Reference persuant to Constitution, Section 18(2), Re interpretation of Section 169(4)(c) of the Constitution; The Honourable Belden Namah MP, Member for Vanimo Green Open v a Tribunal comprising the Honourable Justice Goodwin Poole, Senior Magistrate Mark Selefkariu, Senior Magistrate Ernest Wilmot and Pondros Kaluwin, Public Prosecutor and Ombudsman Commission of Papua New Guinea and the Honourable Grand Chief Sir Salamo Injia KT GCL Chief Justice of Papua New Guinea (2016) SC1508

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, David J, Polume-Kiele J
• Judgment Date: 31 May 2016
• Court: Supreme Court
• Citation: (2016) SC1508
• Docket Number: SC REF NO 2 OF 2016
• Year: 2016
• Judgement Number: SC1508

Full Title: SC REF NO 2 OF 2016; Reference persuant to Constitution, Section 18(2), Re interpretation of Section 169(4)(c) of the Constitution; The Honourable Belden Namah MP, Member for Vanimo Green Open v a Tribunal comprising the Honourable Justice Goodwin Poole, Senior Magistrate Mark Selefkariu, Senior Magistrate Ernest Wilmot and Pondros Kaluwin, Public Prosecutor and Ombudsman Commission of Papua New Guinea and the Honourable Grand Chief Sir Salamo Injia KT GCL Chief Justice of Papua New Guinea (2016) SC1508

Supreme Court: Cannings J, David J, Polume-Kiele J

Judgment Delivered: 31 May 2016

SC1508

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

REFERENCE PURSUANT TO CONSTITUTION, SECTION 18(2), RE INTERPRETATION OF SECTION 169(4) (c) OF THE CONSTITUTION

BETWEEN

THE HONOURABLE BELDEN NAMAH MP,

MEMBER FOR VANIMO GREEN OPEN

Plaintiff

AND

A TRIBUNAL COMPRISING

THE HONOURABLE JUSTICE GOODWIN POOLE,

SENIOR MAGISTRATE MARK SELEFKARIU AND

SENIOR MAGISTRATE ERNEST WILMOT

First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR

Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Third Defendant

THE HONOURABLE GRAND CHIEF SIR SALAMO INJIA KT, GCL, CHIEF JUSTICE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J, David J, Polume-Kiele J

2016: 30, 31 May

PRACTICE AND PROCEDURE – application to summarily dismiss a reference by the National Court under Constitution, Section 18(2) – whether application under Order 13, Rule 16(1)(c) properly before the Court – whether good grounds exist to summarily dismiss a reference that has been set down for hearing.

The Public Prosecutor, who was a party to a reference made by the National Court under Section 18(2) of the Constitution to the Supreme Court of a question of constitutional interpretation and application, filed an application in the Supreme Court, for summary dismissal of the reference. The application was made under Order 13, Rule 16(1)(a) of the Supreme Court Rules 2012 on various grounds: the reference fails to comply with Order 4, Rule 4 of the Supreme Court Rules; the question referred was trivial, vexatious and hypothetical; the proceedings from which the reference arose are an abuse of process; the question referred raised an issue that was non-justiciable; the National Court erred by failing to find sufficient facts on which to base the question; the National Court’s decision to refer the question was made contrary to the principles of natural justice.

Held:

(1) The application was incompetent and was not properly before the Court as the Supreme Court Rules make no provision for such an application and there were other readily available means by which the Public Prosecutor’s grievances could have been raised; and in the event of doubt, he should have applied for directions.

(2) None of the grounds put forward by the Public Prosecutor for dismissing the reference were meritorious.

(3) The Court was satisfied that the reference was properly before it and that it was obliged, in accordance with and subject to Section 18(2) of the Constitution and Order 4 of the Supreme Court Rules, to determine the reference.

(4) The application was refused and the Court ordered that it would hear the reference.

