In Re an Application Pursuant to Constitution, Section 18(1) Application by the Honourable Allan Bird MP, Member for East Sepik Provincial

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Salika CJ,Mogish J,,Cannings J,Manuhu J,Hartshorn J
• Judgment Date: 28 November 2025
• Neutral Citation: SC2816
• Docket Number: SCCA NO 4 OF 2025
• Date: 28 November 2025
• Counsel: N Yalo for the applicant,D Dotaona for the second intervener, the Leader of the Opposition,Counsel,L A Jurth & D Mel for the first intervener, the Attorney-General

SC2816

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCCA NO 4 OF 2025

In the Matter of an Application Pursuant to Constitution, Section 18(1)

Application by the Honourable Allan Bird MP, Member for East Sepik Provincial

WAIGANI: Salika CJ, Mogish J, Cannings J, Manuhu J, Hartshorn J

2 October, 28 November 2025

CONSTITUTIONAL LAW — motions of no confidence in Prime Minister — Constitution, s 145 — Constitutional Amendment No 48 (Motions of No Confidence) Law 2025 — whether amendment of s 145 by requiring that no motion of no confidence can be moved within 18 months after unsuccessful motion of no confidence is unconstitutional — whether Constitutional Amendment No 48 failed to comply with procedural requirements of s 14 of the Constitution — whether Constitutional Amendment No 48 is a law that prohibits the exercise of rights of members of Parliament under Constitution, s 50 to vote for and be elected to elective public office — whether Constitutional Amendment No 48 offends against s 141 of the Constitution, rendering it unconstitutional.

On 12 March 2025 the National Parliament made Constitutional Amendment No 48 (Motions of No Confidence) Law 2025. That Law amended s 145 (motions of no confidence) of the Constitution by inserting a new subsection (5), which states “Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful”. The applicant, a member of the Parliament, applied to the Supreme Court under s 18(1) of the Constitution for a declaration that Constitutional Amendment No 48 is unconstitutional in various respects, including that the procedural requirements of s 14 of the Constitution for amending the Constitution were not complied with, that the Law prohibits exercise of the rights under s 50 of the Constitution of all members of the Parliament to vote for and be elected to elective public office but does not comply with s 38 of the Constitution, and that the Law is inconsistent with existing provisions of the Constitution, in particular s 141, which enshrines the principle of accountability of the executive arm of government to the People through the Parliament. The second intervener, the Leader of the Opposition, supported the application. The first intervener, the Attorney-General, opposed the relief sought by the applicant.

Held:

(1) The procedural requirements of s 14 of the Constitution were complied with.

(2) The amendment to the Constitution made by Constitutional Amendment No 48 restricted but did not prohibit the exercise of s 50 rights by members of the Parliament. Constitutional Amendment No 48 did not have to comply with s 38 of the Constitution.

(3) Constitutional Amendment No 48 does not offend against the principle that the Executive is accountable to the People through the Parliament and is not inconsistent with existing provisions of the Constitution.

(4) Constitutional Amendment No 48 is not unconstitutional.

Cases cited

Application by Hon Bill Skate MP (2001) SC678

Application by Nomane (2025) SC2721

Application by Sione (2025) SC2679

Kereme v O'Neill (2019) SC1781

Namah & Geno v O'Neill & Zurenuoc [2015] 2 PNGLR 291

Polye v Zurenuoc (2016) SC2039

Premdas v The State [1979] PNGLR 329

SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214

SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31

SC Ref No 11 of 2008, Reference by Fly River Provincial Government re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319

SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944

SC Ref No 2 of 2020, Reference by Bougainville Executive re ss 89(2) and 91(4)(f) of the Bougainville Constitution [2010] 1 PNGLR 335

The State v NTN Pty Ltd [1992] PNGLR 1

Counsel

N Yalo for the applicant

L A Jurth & D Mel for the first intervener, the Attorney-General

D Dotaona for the second intervener, the Leader of the Opposition

Lawyers for the applicant: WKY's Legal Services

Lawyers for the first intervener: Mel & Hennry Lawyers

Lawyers for the second intervener: Dotaona Lawyers

BY THE COURT: The Honourable Allan Bird MP, Member for East Sepik Provincial, applies under s 18(1) of the Constitution for a declaration that Constitutional Amendment No 48 (Motions of No Confidence) Law 2025, made by the National Parliament on 12 March 2025, is unconstitutional.

That Law amended s 145 (motions of no confidence) of the Constitution by inserting a new subsection (5), which states:

Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.

The applicant argues that Constitutional Amendment No 48 is unconstitutional in three respects:

1. the procedural requirements of s 14 of the Constitution for amending the Constitution were not complied with;

2. the Law prohibits or at least restricts the exercise of the rights under s 50 of the Constitution of all members of the Parliament to vote for and be elected to elective public office but does not comply with s 38 of the Constitution; and

3. the Law is inconsistent with existing provisions of the Constitution, in particular s 141, which enshrines the principle that the Executive arm of Government is accountable to the People through the Parliament, as the effect of the Law is to provide for a period of 36 months of the 60-month life of the Parliament in which there is no accountability of the Executive to the Parliament.

The second intervener, the Leader of the Opposition, supports the application. The first intervener, the Attorney-General, opposes the relief sought by the applicant.

SECTION 145 OF THE CONSTITUTION

To put Constitutional Amendment No 48 in context, we cite the whole of s 145 of the Constitution, inclusive of the new subsection (5). It states:

(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—

(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and

(b) of which not less than one month's week's notice, signed by a number of members of the Parliament being not less than one-fifth one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.

(2) A motion of no confidence in the Prime Minister or the Ministry—

(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and

(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.

(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.

(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty 18 months commencing on the date of the appointment of the Prime Minister.

(5) Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.

We now address the three primary arguments of the applicant.

APPLICANT'S FIRST ARGUMENT: PROCEDURAL REQUIREMENTS NOT COMPLIED WITH

The applicant contends that the procedural requirements for amendment of s 145 of the Constitution were not complied with. The requirements are set out in Subdivision II.2.B (constitutional alteration and Organic Laws) of the Constitution, which contains ss 13 to 17.

These provisions relevantly state:

13. Alterations of the Constitution.

This Constitution may be altered only by [a] law made by the Parliament that—

(a) is expressed to be a law to alter this Constitution; and

(b) is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws).

14. Making of alterations to the Constitution and Organic Laws.

(1) Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 (“prescribed majority of votes”) expressed on at least two occasions after opportunity for debate on the merits.

(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—

(a) during different meetings of the Parliament; and

(b) separated in time by at least two months,

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament.

(3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in...