SC2040
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 3 OF 2020

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY 
THE HONOURABLE BELDEN NORMAN NAMAH MP

Waigani: Salika CJ, Cannings J, 
Manuhu J, Hartshorn J, Kariko J

2020: 23rd, 27th November  

CONSTITUTIONAL LAW – appointment of Prime Minister – whether decision of the Parliament to appoint Prime Minister was made in compliance with the Constitution, ss 108, 114, 142.

PARLIAMENT – procedures of the Parliament as to election of Prime Minister – whether question of compliance with procedures for the Parliament for election of Prime Minister is non-justiciable – Standing Orders – freedom of proceedings of the Parliament – Constitution, ss 115, 133, 134.

PARLIAMENT – right of a member of the Parliament to stand for position of Prime Minister – right of member of the Parliament to withdraw acceptance of nomination – Constitution, ss 32, 50.

The Leader of the Opposition applied under s 18(1) of the Constitution for a declaration that the appointment on 30 May 2019 of the Prime Minister was unconstitutional. He argued that various provisions of the Constitution were breached as a result of the Speaker of the National Parliament not adhering to the Standing Orders of the National Parliament in the conduct of the election that took place in the Parliament that day, in two respects. First, by allowing the Prime Minister to be nominated as a candidate by an individual member of the Parliament, not by a qualified political party, contrary to s 7A(3) of the Standing Orders. Secondly, by accepting unilaterally the withdrawal by a member who had previously accepted his nomination as a candidate, contrary to s 158 of the Standing Orders, as the question of whether Mr O’Neill should be granted leave to withdraw should have been put to the Parliament. The applicant argued that non-compliance with the Standing Orders meant that the decision of the Parliament regarding election of the Prime Minister was not in compliance with ss 108 and 142 of the Constitution, which require the Speaker to conduct the election for Prime Minister in accordance with the Standing Orders. Five parties were granted leave to intervene in the proceedings: the Prime Minister, the Speaker, the Attorney-General, the Registrar of Political Parties and a registered political party. The fourth intervener supported the application. Other interveners opposed it, arguing that the questions raised by the application are non-justiciable under s 134 of the Constitution and should not be heard by the Court. However, if the questions are heard, the questions should be resolved against the applicant as there was no breach of the Standing Orders by the Speaker. 

Held: 

(1)	The application raises questions as to whether the procedures prescribed for the Parliament by the Standing Orders have been complied with. Such questions are non-justiciable under s 134 of the Constitution and cannot be heard or determined by any Court, including the Supreme Court. For that reason alone, the application was dismissed.

(2)	As to whether the Standing Orders were complied with, the applicant failed to satisfy the Court that there had been any breach of the Standing Orders. For that reason also, no case was made out for granting the relief sought by the applicant.

(3)	Application dismissed, with costs. 

Cases Cited

The following cases are cited in the judgment:

Haiveta v Wingti No 1 [1994] PNGLR 160
Haiveta v Wingti No 3 [1994] PNGLR 197
James Eki Mopio v The Speaker [1977] PNGLR 420
Kaguel Koroka v Philip Kapal [1985] PNGLR 117 
PLAR No 1 of 1980 [1980] PNGLR 326
Re Election of Governor-General (No 1) (2003) SC721
Re Election of Governor-General (No 2) (2004) SC728
Re Election of Governor-General (No 3) (2004) SC752
Re Election of Governor-General (No 4) (2004) SC773
SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233
SC Ref No 1 of 2012 Re Prime Minister and NEC Act [2012] 1 PNGLR 74
SC Ref No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336
SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151
SC Ref No 3 of 1999 Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285
SC Ref No 3 of 2000 Reference by Head of State on advice of National Executive Council re Sitting Days of the Parliament (2002) SC722
SC Ref No 3 of 2011 Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126
SC Ref No 4 of 2010 Reference by Morobe Provincial Executive re re-election of Governor-General [2010] 1 PNGLR 335
SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500
Sir Michael Somare v Theo Zurenuoc (2016) N6308
The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491

APPLICATION 

This is the determination of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant, the Leader of the Opposition, Hon Belden Norman Namah MP
M Nale & A Serowa, for the First Intervener, the Prime Minister, Hon James Marape MP 
C Mende, for the Second Intervener, the Speaker of the National Parliament, Hon Job Pomat MP
N Yalo, for the Third Intervener, the Attorney-General, Hon Davis Steven MP
K Iduhu, for the Fourth Intervener, the Registrar of Political Parties, Dr A Gelu
L Okil, for the Fifth Intervener, Pangu Pati Inc 

27th November, 2020

1.	SALIKA CJ : This is an application under s 18(1) of the Constitution by the Honourable Belden Namah MP and Leader of the Opposition, seeking to invoke the jurisdiction of the Supreme Court to interpret ss 11, 50, 108, 114, 133, 134 and 158(2) of the Constitution and to declare the election of Honourable James Marape MP as Prime Minister of Papua New Guinea on 30 May 2019 null and void.

FACTS

2.	The facts which are not disputed by all the parties are:

•	On 29 May 2019, the Hon Peter O’Neill resigned as Prime Minister and a vacancy in the Office of the Prime Minister was created.

•	On 30 May 2019, when the Parliament resumed, the Speaker called for nominations for the Office of Prime Minister.

•	The Hon James Marape was nominated by the Hon Sir Peter Ipatas (Governor of Enga) and seconded by Hon Charlie Benjamin (Governor for Manus).

•	The Hon James Marape accepted the nomination, and his nomination was accepted by the Speaker.

•	The Hon Patrick Pruaitch, the then leader of the Opposition, nominated Hon Peter O’Neill.

•	The applicant seconded the nomination of Hon Peter O’Neill.

•	Hon Peter O’Neill informed the Parliament that he accepted the nomination and the nomination was accepted by the Speaker.

•	Dr Allan Marat (Member for Rabaul) then nominated Sir Mekere Morauta (Member for Moresby North West) which was seconded by Hon James Donald (Member for North Fly) and accepted by Sir Mekere Morauta.

•	A motion was passed by the Parliament to close nominations. The Speaker thereafter closed nominations.

•	Immediately after nominations were declared closed by the Speaker, Hon Peter O’Neill announced to the Parliament: “I will withdraw my nomination” which the Speaker unilaterally accepted.

•	The Speaker then proceeded as if there was only two nominations. Hon James Marape was elected by the Parliament and appointed to the office of the Prime Minister.

ISSUES

3.	The issues raised by the facts are whether the election and appointment of Hon James Marape on 30 May 2019 was constitutional and valid.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

4.	The principles of constitutional interpretation in PNG are well established. The Supreme Court in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233 restated those well-established principles. They are:

(i)	In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution s 158(2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Sch 1.4. Each Constitutional Law is intended to be read as a whole: Constitution, Sch 1.5(1).

(ii)	In cases where the word of expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.

(iii)	But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2).

(iv)	The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR No 1 of 1980 [1980] PNGLR 326, SCR No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336, SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No 3) [1994] PNGLR 197. The Judges are urged to use “judicial ingenuity” in appropriate cases, to do justice”: Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a Constitutional Law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500.

(v)	However, there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not shy away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.

(vi)	In interpreting the Constitution, the Judges may use certain aids. These include the Reports of the Constitutional Planning Committee (Constitution, s 24) and the National Goals and Directive Principles in the Constitution (Constitution, s 25).

SECTION 108 – SPEAKER’S FUNCTIONS

5.	Under s 108 of the Constitution, it is imperative that the Speaker acts in accordance with Constitutional Laws and Acts of Parliament, and the Standing Orders of Parliament to uphold the dignity of the Parliament. Section 108 of the Constitution reads:

(1)	The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.

(2)	In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.

(3)	A Constitutional Law, and Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibility of the Speaker and the Deputy Speaker.

6.	The Office of the Speaker of the Parliament is established under s 107 of the Constitution. Section 108 of the Constitution sets out the functions of the Speaker. Section 108 (1) says that the Speaker is responsible for “upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament …”.

7.	The purpose of Standing Orders is to direct the order and conduct of the Parliament. And this is clearly stated in s 133 of the Constitution.

SECTION 114(1) AND QUESTIONS

8.	Section 114 of the Constitution reads:

(1)	Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.

(2)	Subject to Subsection (5), the member presiding does not have a deliberate vote except –

(a)	On a motion of no confidence in the Prime Minister, the Ministry or a Minister, in accordance with and Organic Law referred to in Section 145 (motions of no confidence); or

(b)	On any question which requires an affirmative vote greater than a simple majority.

(3)	Subject to Subsection (5), except in a case where he has voted under Subsection (2), in the event of an equality of votes on a question, the member presiding has a casting vote, but if he fails to use it the motion shall be deemed to be withdrawn.

(4)	The Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded.

(5)	 An Organic Law made for the purpose of Subdivision VI.2.H (protection of elections from outside or hidden influence and strengthening of political parties) may restrict the voting rights of a member of the Parliament in certain circumstances.

9.	Section 114 (1) makes it mandatory for the Parliament to decide by a majority of votes of members present and voting in a meeting in Parliament on “all questions” including questions with or without notice not provided for in the Constitution and the Standing Orders. 

What is a “question”?

10.	Black’s Law Dictionary Second Pocket Edition Bryan A Garner (2001) defines “question” as:

1.	A query direct to a witness.
2.	An issue in controversy, a matter to be determined.

11.	In my respectful opinion, the second definition is relevant to the special circumstances of this case for a question to be raised under s 114(1) of the Constitution. However, the procedure how a question is to be raised is not provided by a Constitutional Law. The closest would be to raise a point of order, in order to raise a question when Hon Peter O’Neill was making his statement of withdrawal.

12.	Hence, the combined effect of s 158 of the Standing Orders and s 114(1) of the Constitution requires that the question of leave must be debated by the members and a ruling by Speaker in respect of the question of withdrawal of the motion to nominate Hon Peter O’Neill to be Prime Minister. Again, there is no specific procedure for this under the Constitution or Constitutional Laws or the Standing Orders.

13.	This question is raised immediately and should have been the first question for the Speaker and or any other members of Parliament to query before making an informed decision on the question of whether it was proper for Hon Peter O’Neill to withdraw his nomination after the nomination had closed. Hon Patrick Pruaitch and the applicant had the first right, in my respectful opinion, to raise the point of order. Could their silence mean acquiescence to allow Hon Peter O’Neill to withdraw his acceptance of his nomination? That question is open. The Speaker, after Hon Peter O’Neill’s withdrawal statements said:

Honourable Members, we now have two nominations and Parliament will now vote.

