Police tighten security in court

By KARO JESSE
THERE was heavy police presence yesterday around the National Court precinct in Waigani and public movement into the court house was restricted.
The court room was filled to the brim with government officials, MPs and their associates.
Present in court were Ialibu-Pangia MP Peter O’Neill (applicant), Opposition Leader Belden Namah, Justice Minister and Attorney-General Pila Niningi, Petroleum Minister Kerenga Kua, Northern Governor Gary Juffa and Kundiawa MP William Onglo.
The unanimous decision by a five-man bench comprising Chief Justice Sir Gibbs Salika, Justice George Manuhu, Justice David Cannings, Justice Derek Hartshorn and Justice Ere Kariko found that Pomat’s decision on Nov 16 to “overrule” deputy Speaker Koni Iguan’s decision (of Nov 13 sitting) and recall Parliament on Nov 17 was ineffective and unconstitutional.
Justice Manuhu was absent. Justice Sir Gibbs announced on his behalf that he had agreed with the decision of his fellow judges and concurred with orders proposed by Justice Cannings.
The judges declared that:

• The sitting of Parliament on Nov 13 and decisions made during that sitting including decision to adjourn to Dec 1 was constitutionally valid;
• The 2021 National Budget passed at the sitting on Nov 17 was unconstitutional, invalid and ineffective;
• The Speaker’s decision on Nov 16 to overrule the decision of Parliament was unconstitutional, invalid and effective;
• The sitting of Parliament on Nov 17 was unconstitutional and its decision to adjourn to April 20, 2021 was unconstitutional, invalid and ineffective;
• The decision of Parliament regarding changes to the Members of Private Business Committee made at its Nov 17 sitting was unconstitutional, invalid and ineffective.

The case was filed on Nov 18 by O’Neill after Pomat on Nov 16 stated publicly that deputy Speaker Koni Iguan’s decision to allow a person none other than a minister to move a motion without notice to adjourn parliament breached the organic law and the constitution.
When Parliament sat on Nov 13, deputy Speaker Iguan granted leave to Opposition Leader Belden Namah to have the standing orders suspended. Namah then moved a motion without notice to adjourn Parliament to Dec 1.
Pomat, without giving sufficient time to notify MPs of his decision to recall parliament, announced on Nov 16 that he had overruled the deputy Speaker’s decision and that parliament would reconvene on Nov 17.
On Nov 17 the parliament sat minus the Opposition MPs and passed the 2021 National Budget without a proper debate. It then adjourned to April 2021.

Unanimous decision reached by judges on Parlt issues

THE five judges concurred on their responses to the four main issues raised in the case filed by Ialibu-Pangia MP Peter O’Neill.

Issue One: Whether the Parliament’s decision on Nov 13 to adjourn to Dec 1 based on a motion without notice by Opposition Leader Belden Namah was constitutional.

SIR GIBBS: Parliament’s decision on Nov 13 to adjourn to Dec 1 based on a motion without notice by the Leader of the Opposition (Belden Namah) is not unconstitutional. Namah, who was not a minister, moved a motion to adjourn Parliament to another date within the same meeting session. He was fixing a new meeting time and date.

CANNINGS: I find that the Parliament’s decision of Nov 13 to adjourn to Dec 1 was constitutional. The Opposition Leader’s motion was a lawful exercise of his right as a member of parliament. It was resolved by a majority of 57 votes to 39 votes.

KARIKO: Parliament lawfully adjourned its sitting to Dec 1 and the purported meeting of Nov 17 was constitutionally invalid. Noting that Dec 1 has now passed, it is proper that Parliament convene and continue its November sittings as soon as practicable.

HARTSHORN: I respectfully agree with the judgments of the Chief Justice and my brother judges (Canning and Kariko).

MANUHU: I respectfully agree with their Honours’ opinions and the conclusions that are drawn and the reasons given for drawing them.

Issue Two: Whether the Speaker’s decision on Nov 16 to “overrule” the decision made by the deputy Speaker to grant leave to the Opposition Leader to move a motion to adjourn Parliament from Nov 13 to Dec 1 was unconstitutional.

SIR GIBBS: The Speaker is not given any power to overrule or veto the decision of the deputy Speaker by the Constitution or by an Organic Law. The deputy Speaker is equal with the Speaker in terms of “rights, privileges, powers, functions, duties and responsibilities.”

CANNINGS: I have already concluded that the Parliament’s decision to adjourn its sittings to Dec 1 was constitutional. The Speaker’s decision was based on a false premise and is therefore seriously flawed.

