Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister of Papua New Guinea, Attorney–General (as nominal defendant for the Head of State) and National Parliament of PNG [1994] PNGLR 160

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 25 November 1993
• Court: National Court
• Citation: [1994] PNGLR 160
• Docket Number: SCR 3 of 2000
• Year: 1994
• Judgement Number: N1188

Full Title: SCR 3 of 2000; Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister of Papua New Guinea, Attorney–General (as nominal defendant for the Head of State) and National Parliament of PNG [1994] PNGLR 160

National Court: Sheehan J

Judgment Delivered: 25 November 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CHRISTOPHER HAIVETA, LEADER OF THE OPPOSITION

V

PAIAS WINGTI, PRIME MINISTER OF PAPUA NEW GUINEA;

ATTORNEY GENERAL, AS NOMINAL DEFENDANT FOR THE HEAD OF STATE; and

NATIONAL PARLIAMENT OF PAPUA NEW GUINEA (NO 1)

Waigani

Sheehan J

2 October 1993

12-15 October 1993

20-22 October 1993

25-28 October 1993

1-4 November 1993

8-12 November 1993

15 November 1993

25 November 1993

PARLIAMENT — Resignation and re-appointment of Prime Minister — compliance with Constitution s 142 (3).

CONSTITUTIONAL LAW — Interpretation and application of Constitutional Laws — Jurisdiction of National Court to interpret and apply Constitutional Laws.

CONSTITUTIONAL LAW — Internal procedures of the Parliament — Justiciable where provided for by Constitutional Law — Constitution s 134.

CONSTITUTIONAL LAW — The Parliament — Motions of confidence in Prime Minister permitted.

CONSTITUTIONAL LAW — Resignation of Prime Minister — Vacancy in Prime Minister's office — Vacancy arises when Head of State notified of resignation — Constitution ss 142 (3) and 146.

Facts

The Speaker of the Parliament notified the House at its sitting on 24 September 1993 that:

1. he had been advised by the Governor-General that the Prime Minister, Mr Paias Wingti, had resigned from office on 23 September 1993; and

2. the Constitution required that the first matter of business for the House must be the election of a new Prime Minister.

The sole nomination was that of Mr Wingti, and a vote confirmed his re-election as Prime Minister. The Leader of the Opposition made application by originating summons, claiming declarations that:

1. Mr Wingti was not duly elected Prime Minister on 24 September and that his election was null and void; and

2. Mr Wingti's resignation as Prime Minister remained in force until a new Prime Minister was elected or, alternatively, that the date of his appointment was that of his initial appointment following the general election in 1992.

Section 142 (3) of the Constitution is in the following terms:

"If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day."

The plaintiff argued that the Prime Minister's letter of resignation was received by the Governor-General on 24 September 1993 and, accordingly, the appointment of a new Prime Minister should not have been considered on that day. Even if the resignation letter was received by the Governor-General on 23 September 1993, the question of appointment of a Prime Minister arose only when Parliament was first informed of the resignation on 24 September. In either case, the requirement for appointment of a new Prime Minister "on the next sitting day" was not complied with. The plaintiff also argued that the purpose of the first defendant in resigning and being re-appointed was to defeat the provisions on no-confidence motions in s 143 of the Constitution and so was contrary to the Constitution and the spirit of the Constitution. The first and second defendants objected to the jurisdiction of the National Court to deal with the issues raised by the plaintiff on the grounds that:

1. the declarations sought involved interpretation and application of the Constitution, a jurisdiction reserved to the Supreme Court by s 18 of the Constitution; and

2. the issues raised involved internal procedures of the Parliament, made non-justiciable by ss 115 and 134 of the Constitution.

The first defendant also claimed abuse of process by the plaintiff in his use of an originating summons rather than initiating proceedings under Order 16 of the National Court Rules.

Held

1. Although an application by way of judicial review may have been more appropriate, an application for a declaration might be made by originating summons (following NEC v PEA [1993] PNGLR 264).

2. The reservation to the Supreme Court under s 18 of the Constitution of the jurisdiction of interpretation and application of the Constitution is expressed to be "subject to" the Constitution. The National Court is vested with jurisdiction to interpret and apply the Constitution by ss 22, 23, 57, 58 and 135, and under s 18 when determining whether an issue of interpretation or application is trivial or vexatious. In this case, as all parties agree the election of Prime Minister must be held on the sitting day after a vacancy occurs, the issue before the National Court is not so much interpretation of the Constitution but enforcement of the requirements of s 142.