14.	The following questions arose: Did the Speaker maintain order in the Parliament? And did he regulate its proceedings and administer its affairs? The silence on the record appears to indicate he did. This situation can be distinguished from the Haiveta v Wingti case in that the Constitution provided for the Prime Minister to be appointed the next day following the resignation. This case is different. There is no requirement for the Speaker to adjourn Parliament after Hon Peter O’Neill withdrew his nomination.

15.	The three motions referred to above were possessions of Parliament which included the nomination of Hon Peter O’Neill to be the Prime Minister.

16.	While s 158 of the Standing Orders clearly makes a motion the possession of the Parliament, it does not spell out by what majority of votes in the Parliament leave ought to be granted when a question is raised to withdraw the motion by a candidate who has been nominated. This is where one has to refer to s 114(1) of the Constitution in respect of the prescribed manner of voting.

17.	The Speaker did not seek advice. This is clearly shown on the copy of the Parliament Hansard, which is the official copy of the Parliament meeting minutes.

18.	It is notable that irrespective of the circumstance or any question that arises in the Parliament, s 114(1) of the Constitution grants the Parliament wide scope of powers to deal with any given situation. This was highlighted recently in the case of Sir Michael Somare v Theo Zurenuoc (2016) N6308. The Court directed the Parliament and the Speaker to restrain from further damaging, dismantling and removing the objects of cultural decoration at Parliament House which were the subject of the proceedings because the question of destruction, damage or removal of such cultural objects are not decided by the Parliament, at a meeting of the Parliament, in accordance with s 114 of the Constitution.

19.	The Court gave the following orders:

that the first, second and third defendants and all other persons are permanently restrained from further damaging, dismantling and removing the objects of cultural decoration at Parliament House, the subject of these proceedings, or such objects as are created, curated and installed to replace those objects or similar objects of cultural decoration of Parliament House, unless the question of destruction, damage or removal of such cultural objects is decided by the Parliament, at a meeting of the Parliament, in accordance with Section 114 of the Constitution having regard to and respect for the rights and freedoms conferred to Section 45 of the Constitution and the restrictions imposed under the National Cultural Property (Preservation) Act and the Copyright and Neighbouring Rights Act 2000. (underlining mine)

20.	Since members present and voting did not question whether the motion of nomination of Hon Peter O’Neill as Prime Minister ought to be withdrawn, the Speaker’s acceptance of the withdrawal of the nomination and advising Parliament to proceed with only two candidates, in an arbitrary manner, was an issue in controversy and needed to be determined under s 114(1) of the Constitution. The fact of the matter as shown on record is that no or not one member of Parliament complained about the Speaker’s action or conduct. The controversy was never raised. Did this amount to acquiescence of all members present in the chamber? 

21.	Another issue is whether the Speaker contravened s 108(1) of the Constitution for failing to “uphold the dignity of the Parliament” when he did not comply with Standing Orders 94, 95 and 158 and s 114(1) of the Constitution. Again, not one member complained and raised a point of order to seek a ruling from the Speaker on the issue. Acquiescence? 

22.	In addition, did he fail to comply with Standing Orders 7A(10) and (11) relating to voting by elimination process which was aborted because of his arbitrary decision? Again, these are matters that ought to have been raised as issues of controversy and therefore questions to be determined by votes under s 114(1) of the Constitution, but no one raised it as a question such as to come under s 114(1). 

23.	At the outset, it must not be forgotten that the Speaker was chosen through a democratic process. Later he took oath of office and swore to faithfully discharge his duties to the best of his ability to preserve, protect and defend the Constitution. Not one member questioned the Speaker’s action.

24.	The Speaker’s pledge draws expectations from the people and the Speaker must be neutral and be clear about his or her responsibilities and what is expected of him or her. Not one member complained of the Speaker’s conduct in this case by way of a raising of a point of order.

25.	His profound and primary function is to control the legislative destiny of the Country by upholding the dignity of the Parliament like in any other Westminster system of democracy.

26.	The responsibility bestowed upon the Speaker under s 108 of the Constitution is one of the powers of the people reposed in him or her by the Constitution and is to be exercised with responsibility and due care. At the same time other members of Parliament should act as checks and balances of the democratic system we have, to ensure proper procedures are observed and maintained and members are given opportunity to participate in the proceedings of Parliament.

27.	When Hon O’Neill announced the withdrawal of his nomination, no one interjected including Hon Namah. The Speaker or any other member ought to have been alerted to ss 94, 95 and 158 of the Standing Orders Sand s 114(1) of the Constitution concurrently to refer that question as well to Parliament. A point of order could or should have been raised by Hon Pruaitch or the applicant or any other member of Parliament present, but no one did. Opportunity lost by the opposition in my respectful view. Section 134 of the Constitution renders whatever question that might have been raised non-justiciable. All members of Parliament have a duty and responsibility to participate in debating issues on the floor of Parliament. That is why they are elected. See the OLIPPAC case. They should not come running to Court all the time to find answers. Like the Courts, Parliament has its own internal processes, practices and procedures to guide it on Parliamentary and constitutional procedures in the form of Standing Orders.

28.	In this case, the Speaker followed the process of electing the Prime Minister under s 7A of the Standing Orders; which was correct as provided for by Standing Orders s 7B.

29.	Section 7A(5) says each member nominated shall inform Parliament whether he accepts the nomination. In this case, Hon Peter O’Neill did inform Parliament he accepted the nomination and said he wanted the Country to know that he was fairly defeated on the floor of Parliament, effectively challenging Hon Marape’s nomination. Upon informing Parliament that he was withdrawing his nomination, the Speaker said:

Honourable Members, we now have two nominations and Parliament will now vote.

30.	The effect of his statement is that he as Speaker accepted the withdrawal.

31.	The contention of the applicant and the fourth Intervener is that the Speaker erred in unilaterally accepting the withdrawal and contend that Hon Peter O’Neill should have first sought and obtained leave of Parliament to withdraw his nomination.

32.	The first, second, third and fifth Interveners submitted that the Constitution and the Standing Orders were silent on this procedure and that the Speaker was within his powers to accept the withdrawal of Hon Peter O’Neill.

33.	It is true, the Constitution and the Standing Orders do not provide for the process and procedure for a nominee for the post of Prime Minister to withdraw his or her nomination. However, the question arose in my respectful opinion whether the nominee could withdraw his nomination at that stage after the nominee initially accepted his nomination and after the nominations closed for the Parliament to then proceed to vote any of the three candidates into office as the Prime Minister. To me this was the critical moment for either Mr Speaker or any other Members of Parliament present including Hon Belden Namah to seriously consider and raise a point of order under s 94 and s 95 of the Standing Orders and question on the floor of Parliament whether the nominee could withdraw his nomination at this very late stage for a very important decision of electing the country’s Prime Minister. This was a very serious issue in controversy to be considered and determined especially when the very important position of Prime Minister’s election was about to take place and needed to be considered, debated and determined by Parliament on the votes. No such question was raised in Parliament. Even after the Speaker accepted Hon Peter O’Neill’s withdrawal, no one questioned his decision under s 96 of the Standing Orders. Again, I raise the question: was the silence of the other members including the mover and seconder (in this case the applicant) acquiescence? 

34.	To me with respect the question arose, right there before the eyes and hearing of Parliament, before the Speaker and the 109 members of Parliament present: Could Hon Peter O’Neill withdraw his nomination? That question arose right there and then for the Speaker and any Member of Parliament to raise as a serious point of order, speak out and for Parliament to determine the question by voting. There is however no prescribed procedure under the Constitutional Laws and the Standing Order as to who is to raise the question. The onus primarily belonged to the mover and the seconder.

35.	At that point and stage of the important process of appointment of a Prime Minister, a fundamental and a very serious question arose but no one Member of Parliament reacted or questioned the withdrawal of his own nomination and no one raised a point of order about that. Surely this was a question to be raised as a point of order and get a ruling from the Speaker. That opportunity was lost. Members acquiesced? 

36.	At this point, with respect, this very fundamental question arose and again with respect this is where s 114(1) would have come into play. It provides:

Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.

37.	In this case, the question squarely arose in Parliament at its meeting and the question, with respect, “shall be decided” in accordance with the majority of votes of the members present and voting”.

38.	When s 114 (1) uses the term “all questions” what question is s 114 referring to? First of all, it refers to “all or any question” that arises at a Parliament meeting. In this case the question arose: Could Hon Peter O’Neill withdraw his nomination at this point in time? But it needed someone to raise it.

39.	In all reality the question did arise and should have been raised on the floor of the Parliament by any of the other voting members present. The evidence on the Hansard shows neither Hon Patrick Pruaitch nor Hon Belden Namah raised a point of order or raised a question to Mr Speaker. Hon Patrick Pruaitch was the mover of the motion nominating Hon Peter O’Neill while Hon Belden Namah was the seconder. In my respectful opinion they were at liberty to raise the point of order and seek a ruling from the Speaker on the point on the floor of Parliament. They did not. Can or should Hon Belden Namah now be allowed to raise it in Court, after the event? No, in my respectful opinion, because the matters are now non-justiciable.

40.	None of the named mover or the seconder said anything or interjected with Hon Peter O’Neill’s actions. In fairness to the Speaker, none of the other voting members present in Parliament objected or interjected with the Speaker’s actions or Hon Peter O’Neill’s actions. That is what is demonstrated by the evidence in the form of the Hansard. The Speaker himself could have raised it. He too failed to raise it. But this is all part of the internal procedure of Parliament and non-justiciable. Section 65 of the Standing Orders allows a member to speak to any question before the Chair open to debate and can rise to make a point of order. The opportunity was missed.

41.	The upshot of all these is that no question was raised at the meeting of the Parliament at the material time by any member relating to the propriety of the late withdrawal of Hon Peter O’Neill, what effect his withdrawal would have in relation to s 50 of the Constitution and how his withdrawal would affect the elimination process under s 7A of the Standing Orders. All these questions went begging when no one in the Parliament Chamber raised a point of order again Hon Peter O’Neill’s withdrawal. Raise the issues in Parliament.

