SUPREME COURT RULES AGAINST O’NEILL GOVERNMENT

by BRYAN KRAMER

Full bench (5 Judges) of the Supreme Court chaired by the Chief Justice Salamo Injia has upheld former Ombudsman Commission Ila Geno and former Opposition Leader Belden Namah applications challenging the O’Neill Government’s amendments to Section 145 of Constitution relating to a motion of no confidence.

Section 145 of the Constitution provides Parliament the power to move a motion of no confidence to remove the Prime Minister; his entire Cabinet (Ministers) or any individual Government Minister. The provision or section sets out the strict procedure or criteria to invoke these powers; which includes the grace period to which a motion of no confidence is prohibited (restricted), notice period required and number of MP’s needed to endorse or sign the notice of motion before Parliament can consider it.

Before reporting the specific findings of the Supreme Court ruling I thought it appropriate to first provide some background context and history to help understand the issues behind the ruing.

A “motion” is a formal proposal or recommendation made during formal meetings. Any member may move (table) a motion during meetings. The purpose of moving a motion is to seek the majority approval of the other members to formally adopt or approve it. Most motions may be moved verbally from the floor while important or special motions must be by formal notice. Before a motion can be considered or voted on it requires another member to second or endorse it. This practice is to ensure only genuine motions that have the support of the other members are considered. If a motion is moved by a member and without any other member to second it, it is struck down. Rules, practice and procedures of how meetings are conducted and motions moved are referred to as standing orders.

In the event the members of the meeting wish to deal with an issue not prescribed in the standing orders the members will first move a motion that the standing orders be suspended to first deal with the urgent agenda. The suspension of standing orders must be by motion, seconded and approved by majority vote of the members. If agreed the members will then break with protocol (standing orders) to deal with the issue and then return back to standing orders.

In this instance procedure on motion of no-confidence which is considered extremely important is prescribed in law under Section 145 of Constitution. Being a constitutional law the Members of Parliament may not ignore or suspend it and it must be followed to the letter.

When the Constitution was first adopted at Independence in 1975 the grace period within which a vote of no confidence could not be moved against the Prime Minister or his Cabinet following his election by Parliament was six (6) months. Constitutional Planning Committee Report explained the reason behind this was to give the newly appointed Prime Minister and his appointed Cabinet (Executive Government) enough time to settle in and develop its policy and legislative programs. The motion was required to be signed by one-tenth (10%) of the Members of Parliament and at least one week's notice (7 days) must be given.

At Independence Grand Chief Sir Michael Somare being the Chief Minister was appointed PNG’s first Prime Minister by the Constitution. He took the Country to the first general election in 1977 and was elected PM for the first time on the floor of Parliament. In 1980 first motion of vote of no confidence was moved against Somare who had held office for 2.5 years of 32 months before he was replaced by Julius Chan. 1982 Somare was returned as PM following the General Election. In 1985 Somare was voted out again by motion of no confidence after serving 3.3 years or 40 months in office before being replaced by Pais Wingti, Wingti was returned following 1987 General elections to serve a second term. However in 1988 he was removed by motion of no confidence after only serving 12 months in office and replaced by Sir Rabbie Namaliu, In 1991 Namaliu Government then amended the Constitution extending the grace period from 6 to 18 months and included restricting a vote of no confidence within the last 12 months of 5 year term of Parliament to ensure stability.

In 1992 Wingti was returned as Prime Minister following the General Elections and ironically benefited from 18 month grace period amendment by Namaliu. In September 1993 just three months short of 18 month grace period expiring Wingti designed a scheme to avoid facing a motion of no confidence by resigning and seeking re-election the next day. Wingti saw the opportunity that if he resigned and was re-elected then technically it should trigger another 18 month grace period from the date he was re-elected allowing him to be protected for further a 18 months . The law did not state that 18 month grace period shall commence from the date following general election but rather when a Prime Minister was elected.

Wingti secretly wrote to Governor General and Speaker of Parliament tendering his resignation. His letter to the Speaker reads:

"My Dear Speaker,

For many years, the no confidence motion provision in the Constitution has been used to destabilise the Government and the people of Papua New Guinea. It is my intention to now utilise the provision of the Constitution to remove the imminent threat of further votes of no confidence by having the Parliament express a vote of confidence in my position as Prime Minister.

Yours sincerely,
signed

PAIAS WINGTI, MP, PRIME MINISTER"

Wingti hatched a rather smart scheme to avoid facing a vote of no confidence from the opposition he instead resigned as Prime Minister and designed his own re-election through a “vote of confidence” thus controlling the process of his own re-election. However Wingit made a fatal mistake in that his re-election failed to follow the proper process. The then Opposition Leader Chris Haiveta challenged Wingti’s re-election in the Court as unconstitutional on the grounds that Section 142(3) of Constitution states if Parliament is in session when Prime Minister is to be appointed it should be done on the next sitting day. Wingti argued that he resigned on the 23rd while Parliament was in session and he was appointed the next day on 24th September 1993.

On 25th August 1994 Court ruled in favour of Haiveta finding that the Governor General having been informed of the Wingti’s resignation should have then informed Parliament through the Speaker and then Parliament would after being informed of the vacancy to appoint a new Prime Minister on the next sitting day.

On 30th August 1994 Parliament convened to elect a Prime Minister following the Supreme Court’s ruling declaring Wingti’s re-election null and void. Julius Chan who was the Deputy Prime Minister crossed the floor to join the Opposition and was elected Prime Minister. Chan was eventually forced to resign in March 1997 over the Sandline-Saga. John Giheno was elected acting Prime Minister and held office for only 4 months upto the next 1997 General Elections.