KARIKO: (Speaker) Pomat relied on an incorrect interpretation of the Organic Law to purportedly overrule the (deputy Speaker’s) ruling and recall Parliament to sit on Nov 17. The overruling and recall were unlawful and unconstitutional. I have found that the adjournment by Parliament on Nov 13 was lawful and valid.

Issue Three: Whether the Parliament meeting on Nov 17 was unconstitutional.

SIR GIBBS:The answer to this question is a consequence of the answers to the (two) earlier questions. The purported meeting of parliament on Nov 17 was unconstitutional and therefore invalid.

CANNINGS: I can draw no other conclusion than that the sitting of Parliament on Nov 17 was unconstitutional. It follows that all the decisions of Parliament made on Nov 17 including the passing of the 2021 National Budget and the adjournment to April 20, 2021 were unconstitutional.

KARIKO: I agree with the assertion that if the Speaker was seriously concerned that issues of interpretation and application of the Organic Law as a Constitutional Law arose from events (in) Parliament on Nov 13, the proper course to address those perceived issues would have been to seek legal advice and, if warranted, seek the determination of the issues by this court.

Issue Four: Whether the decision of Parliament on Nov 17 are constitutional and valid:

• To adjourn to April 20, 2021;
• Passing the 2021 National Budget;
• To change the membership of the Members’ Private Business Committee.

SIR GIBBS: The decisions of Parliament made on Nov 17 as a consequence of an invalid and unconstitutional calling of Parliament on Nov 17 are unconstitutional and invalid and are of no consequence.

CANNINGS: I would grant the relief sought by the applicant (O’Neill) and order the interveners to pay the applicant’s costs.

Roles of Speaker clarified by judge

THE Speaker of Parliament is responsible for upholding the dignity of the Parliament, regulating its proceedings and administering its affairs, says Justice Derek Hartshorn.
He said this was clearly laid out in Section 108 of the Constitution.
“To uphold the dignity of the Parliament is to ensure that persons conduct themselves appropriately and treat the processes and procedures of the Parliament with respect,” he said in his judgment.
“This is a responsibility conferred upon the Speaker pursuant to Section 108(1). Sections 108(1) and (2) provide powers, functions, duties and responsibilities. This is by providing that other laws may provide for other powers, functions, duties and responsibilities.
“What the Speaker purports to rely on for his decision, the upholding of the dignity of the Parliament, is described in section 108(1) as a responsibility.
“It is not described as a function or duty and significantly, it is not described as a power.”
He said to be able to overrule a decision of the Deputy Speaker or to be able to make a decision that has the effect of overruling a resolution of the Parliament, given the magnitude of such decisions, required a specific power to do so conferred by a law.
“Nowhere in Section 108 is the power given to the Speaker to override a decision of the “Chair” or the Deputy Speaker, or to override a resolution of the Parliament,” he said.
“I am of the view that as the act of the Speaker in purporting to overrule the decision of the Deputy Speaker or Chair was without power and the consequential act of overruling the resolution of the Parliament to adjourn to Dec 1 was without power. Those acts are inconsistent with the Constitution as they are acts in excess of the power and jurisdiction conferred upon the Speaker by the Constitution or a Constitutional Law.”

Speaker erred in overruling his deputy, says Sir Gibbs

The Constitution and the Organic Law do not allow the Speaker to do what he did outside of Parliament to overrule the rulings and decisions of the deputy Speaker, says Chief Justice Sir Gibbs Salika.
“There are constitutional requirements to recall Parliament earlier than the fixed time and date,” he said.
“For instance, in emergency situations created under (sections) 227 and 228 of the Constitution. The recalling of Parliament by the Speaker, in this instance did not warrant such a recall.
“If the Speaker was aggrieved with the actions of the deputy Speaker, he was at liberty to come to the Supreme Court and not do what he did. If he acted on advice, he was wrongly advised.” Sir Gibbs said the Speaker’s decision to rely on the Organic Law to overrule the deputy Speaker’s rulings on Nov 13 to grant leave to Opposition Leader Belden Namah, and thereby to overrule Parliament’s decision to adjourn to April 20, “was wrong and invalid”.
“Parliament was validly adjourned from Nov 13 to Dec 1,” he said.
“For the Speaker to defy the Parliament’s decision to adjourn to Dec 1 was contemptuous of Parliament.
“His actions on Nov 16 could amount to contempt of the Parliament. In my respectful opinion the Speaker’s actions were calculated and deliberate and are unlawful.”