42.	The upshot of all these is that no question was raised at the meeting of the Parliament at the material time relating to the propriety of the late withdrawal of Hon Peter O’Neill, thus the question of whether s 114(1) was breached did not arise as no question was raised and now cannot arise.

NON-JUSTICIABILITY

43.	This case in the form of this application is concerned mainly with matters of Parliamentary Procedure, whether they were complied with. Section 134 of the Constitution is very specific on this matter. It reads:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

44.	The issue of whether the decision of the Speaker to accept the purported withdrawal of the nomination of Hon Peter O’Neill, and the ensuing election of Prime Minister James Marape is non-justiciable in the Court of Law. The process of moving motions in Parliament alone is non-justiciable but where a procedure for the conduct of an action of the Parliament is provided by a Constitutional law that is the Constitution or an Organic Law, the question, whether that procedure is followed is justiciable. See James Eki Mopio v The Speaker [1977] PNGLR 420, Haiveta v Wingti No 3 [1994] PNGLR 197 and SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126.

45.	The Constitution does provide clear limits and directions relating to the proceedings of Parliament. For instance, s 113(1) states that the quorum for a sitting of Parliament is one-third of the number of seats in the Parliament. Section 114 stipulates that, except as otherwise provided in a constitutional law or the Standing Orders, all questions before Parliament are to be decided by a simple majority vote. Further under s 112 the meetings of the Parliament must be chaired by the Speaker or in his absence the Deputy Speaker.

46.	The Supreme Court has held in numerous cases that the Court can enter the political arena where issues of law relate to political considerations and this can be done within the confines of the Constitution.

47.	In the case of Haiveta v Wingti [1994] PNGLR 197 Amet CJ (as he then was) at page 206 vividly explained the judiciary’s role in the following manner:

In some constitutions, it is left to the legislature to interpret the meaning of these principles, but in other types of constitutions, of which ours is one, the Judiciary is clothed with the power and charged with the duty of ensuring, upon the application of aggrieved parties, that the legislature and the executive, and the judiciary as well, do not transgress the limits set upon their powers. 

In Papua New Guinea it has come to be accepted that the judiciary is he guardian of the Constitution. This is amply and expressly provided for in the Constitution. Sections 18 and 19 provide for the original interpretative jurisdiction of the Supreme Court. Sections 22 and 23 provide for the enforcement of constitutional rights and sanctions, respectively, and ss 57 and 58 then complete these powers by providing for enforcement of guaranteed rights and freedoms and compensation, respectively. Section 11 declares that the Constitution is the Supreme Law of Papua New Guinea, and subject to Section 10 (construction of written laws), all acts, whether legislative, executive, or judicial, that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.

48.	This similar question was further addressed in the case of SC Ref No 3 of 1999, Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285. His Honour Kapi DCJ (as he then was) made a bold statement at page 304 when he said the following:

I remind myself of the nature of the question with which this Court is asked to deal with. As I said so in earlier reference, the decision as to the number of days the Parliament sits is by nature of question of politics. That is to say, it is determined by voting in the Parliament. It is not secret that this type of decision is taken on political grounds. That is no reason for this Court to turn a blind eye and come to the view that it should not enter the arena of politics. This is a proper caution that this Court must bear in mind when faced with the issues involving political considerations. I gave this caution in Kapal v The State [1987] PNGLR 417 at pages 429-426. The Constitution has made this clear in adopting the doctrine of separation of powers under s 99 of the Constitution. The independence of each of the three arms of government is fundamental. This Court must observe and uphold this principle.

However, the Constitution of Papua New Guinea is unique in many respects. It has subjected many political or policy issues to the scrutiny of the Courts. It is the duty of this Court to take up these issues without fear and favour within strict confines of the powers given by the Constitution. This Court has had a proud tradition of addressing such issues: becoming involved in the policy decisions on television broadcasting (see State v NTN Pty Ltd & Another [1992] PNGLR 1) resignation and appointment of the Prime Minister (see Haiveta v Wingti (No 3) [1994] PNGLR 197) to mention only but a few.

49.	Los J also expounded on this at page 325 by saying: 

We who constitute the Judiciary hold no sword or purse, but it is comforting to know that like the National Executive Council and the Parliament we are mere agents of the people. We as agents have no greater power and the authority than the people. The Judiciary should not therefore shrink from declaring breaches of the constitutional duties by the Parliament irrespective of its enforceability.

50.	If the process of the election of Hon Marape is justiciable, the applicant must establish that there were infringements by the Speaker and Hon Peter O’Neill of ss 50, 108 and 114 of the Constitution and other provisions in the application.

MOTIONS POSSESSIONS OF PARLIAMENT

51.	What constitutes a motion of Parliament? When does a subject matter become a possession of the Parliament? What is a subject of the Parliament?

52.	There is no definition of the word “motion” under the Standing Orders. To assist with interpretation, s 284 of the Standing Orders expressly allows for the Australian Standing Orders and practice of Parliament to be used by the Speaker for matters that are not provided in our Standing Orders: 

(1) 	In any matter not provided for in these Standing Orders, Mr Speaker shall decide.

(2) 	In deciding any question relating to procedure or the conduct of the business of the Parliament, in the absence of sessional or other orders or practice of the Parliament, Mr Speaker may resort to the usage and practice of the House of Representatives in the Parliament of Australia as far as the same may be applicable to this Parliament, and not inconsistent with these Standing Orders or with the practice of this Parliament.

53.	In the absence of an express definition of motion in our Standing Orders, we can use s 284 cited above as a guide to define a motion. It is defined as, “in its widest sense a motion is any proposal made for the purpose of eliciting a decision of the House. It may take the form of a proposal made to the House by a Member that the House do something, order something to be done or express an opinion with regard to some matter.” 

54.	In light of the above definition, a motion is deemed a subject matter to be determined by the Parliament, a motion constitutes matters that are raised to be dealt with by the Parliament as a whole. In essence, a matter is not a motion unless it comes before the Parliament for determination. The adoption of this definition also helps one to identify when a subject matter becomes the possession of the Parliament. As soon as a matter is put forward in the Parliament for the purpose of eliciting a decision of the house, this is when it becomes the possession of the Parliament.

55.	In this case the material questions of the withdrawal of nomination and candidacy of Hon Peter O’Neill was before Parliament and in its possession. Could the Speaker remove it from the possession or custody of Parliament? My answer to that question is leave was required. Leave from who? Parliament? Speaker? The Speaker appears to have granted leave by unilaterally accepting the withdrawal of Hon Peter O’Neill. No questions were raised. That process in my respectful opinion is non-justiciable. The Court cannot interfere with that process. 

56.	The threshold issue in this case, with respect evolves around the withdrawal of Hon Peter O’Neill’s candidacy for the Office of the Prime Minister by Hon Peter O’Neill himself. He freely exercised his right under s 50 of the Constitution.

57.	This case is a unique scenario in Parliamentary democracy when after Hon Peter O’Neill had accepted his nomination as a candidate for the election of the Prime Minister. Two other nominations were moved and accepted and nominations were closed by motion of Parliament. He unilaterally withdrew his nomination, a right he has under s 50 of the Constitution. Hon Peter O’Neill is not a party in the proceedings and there is no complaint by or from him.

58.	The upshot of all these discussions is that the applicant questions compliance or non-compliance of procedures either under the Standing Orders or the Constitution. While I find that s 114(1) of the Constitution procedure was potentially available, there is no particular procedure how questions under that provision are to be raised. In relation to complaints of breaches of ss 11, 50, 108 and 142, I find there were no objections or interjections raised against the Speaker’s actions or inactions. These are matters that should be resolved in Parliament and not by the Court. This augurs well with the principle of separation of powers in our democracy. The Constitution and the Standing Orders are silent on these matters. The benefit of that silence goes to the Speaker. The Speaker’s actions are on that basis, non-justiciable.

59.	Accordingly, I find the election of Hon James Marape constitutional and valid on 30 May 2019. The application should be dismissed, with costs. 

60.	CANNINGS J: The Honourable Belden Norman Namah MP applies for a declaration that the appointment on 30 May 2019 of the Honourable James Marape MP as Prime Minister was unconstitutional. He argues that various provisions of the Constitution were breached as a result of the Speaker of the National Parliament, the Honourable Job Pomat MP, not adhering to the Standing Orders of the National Parliament in the conduct of the election that took place in the Parliament that day, in two respects:

•	allowing Mr Marape to be nominated as a candidate by an individual member of the Parliament, not by a qualified political party, contrary to s 7A(3) of the Standing Orders of the Parliament; and

•	accepting unilaterally the withdrawal by the Honourable Peter O’Neill MP of his nomination as a candidate, contrary to s 158 of the Standing Orders, as the question of whether Mr O’Neill should be granted leave to withdraw should have been put to the Parliament.

61.	The applicant argues that non-compliance with the Standing Orders meant that the decision of the Parliament that Mr Marape be the Prime Minister was not in compliance with ss 108 and 142 of the Constitution, which require the Speaker to conduct the election for Prime Minister in accordance with the Standing Orders. 

FACTS

62.	The facts on which the application is based are uncontentious:

•	On 28 May 2019 Mr O’Neill resigned as Prime Minister.

•	On 30 May 2019 an election was conducted in the Parliament for the vacant position of Prime Minister. The Speaker presided. 

•	Three candidates were nominated: 

First, Sir Peter Ipatas, the member for Enga Provincial, nominated Mr Marape, seconded by Hon Charlie Benjamin, the member for Manus Provincial. Mr Marape accepted the nomination, which was duly accepted by the Speaker.

Secondly, Hon Patrick Pruaitch, the member for Aitape-Lumi Open, nominated Mr O’Neill, seconded by the applicant, the member for Vanimo Green River Open. Mr O’Neill accepted the nomination, which was duly accepted by the Speaker.

Thirdly, Dr Allan Marat, the member for Rabaul Open, nominated Sir Mekere Morauta, the member for Moresby North-West Open, seconded by Hon James Donald, the member for North Fly Open. Sir Mekere accepted the nomination, which was duly accepted by the Speaker.

•	Hon Pila Niningi MP moved that the nominations be closed, seconded by Mr Benjamin.

•	The Speaker closed the nominations. 

•	Then Mr O’Neill announced that he was withdrawing his nomination.

•	Mr O’Neill’s withdrawal was unilaterally accepted by the Speaker.

