By P. Ben Lomai, PhD*

A VONC is a very important national issue. Currently, it is being debated by a lat of legal and political commentators, and generally, everyone on podcast, print, and social media.

Views expressed were different from each other, most of them subjective, whilst few were objective, depending on how one’s position was.

Regardless, I intend to offer my own personal view based on my analysis of the Supreme Court case of Polye v. Zuronuoc, 2016.

There are a few Supreme Court cases that dealt with the VONC earlier to Polye/Zurenuoc (P/Z). The issues in those cases are a little different from the current Marape/Paita (M/P) VONC. However, one that comes close to having the same or similar issues is P/Z.

The facts in P/Z can be simply summarized as follows:

On 6th April 2016, Parliament was adjourned to 31st May 2016 and ended on Wednesday, 8th June 2016. The Opposition inadvertently failed to give notice of the VONC on Wednesday, 1 June 2016, but instead gave the Notice on Wednesday, 8th June 2016. Parliament, however, adjourned from 8th June to 2nd August 2016 at 2 pm. The Notice was given to the Deputy Speaker on 8th June but he failed to advise Parliament before it adjourned.

As you all may now know that the constitutional provision that deals with VONC is s.145 of the Constitution. S.145 also provides inter alia that a motion to remove the PM must go through a vigorous procedure provided for under the Standing Order (SO) 130.

SO 22 says that for the Private Business Committee (PBC) to consider motions under SO 130, the PBC should determine whether the terms of the motions are of “parochial nature” or of “national importance”.

There are 2 important points to note here.

First, motions refer to all kinds of motions to be determined during the Business Day(s) of Parliament. It also includes motions of no confidence in the PM or other Ministers.

Secondly, parochial could mean narrowed minded or confined to certain religious areas or trivial. For our purpose, it means trivial or less important. Whereas national importance is seen in the context of collective interest, something that is so special that it should be given priority. It equates with public interest due to its consequences on the lives of the people. In the PZ case, the Supreme Court held that a motion to remove the PM, which was intended to change the Government, “can never be a parochial matter”.

So, what does that mean in the context of M/P VONC?

SO 22(3)(a)(b)(c) states the function of the PBC. They have 3 functions: 1. Meet each Wednesday during the meetings of Parliament and examine all notices of motions submitted to them under SO 130 and decide whether they are parochial or of national importance. 2. If notices is of national importance, deliver copies to the clerk for reporting to Parliament. 3. If parochial, return the notice to the member proposing the motions with recommendations.

So how do one know if the notice is parochial or of national importance?

To start off,  P/Z case have already held that a motion to remove the PM which intended to change the Government is or can never be a parochial matter. However, how would one know that such a proposition held by the Supreme is correct?

S.145 of the Constitution lays down the law in relation to VONC. The requirements under s.145 has been crystallized and  summarized under what is now known as the “5 Technical Requirements”, a must be met requirements when it comes to the VONC. They are summarized as follows:
1. Notice should be expressed to be a motion of no confidence in a named PM,
2. It must state the name of the alternative PM,
3. It must name the person and contain signature of the person moving the motion,
4. It must name the person and signature of a person seconding the motion,
5. It must name the persons and contain signatures of not less than 1/10 of the members of Parliament that supports the motion.

Motion under s.145 are “constitutional motion” and are given priority over all other motions during that day in a sitting of Parliament. That’s the significance of the VONC, a very important national issue which ought to take precedence over everything else that day in Parliament.

Turning to the present VONC, what actually went wrong and how can it be rectified?

P/Z case clearly stated that where there are defects in the 5 Technical Requirements, it is for the Parliament to resolve it, by recourse to verification or confirmation by the responsible MP who authored and sign the notice, when the motion is debated and voted upon.

The Supreme Court went further to say that it is not for the PBC to vet the notice and terminate it before it reaches Parliament. Provided the 5 Technical Requirements are met, SO 22(3)(i)(ii)(iii) does not apply to  a motion of no confidence.

The begging question now is this; is the changes of names back to front, for example, Hewabi Maso and Maso Hewabi a parochial matter or is it of national importance?

In my view, Technical Requirement 5 do not state how a person name ought to be spelled and or rearranged. It only state that the PBC must consider the terms of the motion.

To my mind, consideration of a terms of a motion involves its substantive intentions and not a trivial technical defects which seeks to defeat the purpose of the motion itself.

Even if the name is queried, the proposer of the motion can clarify it or confirm it during the debate and prior to voting the new PM.

There is no requirement for the names to be checked against the Writs. Even if the Supreme Court hold that such name ought to correspond with the names on the Writ, they will still hold that that issue is parochial in nature.

In any case, I am doing a devil’s advocate job for the Government. The Supreme Court might have a differing views to mine depending on the facts or evidence before them.

Having said this and if in the event that the Supreme agrees with my observation, what orders are likely to be granted?

In P/Z, the Supreme found in favor of the Opposition and declared that there was a breach amongst others of s.145 and SO 22 and 130. The Supreme Court ordered a recall of Parliament within 5 days from the date of the Orders.

I posit that the Supreme Court, if in the event, that these issues in M/P is filed, may grant slightly different but similar orders to the one granted in P/Z case.

However, if the Supreme Court finds in favor of the Government, that will ease, to some extent, the pressure on the Speaker not to resign as Speaker of Parliament.

Note: all observations made here are my private views as a lawyer and am not influenced by politics or otherwise. Since I have made my brief observation, I am not in a position to assist either the Government or the Opposition if i am required.