Powers of the PNG National Parliament to appoint women membersMarch 2009

Prepared for the Technical Working Group

By the TWG Legal Team

Table of Contents

1. Executive Summary................................................................................3Conclusion................................................................................................................5

2. Introduction.............................................................................................72.1. NEC decision................................................................................................72.2. Call for expressions of interest.....................................................................72.3. Social principles that shape the establishment and the operation of the PNG system of government.....................................................................................82.4. The Constitution emphasises equality of opportunity, and governmental bodies which are broadly representative of the people............................................8

3. Women in the National Parliament since Independence.....................93.1. Numbers in Parliament since Independence................................................93.2. Has the electoral system delivered equality of opportunity for all citizens, equal participation of women and a Parliament which is broadly representative of women?..................................................................................................................103.3. PNG ranks poorly on measures of political participation and gender advancement..........................................................................................................113.4. Obstacles to women’s participation............................................................11

4. Implementation of the National Goals and Directive Principles.......124.1. What does the Constitution say?................................................................124.2. Rationale for the power to appoint members of Parliament.......................134.3. Do the National Goals and Directive Principles assist in interpreting the scope of the powers to appoint members of Parliament?......................................144.4. Can the Constitutional Planning Committee Report be used as an aid to interpreting the breadth of the powers to appoint women?....................................15

5. Other relevant powers and obligations...............................................155.1. Constitutional right for every Papua New Guinean to take part in the conduct of public affairs..........................................................................................155.2. Equality of citizens......................................................................................165.3. International and domestic legal and policy obligations to address discrimination against women................................................................................16

6. Situation of Women in PNG generally and the importance of action to advance the position of women..............................................................17

6.1. Recent reports paint a bleak picture...........................................................176.2. Custom in PNG...........................................................................................18

7. Entrenched interests will not welcome reforms.................................198. What are the legal requirements for the process to appoint the women members of Parliament?................................................................19

8.1. Measure is a temporary or interim measure...............................................209. Conclusion.............................................................................................20Appendix 1 – table of figures of electoral participation by women and men since Independence.............................................................................22Appendix 2- Description of domestic and international legal and policy obligations to advance the position of women in PNG.............................23

PNG Platform for Action.........................................................................................23Millennium Development Goals..............................................................................24Pacific Plan.............................................................................................................25Medium Term Development Strategy.....................................................................25CEDAW..................................................................................................................27

Appendix 3 - Best Practice NEC Endorsed Process to find women to be considered for appointment to Parliament................................................28

What is the selection process?...............................................................................28

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Who is on the Screening Panel?............................................................................28How will the screening panel work?.......................................................................28How long will the whole process take?...................................................................29

APPENDIX 4 - Analysis of the law on the need for an enabling Act to give effect to section 102.....................................................................................30APPENDIX 5 - Absolute majority vote under the constitution.................40APPENDIX 6 - Diagram showing source of authority for the use of sections 101 and 102…………………………….………………………………47

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1. Executive Summary

There is a clear power in the Constitution of the Independent State of Papua New Guinea for the

National Parliament to appoint a maximum of three members by a two thirds absolute majority

vote.1 NEC has resolved to use this power for the first time to appoint women members to the

Parliament. Members of the public and of the Parliament must be given every assurance that the

use of the power is entirely legal and that the process to recruit the women for selection has been

fair, transparent and above reproach.

It is emphasised that this is a temporary arrangement. If three women are appointed

as nominated members of Parliament, that arrangement will remain in place until the

elections in 2012. It is hoped that by that date, there will be new laws creating

reserved seats for women and there will be no further need for the use of sections

101 and 102 to appoint women members of Parliament

This paper has been prepared to summarise the legal position and to inform the Members of

Parliament and the community about the nature of the initiative and its undoubted legal and

policy legitimacy. A diagram setting out the sources of Constitutional authority for the use of

sections 101 and 102 in this context is included at Appendix 7 to assist in the provision of an

“at a glance” explanation of the operation of the Constitution to enable the appointment of three

nominated women members of the National Parliament.

The Constitution of the Independent state of Papua New Guinea is the home grown

supreme law of Papua New Guinea or “mama law”.

The National Goals and Directive Principles Constitution in the call for:

o equality for every citizen to take part in the political life of the country2,

o equal participation by women in all political activities3 and

o governmental bodies of PNG to ensure that, as far as possible, political and

official bodies are so composed as to be broadly representative of citizens from

various parts of the country.4

1 Constitution, Sections 101 and 1022 Constitution, National Goals and Directive Principles, Goal 2(1)3 Constitution, National Goals and Directive Principles, Goal 2(1)(5)4 Constitution, National Goals and Directive Principles, Goal 2(1)(10)

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These Principles are strongly supported by the Constitutional Planning Committee

Report (CPC Report), a document which may be used to assist interpretation of the

Constitution.5, 6

Since Independence, there has been a maximum of two women in Parliament during

any one term. This is a maximum of 2.2% from a group comprising 50% of the

population. There is currently one woman in Parliament, comprising less than 1% of a

109 seat Parliament. The figures and other literature on the position of women in PNG

show that the current electoral system does not deliver equality of opportunity to

participate, equal participation or broad representation to women in line with the National

Goals and Directive Principles.

There is a positive constitutional duty on the National Parliament, as a governmental

body, to apply and give effect to the National Goals and Directive Principles as far as lies

within its power.7 This provides strong legal and moral legitimacy for the use of the

power to appoint women members.

Is there a power the National Parliament can use to help it implement the National Goals

and Directive Principles as they call for the participation and representation of women in

Parliament?

Yes. This is to use the power to appoint members8 to increase the numbers of women in

Parliament by appointing three women members.

The rationale set out in the CPC Report for using the power to appoint members

includes the justification that it “provides the opportunity for bringing into Parliament

people from particular groups not otherwise represented”.9

As the figures show, women have not been properly represented in Parliament since

Independence. The use of the power to increase the number of women in Parliament is

using the power as it was intended to be used, and is a legitimate solution to the

problem.

5 Constitution, Section 24(3)6 Constitutional Planning Committee Report, Chapter 2, Paragraph 597 Constitution, Section 25(2). See also definition of “governmental body” in Schedule 2.1.1 and Section 99 which specifies that the National Parliament is an arm of the National Government.8 Constitution, Sections 101 and 1029 Constitutional Planning Committee Report, Chapter 6, Paragraph 6

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The operation of the Constitution requires that where the power to appoint members to

the National Parliament can reasonably be understood and exercised giving effect to the

National Goals and Directive Principles, then it should be exercised that way.10

The use of this power could also be considered to be giving effect to the Constitutional

right to a “reasonable opportunity”11 to be afforded to every citizen in PNG to take part in

the public affairs of PNG, hold public office and for all citizens to have the same rights

and privileges irrespective of gender.12 The figures demonstrably reveal that the system

has denied women such a “reasonable opportunity”. There is also literature stating that

culture and community organisation in PNG deny women a “reasonable opportunity” to

undertake the tasks and roles which might then lead to them being put forward as

suitable candidates for election.13

The use of this power will also constitute progress with obligations at international law to

reduce discrimination against women created by ratification of international treaties such

as CEDAW.14 Taking this kind of action will go some way toward enhancing the

reputation of PNG in the international and regional community.

The Constitution is silent on a process to select the three nominees to be put to

Parliament for a two thirds absolute majority vote. This leaves the process open, but it

must be transparent and fair to ensure credibility with the Parliamentarians who must

vote to appoint the women, and with the public who must accept the newly appointed

members in the same way they accept elected members. A Best Practice process has

been endorsed by NEC to provide assurance that the selection process is above

reproach.

There is no need for an enabling Act to give effect to the process, the process endorsed

by NEC is sufficient. See Appendix 4 for a thorough explanation of the legal position

which clarifies that there is no requirement for an enabling Act.

The number of votes required to achieve the nomination of each of the three proposed

nominated woman members is 73. See Appendix 5 for a thorough explanation of the

legal position which clarifies that a 2/3 absolute majority is required with a total of 73

affirmative votes.

10 Constitution, Section 25(3), See also Constitution Planning Committee Report, Chapter 2, Paragraph 12611 Constitution, Section 5012 Constitution, Section 5513 ADB, Report-Technical Assistance to Papua New Guinea for preparing the Gender and Population Project at http://www.adb.org/Documents/TARs/PNG/r14_02.pdf accessed 11 Feb 200914 See CEDAW, Article 7 – States Parties shall take all appropriate means to eliminate discrimination against women in the political and public life of the country

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Conclusion

The Constitution establishes a clear goal to enable women to participate in all aspects of life in

PNG including lawmaking in the National Parliament. It also establishes an absolute duty on

Parliament to give effect to the National Goals and Directive Principles by any means within its

power. The use of the power to appoint women members is a legitimate means available to

Parliament to address the lack of equality of opportunity, the lack of participation and the lack of

representation of women in Parliament. It also uses the power as it was intended to be used.

Constitutional rights also entitle all Papua New Guineans to a reasonable opportunity to take

part in the conduct of public affairs and to be elected to public office and hold public office.

Papua New Guineans also enjoy the same rights and privileges regardless of sex. As the

current electoral system demonstrably fails to provide a reasonable opportunity for women to

take part in the conduct of public affairs or to enjoy the same rights to stand for Parliament and

be properly represented, both these powers also give legitimacy to the use of Constitutional

powers to appoint women members of Parliament.