•	The election was conducted between Mr Marape and Sir Mekere. Mr Marape was then declared by the Speaker to have been elected by 101 votes to 8. The advice was then conveyed to the Governor-General that the decision of the Parliament was that Mr Marape be Prime Minister.

•	On the same day, 30 May 2019, the Governor-General appointed Mr Marape as Prime Minister, under s 142 of the Constitution. 

INTERVENERS

63.	Five parties were granted leave to intervene in the proceedings:

•	first intervener, the Prime Minister, Hon James Marape MP; 

•	second intervener, the Speaker of the National Parliament, Hon Job Pomat MP; 

•	third intervener, the Attorney-General, Hon Davis Steven MP; 

•	fourth intervener, the Registrar of Political Parties, Dr A Gelu; and 

•	fifth intervener, Pangu Pati Inc. 

64.	The fourth intervener supports the application. Other interveners oppose it. They argue that the questions raised by the application are non-justiciable and should not be heard by the Court. However, if the questions are heard, the questions should be resolved against the applicant as there was no breach of the Standing Orders by the Speaker. 

ISSUES 

65.	Three issues arise:

1.	Are the questions raised by the application non-justiciable?

2.	Was there any breach of the Standing Orders?

3.	What orders should the Court make?

1	ARE THE QUESTIONS RAISED BY THE APPLICATION NON-JUSTICIABLE?

66.	The argument that the questions are non-justiciable is based on s 134 (proceedings non-justiciable) of the Constitution, which states:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

67.	Section 134 advances two separate propositions:

•	first, that the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable; and 

•	secondly, that a certificate by the Speaker under s 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

68.	Each of those propositions is subject to the qualifying phrase “Except as is specifically provided by a Constitutional Law”.

69.	Only one part of the first proposition is relevant in the present case: the proposition that the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable. 

70.	What does non-justiciable mean? This is addressed in Schedule 1.7 (“non-justiciable”) of the Constitution:

Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).

71.	That means that, subject to the qualification provided by the section itself, s 134 of the Constitution is saying that questions as to whether the procedures prescribed for the Parliament have been complied with, may not be heard or determined by any court, and that includes the Supreme Court.

72.	The applicant’s case is built on the proposition that procedures prescribed for the Parliament for the conduct of the election of the Prime Minister were not complied with. His case falls within the first proposition advanced by s 134. It raises questions that are prima facie non-justiciable. Those questions cannot be heard or determined by this Court unless the qualifying phrase “Except as is specifically provided by a Constitutional Law” is brought into operation. 

73.	What is it that has to be “specifically provided by a Constitutional Law”? A narrow view would be that a Constitutional Law (the Constitution or an Organic Law) would need to specifically state words to the effect that the question of compliance with certain procedures prescribed for the Parliament is justiciable. Perhaps that is the rationale behind the decision of the Supreme Court in James Eki Mopio v The Speaker [1977] PNGLR 420, the earliest case on s 134. The plaintiff challenged the appointment of Hon Michael Somare MP as Prime Minister on the ground that s 142(4) (the Prime Minister) of the Constitution had not been complied with. Section 142(4) stipulates the procedure to be followed if the Parliament is not in session when a Prime Minister is to be appointed. The Court held:

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.

74.	A broader view of the phrase “Except as is specifically provided by a Constitutional Law” was heralded by Sheehan J in the National Court in Haiveta v Wingti No 1 [1994] PNGLR 160. His Honour stated:

The net of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any Parliamentary action.

75.	This broader view requires only that there be a specific procedure prescribed for the Parliament by a Constitutional Law, to make the question of compliance with procedures justiciable. It is this broader view that has since found favour with the Supreme Court. It has been applied in a number of cases that have heard and determined questions whether the procedures prescribed for the Parliament have been complied with. Examples are:

•	Haiveta v Wingti No 3 [1994] PNGLR 197. This was an appeal against Sheehan J’s decision in the National Court, which was that there had in fact been compliance with procedures for appointment of the Prime Minister. The Supreme Court held that the question of compliance with procedures prescribed for the Parliament by s 142(3) of the Constitution regarding the method of appointment of a Prime Minister, when the Parliament is in session, was justiciable. It was determined that the procedures had not been complied with as the election for the vacant position of Prime Minister took place on the same day, 24 September 1993, that the Parliament was informed of the vacancy, not on “the next sitting day” as required by s 142(3). Therefore the election of Hon Paias Wingti MP as Prime Minister was invalid and of no effect. 

•	SC Ref No 3 of 1999, Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285. The Supreme Court heard and determined questions as to the Parliament’s compliance with s 124 (calling etc) of the Constitution.

•	SC Ref No 3 of 2000, Reference by Head of State on advice of National Executive Council re Sitting Days of the Parliament (2002) SC722. The Supreme Court reiterated its position in SC Ref No 3 of 1999 that where a Constitutional Law prescribes a matter including a matter of procedure of Parliament, those matters are justiciable.

•	Re Election of Governor-General (No 1) (2003) SC721. The procedures for election of a Governor-General prescribed by the Organic Law on the Nomination of the Governor-General were not complied with by the Parliament. The election of Sir Albert Kipalan as the Parliament’s nominee for appointment as Governor-General was declared null and void. 

•	Re Election of Governor-General (No 2) (2004) SC728. The procedures for election of a Governor-General prescribed by the Organic Law on the Nomination of the Governor-General were not complied with by the Parliament. The election of Sir Pato Kakaraya as the Parliament’s nominee for appointment as Governor-General was declared null and void.

•	Re Election of Governor-General (No 3) (2004) SC752. A slip rule application regarding the decision in Re Election of Governor-General (No 2) was refused. The Court confirmed that the question of compliance with prescribed procedures for election of a Governor-General was justiciable. 

•	Re Election of Governor-General (No 4) (2004) SC773. An originating summons challenging the nomination of Sir Paulias Matane as Governor-General was dismissed. The Court heard and determined the question of whether procedures for election of a Governor-General prescribed by the Organic Law on the Nomination of the Governor-General were complied with by the Parliament. 

•	SC Ref No 4 of 2010, Reference by Morobe Provincial Executive re re-election of Governor-General [2010] 1 PNGLR 335. The procedures for election of a Governor-General prescribed by s 88 of the Constitution were not complied with by the Parliament. The re-election of Sir Paulias Matane as the Parliament’s nominee for appointment as Governor-General was declared null and void.

•	SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126. The Court held by 3:2 majority that procedures for removal of Prime Minister Rt Hon Sir Michael Somare MP prescribed by s 142 of the Constitution were not complied with by the Parliament and declared that Sir Michael had not been lawfully removed, prior to the purported election of Hon Peter O’Neill MP as Prime Minister.

•	SC Ref No 1 of 2012, Re Prime Minister and NEC Act [2012] 1 PNGLR 74. The Court held by 3:2 majority that the Prime Minister and National Executive Council (Amendment) Act 2011 was unconstitutional and that procedures for removal of Prime Minister Rt Hon Sir Michael Somare MP prescribed by s 142 of the Constitution were not complied with by the Parliament and declared that Sir Michael had not been lawfully removed, and that Hon Peter O’Neill MP was not lawfully appointed as Prime Minister.

76.	None of the parties suggested that the broader view of the phrase “Except as is specifically provided by a Constitutional Law” ought not be applied in the present case. I find that it is the proper view. The issue therefore becomes whether the procedures for the Parliament’s election of a Prime Minister, which the applicant is asserting were breached, are procedures “specifically provided by a Constitutional Law”. Mr Sheppard, for the applicant, submits that yes they are. Mr Iduhu for the fourth intervener agrees. Counsel for other interveners assert the opposite.

77.	Mr Sheppard submits that the procedures for the Parliament’s election of a Prime Minister are specifically provided by the following Constitutional Laws: ss 108, 114 and 142 of the Constitution and s 63 of the Organic Law on the Integrity of Political Parties and Candidates. It is submitted that the combined effect of those Laws is that the Speaker was duty-bound to conduct the election for the vacant position of Prime Minister in accordance with the Standing Orders, which obligation he did not discharge. 

Section 108 (functions of the Speaker and Deputy Speaker) of the Constitution states:

(1)	The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.

(2)	In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.

(3)	A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.

78.	Section 114 (voting in the Parliament) of the Constitution states:

(1)	Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.

(2)	Subject to Subsection (5), the member presiding does not have a deliberative vote except—

(a)	on a motion of no confidence in the Prime Minister, the Ministry or a Minister, in accordance with an Organic Law referred to in Section 145 (motions of no confidence); or
(b)	on any question which requires an affirmative vote greater than a simple majority.

(3)	Subject to Subsection (5), except in a case where he has voted under Subsection (2), in the event of an equality of votes on a question, the member presiding has a casting vote, but if he fails to use it the motion shall be deemed to be withdrawn.

(4)	The Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded.

(5)	An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may restrict the voting rights of a member of the Parliament in certain circumstances.

79.	Section 142 (the Prime Minister) of the Constitution states:

(1)	An office of Prime Minister is hereby established.

(2)	The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

(3)	If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(4)	If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(5)	The Prime Minister—

(a)	shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election; and
(b)	may be dismissed from office in accordance with Division III.2 (leadership code); and
(c)	may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.

(6)	The Prime Minister may be suspended from office—

(a)	by the tribunal appointed under an Organic Law made for the purposes of Section 28 (further provisions), pending an investigation into a question of misconduct in office within the meaning of Division III.2 (leadership code), and any resultant action; or
(b)	in accordance with an Act of the Parliament, pending an investigation for the purposes of Subsection (5)(c), and any resultant action by the Parliament.

(7)	An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Prime Minister.

80.	Section 63 (invitation to form government) of the Organic Law on the Integrity of Political Parties and Candidates states:

(1)	Subject to Subsection (2), on the date of the return of the writs in a general election, the Electoral Commission shall advise the Head of State of the registered political party which has endorsed the greatest number of candidates declared elected in the election, and the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall invite that registered political party to form the Government in accordance with this section.

(2)	Where two or more registered political parties have endorsed an equal number (being the greatest number) of candidates declared elected in the election, the Electoral Commission shall so advise the Head of State, and the Head of State, acting with, and in accordance with, the advice of Electoral Commission, shall invite the registered political party with the highest votes declared in the election to form the Government.

(3)	An invitation under Subsection (1) or invitations under Subsection (2) shall be—

(a)	conveyed to the public officer of the registered political party or registered political parties, as the case may be; and
(b)	notified to the Clerk of Parliament; and
(c)	published in the National Gazette.