3. Where a procedure for the conduct of an action of the Parliament is provided for by a Constitutional Law, the question whether that procedure was followed is justiciable, by virtue of the words introducing s 134 of the Constitution ("Except as is specifically provided by a Constitutional Law"), distinguishing the decision of the Supreme Court in Mopio v Speaker of the National Parliament [1977] PNGLR 420. Section 142 is a provision prescribing a procedure for the conduct of parliamentary action.

4. There is nothing in s 145 of the Constitution that prevents a Prime Minister from resigning and seeking immediate re-appointment as Prime Minister.

5. The plaintiff's evidence was not sufficient to establish that the Prime Minister resigned on 24 September 1993, rather than 23 September.

6. The occasion for appointment of a new Prime Minister arose when the Prime Minister's letter of resignation was given to the Governor-General on 23 September, there being nothing in s 142 of the Constitution indicating that a vacancy in the Office of the Prime Minister arises only when the Parliament is informed of the vacancy.

7. The appointment of Prime Minister on 24 September was, therefore, valid, an outcome which the plaintiff conceded followed from the finding as to the point in time when the occasion for appointment arose.

8. The plaintiff's application for a declaration that the date of appointment of the Prime Minister was that of his appointment following the 1992 general elections was irrelevant upon the finding that the appointment of 24 September was valid. In any event, it involved a hypothetical question not arising on the facts.

9. The plaintiff's applications were dismissed.

Cases Cited

Papua New Guinea cases

Capek v Yacht "Freja" [1980] PNGLR 161.

Joshua v Meya [1988-89] PNGLR 1988.

Koroka v Kapal [1985] PNGLR 117.

Lowa v Akipe [1991] PNGLR 265; [1992] PNGLR 399.

Malapu v Electoral Commission [1987] PNGLR 128.

Masive v Okuk [1985] PNGLR 105.

Mopio v Speaker of the National Parliament [1977] PNGLR 420.

NEC v PEA [1993] PNGLR 264.

PNG Coffee Industry Board v Panga Coffee [1990] PNGLR 363

Public Services Commission v PNG [1994] PNGLR 603.

Raz v Matane [1985] PNGLR 329.

SCR No 2 of 1981; Re Criminal Code s 19 [1982] PNGLR 150.

SCR No 4 of 1980; Re Petition of Somare [1981] PNGLR 265.

Other cases cited

Bradlaugh v Gossett (1884) 12 QBD 271; 53 LJQB 209; 50 LT 620; 32 WR 552, DC.

Browne v Dunn (1893) 6 R 67.

Fotofili v Siale [1988] LRC (Const) 102.

Lim Kit Siang v Dato Seri Dr Mahathir Mohammed [1988] LRC (Const) 29.

O'Reilly v Mackman [1982] 3 WLR 1096; [1983] 2 AC 237; [1982] 3 All ER 1124.

Counsel

L Henao, for the plaintiff.

J Reeve, for the first defendant.

R Pato, for the second defendant.

J Briggs, for the third defendant

25 November 1993

SHEEHAN J: The National Parliament commenced its September session on 21 September 1993. On the morning of 24 September, the Speaker notified the House that he had been advised by the Head of State that the Prime Minister (the first defendant) had on 23 September formally resigned his office. This was confirmed by a letter from the Prime Minister himself to the House in which he stated, inter alia, that he was seeking a vote of confidence in himself and his government.

The Speaker notified the House that, by virtue of the Constitution, the first matter of business must be the election of a new Prime Minister. Despite objection from Opposition members, he then called for nominations. The member for Western Highlands, Mr Paias Wingti, was the only nomination. After a vote was taken, in the absence of a body of Opposition members who had walked out, the Speaker confirmed Mr Wingti's re-election as Prime Minister.

That election and the re-appointment of Mr Wingti to the office of Prime Minister by the Head of State are now challenged by the Leader of the Opposition, who makes application to this Court under originating summons process. His summons, as amended, sets out the relief sought.

"The Plaintiff...