An analysis of the relevant law and consideration of important policy, including statements about

the kind of society people in Papua New Guinea wish to live in, leads to but one conclusion: the

use of the Constitutional powers to appoint women members of Parliament to increase equality

of opportunity and address manifestly inadequate representation of women in the National

lawmaking body has the highest degree of legal and moral legitimacy.

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2. Introduction2.1. NEC decision

In 2008, the National Executive Council exercising the power available to it within the

Constitution approved a process to enable the appointment of women members of Parliament to

using Section 101 and 102 of the Constitution in an attempt to address the current lack of

equality of opportunity for all Papua New Guineans to take part in the political life of the country,

lack of participation of women in Parliament and lack of representation of women in the National

Parliament.

It is the first time that the Parliament will exercise its powers under Section 102 which means its

use is both historic and also subject to intense scrutiny. It is important that material is available

to explain the legal basis of the initiative and to assist in informing the people of PNG of both its

importance and its absolute legitimacy.

2.2. Call for expressions of interest

In November 2008, Prime Minister, Grand Chief Sir Michael Somare, as authorised by the

decision of the National Executive Council,15 called for expressions of interest from interested

women citizens of Papua New Guinea, who wished to be considered for three nominated

Parliamentary seats16. An advertisement appeared in The National newspaper and stated that

the reason for the initiative was “to comply with various international conventions and with the

38th Pacific Island Forum Communiqué” which, on the issue of good governance, the Pacific

Island Forum leaders agreed to “explore ways to enhance participation, particularly by women,

in decision-making processes and institutions, and in particular, parliamentary processes.”17

By the closing date for receipt of applications, seventy nine expressions of interest had been

received, forming a broad pool of talent from which to choose a final twelve well qualified

women for interview. The interview process, conducted by the Selection Panel18, reduced the

number to six. Six names of women qualified for consideration for nomination as members of

Parliament were handed to Grand Chief, Sir Michael Somare on 4 March. After discussion

between himself and the leader of the Opposition, three names will be selected to be put to the

House for a vote for nomination as members.

This initiative is a substantive and practical step to include women in the National Parliament of

PNG.

15 NEC decisions No 106/2008, No 175/2008 and No 232/200816 NEC decisions No 106/2008, No 175/2008 and No 232/200817 The National, PNG, 25 November 2008, page 1118 See Appendix 3 for a full description of the process

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2.3. Social principles that shape the establishment and the operation of the PNG system of government

The framers of the PNG Constitution were at pains to establish a system of government shaped

by social principles of value to Papua New Guineans. The CPC asked the question: “What kind

of society do we want?” The answer was provided in fundamental guidelines for national

improvement known as the “eight aims”.19 The seventh aim was “a rapid increase in the active

and equal participation of women in all forms of economic and social activity”.20 The National

Goals and Directive Principles were evolved taking full account of the eight aims.21 As the CPC

stated:

We did not determine these national goals in a matter of days or weeks. We have distilled them

after a great deal of thought and discussion over the twenty-two months during which the

Committee has been at work. During that time…. we have held well over one hundred public

meetings in all parts of the country, and received thousands of submissions, verbally and in

writing, many of which were concerned either directly or indirectly, with the type of society we

should seek to build for ourselves.22

The eight aims, from which the National Gaols and Directive Principles were evolved, have

strong legitimacy as they were originally derived from extensive consultation with the people of

PNG23 and were unanimously accepted by the House of Assembly in 1973 and ultimately given

effect in the National Gaols and Directive Principles in the Constitution.

2.4. The Constitution emphasises equality of opportunity, and governmental bodies which are broadly representative of the people

The will of the Papua New Guinean people, as articulated in the Constitution of the Independent

State of Papua New Guinea24, expresses a clear commitment to the equality of all citizens. The

National Goals and Directive Principles emphasise the importance of equality of opportunity for

all citizens to take part in the political, economic and social life of the country and the equal

participation of women in all political activities. The Goals and Principles are also a passionate

call to action, for the citizens of the newly independent state to create the kind of society they

19 The Constitutional Planning Committee Report, at Chapter 2, Paragraph 7 states that from 1972 to 1974, there [was] much discussion about the kind of society that our people want. There [was] a wide ranging debate on the socio-economic aspects of this topic in the House of Assembly in 1973 resulting in the unanimous decision of certain fundamental guidelines for national improvement known as the “eight aims”.20 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraph 721 Kwa, E., Constitutional Law of Papua New Guinea (Sydney: Law Book Co, 2001) Chapter 2.22 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraph 1023 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, Chapter 2, paragraph 10, “We held over 100 public meetings in all parts of the country, and received thousands of submissions, verbally and in writing, many of which were concerned either directly or indirectly, with the type of society we should seek to build for ourselves.”24 Constitution of the Independent State of Papua New Guinea, at http://www.paclii.org/pg/legis/consol_act/cotisopng534/ accessed 24 January 2009

8

wish to share together. They also call upon governmental bodies, including the National

Parliament, to be broadly representative of citizens from various areas of the country. The

qualified rights set out in the Constitution also state that citizens have the same rights, privileges

and obligations irrespective of sex.

The CPC also stated that:

Obstacles to educational and other opportunities which face women at present should be

removed, and insofar as it is within the power of the Government to do so, the difficulties facing

women who wish to involve themselves in the affairs of the nation should be reduced.25

The views expressed by the CPC remains a big challenge to the contemporary PNG society. In

many areas of government policy Papua New Guinea has made attempts to remove these

obstacles particularly in the Medium Term Development Strategy 2005-2010 (MTDS), the

National Agriculture Development Plan 2007, the National Health Plan 2001, the National

Education Plan 2005, and the Integrated Community Development Policy 2007. These policies

require strong legislative support to make them work.

In the area of law-making Papua New Guinea has done well at the provincial and local

government levels in including women in the provincial and local legislatures. The same

however cannot be said about the national legislature. There is ample evidence to show that

there are still major obstacles that women in Papua New Guinea have to overcome to enable

their full and active participation at the National Parliament.26

The initiative by the government to nominate three women Parliamentarians is an attempt to

overcome the obstacles that make it difficult for women to enter the National Parliament.

3. Women in the National Parliament since Independence3.1. Numbers in Parliament since Independence

In the thirty three years since PNG gained Independence, women have never held more than

two seats in the 109 seat National Parliament in any one term. During that period, far fewer

women than men have stood in every one of the eight elections. Over the thirty three years a

total of four women have been successfully elected. In 2009 of the 109 seats in the National

25 Constitutional Planning Committee Report, Chapter 2, paragraph 5926 UNDP., PNG-Millennium Development Goals Progress Report 2004 (Port Moresby: UNDP, 2004) 18 and Vatnabar, M, “Gender and Development in Papua New Guinea” in Kavanamur, D, Yala, C and Clements, Q (ed)., Building a Nation in Papua New Guinea: Views of the Post Independence Generation (Canberra: Pandanus Books, 2003) 269 at 274-275.

9

Parliament only one is held by a woman. Complete figures for the participation of women and

men in the national electoral processes in PNG since Independence are set out in Appendix 1.

3.2. Has the electoral system delivered equality of opportunity for all citizens, equal participation of women and a Parliament which is broadly representative of women?

The maximum number of women successfully elected to Parliament in any one term since

Independence has been two.27 This comprises a maximum of 2.2% of the members over the

past 33 years. Since 2002, there has been one woman Member elected to the National

Parliament, comprising less than 1% of the membership. This is despite the fact that 73 women

stood for election in 2002 and 107 stood in 2007.

Looking at the overall numbers of candidates who stood for election reveals similar figures. The

percentage of women candidates compared with the percentage of men candidates has never

been higher then 5% and has been less than 1% in five out of the eight elections. 28

These figures provide clear evidence that the current system of electing members of Parliament

previously under the Organic Law on National Elections and now under the Organic Law on the

National and Local Government Elections does not provide equal opportunity for women to

stand for Parliament or to be successfully elected. Based on these figures, women cannot be

said to be participating equally in the activity of making laws in the National Parliament for the

peace, order and good government of Papua New Guinea and the welfare of the people, as

envisaged by the Constitution.29

It was hoped that the introduction of the Limited Preferential Voting System introduced in 2007

might pave the way for more women members of Parliament, but the results in 2007 were

disappointing with only one woman returned.

It is clear that there is a huge divide between men and women in the business of law-making in

the National Parliament. There is an overwhelming imbalance which needs to be redressed.

True equal opportunity and broad representation of women would see a significant increase in

the number of women successfully standing for Parliament. A trend of increasing numbers of

women successfully elected would demonstrate progress. As there is presently one woman

member of Parliament and the past maximum has been two, the current figures do not

demonstrate progress. They are also far short of the Constitutional goal of equality of

opportunity, equal participation of women and broad representation of women. 27 Source of figures, Department of Community Development28 See Appendix One for Table of Figures29 Constitution, Section 109(1)

10

The present position, which has not improved since Independence, is that women, who make

up 50% of the PNG population, cannot be sufficiently represented in the National Parliament by

1 woman or under 1% of the members in a population which is 50% women.

3.3. PNG ranks poorly on measures of political participation and gender advancement

Gender inequality in PNG is widespread, and achievements to date have been poor.30 PNG

ranks 123 out of 156 countries for the Gender-related Development Index (GDI)31 and 145 out of

177 countries for the Gender Empowerment Measure (GEM).32 “PNG is 119 in a ranking of 121

countries for women’s political participation.”33

3.4. Obstacles to women’s participation

One report states that women’s place in community relationships minimises their opportunities

to be put forward for opportunities to obtain public office or to move toward qualification for

public office. PNG’s systems of family and community relationships often exclude women from

leadership and decision making roles. These community relationships often make available

opportunities to seek public office and then create obligations back to influential community

members when public office is achieved. Women can be excluded from privilege in being put

forward and in being favoured for advancement by those already in power.