(4)	At the first meeting of the Parliament following a general election, being a meeting at which the Prime Minister is to be elected, the registered political party to whom the invitation has been made may nominate a candidate for election of the Prime Minister.

(5)	Where—

(a)	a candidate is nominated under Subsection (4)(a)—the Parliament shall vote as to whether that candidate is to be elected Prime Minister; or
(b)	a candidate is or candidates are nominated under Subsection (4)(b),

the Parliament shall vote as to whether that candidate, or any of those candidates, is to be elected Prime Minister.

(6)	Where—

(a)	the candidate nominated under Subsection (4)(a)); or
(b)	a candidate nominated under Subsection (4)(b),

receives a simple majority of the votes in the election of Prime Minister, the Speaker shall advise the Head of State that the candidate has been elected Prime Minister by the Parliament.

(7)	Where—

(a)	a registered political party to whom an invitation has been made under Subsection (1) or (2) declines or fails to nominate a candidate under Subsection (4); or
(b)	a nominated candidate under Subsection (4) fails to receive a simple majority of the votes in the election under Subsection (5),

the Parliament shall otherwise elect a Prime Minister in accordance with Standing Orders of the Parliament.

(8)	In an election of a Prime Minister under Subsection (7)—

(a)	a registered political party, who declined to nominate a candidate under Subsection (4), may nominate a candidate; and
(b)	a nominated candidate, who failed to receive a simple majority of votes in an election under Subsection (5), may be nominated.

81.	Mr Sheppard submits that:

•	s 108(1) of the Constitution obliges the Speaker to amongst other things regulate the Parliament’s proceedings – including the election of a Prime Minister – “in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders”’;

•	s 114(1) of the Constitution requires that “all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting”;

•	s 142(2) of the Constitution requires that the appointment by the Head of State of a Prime Minister be “in accordance with a decision of the Parliament”, which by necessary implication means a decision made in accordance with the Standing Orders; and

•	s 63(7) of the Organic Law on the Integrity of Political Parties and Candidates requires that the Parliament, in the circumstances of this case, had to elect the Prime Minister “in accordance with the Standing Orders of the Parliament”. 

82.	In determining these submissions, the first thing to emphasise is that the Standing Orders are not Constitutional Laws. The term Constitutional Law is defined by Schedule 1.2(1) (meaning of certain expressions) of the Constitution to mean “this Constitution, a law altering this Constitution or an Organic Law”. 

83.	Standing Orders are made by the Parliament under s 133 (standing orders) of the Constitution, which states:

The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed or provided for by the Standing Orders of the Parliament.

84.	Standing Orders, though made under the Constitution, do not form part of the Constitution or any other Constitutional Law. It is the alleged breach by the Speaker of the procedures in the Standing Orders regarding election of a Prime Minister, on which the applicant’s case is based. The applicant’s case is not based on alleged breach of procedures prescribed by any Constitutional Law. 

85.	Though the applicant asserts that his case is based on the alleged breach of procedures prescribed by Constitutional Laws, in fact, it is not. It cannot be, as there are no procedures prescribed by Constitutional Laws for election of a Prime Minister. The power to elect a Prime Minister is conferred by s 142 of the Constitution. However, the procedures for exercise of that power are left to the Parliament to determine. Likewise with other provisions of the Constitution relied on by the applicant: ss 108 and 133 do not prescribe any procedures for appointment of a Prime Minister. 

86.	Section 63 of the Organic Law on the Integrity of Political Parties and Candidates does provide procedures for election of a Prime Minister, but only in the case of the first election of a Prime Minister after a general election. Section 63 is in Division V.4 (invitation to form government). It does not apply in this case. 

87.	Moreover, there are no Constitutional Laws that ‘specifically provide’ – that being the requirement in s 134 of the Constitution to make the question of the Parliament’s compliance with procedures justiciable – for the procedures for election of a Prime Minister.

88.	I reject Mr Sheppard’s submission that the procedures for the Parliament’s election of a Prime Minister are specifically provided by the Constitutional Laws. I uphold the submissions of the opposing counsel: there are no Constitutional Laws that specifically provide the procedure for appointment of a Prime Minister in the circumstances of this case. 

89.	I find that the applicant’s case raises questions whether the procedures prescribed for the Parliament have been complied with, and that those procedures are not specifically provided by Constitutional Laws. The questions are non-justiciable. The questions cannot be determined by this Court. 

90.	The Court has no jurisdiction to determine the questions. For this reason alone the application must be dismissed.

91.	However, as there has been considerable argument on the question of compliance with procedures, I will briefly address whether there was any breach of the Standing Orders on 30 May 2019.

2	WAS THERE ANY BREACH OF THE STANDING ORDERS? 

First alleged breach

92.	The applicant argues that the Speaker allowed Mr Marape to be nominated as a candidate by an individual member of the Parliament (Hon Sir Peter Ipatas MP) not by a qualified political party, contrary to s 7A(3) of the Standing Orders of the Parliament. 

93.	There are three provisions of the Standing Orders that prescribe procedures for election of a Prime Minister: ss 7 (election of Prime Minister following invitation by the Governor-General), 7A (election of Prime Minister after invited party fails to form government) and 7B (election of Prime Minister at other times). 

94.	The starting point for the present case was s 7B, which states:

(1) 	Where there is a vacancy in the office of the Prime Minister at any other time, other than after a general election, the Prime Minister shall be elected in accordance with the provisions of Section 7A.

(2)	Section 7A(14) shall not apply to this section.

95.	The effect of s 7B was to require that the procedure to be followed in the present case was prescribed by s 7A, which states:

(1)	After a general election where the Prime Minister is not elected in accordance with Section 7, the Prime Minister shall be elected by motion duly moved and seconded without notice in accordance with this Section.

(2)	The Speaker shall call for an accept nominations, duly moved and seconded.

(3)	A party that nominated a Member under Section 7 may nominate a candidate under this Section.

(4)	A Member nominated under Section 7, may be nominated under this section.

(5)	Each Member nominated shall inform the Parliament whether he accepts the nomination.

(6)	A nomination that is not seconded is not a valid nomination.

(7)	In the case of one nomination, Members shall vote by dividing and moving to positions indicated by the Speaker.

(8)	In the case of two nominations, Members shall vote by dividing and moving to positions indicated by the Speaker.

(9)	In the case of three or more nominations, Members shall vote by diving and moving to positions indicated by the Speaker.

(10)	 In the case of three or more nominations, if no Member receives a majority of the votes cast, a process of eliminating the Member with the smallest number of votes shall be conducted by Members diving and moving to positions indicated by the Speaker.

(11)	If a Member nominated in accordance with this Section receives a majority of the votes cast, he shall be declared elected.

(12)	In the case of equality of votes, the Speaker who has no deliberative vote, has a casting vote.

(13)	In each case, the Clerk shall record the vote in the Minutes of Proceedings.

(14)	The Prime Minister, after having been sworn into office, shall inform the Parliament of the time the Governor-General will address the Parliament and the Parliament may then suspend or adjourn its sitting until that time, when it shall again attend and await the arrival of the Governor-General. 

96.	The applicant argues that ss 7A(3) and (4) required that only the party that nominated a candidate under s 7 (in this case, that party was the People’s National Congress) could nominate the first candidate, and that it was not permissible for an individual member of the Parliament to nominate the first candidate. Those provisions were breached as the People’s National Congress was not permitted to nominate the first candidate and Mr Marape was nominated by an individual member, Hon Sir Peter Ipatas MP.

97.	I find no merit in that argument. Section 7A(3) does not say that only “a party that nominated a candidate under s 7 may nominate a candidate”. All that s 7A(3) says is that “a party that nominated a candidate under s 7 may nominate a candidate”. The critical word is “may”. Section 7A(3) ensures that the party that nominated a candidate under s 7 is not prevented from nominating a candidate in an election conducted under s 7A, and that any candidate nominated under s 7 can be nominated in an election conducted under s 7A. Sections 7A(3) and (4) do not constrain the Speaker in the manner contended for by the applicant.

Second alleged breach

98.	The applicant argues that by unilaterally accepting Mr O’Neill’s withdrawal of his nomination, after the close of nominations, the Speaker acted contrary to s 158 (restrictions on withdrawal of motions) of the Standing Orders, which states:

After a motion has been moved it shall be deemed to be in the possession of the Parliament and cannot be withdrawn without leave.

99.	It is argued that once Mr O’Neill accepted his nomination, the motion of Hon Patrick Pruaitch MP for his nomination was “in the possession of the Parliament” pursuant to s 158 of the Standing Orders and could not be withdrawn by Mr O’Neill or nullified by the Speaker without the leave of the Parliament. It is further argued that the question of Mr O’Neill’s withdrawal of his nomination had to be put to a vote, as required by s 114(1) of the Constitution. 

100.	The applicant asserts that the unilateral acceptance by the Speaker of Mr O’Neill’s withdrawal of his nomination did not meet the minimum requirements of fairness required by s 59(2) of the Constitution, which states:

The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

101.	Unfairness arose because the unilateral withdrawal of Mr O’Neill’s nomination had the effect of misleading the other members of the Parliament, who were about to make the important decision as to who would be the next Prime Minister, into the false belief that Mr O’Neill would be a candidate, and this may have discouraged others from nominating. It is argued that the unilateral withdrawal of Mr O’Neill’s nomination deprived the nominator and the seconder and their constituents of the right to take part in the important public affair of deciding who should be appointed to the office of Prime Minister, and that the effect of this was to deprive those members and their constituents of their right to freedom under s 32 of the Constitution and their right to take part in the conduct of public affairs under s 50 of the Constitution.

102.	Section 32 (right to freedom) states:

(1)	Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2)	Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a)	does not injure or interfere with the rights and freedoms of others; and
(b)	is not prohibited by law,

and no person—

(c)	is obliged to do anything that is not required by law; and
(d)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

(3)	This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.

103.	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.

104.	It is argued by the applicant that the manner in which the nominations and withdrawal of one nomination took place effectively and unfairly eliminated any credible opposition to the nomination of Mr Marape, and that this frustrated the proper discharge of the Parliament’s role in fairly and freely deciding on who to appoint as Prime Minister.

