Application pursuant to Constitution, Section 18(1) reference by the Honourable Belden Norman Namah MP, in his capacity as Leader of the Opposition in the matter of the Constitution, Sections 11, 32, 41, 50, 59, 108, 114, 142 and 158(2) (2020) SC1934

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Cannings J, Shepherd J
• Judgment Date: 27 March 2020
• Citation: (2020) SC1934
• Docket Number: SCC (OS) No 4 of 2019
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1934

Full Title: SCC (OS) No 4 of 2019; Application pursuant to Constitution, Section 18(1) reference by the Honourable Belden Norman Namah MP, in his capacity as Leader of the Opposition in the matter of the Constitution, Sections 11, 32, 41, 50, 59, 108, 114, 142 and 158(2) (2020) SC1934

Supreme Court: Kandakasi DCJ, Cannings J, Shepherd J

Judgment Delivered: 27 March 2020

SC1934

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO 4 OF 2019

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

REFERENCE BY THE HONOURABLE

BELDEN NORMAN NAMAH MP,

IN HIS CAPACITY AS LEADER OF THE OPPOSITION

IN THE MATTER OF THE CONSTITUTION,

SECTIONS 11, 32, 41, 50, 59, 108, 114, 142 AND 158(2)

Waigani: Kandakasi DCJ, Cannings J, Shepherd J

2020: 25th & 27th March

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether applicant lacked authority to commence proceedings as Leader of the Opposition – whether applicant improperly amended application without leave of Court – whether application non-compliant with Supreme Court Rules 2012, Order 4, Rules 1 and 3 and Form 1 – whether application incorrectly entitled.

The first intervener (supported by other interveners) to an application by the Leader of the Opposition under s 18(1) of the Constitution, which challenged the constitutionality of appointment of the Prime Minister, objected to competency of the application on four grounds: (1) the applicant lacked capacity to commence the proceedings as Leader of the Opposition; (2) the applicant amended the application without leave of the Court, contrary to Order 4, Rule 10 of the Supreme Court Rules 2012; (3) the application failed to state how each provision of the Constitutional Laws that the applicant is requesting be interpreted, ought to be interpreted, and is therefore non-compliant with Order 4, Rules 1 and 3 and Form 1 of the Rules; and (4) the application used an incorrect file reference and was incorrectly entitled as a “Reference” and is therefore non-compliant with Order 4, Rule 1 and Form 1 of the Rules.

Held:

(1) The applicant was for all intents and purposes the Leader of the Opposition on the date of filing the application and had not misdescribed the capacity in which he stated he was commencing the application. Ground 1 dismissed.

(2) The application was amended on the same day that other parties were granted leave to intervene and therefore under Order 4, Rule 10 of the Rules, the applicant did not require leave to amend. No breach of the Rules was proven. Ground 2 dismissed.

(3) The argument that the application failed to adequately state the preferred interpretation of each Constitutional Law provision it referred to, was heard and rejected in the course of the decision as to the applicant’s standing; and no new evidence or argument was put to the Court, which would enable it to seriously consider a different determination of it. Ground 3 dismissed.

(4) The file reference was in accordance with a practice direction by the Registrar. However, the application was incorrectly entitled as a reference, contrary to the Rules and Form 1. This was a material error, which created confusion as to the jurisdiction of the Court that the applicant was seeking to invoke. The Supreme Court has no power to entertain references under s 18(1) of the Constitution. The interveners and more importantly the Court have been led into error on multiple occasions by referring to the proceedings as a “reference” and describing the applicant as a “referrer”. The application was not in a proper form and failed to comply with Order 4, Rules 1 and 3 and Form 1 of the Rules and this by itself rendered the proceedings incompetent. Ground 4 upheld.

(5) Though three grounds of objection were dismissed, one was upheld. The objection to competency was accordingly upheld and the proceedings were entirely dismissed.