Kinship ties in PNG determine all manner of relations between people, covering support

networks, morality and land ownership. Binding obligations exist between close kinsfolk who

share membership with a clan or a tribe. It is this system of obligations that often leads to

nepotism and corruption in government systems. These links and associations often do result in

increased opportunity for employment, contracts and nomination to lucrative company and

government boards. Very often women, women’s policies and machineries become the

unsuspecting victims of this nepotism and corruption.34

30 ADB, Report-Technical Assistance to Papua New Guinea for preparing the Gender and Population Project at http://www.adb.org/Documents/TARs/PNG/r14_02.pdf accessed 11 Feb 200931 The Human Development Index (HDI) measures average achievements in three basic areas: a) a long and healthy life (measured by life expectancy); b) knowledge (measured by adult literacy rate and combined primary, secondary and tertiary gross enrolment ratio); and c) a decent standard of living (measured by GDP per capita (purchasing power parity in USD). The Gender-related Development Index (GDI) adjusts the average achievements measured by the HDI to reflect inequalities between men and women in the same areas. See UNDP website at http://hdrstats.undp.org/indicators/268.html accessed 11 Feb 200932 See UNDP website at http://hdrstats.undp.org/indicators/280.html, accessed 11 February 200933 AusAID, OAE, Violence Against Women in Melanesia and East Timor, Op Cit, PNG Country Supplement, page 234 ADB, Op cit, page 24

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Recognition has begun to grow in PNG, that cultural and systemic obstacles exist to impede

women from participation in the National Parliament.35 While it will take time to change some of

these systemic obstacles, the proposed direct appointment is one positive step that can be

taken to help to address the poor representation of women.

There is also a growing recognition that action will be necessary to address the obstacles, as

the electoral system has failed to provide the necessary opportunities for women over the past

thirty three years and there are few signs of progress in this area.36

4. Implementation of the National Goals and Directive Principles4.1. What does the Constitution say?

The Constitution states that, in general, the National Goals and Directive Principles are non-

justiciable.37 However, the Constitution does place a duty on governmental bodies to give effect

to them as far it lies within their powers. 38 As the National Parliament is a governmental body39,

the Constitution places a clear duty on the National Parliament to give effect to the National

Goals and Directive Principles as far as it lies within its power to do so. This is a strong

statement of intent and expectation. Not only can the National Parliament act, it is indeed

obligated to do so.

In the case of women members of the National Parliament, the current position of the

participation and representation of women in the National Parliament falls far short of the

aspirations of the people of PNG set out in the National Goals and Directive Principles.

The question then must be asked; what powers does the National Parliament possess to

address the lack of equal opportunity, lack of participation and the poor representation of

women in the National Parliament? The Constitution does provide a completely clear and

unambiguous mechanism for the appointment of members of the National Parliament.40 These

35 Tapo, J, “Equal Representation and Participation of Women in Decision-making Positions in Papua New Guinea: Some Dilemmas” in Sullivan, N (ed)., Governance Challenges for PNG and the Pacific Islands (Madang: DWU Press, 2004) at 165 and Garap, S, “Women caught in a ‘Big man’ Culture: Challenges for Future Democracy and Governance, in Sullivan, op cit, at 15736 Twivey, T, “Women and the Constitution: 20 Years of Missed Opportunity” in Regan, T, Jessep, O and Kwa, EL (ed)., Twenty Years of the Papua New Guinea Constitution (Sydney: Law Book Co, 2001) 314 at 31637 Constitution, Section 25(1)38 Constitution, Section 25(2)39 Constitution Schedule 1.1.2 Governmental body means (a) The National Government or (c) an arm of the National Government. See section 99(2) which states that the National Government consists of three principal arms, one of which is the National Parliament40 Constitution, Sections 101 and 102

12

powers are clearly spelt out in Sections 101 and 102 of the Constitution. The relevant part of

these provisions are:

101. MEMBERSHIP.

(1) Parliament consists of–

(a) a number of members elected from single-member open electorates; and

(b) a number of members elected from single-member provincial electorates; and

(c) not more than three nominated members, appointed and holding office in accordance

with Section 102 (nominated members).

102. NOMINATED MEMBERS.

The Parliament may, from time to time, by a two-thirds absolute majority vote, appoint a

person (other than a member) to be a nominated member of the Parliament.

These provisions clearly give the powers to the National Parliament to appoint by two-thirds

absolute majority vote, three women Parliamentarians. The operating provision is Section 102.

See Appendix 5 for a full explanation of the law to confirm that the correct number of votes is

73 on a two-thirds absolute majority.

The provisions are silent on the manner in which the National Parliament is to exercise its

powers and appoint these three nominated persons. To address the lack of procedure to

implement Section 102, the National Executive Council has approved a nomination process to

enable the implementation of Section 102 by the National Parliament. Through the selection

process approved by the National Executive Council, the National Parliament can exercise its

powers to appoint women members of the National Parliament to address the lack of equal

opportunity, lack of participation and lack of representation. See Appendix 4 for a full

explanation of the law to confirm that the NEC endorsed process is sufficient and that an

enabling Act is not required.

4.2. Rationale for the power to appoint members of Parliament

The CPC stated that the case usually put forward for having nominated members is that:

It provides the opportunity for bringing into the Parliament persons either with special

qualifications or experience not available among the elected members, or from particular groups

not otherwise represented.41

41 Constitutional Planning Committee Report, Chapter 6, paragraph 6

13

This rationale was repeated in the Parliamentary debates on this section of the Constitution by

one of the Constitutions founding fathers and our present Prime Minister, Grand Chief Sir

Michael Somare.42

The situation of women in lacking equality of opportunity to be elected, lacking participation and

lacking representation appears to falls squarely into this rationale. Thus the rationale for the

appointment of women members of Parliament is consistent with the rationale for the power to

appoint members of Parliament, as foreshadowed by the Constitutional Planning Committee

Report.

4.3. Do the National Goals and Directive Principles assist in interpreting the scope of the powers to appoint members of Parliament?

Considerable guidance as to the scope of powers to appoint members of Parliament comes

from the National Goals and Directive Principles themselves and the sections of the Constitution

which provide direction as to their implementation. It is clearly stated that where a power

conferred by the Constitution can be understood or applied in way which gives effect to the

National Goals and Directive Principles then it should be understood and applied in that way.43

The CPC was clear that the National Goals and Directive Principles were to be more than just

inspirational statements:

We have tried, in our recommendations, to facilitate the implementation of the Directive Principles…

Thus our recommendation that all activities of the State and its institutions should be based on the

Directive Principles….is designed to help to reorient the thinking and attitudes of everyone who is a

member of an elected body or who works in a government department, institution or authority; and to

redirect the policies of those bodies towards the Goals.44

The CPC also makes it clear that, where the meaning of a particular law is unclear or

ambiguous, the courts should give an interpretation which is consistent with the goals and

principles, not contrary to them.45 This approach by the Committee is consistent with the

statutory interpretation approach known as the “golden rule”. That rule provides that the

grammatical and ordinary sense of the words should be adhered to, unless that would lead to

some absurdity.46 Applying the ordinary meaning of the words, it is clear that the Constitution

intends that an interpretation favouring the Goals and Principles be adopted. (The Golden Rule

is the traditional starting point in statutory interpretation.)

42 Hansard, 1974??43 Constitution, Section 25(3)44 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraph 12245 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraph 126. 46 Pearce, Statutory Interpretation in Australia, 6th edition, 2006, p.26.

14

Another aide to interpretation which may be useful is that known as the “purposive approach”.

That approach is applied by determining the purpose of the Act, or the particular provision in

question, and by adopting an interpretation of the words that is consistent with that purpose.47

4.4. Can the Constitutional Planning Committee Report be used as an aid to interpreting the breadth of the powers to appoint women?

The Constitution itself states that the where any question arises about the application or

interpretation of any provision of a Constitutional law, the CPC Report may be used, as far as it

is relevant, as an aid to interpretation.48 The National and Supreme Courts have also held in

various decisions that the CPC Report shall be used as a guide to the interpretation of the

Constitution.49

5. Other relevant powers and obligations5.1. Constitutional right for every Papua New Guinean to take part in the

conduct of public affairs

Under the Constitution, every Papua New Guinean has the right, and shall be given a

reasonable opportunity, to take part in the conduct of public affairs, either directly or through

freely chosen representatives50 and to vote and to hold public office and to exercise public

functions.51 The Constitutional Planning Committee wanted to emphasise the need for more

women to be involved in public life and so recommended a specific provision that women are

entitled to hold public office and to exercise all public functions.52 In relation to the right to stand

for election to public office and to vote, the Committee specifically referred to the importance of

the participation of women:

To emphasize the need for more women to be involved in public life, we have specifically

provided that women are entitled to hold public office and to exercise all public functions in

accordance with the law, on equal terms with men, without discrimination.53

In the Constitution, the right is expressed as applying to “every citizen”.54

47 Op.cit., p.27.48 Constitution, Section 24(1). See also Constitutional Documents (Manner of Proof) Act, Ch5) and Reagan and Wolfers, “Aids to interpretation of the Constitution: Some Preliminary Thoughts” (1986) 14 Melanesian Law Journal 153.49 The State v NTN [1992] PNGLR 1; Kaseng v Namilau [1995] PNGLR 481 also the judgement of Kapi Dep. CJ (as he then was) in SCR No.2 of 1995: Ref by the Western Highlands Provincial Executive (1995 unreported) SC 486 at p3650 Constitution, Section 50(1)(c)51 Constitution, Section 50(1)(e)52 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, Chapter 5, paragraph 7753 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraph 7754 Constitution, Section 50

15

The figures on women’s participation in the electoral process and their lack of success in being

elected to Parliament suggest that the current electoral system has not provided a “reasonable

opportunity” for women to take part in the conduct of public affairs. The use of the

Constitutional power to appoint women members of Parliament can be construed as progress

toward the provision of a “reasonable opportunity” for women to take part in the conduct of

public affairs in PNG and is therefore not only consistent with that right, but positively seeks to

advance that right.

