Statement by the Leader of the Opposition Rt Hon Mekere Morauta KCMG MP
The Supreme Court, in ordering the recall of Parliament, has given the Government and all Members of Parliament an opportunity to make amends, to correct illegal decisions and unlawful practices.
I appeal to all Members of Parliament to seize this opportunity.
Let us start 2011 in a way different from recent years.
Let us start by respecting and following the Constitution.
Three constitutional issues are of relevance to the sitting of Parliament that commences on January 11, 2011:
1. Election of the Governor-General
2. Motion of No Confidence
3. Parliamentary Sitting Days
If the people of
1. Election of the Governor-General
The Constitution and the Organic Law on the nomination of Governor-General set out clearly the procedures for Parliament to follow in election of a Governor-General.
As the Supreme Court has found, in its nullification of the proceedings of June 25, 2010, when the Somare Government announced the appointment of Sir Paulias Matane as Governor-General, the Somare Government breached the Constitution and the Organic Law.
I briefly explain the process to be followed so that members of the public will be able to assess whether the acting Speaker and the Government this time follow, or again break the law, in the conduct of Parliament in this session.
Those seeking to be elected as Governor-General must meet the qualifications set out in Section 87(1) of the Constitution.
A nominee must be a citizen who is:
· Qualified to be a member of Parliament or remain as a member of Parliament in accordance with Section 103 of the Constitution; and
· A mature person of good standing who enjoys the general respect of the community.
We should note in passing that the third qualification implies that the nominee is not meant to be a party-political nominee, in the way that the National Alliance has unashamedly declared its allegiance to an individual candidate – to the point of jetting delegations around the country carrying bags of rice.
The second and the third qualifications also imply that the nominee should not be a person who has been found to have broken the law.
Section 88(2) of the Constitution states that the Parliament shall nominate a person for appointment as Governor-General by:
· A simple majority vote; and
· In an exhaustive secret ballot.
The process is as follows. The Speaker (or, in this case, the acting Speaker) must:
1. Notify the Members of the Parliament of the need to elect a Governor-General;
2. Fix a date (within 10 days of the notification to Parliament of the vacancy) for the conduct of a ballot to decide the person nominated by Parliament to fill the vacant office; and
3. Call for nominations to fill the vacancy.
The Organic Law on the Nomination of the Governor-General prescribes a form that the Proposer of a nominee is to fill.
The Proposer must be a Member of Parliament, and 15 other Members of Parliament must sign the form as supporters of the nominee.
No Member can support more than one candidate, and the nominee must also sign the form accepting the nomination.
The proposal form must be handed to the Clerk, before the time fixed for the ballot.
The Clerk has the discretionary power to accept or reject proposal forms that are defective or where he reasonably believes that a proposed candidate is not qualified to be nominated and appointed Governor-General.
There is an argument current in legal circles that Sir Paulias Matane is not qualified to be nominated in January 2011, because he illegally occupied the office of Governor-General from May 26, 2010, illegally received benefits, and failed to vacate Government House by midnight on December 13, 2010, as ordered by the Supreme Court.
Even if the Clerk accepts the nomination of Sir Paulias, the proposal has to be in the correct form.
The Clerk must furnish the (acting) Speaker with a list of all candidates for election, so the Speaker may declare the names to the Parliament.
On the day fixed for the election the Clerk must distribute to each member present in the Parliament a ballot paper in a form he approves.
The ballot is to be an exhaustive secret ballot.
Should Sir Paulias be nominated correctly, and should his nomination be accepted by the Clerk, as a former Governor-General he would still have another step for qualification for the ballot.
An absolute majority (73) Members of Parliament must agree for him to be eligible to serve a second term.
Should 73 Members of Parliament agree for Sir Paulias to be eligible to serve a second term, the Parliament would then proceed to the exhaustive secret ballot, as set out in Sections 7, 8 and 9 of the Organic Law.
If 73 Members do not agree to Sir Paulias contesting again, his name cannot be put forward in the ballot.
It is in the interests of the people for the Acting Speaker and the Government to allow the Clerk to fulfil his lawful duties and for Parliament to follow the process set out under the Constitution and the Organic Law to elect our next Governor-General at some point during the next 10 days.
It is a secret ballot.
I appeal to all Members of Parliament to use wisdom and their conscience to vote for a candidate who does not represent narrow political or regional interests, a candidate who is known to be a law-abiding “mature person of good standing who enjoys the general respect of the community”.
2. Motion of No Confidence
The second issue of relevance to the January 2011 session of Parliament is the tabling of a motion of no confidence.
The Opposition has publicly announced its intention of forwarding to the Acting Speaker a motion of no-confidence in Prime Minister Michael Somare in a manner which entirely conforms with Section 145 of the Constitution and the Standing Orders of Parliament.
In October and November 2010, I wrote to Speaker Jeffrey Nape requesting clarification of the fact that a Motion submitted in accordance with Standing Order 130 and the Constitution must be delivered to the Clerk by the Private Business Committee for inclusion on the Notice Paper.
Speaker Nape’s written reply was: “As a motion of no-confidence is allowed under the Constitution and is of a substantive nature, the Private Business Committee has a very clear obligation to deliver it to the Clerk.”
The Speaker further stated that “once the procedural requirements [of Standing Order 22(3)] are met, the Committee clearly has no legal authority to impede the process thereafter”.