105.	I reject all of those submissions as they are all based on a flawed interpretation of s 158 of the Standing Orders. Section 158 applies to “motions”, a term that is not defined in the Standing Orders. I consider that the nomination of a candidate for the vacant position of Prime Minister is a special procedure not caught by s 158. It is a nomination, not a motion. 

106.	If I am wrong on that view, I would find that Mr O’Neill had the right to unilaterally withdraw his nomination as an exercise of free will, an enforcement of his right to freedom under s 32 of the Constitution, and his right to hold, and not to hold, public office as Prime Minister under s 50 of the Constitution. 

107.	I see no merit in the argument that what happened led to an unfair or dubious election or that the members of the Parliament were misled. Mr Marape was elected by an overwhelming majority. 

108.	I also see no merit in the argument that the question of Mr O’Neill’s withdrawal of acceptance of his nomination had to be put to the Parliament and decided by a majority of votes under s 114 of the Constitution. Mr O’Neill had the right to withdraw his own nomination and his acceptance of it. These were not “questions” that had to be put to a vote. 

109.	There was no breach of the Standing Orders and no breaches of any Constitutional Laws occurred. 

Consequences of any beaches

110.	If I am wrong in concluding that there were no breaches of the Standing Orders, I would find that any breaches that occurred were inconsequential. The fact is that no member of the Parliament raised a point of order or complained about or disputed the conduct of the election. 

111.	In terms of the Constitution, in the election on 30 May 2019:

•	no member of the Parliament, least of all the applicant, was deprived of his rights to vote and stand for public office conferred by s 50 of the Constitution;

•	the election was conducted by the Speaker for all intents and purposes in purported compliance with the Standing Orders in accordance with s 108(1) of the Constitution;

•	the question of who should be the next Prime Minister was decided in accordance with the majority of votes of the members present and voting in accordance with s 114(1) of the Constitution; 

•	the Prime Minister was appointed by the Governor-General on 30 May 2019 in accordance with the decision of the Parliament, as required by s 142(2) of the Constitution. 

112.	I would have concluded, that if there were breaches of the Standing Orders, any breaches were committed in good faith and were technical breaches, that no member complained about. It would be contrary to the interests of justice to declare that Hon James Marape’s election was unconstitutional.

113.	I make those comments in passing, without resiling from my primary conclusion that there was no breach of the Standing Orders and no breach of any Constitutional Laws. 

3	WHAT ORDERS SHOULD THE COURT MAKE?

114.	I would dismiss the application and order the applicant to pay the costs of the first, second, third and fifth respondents on a party-party basis, to be taxed if not agreed.

115.	MANUHU J: The applicant is asking the Court to declare that the decision of Parliament to elect the Prime Minister on 30 May 2019 is inconsistent with the Constitution (particularly ss 50, 108, 114, 142) and is to the extent of that inconsistency, invalid and ineffective. The applicant seeks the following orders:

•	an order in the nature of a declaration that the election of the Hon James Marape, MP as Prime Minister was invalid, ineffective and void ab initio;

•	an order in the nature of a declaration that the office of the Prime Minister is currently vacant;

•	an order that the Speaker convene Parliament as soon as practicable for the purpose of deciding on the appointment of one of its members to the Office of Prime Minister, in accordance with the Constitution and the Constitutional Laws.

116.	The Court heard full arguments by counsel for the applicant and five interveners on 23 November 2020. The five interveners are Honourable James Marape, Prime Minister, Honourable Job Pomat, Speaker, Hon Davis Steven, Deputy Prime Minister and Attorney General, Dr Alphonse Gelu, Registrar of Political Parties and Pangu Pati Inc.

117.	The facts are not disputed. They are set out in the judgments of the Chief Justice and my colleague members of the bench suffice to say that the application arose from the proceeding of Parliament during the election of the Prime Minister. The main contention is that the Speaker breached the Constitution and Standing Orders when he unilaterally accepted the withdrawal of Peter O’Neill’s nomination after close of nominations.

118.	Nominating a person is one part of an election process. The word election is defined by Oxford Advanced Learner’s Dictionary as the process of choosing a person or a group of people for a position, especially a political position, by voting. There are usually two steps in an election process, depending on the nature of the election. The first step is the nomination process. The second step is the actual election, which is sometimes referred to voting or polling.

119.	In the case of general elections in PNG, for instance, the Organic Law on National and Local-level Government Elections, provides for the form and mode by which nominations are formally received. The actual election or voting of members of Parliament are also prescribed. It is important, in my view, to appreciate the distinction so that the legal issues are clearly identified and resolved.

120.	Accordingly, on the facts, the initial question is whether Peter O’Neill could withdraw his nomination after close of nominations. The second question is whether the Speaker breached any provision of the Standing Orders and the Constitution when he unilaterally accepted the withdrawal by Peter O’Neill.

WHETHER PETER O’NEILL COULD WITHDRAW HIS NOMINATION AFTER CLOSE OF NOMINATION?

121.	Proceedings of Parliament are regulated primarily by the Standing Orders. Section 1 of the Standing Orders states that the Standing Orders are subject to the provisions of the Constitution, and except as otherwise provided by the Standing Orders, words and phrases used in these Standing Orders have the same meaning as in the Constitution.

122.	In relation to election of Prime Minister, particularly the one in question, s 7B(1) of the Standing Orders provides that where there is a vacancy in office of the Prime Minister at any other time, other than after a general election, the Prime Minister shall be elected in accordance with the provisions of s 7A:

(1)	After a general election where the Prime Minister is not elected in accordance with Section 7, the Prime Minister shall be elected by motion duly moved and seconded without notice in accordance with this Section.

(2)	The Speaker shall call for an accept nominations, duly moved and seconded.

(3)	A party that nominated a Member under Section 7 may nominate a candidate under this Section.

(4)	A Member nominated under Section 7, may be nominated under this section.

(5)	Each Member nominated shall inform the Parliament whether he accepts the nomination.

(6)	A nomination that is not seconded is not a valid nomination.

(7)	In the case of one nomination, Members shall vote by dividing and moving to positions indicated by the Speaker.

(8)	In the case of two nominations, Members shall vote by dividing and moving to positions indicated by the Speaker.

(9)	In the case of three or more nominations, Members shall vote by diving and moving to positions indicated by the Speaker.

(10)	 In the case of three or more nominations, if no Member receives a majority of the votes cast, a process of eliminating the Member with the smallest number of votes shall be conducted by Members diving and moving to positions indicated by the Speaker.

(11)	If a Member nominated in accordance with this Section receives a majority of the votes cast, he shall be declared elected.

(12)	In the case of equality of votes, the Speaker who has no deliberative vote, has a casting vote.

(13)	In each case, the Clerk shall record the vote in the Minutes of Proceedings.

(14)	The Prime Minister, after having been sworn into office, shall inform the Parliament of the time the Governor-General will address the Parliament and the Parliament may then suspend or adjourn its sitting until that time, when it shall again attend and await the arrival of the Governor-General. 

123.	Section 7A does not have any provision on withdrawal of nominations. Section 7 of the Standing Orders is devoted to election of Prime Minister after a general election and is not applicable. The Constitution is also silent on withdrawal of nominations.

124.	That notwithstanding, I am of the view that Peter O’Neill has the right to withdraw his nomination. The sources of his rights are ss 48 and 50 of the Constitution. Section 48 (freedom of employment) gives every person, including Peter O’Neill, the freedom of choice of employment in any calling. The section reads:
	
(1)	Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.

(2)	Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.

125.	Under s 50 (right to vote and stand for public office), every person, including Peter O’Neill, has the right to stand or not to stand for public office. The section 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.

126.	It would be inappropriate and unconstitutional to prevent someone, let alone a member of Parliament, from withdrawing his nomination. Peter O’Neill is entitled to withdraw his nomination and he exercised that right when he withdrew his nomination. It is a mere question of procedure as to how the withdrawal should be facilitated.

127.	I would answer the first question in the affirmative.

WHETHER THE SPEAKER BREACHED ANY PROVISIONS OF STANDING ORDERS AND THE CONSTITUTION WHEN HE UNILATERALLY ACCEPTED THE WITHDRAWAL OF NOMINATION BY PETER O’NEILL? 

128.	The office of the Speaker has to be appreciated. Section 107 of the Constitution establishes the Office of the Speaker, thus:

(1)	There shall be offices of Speaker and Deputy Speaker of the National Parliament.

(2)	The Speaker and the Deputy Speaker must be members of the Parliament and shall be elected by the Parliament by secret ballot in accordance with the Standing Orders of the Parliament.

(3)	The Speaker and the Deputy Speaker hold office, and their offices become vacant, in accordance with the Constitutional Laws and the Standing Orders of the Parliament.

(4)	No Minister or Parliamentary Leader of a registered political party may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes a Minister or Parliamentary Leader of a registered political party he vacates his office as Speaker or Deputy Speaker, as the case may be.

129.	The Speaker is the head of the legislative arm of government, which is one of the three arms of government. His functions are spelt out in s 108 of the Constitution, as follows:

(1)	The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.

(2)	In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.

(3)	A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.

130.	The Speaker is the legitimate authority on parliamentary procedures and any question relating to parliamentary procedures. It was argued, however, that a nomination under s 7A is a motion and as such, pursuant to s 158 of the Standing Orders, leave of Parliament was required before Peter O’Neill’s nomination could be validly withdrawn.

131.	Section 158 provides:

After a motion has been moved it shall be deemed to be in the possession of the Parliament and cannot be withdrawn without leave.

132.	Section 7A(1) characterizes a nomination as a motion without notice, thus:

… the Speaker shall call for nominations, duly moved and seconded without notice in accordance with this Section.

133.	Section 158 is in Part XV (motions, questions and resolutions). This Part is devoted to motions on the Notice Paper. The word Notice Paper appears at least six times under Part XV. The opening section, s 151, reads:

Subject to the Standing Orders of the Parliament, a Member shall not, except by leave of the Parliament move a motion in accordance with a notice appearing on the Notice Paper.

134.	I find therefore that a nomination under s 7A of the Standing Orders is a motion without notice and, as such, s 158 does not apply.

135.	The silence of the Standing Orders and Constitution prompted me to look elsewhere for comparable provisions on withdrawal of nominations. In that regard, the Organic Law on National and Local-level Government Elections, s 94 may be helpful.