5.2. Equality of citizens

All citizens of PNG have the same rights, privileges, obligations and duties irrespective of sex.55

The figures on the electoral participation of men and women and women’s lack of electoral

success also suggest that women do not have the same right or privilege as men to participate

in making laws for PNG because of their gender. Using the Constitutional powers to appoint

women members of Parliament can be construed as progress toward provision of the same

right and privilege as men to participate in the National Parliament and is therefore consistent

with that right.

5.3. International and domestic legal and policy obligations to address discrimination against women

In addition to the obligations created by the Constitution, PNG has also committed to a number

of domestic and international policy and legal obligations to address the position of women in

PNG. For example, the PNG Platform for Action, the Millennium Development Goals, the

Medium Term Development Strategy, the Pacific Plan and the Convention to Eliminate all forms

of Discrimination Against Women (CEDAW). Use of the Constitutional power to appoint women

members of Parliament also represents significant progress in achieving compliance with these

obligations and help to meet PNG’s obligations at international law. A fuller description of each

of these legal and policy obligations is provided in Appendix 2.

The ratification of CEDAW in particular creates obligations at international law. The obligations

created under Article 7 of CEDAW directly relate to the participation of women:

in the political and public life of the country and, in particular, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly

elected bodies

55 Constitution, Section 55

16

(b) To participate in the formulation of government policy and the implementation thereof and to

hold public office and perform all public functions at all levels of government

(c) To participate in non government organisations and associations concerned with the public

and political life of the country.56

Use of the Constitutional power to appoint women members of Parliament comprises progress

in compliance with the international legal obligations created by ratification of CEDAW.

6. Situation of Women in PNG generally and the importance of action to advance the position of women6.1. Recent reports paint a bleak picture

Many reports have been written on the position of women in PNG over the last twenty years.

The picture painted in these reports is both consistent and bleak. Reading such reports on the

economic, social, political and health status of women in PNG leads to a conclusion that the

plight of women has become a blight on the economic, social and cultural prospects of this

country. Violence against women and children, in particular, presents a grave risk to

development.

Violence and the fear of violence severely limit women’s contribution to social and economic

development, thereby hindering the achievement of important national and international

development goals, such as the Millennium Development Goals of eradicating extreme hunger

and improving maternal and child health.57

A recent AusAID report noted that in PNG:

Economic deprivation due to lack of land rights, patterns of out-marriage, and little independent

access to cash income trap women, making them dependant on men for economic survival and

reinforcing the expectations of male dominance and control founded on the still-prevalent

practices of bride price and polygamy.58

The treatment of PNG’s women and girls in many instances leaves them poverty stricken,

powerless, uneducated and unable to nourish and educate their children. This affects all

Papua New Guineans.

56 Convention on the Elimination of all forms of Discrimination Against Women, Article 7 at 57 AusAID Office of Development Effectiveness, Violence Against Women in Melanesia and East Timor, Building on Global and Regional Promising Approaches, 2008 PNG Country Supplement, page 2 at http://www.ode.ausaid.gov.au/publications/pdf/vaw_cs_full_report.pdf 58 AusAID, OAE, Violence Against Women in Melanesia and East Timor, Op Cit, PNG Country Supplement, page 2

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6.2. Custom in PNG

Custom in PNG has tended to entrench gender inequality and discrimination against women.59,

An Amnesty International report pulls no punches in its discussion on the treatment of women

within PNG. According to the report, women face gender-based discrimination and violence.

Traditional patriarchal customs, often distorted by changed circumstances, are invoked to justify

gender discrimination and subordination. Meanwhile, the protections that at least sometimes

used to accompany those customs have been eroded. The formal justice system offers the

promise of equality, protection and redress but in practice is remote, inaccessible and

ineffective. Women are as at risk of gender-based discrimination and violence as ever.60

One commentator noted that, despite ratification of relevant treaties, a Constitution that

enshrines human rights principles and policies that mainstream gender…, women are still not

contributing equally to development in PNG.61 Overwhelmingly, studies on women and girls in

PNG report a position of violence and discrimination.62, Neither custom nor law appears to

provide adequate protection.

The Pacific Plan has also raised the issue of custom and its role in gender discrimination. It

notes that “Pacific nations are being forced to examine the appropriateness of customary

institutions and laws in the light of changing social conditions.”63

The use of the Constitutional powers to appoint women members of Parliament is a high profile

and powerful act to advance the position of women in PNG and to achieve some progress in

this very important area. The importance of addressing the position of women in PNG for the

sake of its entire people cannot be overemphasised.

59 Korare, Dianne, “Gender and Perceptions of Political Power in Papua New Guinea”, Development Bulletin, No 59, 2002, pp 47-50 and ADB Report, Op Cit, page 6. "The discrimination females experience lasts a lifetime. Historically and even today, the arrival of a baby girl is a cause for disappointment. They are often unwanted or loved less by many families in Papua New Guinea, especially fathers." – Gender Training Manual, HELP Resources, at http://www.oxfam.org/en/programs/development/pacific/papua_gender_equality accessed 28 March 200860 Amnesty International Report, 200661 Dom, Grace, “CEDAW: An Important Tool for Change”, Paper delivered at 2nd Women in Mining Conference, Madang, 19-22 June, 2005, page 262 Amnesty International Report, 2006. See also EC/UN Partnership on Gender Equality for Development and Peace, Mapping Aid Effectiveness and Gender Equality in Asia Pacific – Regional Issues and Trends • Final Report at http://www.unifem.org/attachments/products/MappingAidEffectivenessAndGenderEquality_AsiaPacific.pdf accessed 5 January 2009; and ADB Report, Op Cit.63 PNG Platform for Action, Op Cit, page 6

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7. Entrenched interests will not welcome reforms

Reforms which alter the existing distribution of power inevitably create a “disturbance to

entrenched interests”.64 In 1974, the Constitutional Planning Committee encountered opposition

of this nature during its work in developing the PNG Constitution, which was indeed a departure

from the distribution of power in existence before its passage. The Committee Members wrote

of the “considerable suspicion, spite and prejudice” they encountered. The CPC Report of 1974

encountered some criticism of its proposals. This would be expected in a robust environment of

consultation and reform. However, the CPC noted that some responses from bureaucrats who

saw the CPC and the independent manner in which it operated as a challenge to their own

power and authority. It also noted a “danger too that some of our politicians whose power is

reinforced by the existing institutions will be tempted to defend their positions by adopting

similar attitudes.”65

In an initiative such as the first use of the Constitutional power under Section 102 to appoint

women members of Parliament some similar attitudes may emerge. Every effort should be

made to address concern and to inform the community as to the nature of the initiative and its

undoubted legal and policy legitimacy.

8. What are the legal requirements for the process to appoint the women members of Parliament?

As this process is likely to result in three appointed members of the National Parliament, it is an

important process which will be subject to great scrutiny and must be developed to ensure

transparency and fairness.

The Constitution is silent on the process to select members to be considered for appointment by

Parliament. It neither sets out a process nor states that a process should be provided in an Act

of Parliament.

This leaves the process to be decided administratively, which is an appropriate outcome. It

must be a credible process as it must be expected that when the nominees for appointment are

voted upon by the National Parliament, members can be confident that a transparent and fair

process was used to ensure the best qualified candidates for appointment are being presented

for their consideration.

64 Constitutional Planning Committee Report65 Constitutional Planning Committee, Constitutional Planning Committee Report, 1974, paragraphs 9 and 10

19

The process to be used was carefully developed and endorsed by NEC and is set out in full in

Appendix 3. It is transparent and fair and should deliver the best qualified candidates for the

consideration of Parliament.

What might be the outcome, if the courts are called upon to examine the process? Opponents

of the initiative may seek a declaration that the process is null and void. In Kaseng v Namaliu

[1995] PNGLR 481, a challenge was brought to the enactment of the Organic Law on Provincial

Governments and Local-level Governments 1995. Kaseng’s argument was that the National

Parliament did not comply with the mandatory requirements under Section 14 of the Constitution

in relation to the “circulation” of the proposed Organic Law to the members of the National

Parliament. The Supreme Court ruled that although Section 14 does talk about “circulation” the

manner in which circulation is to be implemented was lacking under Section 14. In this case, it

turned to the Standing Orders of Parliament for guidance and ruled that, the manner was

circulation was covered by the Standing Orders.

In the present case, the government can argue in any court that the procedure approved by the

National Executive Council should fill the gap and that the courts are likely to acknowledge the

process. See Appendix 4 for a full explanation of the law which establishes that an enabling Act

is not required and that the NEC endorsed process is sufficient.

8.1. Measure is a temporary or interim measure

This measure is intended to last until the election in 2012 and is therefore a temporary measure.

Work is currently being undertaken on laws to create reserve seats for women in the National

Parliament to take effect from 2012. As a result, the reserve seats will address the problem of

lack of participation and representation of women and the temporary measure of nominated

members under sections 101 and 102 will no longer be required.

