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Bilas v Kamindai [1985] PNGLR 20 (8 February 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 20 - Angmai Bilas v Andrew Kamindai 

[1985] PNGLR 20

N500

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANGMAI BILAS

V

ANDREW KAMINDAI AND OTHERS

Waigani

Barnett AJ

8 February 1985

PARLIAMENT - Provincial Assembly - Quorum - Whether speaker may be counted as member - “Seat” - Constitution of the Madang Province, s 18, Sch 1.2(1).

The Constitution of the Madang Province, s 18, provides that “the quorum for a sitting of the Assembly is half the number of seats in the Assembly at the time”, and Sch 1.2(1) defines “seat” as including “the position of an elected member ...”.

Held

(1)      In determining the total “number of seats in the Assembly” the seat held by the Speaker should be included.

(2)      In determining the numbers of members present for a “quorum, for a sitting of the Assembly”, the member holding the office of Speaker should, if present, be included.

Application

This was an application for a declaration declaring void the election of persons to various offices in the Madang Provincial Government.

Counsel

P Donigi, for the plaintiff.

R Noble, for the defendants.

8 February 1985

BARNETT AJ: In this application, the plaintiff, a member of the Madang Provincial Assembly, asks for a declaration that the election of the respondents to various offices in the Provincial Government was contrary to the Madang Provincial Government Constitution and to the Standing Orders of the Madang Provincial Assembly.

It is agreed between the parties that there are twenty-four seats in the Provincial Assembly. It is also agreed that the election of the respondents took place at a purported meeting of the Assembly on 10 January 1985, at which twelve members were present. One of those twelve members present was the Speaker.

The only question at issue in this application is whether or not the Speaker can be counted as a member for the purposes of determining whether there is a quorum of members.

Section 18 of the Constitution of the Madang Province says:

“18.    Quorum

(1)      The quorum for a sitting of the Assembly is half the number of seats in the Assembly at the time.”

Although the use of the word “seats” is somewhat unexpected, it is clarified in Sch 1.2(1) to that Constitution which says:

“ ‘seat’, in relation to the Assembly, includes:

(a)      the position of an elected member, whether or not the position is for the time being filled; and

(b)      where there is for the time being a nominated member appointed in accordance with Section 10 (nominated members) — the position of that nominated member;”

Counsel for the plaintiff argued that the Speaker should not be counted as a member, or the holder of a position or seat, for the purpose of establishing a quorum. He was unable to refer me to any authority for this contention. He said that he had been informed by the Speaker of the National Parliament that his practice was not to count himself when determining whether there is a quorum. But he also said the issue had never arisen and that therefore there is no rule of practice on the issue.

Counsel for the plaintiff claimed that there is a duty for a Speaker to be impartial and that this somehow supports his contention that he should not be counted when calculating a quorum.

Whatever thread of logic may be discernible in that argument, it appears to be broken by the fact that s 19(2) gives the Speaker a deliberative vote on a question that requires more than a simple majority vote and a casting vote when the voting is equal. On such important occasions, then, the Speaker is to be an active voting and, obviously, partial member of the Assembly.

Mr Noble for the respondents referred me to the well established authority of Erskine May’s, Parliamentary Practice 1976 where, while interpreting the quorum provision of the British House of Commons which is “Forty Members”, the learned author says (at 298) that it means in practice forty members including the Speaker. He also referred me to Odgers, Australian Senate Practice 1967, (at 131) where the words “one third of the whole number of Senators is interpreted to include the President of the Senate as he is also a ‘member’ of the Senate”. He further referred to the House of Representatives Practices (1981) 291-292 where s 39 of the Australian Constitution, when setting a quorum for the House of Representatives of “one third of the whole number of members” has been interpreted in practice to include the occupier of the Speaker’s chair.

There is no legislative provision in the Madang Provincial Constitution specifying that the member holding the office of the Speaker is not to be considered a member for the purpose of counting the quorum, nor is there a rule of practice to that effect in Madang or in the National Parliament. On the other hand, the rule of practice in other jurisdictions using the same Westminister system created in similar legislative terms is that, the Speaker is to be counted when assessing if there is a quorum.

The proper interpretation of the Madang Provincial Constitution is that, when counting the total number of seats in the Provincial Assembly, the seat held by the Speaker should be included (bringing the total to twenty-four seats and thus making the quorum twelve members). When counting the number of members present for the purpose of determining the quorum, the member holding the office of Speaker should be included, if present.

There was one further argument raised somewhat half heartedly. This was based on the fact that a Pidgin language version of the Assembly’s Standing Orders set out at O 18 says that:

“Olsem moa long hap long olgeta Memba i mas stap.”

There seemed some doubt whether this Pidgin version was the original Standing Order as passed or a translation of an English version. There is no evidence before me as to what the pidgin words mean.

If, however, they mean as argued by counsel for the plaintiff, that more than half the members are necessary to make up a quorum, then the Order is clearly ultra vires the Madang Provincial Constitution and of no effect.

It follows from the above that I shall refuse to declare the election of the respondents to be contrary to the Madang Provincial Constitution and to the Standing Orders of the Madang Provincial Assembly.

The application is dismissed with costs ordered in favour of the defendants to be taxed unless agreed between the parties.

Application dismissed

Lawyer for the plaintiff: Donigi Reiner & Company.

Lawyer for the defendants: R Noble.