Late Bill Skate was elected Prime Minister following 1997 elections, he held office just over 2 years or 24 months before resigning. He was able to avoid being voted out after 18 month grace period by deliberating adjourning parliament for seven months. In the end after his Government's complete mismanagement of the economy he was forced to resign to avoid being voted out and was replaced by Mekere Morauta. Mekere served out the remaining term of Parliament carrying out major reforms to stabilise the PNG economy.

In 2000 Mekere Government also introduced constitutional amendments introducing Organic Law on the Integrity of Political Parties and Candidates (OLIPAC). These amendments restricted voting rights of Members of Parliament which included voting to elect a Prime Minister. The Organic Law also purposely restricted Members rights to change political parties or vote against their party’s collective decision making it difficult for them to cross the floor to challenge the Government or hold it accountable.

In 2002 Somare was returned as Prime Minister following General Elections. The constitutional amendments by Mekere Government restricting the voting rights of Members of Parliament or leaving their parties ensured Somare Government would serve a full five year term for the first time in PNG’s short parliament history. Somare was re-elected Prime Minister following 2007 General Elections. However in July 2010 Supreme Court upheld a special reference filed by Fly (Western) Provincial Government seeking constitutional interpretation of certain provisions of Mekere’s constitutional amendments and specific restrictive provisions in OPLIPAC . The Supreme Court struck down Mekere Government's constitutional amendments and certain provisions of the Organic Law on the grounds they were unconstitutional for restricting the rights and freedoms of Members of Parliament to vote and debate including the right to assemble or change political parties.

In August 2011 Somare was removed after parliament declared a vacancy while he was hospitalized overseas seeking urgent medical treatment he was replaced by Peter O’Neill. Parliament did not move a vote of no confidence against Somare because it was within the 12 month period leading upto 2012 elections which prohibited a motion of no confidence being moved against the Prime Minister. To get around it they instead declared there was a vacancy in the Prime Minister's position claiming Somare was unfit to remain in office and further he had been absent for three consecutive parliament sitting. Somare returned from Singapore challenging his removal was unconstitutional because there was no vacancy. The Supreme Court ruled in his favour however O'Neill Government ignored the Supreme Court ruling and instead accused the Judiciary of being politically compromised. Speaker and O'Neil defied the SC orders to reinstate Somare and he supported the move to arrest the Chief Justice and further passing legislation giving NEC powers to sack him.

By that time it was too late because O’Neill had established a grip on power going into the 2012 General Elections. He was returned following the elections and in 2012 amended the section 145 of Constitution extending the grace period from 18 to 30 months. In 2013 he proposed further amendments amending the notice period from 7 days to 3 months and amending the required number of MP’s to endorse the motion from 10% to 1/3 (33.3%) of Parliament. Of course such a proposal was absurd and served only to make it more difficult to remove him. So when word got out the majority of Parliament would vote against it to avoid public embarrassment he was forced to amend it to only 20% of MPs and one month’s notice. Parliament approved the amendment in 2013.

The following is a summary of the term each Prime Minister has served in office over the 9 Parliaments since the country's independence.

1st Parliament: 1975 – 1977 (2 year term) Somare appointed PM by the Constitution;

2nd Parliament: 1977 – 1982 Somare elected PM by Parliament following 1st General Election, served 32 months (2.6 years) before being removed by vote of no confidence and replaced by Chan who served 2.3 years upto the next elections;

3rd Parliament: 1982 – 1987 Somare elected PM following General Elections, served 40 months (3.3 years) before being removed by vote of no confidence and replaced by Wingti who served 1.7 years upto the next elections;

4th Parliament: 1987-1992 Wingti re-elected PM following General Elections, served 12 months before being removed by vote of no confidence and replaced by Namaliu who served 4 years upto the next elections;

5th Parliament: 1992 – 1997 Wingti elected PM following General Elections, served 15 months before resigning and re-elected, served 11 months before SC voided his re-election. Chan elected to fill vacancy served 2.5 years before being forced to resign. John Giheno served as acting PM for 4 months upto 1997 General Elections

6th Parliament: 1997-2002 Skate elected PM following General Elections, served 2 years before resigning to avoid a motion of no confidence replaced by Mekere who served upto 2002 General Elections

7th Parliament: 2002-2007 Somare elected PM following General Elections, served full five years in office.

8th Parliament: 2007-2012 Somare elected PM following General Elections, served 4.2 years before illegally removed by Parliament after declaring vacany, replaced by O’Neill who served 1 year upto 2012 General Elections.

9th Parliament: 2012-2017 O’Neill elected PM following General Elections remains in office.

The records confirm that most Prime Ministers served more than 2 years in office (24 moths) before being removed by Vote of no confidence. With exception to Wingti who was removed after only 12 months into his second term following the 1987 general elections. However he actually served more 2.8 years in the position as PM from the time he replaced Somare to the time he was replaced by Namaliu. Somare has never moved a motion of no confidence against a sitting Prime Minister. Most served more than 30 months before being removed defeating the purpose for tampering with the Constitution.

Part 2 of this article will cover the issues raised in the applications filed by former Ombudsman Commission Ila Geno and former Opposition Leader Belden Namah challenging the constitutionality of O’Neill Government amendments and the Supreme Court findings.

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