9. Conclusion

The Constitution establishes a clear goal to enable women to participate in all aspects of life in

PNG including lawmaking in the National Parliament. They also establish an absolute duty on

the National Parliament to give effect to the National Goals and Directive principles by any

means within its power. The use of the power to appoint women members is a means available

to the National Parliament to address the lack of equality of opportunity, the lack of participation

and the lack of representation of women in Parliament and give effect to those parts of the

National Goals and Directive Principles.

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Guidance is also provided in the Constitutional rights to a reasonable opportunity to take part in

the conduct of public affairs and to be elected to public office and hold public office. Also

relevant is the qualified right to the same rights and privileges as other Papua New Guineans

regardless of sex. Use of the Constitutional powers to appoint women members of Parliament

is arguably also giving effect to these rights.

The conclusion is that the use of the Constitutional powers to appoint women members of

Parliament to increase equality of opportunity and address manifestly inadequate representation

of women in the National lawmaking body has the highest degree of legal and moral legitimacy.

Technical Working Group Legal Team

Genevieve Howse, Dr Eric Kwa and Blanche Vitata (from the Office of the State Solicitor)Port Moresby, March 2009

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Appendix 1 – table of figures of electoral participation by women and men since IndependenceTable 1

Representation by sex in PNG, 1972 – 2002

   

 Candidates

 MP’s

  Women 

Men Women Men

1972 4 604 1 1081977 6 872 2 1071982 10 1,114 0* 1091987 15 1,502 0 1091992 16 1,629 0 1091997 50 2,322 2 1072002 73 2,763 1 1082007 102 2700 1 108

* One woman member was elected after the Court of Disputed Returns ordered a recount of disputed votes

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Appendix 2- Description of domestic and international legal and policy obligations to advance the position of women in PNGPNG Platform for Action

The PNG Platform for Action, was developed after a PNG delegation attended the

Fourth UN World Conference on Women, held in Beijing, China, in September 1995.

It uses a similar format to the Beijing Declaration and Platform for Action. The Beijing

document was long, comprehensive and ambitious in its scope. It was adopted

unanimously by 189 world governments that agreed to remove all obstacles to

equality for women, and to ensure a gender perspective in all government policies

and programs.66 Progress, however, has been slow.

Similarly, the PNG Platform for Action identifies critical areas of concern for women,

with strategic objectives and recommendations for action in each critical area. It

reported in its introductory remarks that:

Despite … early initiatives, successive government policies have not been consistent

enough to maintain … momentum. This has resulted in fewer achievements for the

advancement of women with the consequential impact of a poorer quality of life for

women in Papua New Guinea.67

It invoked the Constitution as an important source of rights for PNG women, but

noted that these had not been realised in practice.

Although the national Constitution provides for the equal rights of all citizens, women

have not been able to fully understand and exercise their rights. This has been

largely due to ineffective government mechanisms advocating and promoting the

rights of women.68

The PNG Platform for Action was intended to be used to address these problems.

66 Banulacht, Women in Ireland in Global Solidarity at http://www.banulacht.ie/docs/briefing-beijingplus10.htm accessed 5 January 200967 Government of PNG, Platform for Action: A Decade of Action for Women Towards National Unity and Sustainability, 1995-2005, June 1995, (first edition) at http://www-ilo-mirror.cornell.edu/public/english/region/asro/mdtmanila/training/unit2/pngplat.htm accessed 6 January 2009, page 468 PNG Platform for Action, Op Cit, page 4

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A 1998 World Bank Report states that the document “was developed from extensive

consultations with Government, non-government organisations and individuals,

particularly women, throughout the nation. It is thus the most comprehensive

identification of issues and problems facing women in PNG.”69 However, the report

goes on to note that “This is an extensive and somewhat lengthy list and very little of

it seems to have been implemented.”70 In 2009, the position does not appear to have

greatly changed.

In the foreword to the PNG Platform for Action, the then Prime Minister, Sir Julius

Chan, presented the 1995 document as “the yardstick in the coming decade.”71 In

the preamble, it stated that “The government of PNG officially recognises the needs

and potential of women.” Using this document in the way suggested by Sir Julius

Chan, the yardstick will show that progress has been painfully slow. The PNG

Platform for Action has become another plan that has not been implemented.

Millennium Development Goals

The eight Millennium Development Goals (MDGs) – which range from halving

extreme poverty to halting the spread of HIV/AIDS and providing universal primary

education, all by the target date of 2015 – form a blueprint agreed to by all the

world’s countries and all the world’s leading development institutions. They have

galvanised unprecedented efforts to meet the needs of the world’s poorest. Goal

three is “promote gender equality and empower women.”72

The inclusion of “gender equality and women’s empowerment” as Goal 3 in the

Millennium Development Goals (MDGs) together with Goals 1,2,4,5,6 and 7 has

created opportunities for increased attention to gender and development in PNG.

However, the PNG MDG Report on Goal number 3, while referring to education

targets for girls and boys in primary and secondary education, ignores the other

gender indicators for gender equality and women’s empowerment.73

69 Brouwer et al, Gender Analysis in Papua New Guinea, The World Bank 1998, page 3670 Brouwer, Op Cit, page 3671 Government of PNG, Platform for Action: A Decade of Action for Women Towards National Unity and Sustainability, 1995-2005, June 1995, (first edition), at http://www-ilo-mirror.cornell.edu/public/english/region/asro/mdtmanila/training/unit2/pngplat.htm accessed 6 January 200972 See http://www.un.org/millenniumgoals/ accessed 27 March 200873 Go PNG and UNDP, 2004. Millennium Development Goals, Progress Report for Papua New Guinea. Quoted in ADB Report Op Cit, page 25

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Pacific Plan

Under the broader heading of good governance, goal 12.6 of the Pacific Plan

requires States “Develop a strategy to support participatory democracy and

consultative decision-making (including …youth, women and disabled), and electoral

process.”74

Work under goal 12.6 continues, with the Pacific Islands Forum Secretariat having

commenced consultations with countries around the region, with the aim of

enhancing women’s participation in democratic and decision making processes. This

work has drawn together UNIFEM, UN Development Program (UNDP) Pacific

Centre, Secretariat of the Pacific Community and national women’s organisations

throughout the region.75

The recent advertisement for expressions of interest from PNG women, for

nominated seats in the National Parliament, specifically mentioned that one reason

for the initiative was the 38th Pacific Island Forum Communiqué (October 2007) in

which, on the issue of good governance, the Pacific Island Forum leaders agreed “to

explore ways to enhance participation particularly by women, in decision making

institutions, and in particular parliamentary processes.”76

Medium Term Development Strategy

The Medium Term Development Strategy (MTDS) covers the period 2005-2010. It is

based firmly on the Somare Government’s Program for Recovery and Development,

and its three interrelated objectives of good governance; export driven economic

growth and rural development; poverty reduction and empowerment through human

resource development.77

The Millennium Development Goals (MDGs) have been specifically incorporated into

PNG policy making via the MTDS. The Strategy states that Papua New Guinea is

committed to the MDGs, which set the objectives for global development over the

period 2000 to 2015. While the timeframe covered by the MDGs is longer than the

period of the MTDS, the goals and objectives are consistent.78

74 Pacific Islands Forum Secretariat, Pacific Plan, at http://www.forumsec.org.fj/pages.cfm/about-us/the-pacific-plan/ accessed 4 Feb 200975 Pacific Islands Forum Secretariat, Annual Report on Pacific Plan, 2007 at http://www.dfat.gov.au/dept/annual_reports/06_07/performance/1/1.1.6.html accessed 4 Feb 200976 The National, PNG, 25 November 2008, page 1177 Department of National Planning and Monitoring, Medium Term Development Strategy 2005-2010, page iv78 MTDS, Op Cit, page 17

25

The MTDS acknowledges the Constitution as the source of a national vision for

PNG.79

Protection of the vulnerable and disadvantaged, and the promotion of gender equity,

is both a moral and constitutional obligation for government. Under the Constitution,

PNG’s first and second National Goals and Directive Principles call for Integral

Human Development and Equality and Participation.80

It also recognises that the success of the MTDS will be constrained if the issues of

gender equality and the empowerment of women are not addressed. Much work is

still required to improve the participation of women in decision making at all levels.81

Gender equality is identified as one of the areas that ought to be addressed by

policies supporting the MTDS.82

It is undoubtedly encouraging to see a high level planning document, such as the

MTDS, specifically acknowledge the importance of gender to the realisation of PNG’s

medium term goals.83 An important further step would be specific actions that

address gender issues directly. There are no such goals in the MTDS, and this has

been acknowledged as a shortcoming in other reports giving consideration to gender.