136.	Section 85 of the Organic Law prescribes the mode of nomination, as follows:

A nomination shall be in the prescribed form and shall—

(a)	name the candidate, his place of residence and occupation; and
(b)	set out the qualifications by virtue of which he is qualified for nomination; and
(ba)	state the political party that endorses the candidate or, if no political party endorses the candidate, state the word "independent"; and
(c)	be witnessed by a person to whom the candidate is personally known.

137.	Under s 86(1), nominations of members “may be made to the Returning Officer for the electorate for which the election is to be held, to the Provincial Returning Officer of the province in which the Open electorate is located, to an Assistant Returning Officer for that electorate, or to a person thereunto authorized by the Electoral Commission.”

138.	The Organic Law then made provisions for withdrawal of nomination in the following manner:

(1)	A candidate may withdraw his nomination by lodging with the Returning Officer for the electorate, or with an Assistant Returning Officer for the electorate or a person authorized for that purpose by the Electoral Commission, a notice of withdrawal in the prescribed form, and thereupon the nomination shall be cancelled and the deposit lodged shall be returned.

(2)	A withdrawal of nomination may be made—

(a)	in the case of a notice of withdrawal lodged with the Returning Officer—at any time before the hour of nomination; or
(b)	in the case of a notice of withdrawal lodged with an Assistant Returning Officer or other person referred to in Subsection (1)—more than 24 hours before the hour of nomination.

(3)	Where a notice of withdrawal of nomination is lodged with an Assistant Returning Officer or other person referred to in Subsection (1), he shall immediately notify the Returning Officer by electronic advice, in the prescribed form, of the withdrawal and forward the notice to the Returning Officer.

(4)	A political party endorsement made on a nomination form shall not be withdrawn or otherwise amended after the hour of nomination.”

139.	Essentially, withdrawal of nominations under the Organic Law is fashioned in the same manner as the lodging of nominations. Nominations are made in the prescribed form and lodged with the Returning Officer, Assistant Returning Officer or a person so authorised by the Electoral Commission. Withdrawal of a nomination is similarly conveyed to the same officers in a prescribed form.

140.	The other comparable provision is in the Standing Orders. Under s 129, a Government notice of motion shall be given by a Minister by stating its terms to the Parliament and delivering a copy to the Clerk or delivering a copy of its terms to the Clerk. In relation to private notices of motion, it is submitted to the Chairman of the Private Business Committee, presumably for vetting purposes, and the Committee then delivers a copy of its terms to the Clerk.

141.	In relation to withdrawals, s 136 provides:

A Member who has given a notice of motion may withdraw the notice by notifying the Clerk in writing, at any time before the time proposed for moving the motion. (my emphasis)

142.	Notice that essentially withdrawal of a notice of motion is prescribed in the way has the presentation of the notice of motion. A notice of motion under s 129 is in writing, to the Clerk. In the same way, withdrawal of a notice of motion is required to be in writing and conveyed to the Clerk.

143.	Guided by these comparative provisions, I am of the view that in the absence of a prescribed procedure, the Speaker would be entitled to receive advice of withdrawal in the same manner as the nomination. I am also of the view that if s 136 of the Standing Orders is of any utility, and I think it is, I also find that a nomination may be withdrawn “at any time” before the election of Prime Minister.

144.	On that basis, I am satisfied that it was within the bounds of reason for the Speaker to accept Peter O’Neill’s withdrawal of his nomination. He processed the withdrawal of nomination in the same manner as he received the nomination. The Speaker correctly accepted the withdrawal of Peter O’Neill’s nomination and there was no breach of the Standing Orders.

145.	The further argument that the Speaker acted contrary to the Constitution ss 50, 108, 114, and 142 is also without merit. These provisions do not make provisions for withdrawal of nominations. In addition, consistent with ss 48 and 50 of the Constitution, Peter O’Neill, as a nominee, was entitled to his decision, his choice, to withdraw from the race.

146.	In relation to s 114, the section states that “all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting. In my respectful view, it is an absurdity to think that withdrawal of nominations should be the subject of parliamentary voting. It would potentially be an unnecessary encroachment on a nominee’s constitutional rights. Section 114 is suitable in cases where a parliamentary vote is necessary. One such occasion is the election of Prime Minister. Additionally, nominations of the type in question are motions without notice. They are not “questions” for the purpose of s 114.

147.	Section 142(2) of the Constitution is also alleged to have been breached. It reads:

The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

148.	On 30 May 2019, Parliament “appointed” James Marape as Prime Minister of Papua New Guinea. The events of 30 May 2019 unfolded without drama. When Peter O’Neill moved to withdraw his nomination, the applicant did not object. Nor did he raise a point of order when the Speaker accepted Peter O’Neill’s request. Nobody moved a motion to reopen nominations. During the election of the Prime Minister, the applicant participated in the election. The result of the election was that James Marape became the Prime Minister of Papua New Guinea on that day by 101 votes (out of 111). I find that there was no breach of s 142(2).

149.	For the foregoing reasons, I find ultimately that there has been no breach of ss 50, 108, 114 and 142 of the Constitution by the Speaker.

150.	In conclusion, I am of the view that the jurisdiction of the Supreme Court under s 18 of the Constitution does not include enforcement for which separate provisions are provided for in the Constitution and elsewhere. I also note the doctrine of separation of powers under s 99(3) of the Constitution and the provision on non-justiciability under s 134 of the Constitution. Therefore, my findings and conclusions are in the nature of an advisory opinion. In order words, had I found in favour of the applicant, I would have declined the grant of reliefs he is seeking.

151.	The application is dismissed with costs.

152.	HARTSHORN J: I agree with the Chief Justice and my brother Judges that this application should be dismissed with costs. 

153.	I add some observations concerning s 134 of the Constitution. Section 134 is as follows:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

154.	The natural and ordinary meaning of the wording of s 134 is that the question, being “whether the procedures prescribed for the Parliament or its committees have been complied with”, is non-justiciable. The exception is that the question “whether the procedures prescribed for the Parliament or its committees have been complied with”, is justiciable as specifically provided by a Constitutional Law. As far as I am aware, there is no such Constitutional Law. It is in this context, I suggest, that s 134 Constitution was initially considered.

155.	The first consideration by the Supreme Court of s 134 was in James Eki Mopio v The Speaker [1977] PNGLR 420. The Court 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 the procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, this Court has no jurisdiction to entertain the case now before it.

156.	In Kaguel Koroka v Philip Kapal [1985] PNGLR 117, Woods J reproduced the above passage from Mopio (supra) and made the following obiter statements:

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.

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.

157.	In 1993, a different approach to s 134 Constitution emerged. In Haiveta v Wingti (No 1) [1994] 160 at 177, Sheehan J sought to distinguish Mopio (supra) and stated as to s 115 and s 134 Constitution:

The net effect of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

158.	The issue of non-justiciability was not an issue in the appeal from that decision. Amet CJ commented however, that his conclusion concerning ss142(2), (3) and (4) Constitution had the effect of overruling the case of Mopio (supra).

159.	Subsequent judicial comment concerning s 134 has included:

a)	in SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126, by Kirriwom J at [714]:

Under s 134 of the Constitution the Courts are precluded from delving into the question of compliance or otherwise of the procedures prescribed for the Parliament or its committees.

b)	in the same case at [47] – [49] by Injia CJ in the context of s 142(2), (3) and (4) Constitution where his Honour said:

I find the judgment and reasoning in Wingti to be overwhelmingly persuasive and affirm the decision of that Court to overrule Mopio. I am of the view that the question whether Parliament complied with the procedures prescribed under s 142(2), (3) and (4) of the Constitution is justiciable.

c) in SC Ref No 1 of 2012, Re Prime Minister and NEC Act [2012] 1 PNGLR 74, where Injia CJ said:

 …. s 99(3), s 134 and s 115 of the Constitution do not oust the Supreme Court’s jurisdiction to determine Constitutional questions concerning Parliament’s exercise of Constitutional power.

160.	It is to be noted that the approach taken by Sheehan J in Haiveta v Wingti No 1 (supra), which in essence, has been followed in subsequent cases, in effect, interpreted the exception in s 134 to arise when there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action. With respect, that is not what is stated in s 134. As previously referred to, the exception stated in s 134, arises when there is a Constitutional Law that specifically provides that the question “whether the procedures prescribed for the Parliament or its committees have been complied with”, is justiciable. Further, the reference by Sheehan J at 177 in his judgment, to s 134 being subject to the Constitution, is also with respect, not correct. Section 134 is subject to the exception of a specified Constitutional Law. That is not the same as being subject to the Constitution. 

161.	At 169 Sheehan J states:

It is timely, considering ss 115 and 134 of the Constitution, to recall the separation of powers. As was said in the often-quoted headnote of the English case of Bradlaugh v Gossett (1884) 12 QBD 271:

The House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law. 

The like situation to that described is quite clearly what it is sought to (be) achieve(d) for the National Parliament in this country in s 115(2) and s 134 of the Constitution. Such a situation is clearly contemplated, where there is a separation of powers between the judiciary and the legislature.

162.	Notwithstanding that Sheehan J acknowledges that the situation pertaining to the British House of Commons is what was sought to be achieved for the National Parliament of Papua New Guinea, the effect of his interpretation of s 134, to my mind, has been to significantly diminish the effect and purpose of s 134 which was to prevent judicial interference into whether the procedures of Parliament have been complied with in the context of the separation of powers between the judiciary and the legislature. 

163.	Having said that, if it is accepted that the broader view of s 134 is to be preferred, the position is presently, that whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

164.	In this instance, I concur with the submission of the third intervener that the matters about which the applicant complains, being the motion relating to the nomination of a candidate for election as Prime Minister, the seconding of that motion, the accepting or declining of that nomination, the moving of a motion for the close of nominations and the withdrawal of the acceptance of a nomination as a candidate to be elected as Prime Minister after the close of nominations, are alleged breaches of Standing Orders. These are procedures prescribed by Parliament. Whether they have been complied with is non-justiciable. Further, the sections of the Constitution stated in the application are not sections which specifically provide for a procedure that must be followed in the circumstances pertaining to this case. There are therefore no such procedures in Constitutional Laws which are justiciable in this instance.

165.	Consequently, the application should be dismissed with costs.

166.	KARIKO J: I have read the draft judgment of my brother Cannings J and while I agree with his Honour’s reasoning and conclusions, I add these remarks.

INTRODUCTION

167.	On 28 May 2019, Hon Peter O’Neill MP, the then Prime Minister resigned from the office, following which the Parliament on 30 May 2019 elected Hon James Marape MP as the successor Prime Minister, who was subsequently duly appointed.

