Governor General's appointment was not valid

By Charles Mende*

I have heard and read about the current appointment of the Governor-General with interest and since it is a constitutional situation involving the representative of the Head of State it deserves extensive and thorough public discussion. It appears that there are some improprieties as a result of the conduct of the Parliament in the appointment of the G-G then it should be challenged in court. 

As an individual and a legal person I realise that it all comes down to the issue of whether or not the appointment of the GG pursuant to Section 87(5) of the Constitution was constitutional or properly done accordingly to law.

It appears that the Government and its legal counsels and advisers are satisfied that the appointment of the G-G pursuant to Section 87(5) was constitutional and in order. After all, they are supposed to receive well informed legal advice from their advisers on every constitutional or legal situation that the Parliament has to deal with. The opinion of the counsel and the other advisers that was advertised on the two dailies particularly on Monday 28th June, prompted me to have a good look at the Constitution Section 87(5).

Part V of the Constitution provides for the Head of State. Division 1 provides for matters relating to the Head Of State. Division 2 provides for the function of that officer. Division 3 provides for appointment etc of the G-G. 

Section 87 provides for the qualifications for appointment. Subsection (1)(a) & (b) provides for those qualifications that a candidate must possess in order to be qualified for appointment as G-G. Subsection (2) provides that any questions that arises under Subsection (1)(b) is non-justicible. Subsection (3) provides for the qualifications that a candidate must not have. 
Subsection (4) provides for consent not to be given by the National Executive Counsel (NEC) and the Ombudsman Commission (OC) unless agreement on the matter in relation to which consent is brought has been reached between the NEC and the OC.

Subsection (5) is the controversial provisions and it states: “No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote approves appointment for a second term but no person is eligible for appointment for a third term.”

Let us break up this provision into smaller parts in an attempt to see what the dominant theme in this subsection is or what the subsection is actually concerned with. This Subsection comes in three different parts or legs as follow:

1) No person is eligible for appointment as GG more than once. As a general rule the first leg clearly states that a person is not eligible for appointment as G-G more than once. However, the second leg of the subsection goes further and provides a qualification to that general disqualification provided under the first leg and it states:

2) Unless the Parliament, by two thirds absolute majority vote, approves appointment for a second term.

This absolute majority vote is actually a vote to approve appointment so that a person who would otherwise not be eligible for appointment as G-G under the first leg becomes eligible under the second leg. Eligibility is the first and fundamental requisite that has to be satisfied before appointment into a higher office.

The third leg goes on to say in no uncertain terms that:

3) No person is eligible for appointment for a third term.

My personal view is that the provision, as a whole, provides for the eligibility and ineligibility criteria for appointment of a G-G. This provision does not talk about actual appointment or provide the basis for appointment as GG rather it identifies who is an eligible candidate and who is not an eligible candidate for appointment as G-G and that is why Section 87 is appropriately titled “qualifications for appointment”.

A constitutional provision has to be read as a whole together with its surrounding provisions in the search to ascertain the true intent and purpose of that provision in order to give a liberal interpretation to such a constitutional provision. This is a general rule of interpretation of constitutional provisions.

In the case of Sir Silas Atopare after his first term lapsed the first leg of Section 87(5) clearly did not qualify him for reappointment unless the Parliament by absolute majority vote approved for his second appointment. That did not succeed and therefore he was not eligible to be reappointed.

Section 88 of the Constitution provides for “appointment to office” and subsection 1 provides that the G-G is appointed by the Head of State upon advice from the NEC in accordance with the decision of Parliament. The decision by parliament, the subject of public contention, under the second leg of S87(5) was a decision to qualify a person (Sir Paulias Matane), who was otherwise not qualified under the first leg of S87(5), as eligible for reappointment for a second time.

It was not a decision to appoint a person as G-G.

Subsection (2) has two legs. The first leg goes on to provide the manner in which Parliament can appoint and that is by nominating a person for appointment and the second leg provides for the mode of nominating and that is by “simple majority vote in an exhaustive secret ballot”.

If this is the provision that provides for the manner and mode of appointment of G-G then definitely no nomination can happen under S87(5) and there was no vote by exhaustive secrete ballot. 

This provision in my view provides the basis for appointment of a person as G-G and therefore it is appropriately titled ‘Appointment to office’ (although titles do not form part of the provision). Further details of the manner and form are of course provided in the Organic Law on the Election of Governor General.

In light of the above I am the view that firstly, Section 87(5) does not give Parliament the power to appoint a person as G-G. 

Secondly, there was no “decision of the Parliament to appoint a person for G-G” and further, there was no nomination of the suitable person for appointment as G-G and as there was no nomination there was also no vote by exhaustive secret ballot and therefore the subsequent appointment of the G-G by the Head of State could not have been validly done.

* The author is a lawyer with Kimbu & Associates. He was also legal office with the Public Prosecutor’s Office for a year and the Ombudsman Commission for four and half years.