The MTDS is described as the product of extensive consultation. Country-wide

consultative forums were held with representatives from all levels of government, the

private sector, religious and community-based organisations, as well as with the

Consultative Implementation and Monitoring Council and international development

partners. However, there is little opportunity for women or communities to participate

in these processes. The national women’s machinery in Papua New Guinea is

relatively weak and has limited capacity to engage in macro-economic and budgeting

processes.84

79 Government of PNG, Medium Term Development Strategy 2005-2010, November 2004, page iv80 MTDS, Op Cit, page 4481 MTDS, Op Cit, page 2682 MTDS, Op Cit, page vi83 One example of such a sentiment publicly expressed in PNG: “By making a clear statement about framing supporting policies leading to gender equality (pg. vi), the resolve of the MTDS to addressing gender concerns in the country’s development planning process comes through”. The same paper refers to efforts by the Department of National Planning and Rural Development; in the National Population Policy 2005-2010, and to other plans made by that Department which purport to support creation of policy creating opportunities for women and girls to participate in all aspects of PNG life. No report is made on the success or otherwise of these plans in the paper. Popoitai, Y and Avei, U, in a joint paper entitled “Papua New Guinea Government’s Interventions to Facilitate and Evolve Women’s Empowerment”, presented to the Women in Mining Conference, Madang, 19-22 June, 2005 at http://siteresources.worldbank.org/EXTOGMC/Resources/336929-1166646977904/pnginterventions_avei.pdf accessed 6 January 200984 EC/UN Partnership on Gender Equality for Development and Peace, Mapping Aid Effectiveness and Gender Equality in Asia Pacific – Regional Issues and Trends • Final Report, 2008, at http://www.unifem.org/attachments/products/MappingAidEffectivenessAndGenderEquality_AsiaPacifi

26

Gender issues are not explicitly and systematically integrated into all the MTDS

components, in particular the major economic strategies. However, the MTDS,

combined with other gender-equality policy and strategy documents provides a

framework for developing more sector-specific gender mainstreaming strategies.

However, a number of the more substantial gender equality policy documents, such

as the 1995 Platform for Action, need to be updated.85

“This is the first time that gender equality has appeared in a major development

policy document. The inclusion of gender equality in the MTDS means that

submissions for projects for gender and development should be accommodated in

the budget.”86

The acknowledgement of gender issues in the MTDS represents progress in PNG

thinking about the importance of this issue and its rightful place in planning and

budgeting. This progress should be built upon when the MTDS expires in 2010.

CEDAW

The PNG Parliament ratified CEDAW, without reservations, in 1994 in the lead up to

the United Nations Women’s Conference in Beijing.87 By ratifying the Convention,

PNG agreed to condemn discrimination against women in all its forms, and to

pursue, by all appropriate means and without delay, a policy of eliminating

discrimination against women. PNG also undertook to adopt suitable legislative and

other measures prohibiting all discrimination against women.88 This included

measures to modify or abolish existing laws, regulations, customs and practices that

constitute discrimination against women.89

Appendix 3 - Best Practice NEC Endorsed Process to find women to be considered for appointment to Parliament

What is the selection process?

It is important that the process of selection for the three women to be appointed to Parliament is undertaken in a transparent and fair manner. This is the only way to ensure that women are selected based on merit.

A Public call for expressions of interests from interested Papua New

c.pdf accessed 5 January 200985 ADB Report, Op Cit86 ADB Report ,Op Cit, page 2787 ADB Report, Op Cit, page 2488 CEDAW, Op Cit, Article 2(b)89 CEDAW, Op Cit, Article 2(f)

27

Guinean women was made on 25 November 2008 and an extension of the deadline to 19 January 2009 was made on 30 December 2008.

A selection panel has been set up to review, shortlist and interview all the expressions of interest.

This screening panel will deliberate on all the expressions of interest and make a final shortlist of 6 nominations to be presented to a bi-partisan selection of three (3) to be made by the Prime Minister and the Leader of the Opposition. 

The final three names will then be taken to the national Parliament for voting on each nominated woman.

Who is on the Screening Panel?

The screening panel comprises representatives of organisations that represent a broad cross section of all sectors of PNG society. These national organisations include: The National Council of Women (Chair of the panel); the PNG Council of Churches; The Evangelical Alliance; the Public Employees Association; The Public Services Commission; Employers Federation; National Academic Staff Association of the University of Papua New Guinea.

These organisations have appointed the following individuals to represent them on the screening panel:

ORGANISATION REPRESENTATIVEThe National Council of Women Ms. Josephine GenaThe PNG Council of Churches Ms. Henrietta Exton AmpaóiThe Evangelical Alliance Ms. Gail EdoniThe Public Employees Association Dr. Anna IgoThe Public Services Commission Ms. Linda TamsonEmployers Federation Ms. Florence WillieThe National Academic Staff Association of UPNG

Professor Betty Lovai

How will the screening panel work?

An independent Human Resource firm has been engaged to provide various human resource advice and secretariat support to the screening panel. Such support includes registering of all expressions of interest; preparing a matrix listing all expressions of interest, providing secretariat support and other support contained in the Selection Panel Terms of Reference.

The screening panel will be chaired by the representative of the National Council of Women.

Based on the NEC approved Terms of Reference which was advertised and the basic minimum requirements for MPs, the screening panel will shortlist 12 women out of the total expressions of interest who will be interviewed.

The top 12 candidates identified by the panel will be interviewed and a final 6 will be shortlisted for presentation to the Prime Minister and the Leader of Opposition.

28

Out of the final 6 candidates, three will be chosen to for the Parliament to vote.

Each of the final three women will be voted on separately by the Parliament. The Parliament will then approve their appointment – An absolute 2/3 majority

of the 109 members must vote “yes” before the women can be appointed to the nominated seats

The screening panel and the human resource firm have signed a Code of Conduct for the duration of their appointment to the panel.

The swearing in ceremony was by the Deputy Chief Magistrate.

How long will the whole process take?

The target for presentation to the Parliament is the first parliamentary sitting on 3rd March 2009. The following timetable is expected to be followed leading up to this date:

TIMETABLE FOR SELECTION OF NOMINATED WOMEN SEATS 

20 January Swearing in ceremony and signing of Code of Conduct of the Screening Panel and the Human Resource firm by the Governor General and the Chief Magistrate

21 January Opening and registration of the Expressions of Interest.

22 January—9 February HR firm compiles matrix of all Expressions of Interest and Screening panel reviews all candidates and prepares a shortlist of the 12 top candidates

9-16 February Interview candidates informed and interviews arranged

16—18 February Interviews of the top 12 candidates18—20 February Screening panel deliberates on the results of

the interviews and does second round of shortlisting to final 6 candidates

23 February Screening Panel submits the list of the 6 recommended candidates to the Prime Minister and the Leader of the Opposition in the presence of the Minister for Community Development

10 March Parliament votes for three women

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APPENDIX 4 - Analysis of the law on the need for an enabling Act to give effect to section 102

Interpretation of Section 102

Section 101 provides for the members of the Legislature and provides at subsection

(2) that an Organic Law shall make provision for the number of open electorates.

Further, Section Part VIA of the Constitution provides for “Provincial Governments

and Local Level Governments” and consists of Sections 187A-187J, under several of

the sections mentioned, require under their respective provision, for an Organic Law

to provide for or in respect to a particular matter concerning a Provincial or Local

Level Government. For instance, Section 187B provides that an organic Law shall

make provision in respect of the form and the manner of establishment of a

Provincial Government. Following from that, Section 187C provides that an Organic

Law shall provide for the minimum number of members of the Provincial assemblies

and Local-Level Governments and the maximum number of members that may be

appointed as nominated members of Provincial Assemblies and Local-Level

Governments. The other Section under Part VIA of the Constitution provides more or

less to that effect on their respective subject matters concerning Provincial and

Local-Level Governments. As you will note, the current Organic Law on provincial

and Local-Level Governments was enacted to give effect to Part VIA of the

Constitution addressing all the issues it was instructed to address under Part VIA of

the Constitution.

Furthermore, Part VII, Division.2 provides for the “Public Services Commission” and

consists of Sections 190-194. Section 190 of the Constitution establishes the Public

Services Commission and provides at subsection (4) that subject to the Constitution,

an Act of the Parliament shall make provision for and in respect of acting

appointments and the conditions of employment of the chairman and members of the

Commission, and for and in respect of its constitution, powers and procedures. As a

consequence of Section 190 and the other provisions under Part VII, Div.2 of the

Constitution, the Public Services (Management) Act was enacted to, inter alia,

cater for the Public Services Commission as required under Part VII, Division 2 of the

Constitution.

30

Part VIIA of the Constitution provides for the “Regulatory Statutory Authorities” and

consists of Sections 208A-208B. Section 208A (2) requires an Act of Parliament to

be enacted to make provision for and in respect of other Regulatory Statutory

Authorities to which Part VIIA applies. AS a result of the express requirement for the

enactment of an Act of Parliament, the Regulatory Statutory Authorities (Appointment

to Certain Offices) Act 2004 was enacted, giving effect to Part VIIA of the

Constitution.

The above provisions are just a few provisions which expressly require an Organic

Law or an Act of Parliament to be in place to give effect to the provisions of the

Constitution and as a result of these provisions; Organic Laws or Acts of Parliaments

have been enacted accordingly. This is in line with the requirement under Section 12

of the Constitution where it provides that an Organic Law is made by Parliament for

or in respect of a matter for which by way of an Organic Law is authorized by the

Constitution and must not be inconsistent with the Constitution90, and furthermore,

where the Constitution provides for an Organic Law to make provision for any matter,

that Organic Law may make full provision for all aspects of that matter and may

impose any conditions, restrictions or modifications in respect of that matter91.

Now we look at Section 102, it provides as follows:

‘The Parliament may from time to time, by a two-thirds absolute majority vote,

appoint a person (other than a member) to be a nominated member of the

Parliament.”

Unlike the other provisions I have discussed above, Section 102 does not expressly

state that an Organic Law or an Act of Parliament needs to be enacted to give effect

to it. And using a literal approach to interpreting Section 102, it would seem that there

is no need for such enactment.

