western Highlands Province, s 41, and the Standing Orders of the Provincial Parliament, ch 14, to alterations to a notice of a vote of no-confidence in the Premier of the Western Highlands Parliament should be dismissed.

Summons

This was a summons seeking declarations as to the validity of a motion of no-confidence in the Premier of the Western Highlands Provincial Government.

Counsel

M Choulai, for the plaintiff.

K Y Kara, for the defendants.

Cur adv vult

17 May 1985

WOODS J: This matter has come to this Court following a motion of no-confidence in the Premier of the Western Highlands Provincial Government whereby the Premier at the time was voted out of office and a new Premier was voted in. A summons has issued seeking declarations that:

1.       The motion of no-confidence in the plaintiff which was passed by the Provincial Assembly on 9 April 1985 is invalid as being contrary to the Provincial Constitution and the Standing Orders of the Provincial Parliament;

2.       Each of the defendants appointed to respective offices in the Provincial Assembly is null and void;

3.       The plaintiff is the Premier of the Western Highlands Provincial Government;

4.       Seeking further orders for the occupation of the Government offices and positions.

Certain facts are not in dispute:

1.       On 25 March 1985 a notice of no-confidence motion in the plaintiff as Premier was given to the Speaker of the Parliament by the mover of the motion, Awap Rumints;

2.       The Speaker circulated a notice of the motion attached to Notice Paper No 9 to all members of the Assembly;

3.       Ten members of the Assembly requested a special meeting for 9 April on which date the vote of no confidence was to be taken. The notice nominated Mr Simon Koiam, Deputy Premier of the time, as the alternative Premier. Apparently Mr Koiam did not resign as Deputy Premier nor did he accept the nomination;

4.       On 4 April Mr Rumints sought an alteration to the notice of motion in Motion Paper No 9, seeking to replace the name of Mr Koiam with the name of Philip Kapal who is now the Premier;

5.       On 9 April when Parliament resumed to consider the vote of no confidence, the Clerk of Parliament was not present and a person called Peter Puri was requested to act as the Clerk of Parliament. In due course the motion was moved and a vote was taken that day and Mr Kapal was elected Premier by 19 votes to 7 votes.

I have been referred to certain sections of the Constitution of the Western Highlands Province and in particular I refer to s 41 which reads as follows:

“Vote of No Confidence

(1)      The Premier or Deputy Premier may be dismissed by a vote of no confidence passed by the Parliament.

(2)      A vote of no confidence is a vote of the Parliament:

(a)      at least two weeks notice of which, signed by 5 elected Members of the Parliament has been given to the Speaker; and

(b)      a copy of which, together with a note of the names of the Members signing the notice has been circulated to the Members at least 10 days before the vote; and

(c)      that is expressed to be a note of no confidence; and

(d)      that is passed by a two thirds absolute majority.

I have also been referred to the Standing Orders of the Provincial Parliament.

It is quite clear on the facts agreed to, that all the requirements of s 41 have been complied with. However, the plaintiff submits that while the requirements of s 41 may have been met, there was an alteration to the notice and the requirements of the Standing Orders were not followed with respect to the reporting of the alteration to Parliament before the motion was debated and dealt with. What apparently happened was that on 9 April 1985 there was no Clerk of Parliament present nor was there a Deputy Clerk and the Speaker himself read out the amended notice before the matter was debated.

Standing Orders Nos 138 and 142 of the Western Highlands Provincial Government set out the procedure for the reporting of notices of motion to the Parliament and the procedures to be followed when the terms of the notice are altered.

I have therefore been asked to adjudicate on the application or non-application of the Standing Orders to the procedure followed by the Members of the Provincial Parliament on that day.

First, the question can be asked; do the Standing Orders cover alterations to the notice of a vote of no confidence? Is a notice of a vote of no confidence as set out in s 41 of the Constitution a notice of motion for the purpose of Ch 14 of the Standing Orders of the Provincial Parliament? I do not propose to decide that exact question because, whether or not it is covered by Standing Orders, the plaintiff here is asking me to adjudicate and rule on a matter involving the internal proceedings of the Parliament.

Whilst courts quite clearly have the power and the role to adjudicate and hear questions involving the interpretation and application of the laws made by the Parliament and the constitutions which set up Parliaments, courts must acknowledge that the control of a Parliament over its own internal proceedings must be a matter for its own power and not subject to outside judicial interference. I mean here matters or proceedings which begin and end within the walls of the Parliament. Of course a proceeding of a Parliament which affects the rights of a person exercised outside the Parliament would be a different matter. In the case before me the issue is about how the Parliament proceeds to debate a matter within its own walls. Granted that whoever becomes Premier may be of great consequence to the citizens of the Western Highlands, these citizens have already exercised their rights and voted for their representatives, and the Constitution then leaves it up to the Members so elected, within their own walls how they choose the Premier or how they can change that choice. As I have already said the provisions of the Constitution have been followed and due notice has been given on the move to put a vote of no confidence.

Members were then told on the day of the notice how it was amended and they duly debated and voted on it.

Standing Orders or such like rules of procedure are matters that must be raised by Members at the time within Parliament. They are not matters that can be brought outside of Parliament to this Court. And if they do not decide to follow them it is always open to the Members to suspend their Standing Orders.

At this stage I refer to the words of our own Supreme Court in the case of James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420, where when dealing with the question of the conduct of business within the National Parliament, the court (at 423) said:

“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.”

I feel that the application before this Court can be dealt with under the same principle as was applied by the Supreme Court in the above quote and I therefore dismiss the summons.

Summons dismissed

Lawyer for the plaintiff: M Choulai.

Lawyer for all defendants: K Y Kara.