THE combined reading of section 142 of the Constitution, the Organic Law on the Integrity of Political Parties and Candidates and Part II of the Standing Orders of the National Parliament shows that the following order of procedure has to be followed for the first two critical days of the 10th Parliament.
Wednesday 2 August 2017
- Members will assemble in the Chamber at the appointed time.
- The Clerk will read the National Gazette notification calling the Parliament together and the notification appointing the representative of the Governor-General to administer the Declaration of Office and Declaration of Loyalty. (This may be administered by the Chief Justice).
- Notice is given in the normal manner for the appointment of the Speaker and the Prime Minister.
- Parliament adjourns to the “next sitting day” which is Thursday 3rd August 2017 for the election of the Speaker followed by the Election of Prime Minister.
Thursday 3 August 2017
- Election of Speaker. When more than one Member is proposed and seconded as Speaker, the Clerk acting as Chairman of the Parliament will conduct an election by exhaustive secret ballot.
- Parliament’s decision on Election of Speaker is announced.
- Parliament will be suspended whilst Mr Speaker presents himself to the Governor-General and is sworn into office.
- Mr Speaker returns to Parliament and reports that he was duly sworn in by the Governor General.
- Parliament will proceed to elect a Prime Minister, or be adjourned for no more than 3 days.
- The nominee of the party invited by the Governor General to form government will be asked state whether he accepts the nomination. If he accepts the nomination, the voting of the Prime Minister Proceeds by dividing dividing and moving Members to positions indicated by the Speaker.
- If the nominee does not master the simple majority to form government, then Speaker will call for and accept nominations, duly moved and seconded on the floor of Parliament.
Parliament cannot elect the Speaker and Prime Minister on Wednesday 2 August. This is the first session/sitting day where notice is given. The voting of the Speaker and the PM has to occur on the next sitting day which is Thursday 3 August.
This is the correct interpretation confirmed by the Supreme Court in Haiveta, Leader of the Opposition v Wingti, Prime Minister; and Attorney-General; and National Parliament  PGLawRp 197 (25 August 1994).
The main reasoning was provided by Amet CJ and Kapi DCJ (as they then were respectively), which drew unanimous support from the three other members of the bench. A relevant portion of Amet CJ’s reasons is reproduced as follows:
APPOINTMENT OF PRIME MINISTER AFTER A GENERAL ELECTION: SS 142(2) AND (4)
Section 142(2) is a general enabling provision for the appointment of a Prime Minister. The operative provision is s 142(4). Section 142(2) simply states that the Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minster arises.
Section 142(3) and (4) provide the time frame and the order in which the principal formal business of Parliament on that occasion shall be conducted. As I have concluded that the consideration of election and appointment of the Prime Minister under s 142(3) shall be "on the next sitting day" following Parliament being formally advised, to render consistency of this interpretation to the same expression also in s 142(4), and for the avoidance of uncertainty, following a general election s 142(2) and (4) apply.
The election of the Governor-General, if necessary, the Speaker, and the Prime Minister shall take place "on the next sitting day" following the calling of Parliament. That is that, after Parliament is convened on the first day when the writs are returned and the new members are sworn into office, notice is given in the normal manner for the appointment of the Speaker and the Prime Minister, which are then adjourned to be considered and voted upon "on the next sitting day". This conclusion has the effect of over-ruling the case of Mopio v Speaker of the National Parliament (supra).
It will therefore be unconstitutional to elect both the Prime Minister and the Speaker on Wednesday 2 August when parliament meets for the first time after the general elections. It has to occur on the next sitting day –Thursday 3 August.