1.2 No set procedure as to manner of appointment under Section 102:

Section 101 provides that the nominated members may be appointed and hold office

according to Section 102. This can be inferred to mean that Section 102 was meant

to cater for the manner in which the nominated members were selected, including the

90 Section 12 (1) of the Constitution 91 Section 12 (4) (a) & (b) of the Constitution

31

manner in which the Parliament was to go about appointing the nominated members,

and as well as providing the terms and conditions of being a nominated member of

Parliament.

The case of In the Matter of Constitution Validity of Constitutional Amendment (Provincial Governments and Local Level Governments) and Organic Law on Provincial Governments and Local Level Governments, Isidore Kaseng v. Rabbie Namaliu, Speaker of National Parliament provides a guide as to the

powers of Parliament in instances where there is lack of clarity under a Constitutional

provision concerning the procedure to go about a particular matter.

Brief facts:

This is an originating summons seeking orders in the nature of declarations

regarding the interpretation and application of the provisions of certain

constitutional laws. This summons is brought before this Court in an

originating proceeding on the basis that this Court has exclusive jurisdiction in

relation to the interpretation and the application of the provisions of the

Constitution pursuant to s 18(1).

The Supreme Court Rules do not provide for practice and procedure for

commencement of originating proceedings before the Supreme Court. Ad hoc

directions were given to commence these proceedings by way of originating

summons under s 185 of the Constitution.

On 27 June 1995, the National Parliament passed (1) Constitutional

Amendment (Provincial Governments and Local-level Governments) and (2)

the Organic Law on Provincial Governments and Local-level Governments.

These laws came into operation on 19 July 1995, when they were certified by

the Speaker.

Mr  Isidore  Kaseng (hereinafter, the “applicant”), a citizen, brought these

proceedings seeking declarations:

1.       that the Constitutional Amendment (Provincial Governments and Local-

level Governments) is unconstitutional and null and void,

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2.       that the Organic Law on Provincial Governments and Local-level

Governments is unconstitutional and null and void, and

3.       that the other laws purportedly passed under the Organic Law on

Provincial Governments and Local-level Governments are invalid. These laws

are:

(a)      Local-level Government System (Interim and Transitional

Arrangements) Act 1995.

(b)      Provincial Governments and Local-level Governments (Consequential

Amendments) Law 1995.

(c)      Provincial Governments and Local-level Governments (Consequential

Repeals) Act 1995.

Counsel for the Applicant has attacked the validity of the constitutional law

amendments and supporting legislation on the basis that they breach ss 12,

13 and 14 of the Constitution. Counsel questions the validity of Organic Law

on Provincial Governments and Local-level Governments on the basis that it

is not authorised by the Constitution, s 12(1)(a).

The issues before the court to decide where as follows:

(1) whether the provisions of ss 12 and 14 of the Constitution relating to the

manner and form of amendments to the Constitution and Organic Laws are

mandatory;

(2) whether the provisions of s 14 of the Constitution which require that

proposed amendments to the Constitution and the Organic Laws be

circulated to members of the National Parliament not less than one month

before their introduction to Parliament are mandatory;

(3) whether there had been an opportunity to debate the proposed laws, as

required by s 14 of the Constitution; and

(4) whether the requirements of s 12(1)(a) Constitution as to express

authorisation for the making of an Organic Law had been complied with at the

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time of the making of the Organic Law.

The Court held that the amendment to the Constitution and the new Organic Law on

Provincial Governments and Local Level Governments were not unconstitutional and

held with regard to the four issues as follows:

1.       Per the Court: the requirements of ss 12 and 14 of the Constitution as

to the manner and form of amendments to the Constitution and the Organic

Law are mandatory.

2.       Per Amet CJ, Los, Hinchliffe, and Andrew JJ (Kapi DCJ dissenting): the

requirements in s 14 of the Constitution that amendments to the Constitution

and Organic Laws be circulated to members of the Parliament not less than

one month prior to their introduction into the Parliament are mandatory, but

since no standing orders as to the manner of circulation had been made, as

required by s 14, the requirements are to be regarded as directory until the

standing orders are, in fact, made. In terms of the directory nature of the

requirement as to circulation, there has to be substantial compliance with the

requirement of not less than one month. On the facts, there had been a

period of circulation of 21 days before the introduction of the amendments

into Parliament, and that was sufficient compliance with s 14 of the

Constitution.

Per Amet CJ, Hinchliffe and Andrew JJ: the fact that no member of

Parliament had complained at the shorter period of circulation and the fact

that both the amendment to the Constitution and the proposed Organic Law

had received overwhelming support in the votes in Parliament should be

taken into account in determining whether the directory requirement had been

complied with.

3.       Per Amet CJ, Los, Hinchliffe, and Andrew JJ (Kapi DCJ dissenting):

there had been an opportunity to debate the proposed law to amend the

Constitution and the proposed Organic Law, as required by s 14(2) of the

Constitution, and, accordingly, the amendment and the proposed Organic

Law are not unconstitutional.

Per Amet CJ: whether or not debate takes place under s 14(1) and (2) of the

Constitution, and, if so, for how long and the subject matter of that debate, are

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matters that are non-justiciable as pertaining to the internal procedures of the

Parliament.

4.       Per Amet CJ, Hinchliffe and Andrew JJ (Kapi DCJ and Los J

dissenting): the requirement of s 12(1)(a) of the Constitution that an Organic

Law may only be made if expressly authorised by the Constitution had been

complied with, since the amendment to the Constitution had been made at

the time of the making of the proposed Organic Law.

Per Amet CJ, section 12(1)(a) Constitution is descriptive only of the kind of

laws that can be made as Organic Laws, and is not concerned with how an

Organic Law is made, or the procedures to be followed, or the majority

necessary for its making.

Per Amet CJ; Hinchliffe and Andrew JJ: the making of a law is to be

distinguished from the effective commencement of a law and its application.

Per Hinchliffe and Andrew JJ: the Supreme Court can exercise jurisdiction

where it is alleged that the requirements of the Constitution relating to

constitutional amendments are breached, but where it is alleged that the

passage of amendments through the Parliament breached parliamentary

procedures, these matters are non-justiciable under s 134 of the Constitution.

In our present circumstances, Section 102 gives the power to the Parliament under

the Constitution to appoint three nominated MPs by a two-thirds absolute majority

vote. It however does not specify on the procedural aspect of selecting the three

nominated members nor does it clarify the procedure in Parliament on how to go

about the two thirds absolute majority vote.

As rationalized by the Court in the above case, power is given to the Parliament

under Section 14 of the Constitution to alter the Constitution or an Organic Law and a

Standing Order of Parliament was to supplement the manner of going about

amending the Organic Law by the prescribed majority of vote in accordance with

Section 17expressed on at least two occasions after opportunity for debate on the

merits.

The Court outlined in the case between Kaseng v. Namaliu (supra) that there was

lack of procedure as to the manner of circulation of the Bill, there was lack of

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procedural guidance on the manner of going about debating the Bill and voting on the

Bill.

Upon careful consideration of the facts of the case and the reasoning of the Court,

the following, in my view, are the relevant principles derived from the case:

1. Where the Constitutional provision is not clear on the manner or form of

exercising a power but gives the power to the parliament (in this instance in

the enactment of a proposed law), the manner and form of exercise of that

power is up to parliament and are non-justiciable.

2. Where it is required under a provision of the Constitution for the enactment of

an act or a legal supplementary document, like the Standing Orders of

Parliament, to guide the process or procedure of a particular matter

prescribed under the constitution, it is a mandatory requirement. And where

an act or the standing orders is not enacted or does not provide for such

procedural provisions accordingly, it cannot be properly asserted or assumed

therefore that the actions of the mps were not proper because there is no

proper manner until parliament makes provision to fill in the procedural gaps

by complying with the requirement under the constitution.

3. It was also rationalised by the court that where the Constitutional provision

makes the exercise of a particular act or power mandatory, it will only be

directory until the mandatory requirement for the establishment for an act or,

in this case a standing order, has been enacted to accordingly cater for the

procedural aspect of section 14 of the Constitution.

4. Per Hinchliffe and Andrew jj: the Supreme Court can exercise jurisdiction

where it is alleged that the requirements of the Constitution relating to

Constitutional amendments are breached, but where it is alleged that the

passage of amendments through the Parliament breached Parliamentary

procedures, these matters are non-justiciable under s 134 of the Constitution.

(this only relates to passing of bills in Parliament)

5. Where a provision of the Constitution does not clearly outline the procedure to

be followed or does not require the enactment of an Act of Parliament to

specify on the procedural aspect of a Constitutional provision, or where the

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Constitutional provision makes reference to the enactment of an Act of

Parliament but none has been enacted yet, the Parliament may decide on

how to proceed to deal with the particular matter.

The principles in the above case may be applied to our instant situation concerning

Section 102 of the Constitution. The similarities in principle between our current

matter and the case of Kaseng v. Namaliu (supra) concern the fact that in both

circumstances, Parliament has been prescribed a power to be exercised under the

Constitution. In the case of Kaseng v. Namaliu, that power afforded to the

Parliament under the Constitution is the power to alter the Constitution or an Organic

Law under Section 14 of the Constitution. In our current matter, Parliament is given

the power by the Constitution to appoint three nominated MPs to Parliament under

Section 102.

The second similarity in principle between the Kaseng v. Namaliu and our present

matter is that the procedural aspect of exercising that particular power is unclear. In

the Kaseng v. Namaliu, the Court pointed out that clarity was needed with regard to

the manner of circulating the Bill and how to go about debating the Bill. In our present

situation, Section 102 leaves a vacuum with regard to the manner in which the three

nominated members are selected and how Parliament is to go about voting them.