Case Cited

The following cases are cited in the judgment:

Application by Morobe Provincial Government (2012) SC1190

Application by Namah (2020) SC1932

Application of Jim Kas, Governor of Madang (2001) SC670

Benham Satah & 301 Others v Rabura Mataio, Chief Migration Officer (2016) SC1548

James Lovika & 79 Others v Carl Malpo & The State (2019) SC1895

Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082

Lucas Dekena v Nick Kuman (2018) SC1715

Morauta v Pala (2016) SC1529

Namah v Pato[2013] 1 PNGLR 205

Peter O’Neill v Nerrie Eliakim (2016) SC1522

Re Reference by Ken Norae Mondiai (2010) SC1087

Rea Joseph v Manau Sereva (2011) SC1152

SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917

SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249

Special Reference by Morobe Provincial Executive (2010) SC1089

Steven Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92

OBJECTION

This was an objection to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant

M Nale & A Serowa, for the First Intervener

N Yalo, for the Second Intervener

C Mende, for the Third Intervener

27th March, 2020

1. BY THE COURT: This is a ruling on an objection to competency of an application to the Supreme Court under s 18(1) of the Constitution. The application was filed by the applicant the Honourable Belden Norman Namah MP on 23 September 2019.

2. The applicant seeks declarations as to the constitutionality of the appointment on 30 May 2019 of the Prime Minister, the Honourable James Marape MP. He contends that the decision of the Parliament of that day to appoint Mr Marape as Prime Minister, followed:

· an unconstitutional, invalid and unlawful withdrawal of nomination by a candidate for the position of Prime Minister, the Honourable Peter O’Neill MP;

· an unconstitutional, invalid and unlawful acceptance by the Speaker of the National Parliament, the Honourable Job Pomat MP, of withdrawal of the nomination; and

· an unconstitutional, invalid and unlawful election in the Parliament, in which the only two candidates were Mr Marape and the Honourable Sir Mekere Morauta MP.

3. The applicant contends that the process of deciding on who should be the next Prime Minister, following Mr O’Neill’s resignation from that office on 29 May 2019, miscarried due to the failure to have proper regard to the following provisions of the Constitution:

· Section 11 (Constitution etc as supreme law);

· Section 32 (right to freedom);

· Section 41 (proscribed acts);

· Section 50 (right to vote and stand for public office);

· Section 59 (principles of natural justice);

· Section 108 (functions of the Speaker and Deputy Speaker);

· Section 114 (voting in the Parliament);

· Section 142 (the Prime Minister); and

· Section 158(2) (exercise of the judicial power).

4. Three persons have been granted leave under Division 4.7 of the Supreme Court Rules2012 to intervene in the proceedings:

· the first intervener, the Prime Minister, the Honourable James Marape MP; and

· the second intervener, the Deputy Prime Minister, Minister for Justice and Attorney-General, the Honourable Davis Steven MP; and

· the third intervener, the Speaker of the National Parliament, the Honourable Job Pomat MP.

GROUNDS OF OBJECTION

5. The first intervener (supported by other interveners) objects (by an amended notice of objection filed 17 March 2020) to competency of the application on four grounds, which are, as clarified by submissions of counsel for the first intervener:

(1) the applicant lacked capacity to commence the proceedings as Leader of the Opposition;

(2) the applicant amended the application without leave of the Court, contrary to Order 4, Rule 10 of the Supreme Court Rules;

(3) the application failed to state how each provision of the Constitutional Laws that the applicant is requesting be interpreted, ought to be interpreted, and is therefore non-compliant with Order 4, Rules 1 and 3 and Form 1 of the Rules; and

(4) the application used an incorrect file reference and was incorrectly entitled as a “Reference” and is therefore non-compliant with Order 4, Rule 1 and Form 1 of the Rules.

GROUND 1: APPLICANT LACKED CAPACITY TO COMMENCE PROCEEDINGS AS LEADER OF THE OPPOSITION

6. The interveners argue that the applicant commenced the proceedings on 23 September 2019 in his capacity as Leader of the Opposition, but on that day he was not the Leader of the Opposition; he therefore lacked capacity to commence the proceedings as Leader of the Opposition, and this renders the proceedings incompetent.

7. It is true that the applicant commenced the proceedings in his capacity as Leader of the Opposition, which were described in these terms:

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