It is the view of the Opposition, supported by legal advice, that the Private Business Committee has no power to determine whether a Motion of No Confidence should or should not be voted on.
The power to make that decision is vested in Parliament, and Parliament alone – not the Speaker, not the Private Business Committee.
Section 11 of the Constitution states that the Constitution is the Supreme Law.
It is therefore not possible for the Private Business Committee to determine a Motion of No Confidence in a Prime Minister to be of “a parochial nature”.
Given the primacy of the Constitution, the Private Business Committee must determine that such a Motion is “a matter of national importance”.
That is the legal position.
In addition, there is a very compelling case for a Motion of No Confidence to be tabled as a matter of national importance in January 2011.
In December 2010. the Public Prosecutor wrote to the Chief Justice requesting the establishment of a Leadership Tribunal to hear charges of misconduct in office against the Prime Minister Sir Michael Somare.
That Leadership Tribunal will be established once the Courts resume after the Christmas recess.
Once the Tribunal is established and the Public Prosecutor then refers the matter to the Tribunal, Michael Somare must, by law, vacate the office of Prime Minister.
It is not a question of temporarily handing over to a favoured person to “act” while the Tribunal hears the case.
There will be a vacancy in the office.
The Opposition’s proposed Motion of No Confidence in Prime Minister Somare will state numerous grounds for the people’s loss of confidence in Michael Somare as Prime Minister.
His failure to submit Leadership Returns for 10 years is only one of the numerous failures cited.
Others include his wilful breaking of the Constitution and other laws, as set out in the Ombudsman Commission’s Report and the Defence Board of Inquiry into the Moti case; his contemptuous treatment of Parliament by disallowing debate, frequent adjournments and illegal decisions, as the Supreme Court found in the appointment of Sir Paulias as Governor General in June 2010; to name a few.
It is impossible for any person to argue that a Motion of No Confidence in a Prime Minister who has been referred by the Public Prosecutor to the Chief Justice to face leadership charges is not “a matter of national importance”.
I reiterate: A Speaker, Acting Speaker, Private Business Committee, a Prime Minister, Acting Prime Minister or Leader of Government Business, does not have the legal power to prevent tabling of a Motion of No Confidence in the Prime Minister, if it conforms to the provisions of Section 145 of the Constitution and to relevant Standing Orders of the Parliament.
By allowing Parliament to vote on the Opposition’s proposed Motion of No Confidence in Prime Minister Michael Somare, the (acting) Speaker and the Government have a second opportunity in this session of Parliament to demonstrate to the people that they no longer intend to wilfully breach the Constitution.
3. Parliamentary Sitting Days
The third issue that the Government has the opportunity to make amends on during this session of Parliament is the duration of the session and subsequent sessions from now to August 2011.
Section 124(1) of the Constitution prescribes that “the Parliament shall ... meet ... for not less than nine weeks in each period (of twelve months)”.
In 1999 the Supreme Court ruled that the meaning of “nine weeks’ in this context was 63 days and that the ‘parliamentary year’ commenced on the day after the return of writs following a general election.
In the current Parliamentary year, which commenced on August 07, 2010, Parliament has sat for only FOUR days.
In the 2008-2009 parliamentary year, Parliament sat for only 31 days, less than half of the prescribed 63 days.
In the 2009-2010 parliamentary year, Parliament sat for only 35 days, 28 days short of the required 63 days.
When the Government adjourned Parliament on November 25. 2010, the date set for resumption May10, 2011.
Even if Parliament were to sit for FOUR days every week of the 12 weeks from May 10 to August 7, Parliament would only sit for 47 days, making a total of 51 days – again short of the required 63 days.
So when the Government adjourned Parliament in November to May, it was again in deliberate breach of the Constitution.
We all know the reason that the Government did not want to sit for the first 5 months of this year – to avoid a possible vote of no confidence.
Even when on December 10, 2010, the Supreme Court ordered Parliament to sit within 40 days, the Government tried to avoid this and requested the Acting Speaker to go back to court, arguing that the Court did not have the power to recall Parliament.
The Government’s intentions in this challenge to the Supreme Court were nakedly clear – they wanted to defy the court order so as to avoid recalling Parliament – so as to avoid a vote of no-confidence.
The Acting Speaker’s application to the Supreme Court was dismissed with a very stern statement and strong criticism of the intentions behind the application.
In ordering the recall of Parliament, the Supreme Court has given the Government a third opportunity to demonstrate that it is finally prepared to start respecting and following the Constitution, by allowing Parliament to sit for a considerable period during this session, and by setting the date for the next session early in the year, so that Parliament might sit for a minimum of 59 days from January 11 to August 5, 2011, and meet the constitutional requirement of 63 sitting days during the current parliamentary year.
Conclusion
This session of Parliament gives the Government and all Members of Parliament three explicit opportunities to show the people that Members of Parliament do respect and obey the laws of our country.
There are clear provisions laid out in the Constitution for the three issues I have raised which are pertinent to the current sitting of Parliament, namely:
· election of the Governor-General;
· voting on a motion of no confidence in the Prime Minister; and
· No early adjournment of Parliament.
I appeal to all Members of Parliament to ensure that we make amends to the people by abiding by the Constitution in relation to each of these issues.
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