The Kaseng v. Namaliu and our present matter differs on one important element

under each of their respective provisions and that is, Section 14 requires the

Standing Orders of Parliament to make provision on how to go about supporting the

making of alterations to the Constitution or an Organic Law, while there is no such

requirement under Section 102, nor is there a requirement for the enactment of an

Act of Parliament.

In my view this difference between the Kaseng v. Namaliu and our present matter

does not render the application of the decisions reached nor the principles outlined in

the case to our particular matter. I take this stand on the grounds that both cases

share the important similarities which is important for our current purposes

concerning Section 102 and that is that, a power is conferred on the Parliament by

the Constitution and that despite this power being conferred on the Parliament, the

procedural aspect of the exercise of that power is not clearly defined under the

respective Sections of the Constitution.

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In saying this, I would have to apply the reasoning of the Court under the Kaseng v. Namaliu to our present matter by stating the following:

1. Section 102 of the Constitution gives the power to Parliament to appoint

nominated MPs.

2. Section 102 requires a two-thirds absolute majority of the Parliament to

appoint the nominated members.

3. Where a provision of the Constitution is unclear about the procedure as to

going about exercising this power and there is no requirement under the

specific provision for the enactment of an Act of Parliament to specify the

procedure, the manner in which Parliament goes about exercising the power

given to them is up to Parliament but must not be inconsistent with the

requirement for the two-thirds absolute majority vote requirement under

Section 102.

4. So long as Parliament does not breach the express requirements under

Section 101 (that there be three nominated members) and Section 102 (that

Parliament appoints the three nominees only where a two-thirds absolute

majority vote is reached) in appointing the three nominated members to

Parliament, but adopts a fair and transparent process in firstly selecting the

three nominated women and then uses existing and appropriate process in

place to make the appointment in Parliament, the actions of Parliament

concerning the three nominated women MPs, should be deemed valid and

legal for all intents and purposes.

5. Furthermore, since there is no proper and specific procedure in place for the

appointment of the three nominated women, it is up to Parliament to decide

the process to be followed being guided by existing processes, if the

processes used are transparent, fair, reasonable and taken from existing

procedure concerning the manner in which Parliament acts on certain other

matters, the actions taken by Parliament in appointing the three nominated

women cannot be said to be improper as there is no specific Act of

Parliament nor under the Parliamentary Standing Orders outlining a proper

mode of appointing nominated members under Section 102 of the

Constitution.

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To conclude, in my view, where the procedure is not clearly defined under a provision

of the Constitution, and where also, that particular Constitutional provision does not

provide for the enactment of an Act of Parliament to fill that procedural gap, by virtue

of the case of Kaseng v. Namaliu (supra), the Parliament may decide its own

procedure but it would be proper to use the processes already in existence and

which is legally appropriate for all intents and purposes of Section 102. Further,

Section 101 (1)(c) of the Constitution provides that the nominated members may be

appointed and hold office pursuant to Section 102. This infers therefore that Section

102 was meant to cater for the procedural aspects of appointing the nominated

members and also in defining their terms and conditions of office. Section 102 does

not provide for such and these aspects concerning nominated members’ appointment

process and terms and conditions of Office has to be addressed at law. However,

this does not prevent the current Parliament from proceeding with the appointment of

the nominated members to Parliament by applying appropriate procedure already in

place with regard to other matters under the Constitution as the current Government

intends to do in Parliament with the three women nominees.

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APPENDIX 5 - Absolute majority vote under the constitution

Section 102 of the Constitution provides that the Parliament by a two-thirds absolute majority vote, may from time to time appoint a person, who is not currently

a MP, to Parliament.

Absolute Majority Vote:

Section 17 of the Constitution provides for “Prescribed majority votes”. Subsection

(1) of Section 17 provides that in relation to a proposed law to alter any provision of

the Constitution, the prescribed majority of votes for the purposes of Section 14

(Making of alterations to the Constitution and Organic Laws) is the majority of votes

prescribed by the Constitution in relation to that provision, or if no majority is

prescribed, a two-thirds absolute majority.

Subsection (2) of Section 17 lists the provisions under the Constitution which require

a two-thirds absolute majority vote, while subsection (3) of Section 17 lists the

provisions under the Constitution which require a three-quarters absolute majority.

Schedule 1.2 of the Constitution defines “absolute majority vote” in relation to

proceedings in the Parliament, means:

“(1) In this Constitution or an Organic Law–

“absolute majority vote”, in relation to proceedings in the Parliament, means–

(a) if qualified by reference to a certain fraction or percentage, affirmative votes

equal to not less than that fraction or percentage of the total number of seats

in the Parliament; or

(b) if not so qualified, affirmative votes equal to more than one half of the total

number of those seats;…”

Subsection (1) (a) of Sch. 1.2 requires the full number of MPs in the House of

Parliament to vote on a particular matter where there is express reference of 2/3 or ¾

absolute majority vote. Where there is no express requirement for a 2/3 or 3/4

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absolute majority vote, then the full number of MPs in the House of Parliament must

be present to vote and a resolution will be passed where there is more than ½ of the

total number of seats in Parliament.

Using figures to explain this would be as follows:

Section 102 requires 2/3 absolute majority vote to appoint a nominated member into

Parliament so:

109 seats x 2/3 = 73 votes

If Section 102 only required an absolute majority vote then it would be as follows:

109 seats / 50% = 56 votes

The following cases define “absolute majority vote”:

Joshua v. Meya [1988-89] PNGLR 182 Kawage v. Mondu, N1912 (9th August 1999) Marika v. Silari, N2729 (18th October 2004)

The Court in the case of Joshua v. Meya held that the vote of no confidence was

invalid as it did not have the required two-thirds absolute majority votes as is required

under Section 41 of the Constitution of Morobe. There are in total 35 seats in the

Morobe Provincial Legislature, however at the time of the voting on the motion of No

Confidence, 13 members had been suspended and as a consequence the remaining

22 members voted in favour of the motion. The Court discussed the definition of

“absolute majority vote” under Sch. 1.2 of the Constitution and held that the vote was

not legal as, the requirement for a two-thirds absolute majority vote required 24 votes

were required against the 35 seats in total and not the 22 votes that were received.

In the case of Kawage v. Meya, the Court declared the first Defendant as the duly

elected President of Daulo Local-level Government. The Court was of the opinion

that his election complied with Section 12 (3) (c) of the Local-level Government

Administration Act of 1997, which requires a two-thirds absolute majority vote from

the 25 duly elected members which comprises the full seats. All 25 members were

present at the time of voting and the Ayes were 16. The Court worked out two-thirds

of the 25 seats and came up with 16.666 (or 17). The Court distinguished this case

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from the above case of Joshua v. Meya, and stated that this was an absolute

majority, as all 25 members met and voted and therefore 16 was an absolute

majority.

In my view the reasoning of the Court with regard to “2/3 absolute majority” is quite

sound, I however, do not agree in the Court’s decision in allowing that 16 was the

absolute majority, as 2/3 of 25 total seats is 16.666 which is equivalent to 17

members.

In the case of Marika v. Silari, the Court discussed whether the requirement of a

two-thirds absolute majority required the required the votes of the members present

and voting or whether is means 2/3 absolute majority of the total number of seats in

Parliament. The Counsel for the Plaintiff submitted that a two-thirds absolute majority

requires the votes of the total number of seats in the Council area and not two-thirds

of the members then present and voting and he relied on the above two cases as

authority.

The Counsel for the first Defendant submitted that two-thirds absolute majority

requires two-thirds of the votes of the members present and not the full seat. In

deciding the issue, the Court referred to Sch. 1.2 of the Constitution. The Court

rationalized that there are 41 seats in the Yawar Local Level Government, thus two-

thirds majority would mean two-thirds of 41 seats which would be 27. The Court went

on to state that it was erroneous to say that it was legitimate to calculate the two-

thirds majority from the 36 members who were present in the chamber and took part

in the vote, as that was not the proper way to determine two-thirds absolute majority.

The Court went on to state that the proper way to determine two-thirds absolute

majority vote is by reference to the number of seats in the Council area. Therefore

two-thirds absolute majority of 41 seats is 27. The 25 votes voted in favour of the No

Confidence motion was clearly, in the Court’s view, not a representation of the two-

thirds absolute majority requirement.

Summary of rationale behind the above cases:

In all the cases mentioned above, they discussed the meaning of “2/3 absolute

majority” in light of Sch. 1.2 of the Constitution and all agreed that a two-thirds

absolute majority refers to two-thirds of the total seats of a House, whether those

seats are filled physically or not during the voting sessions. Absolute majority does

not refer to a two-thirds vote of the members present and voting, the requirement for

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the members present and voting reflects that of a simple majority vote as outlined

under Section 2 of the Standing Orders of Parliament where it states:

“simple majority means a majority of more than half of the members present and

voting”

Application of above rationale to Section 102 of the Constitution:

Section 102 of the Constitution provides as follows:

“The Parliament may, from time to time, by a two-thirds absolute majority vote,

appoint a person (other than a member) to be a member of the Parliament.”

Section 102 requires 2/3s absolute majority vote to appoint a nominated member,

this would be calculated as follows:

109 seats x 2/3 = 72.666 members

Therefore 73 votes or more of the Members of the Parliament are required to appoint

the nominated members under Section 102, as you cannot have 72 and 2/3s of a

member. There is no requirement therefore that the total number of members

occupying the 109 seats have to turn up to vote, so long as those that are present,

two-thirds of their votes is taken against the total 109 seats in Parliament, that is

sufficient to satisfy the “absolute majority vote” under Section 102 of the Constitution.

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