168.	The applicant, as the Leader of the Opposition of the Parliament, filed this application under s 18(1) of the Constitution, asking this Court to interpret and apply certain constitutional law provisions in relation to the election of Mr Marape as the Prime Minister, and have the election declared unconstitutional and invalid.

THE INTERVENERS AND THEIR POSITIONS 

169.	The parties that were joined as interveners are:

•	the Prime Minister – first intervener;
•	the Speaker of the Parliament – second intervener;
•	the Attorney General – third intervener;
•	the Registrar of Political Parties – fourth intervener;
•	Pangu Pati – fifth intervener.

170.	The interveners opposed the application except for the fourth intervener who supported the application, but for slightly different reasons. 

BACKGROUND FACTS

171.	The relevant background facts to the application are adequately set out in Cannings J’s judgment, and I need not repeat them.

THE APPLICATION

172.	Summarized, the applicant contends that the procedure followed by the Parliament to elect Mr Marape as the Prime Minister contravened these provisions of the Constitution:

•	s 50 (right to vote and stand for public office); 
•	s 108 (functions of the Speaker and Deputy Speaker);
•	s 114 (voting in the Parliament);
•	s 142 (the Prime Minister).

173.	The applicant has pleaded that the Speaker of the Parliament who is charged by s 108 of the Constitution with the responsibility of regulating the proceedings of Parliament “subject to and in accordance with the Constitutional Laws, Acts of the Parliament and the Standing Orders of the Parliament” failed to follow the proper procedure for electing a Prime Minister where there is a vacancy in the office, and which procedure is relevantly provided by s 7A(3) of the Standing Orders. 

174.	Section 7A(3) states that “A party that nominated a Member under Section 7, may nominate a candidate under this Section.” Section 7 provides that at the first sittings of the Parliament after general elections, the party invited by the Governor-General to form government, shall nominate a Member for election as the Prime Minister. The applicant submitted that this provision only permits the political party invited by the Governor-General to form government following the general elections, to nominate a candidate to be elected to fill the vacancy in the Office of the Prime Minister, and in the present case, the nomination of Mr Marape was not moved by such party. It was argued therefore that as the Speaker did not follow proper procedure, he was in breach of s 108 of the Constitution. 

175.	Further, the applicant has pleaded that the Speaker breached s 108 of the Constitution when he did not follow correct procedure by accepting the withdrawal of the nomination of Mr O’Neill as a candidate for the prime ministership, without leave of the Parliament. It is claimed that the failure to obtain the endorsement of the Parliament was contrary to the dictates of s 158 of the Standing Orders and s 114 of the Constitution, in that:

•	s 158 states that a motion that has been moved is “in the possession of the Parliament” and can only be withdrawn with leave (by implication, of the Parliament), while
 
•	s 114 provides for the voting in the Parliament, including the requirement that decisions of the Parliament must be by majority votes.

NOMINATION FOR PRIME MINISTER 

176.	In respect of the nomination of candidates for the election of the Prime Minister on 30 May 2019, the application does not plead the breach of any constitutional provision but merely alleges a breach of s 7A(3) of the Standing Orders. It is alleged that Mr Marape’s nomination was moved by Hon Peter Ipatas, and not by the party invited by the Governor-General to form government after the general elections, namely PNC, as required by this Standing Order. 

177.	If that is all that this Court has been asked to find and therefrom conclude that the election of Mr Marape as the Prime Minister was invalid, I would decline to make such determination on the basis that the determination would be contrary to s 134 of the Constitution, which deals with procedures for the Parliament and states:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under s 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it. (emphasis added)

178.	Interestingly, the applicant and the fourth intervener, did not argue much on the issue of non-justiciability under s 134. To my mind, this issue is the key for the resolution of the application by this Court. 

179.	When considering the application of s 134, one is reminded of the doctrine of separation of powers and its essence that each of the three arms of government should not unlawfully interfere with the functions of the others. In so far as this principle concerns the Parliament and the Judiciary, Sheehan J pertinently observed in Haiveta v Wingti [1994] PNGLR 160:

Cognisant of their roles and authority under the Constitution, both the National Parliament and the courts are at all times sensitive, as they must be, to any incursion on their jurisdiction. Just as the judiciary maintains its independence, so, too, the National Parliament maintains the prerogative of having exclusive say over its own proceedings and procedures. It is, therefore, with care and precision that questions relating to the boundaries of court and parliamentary jurisdiction must be determined.

180.	In that case Sheehan J ultimately held that the question of whether or not procedures of the Parliament have been complied with, is non-justiciable, unless there is a Constitutional Law that provides the procedure for Parliament to follow. His Honour relevantly stated:

The net effect of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

181.	A number of subsequent cases have approved this proposition including SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126 and SC Ref No 1 of 2012, Re Prime Minister and NEC Act [2012] 1 PNGLR 74. This is therefore the settled position in respect of the interpretation and application of s 134.

182.	Without pleading s 63 of Organic Law on the Integrity of Political Parties and Candidates, the applicant argued that this provision allows the Court to scrutinize whether the procedures under s 7A of the Standing Orders have or not been complied with. My reading of s 63 is that it sets out the procedure for the formation of government after a general election, including the election of the Prime Minister, and that it does not provide for the election of a Prime Minister when there is otherwise a vacancy in that office.

183.	I have not been convinced that there are other Constitutional Laws that provide the procedure for election of the Prime Minister when there is a vacancy, and that such provision was breached when Mr Marape was elected Prime Minister on 30 May 2019.

184.	Given my view regarding the application of s 134, it is not necessary to further discuss s 7A of the Standing Orders but I will offer some brief comments. In my view, the submission by the third intervener that s 7A should not be interpreted to mean that only the party invited by the Governor-General to form government after the general elections may nominate a candidate to be elected the Prime Minister where there is a vacancy in that office, has merit. I agree that such interpretation would effectively restrict or prohibit other Members of the Parliament from being able to contest for the office, and that would be contrary to s 50 of the Constitution which provides citizens the right to hold public office and discharge public functions and that would obviously include the office of the Prime Minister. 

185.	I confirm that the application made to this Court for a declaration that proper procedure was not followed in the Speaker’s conduct in respect of the nomination of candidates to be elected the Prime Minister, amounts to asking this Court to scrutinize the Standing Orders and inquire into the procedures of the Parliament, which is non-justiciable, and that would be contrary to s 134 of the Constitution. 

WITHDRAWAL OF NOMINATION

186.	As noted earlier, the applicant argues that the motion nominating Mr O’Neill as a candidate for the Prime Ministership could not be withdrawn without leave of the Parliament, as provided for by s 158 of the Standing Orders. That provision reads: “After a motion has been moved it shall be deemed to be in the possession of the Parliament and cannot be withdrawn without leave.” The applicant further submits that s 114 of the Constitution is also relevant as it states that all questions before the Parliament shall be decided by majority vote. The question of whether the nomination could be withdrawn was therefore a matter that required Parliament to vote on. 

187.	It is my opinion that the Standing Orders do not provide for the withdrawal of nominations for Prime Ministership. Under s 7A of the Standing Orders, the procedure for election of a Prime Minister is for a Member to move a nomination, seconded by another Member and accepted by the nominated Member, before it is considered a valid nomination. The motion proposing a nominee to be Prime Minister is not of the kind contemplated by s 158 of the Standing Orders. That provision is found under Part XV - Motions, Votes and Resolutions. Under this Part, motions may only be moved if notice of it has been listed on the Notice Paper. Motions without notice may be entertained by leave of the Parliament. After a motion is moved, the question is put to the Parliament and voted upon. Part XV also deals with precedence of business, failure to move motions and reinstatement of motions earlier withdrawn. 

188.	To my mind, the motions referred to under Part XV do not concern motions nominating a candidate for Prime Minister which pursuant to s 7A follow an invitation by the Speaker calling for nominations. Accordingly, s 158 of the Standing Orders has no application in the present case, and in turn, s 114 of the Constitution does not come into consideration, there being no requirement for the Parliament to vote on the withdrawal of Mr O’Neill’s nomination. Section 114 is otherwise relevant in respect of the election of the Prime Minister. When that question was put to the Parliament, it was properly decided in accordance with s 114. Mr Marape was duly elected by an overwhelming majority vote and without objection by any Member of the Parliament.

189.	It is also noted that while there is no procedural provision in the Standing Orders for the withdrawal of a nomination for the prime ministership, s 284 of the Standing Orders provides that where the Standing Orders do not provide for any matter including procedure, the Speaker shall decide. 

190.	Consequently, I find that when this Court is being asked to determine whether proper procedure was followed in dealing with the withdrawal of Mr O’Neill’s nomination, it is being asked to consider whether the Standing Orders and the procedures of the Parliament were complied with and that is non-justiciable pursuant to s 134 of the Constitution. 

191.	If I may briefly add, the submissions that a Member of Parliament cannot withdraw his nomination or his acceptance of the nomination without the approval of Parliament, must be rejected. In my view, the restrictions would impinge on the Member’s right under s 50 of the Constitution. As much as a Member of Parliament has the right to contest the Office of the Prime Minister, the converse applies, that is, the Member also has the right to decide not to vie for the Office.

UNLAWFUL ACT

192.	In submissions, the applicant also raised s 41 of the Constitution to argue that the manner in which Mr Marape was elected the Prime Minister was not reasonably justifiable in a democratic society and was therefore an unlawful act and unconstitutional. 

193.	I decline to consider this argument for the simple reason that s 41 was not pleaded in the application. 

CONCLUSION

194.	For my foregoing reasons, I too would refuse the application. I agree with the orders proposed by Cannings J. 

195.	BY THE COURT: For the above reasons the Court makes the following order:
 
(1)	The application is entirely dismissed.

(2)	The applicant shall pay the costs of the first, second, third and fifth interveners on a party-party basis, which shall, if not agreed, be taxed.
__________________________________________________________________
Young & Williams Lawyers: 	Lawyers for the Applicant 	
Jema Lawyers: 			Lawyers for the First Intervener
Wantok Legal Group:		Lawyers for the Second Intervener	
Nemo Yalo Lawyers: 		Lawyers for the Third Intervener
Fairfax Legal: 			Lawyers for the Fourth Intervener
Okil Lawyers: 			Lawyers for the Fifth Intervener