Cases cited

The following cases are cited in the judgment:

Belden Namah v Justice Goodwin Poole (2015) N6121

Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886

Talibe Hegele v Tony Kila (2011) SC1124

APPLICATION

This was an application under Order 13, Rule 16(1) (a) of the Supreme Court Rules to summarily determine a reference made by the National Court, under Section 18(2) of the Constitution, to the Supreme Court.

Counsel:

G J Sheppard & G Purvey, for the plaintiff

R Bradshaw, for the first defendant

L P Kandi, for the second defendant

M Efi, for the third defendant

D Wood, for the fourth defendant

31st May, 2016

1. BY THE COURT: The Public Prosecutor, Pondros Kaluwin, applies to summarily determine a reference made by the National Court, under Section 18(2) of the Constitution, to the Supreme Court.

2. The National Court, constituted by Koeget AJ, on 5 February 2016, referred the following question to the Supreme Court:

Was the Chief Justice, in the circumstances of this case, “unable to act” by operation of Section 169(4) (c) of the Constitution to effectively exercise his powers, functions, duties and responsibilities under Section 27(7) (e) of the Organic Law on the Duties and Responsibilities of Leadership?

3.

That question was referred by the National Court in the course of proceedings commenced by the Honourable Belden Namah MP, member for Vanimo Green Open, OS (HR) No 8 of 2015. Those proceedings were commenced as an application for enforcement of human rights pertaining to decisions of various persons, including a leadership tribunal, concerning him, under the Organic Law on the Duties and Responsibilities of Leadership.

PARTIES

4. Mr Namah is the plaintiff in the National Court proceedings. The other parties are:

First defendant : Leadership Tribunal

Second defendant : Public Prosecutor

Third defendant : Ombudsman Commission

Fourth defendant : Chief Justice

5. Those parties are also parties to the Supreme Court reference. For the sake of convenience, it has been decided that the parties will continue, in the Supreme Court proceedings, to carry the descriptions ascribed to them in the National Court proceedings.

THE APPLICATION

6. The second defendant makes the application to dismiss the reference under Order 13, Rule 16(1) (a) of the Supreme Court Rules, which states:

The Court may summarily determine a matter … on application by a party.

GROUNDS

7. The grounds on which the application is based are set out in the application. They are not concisely stated (as the application reads more like a submission than an application) and it is necessary to summarise the grounds, as we understand them:

a) the reference fails to comply with Order 4, Rule 4 of the Supreme Court Rules;

b) the question referred is trivial, vexatious and hypothetical;

c) the proceedings from which the reference arose are an abuse of process;

d) the question referred raises an issue that is non-justiciable;

e) the National Court erred by failing to find sufficient facts on which to base the question;

f) the National Court’s decision to refer the question was made contrary to the principles of natural justice.

8. The Public Prosecutor argues that the consequence of one or more of those grounds being sustained would be the summary dismissal of the reference.

POSITIONS OF THE PARTIES

9. The application is supported by the first defendant (the tribunal) and the third defendant (the Ombudsman Commission) and opposed by the plaintiff (Mr Namah). The Chief Justice (the fourth defendant) has adopted a neutral position.

DECISION

10. After hearing extensive oral and written submissions yesterday, we have decided to dismiss the application, for three reasons.

1 APPLICATION NOT PROPERLY BEFORE THE COURT

11. The application has been made under a provision of the Supreme Court Rules that does not mention or envisage this sort of application. The application has the character of both, on the one hand, an objection to competency of the reference and, on the other hand, a challenge to the decision of the National Court to make the reference.

12. To the extent that is an objection to competency, the Supreme Court Rules make no provision for such an objection. It is not up to this Court to make such a provision, where none exists (Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886).

13. To the extent that the application is a challenge to the National Court’s decision, the grounds of challenge should have been made the subject of an appeal or application to seek leave to appeal under the Supreme Court Act. Alternatively, an application for leave to seek review under Section 155(2) (b) of the Constitution could have been made.

14. This is a novel application. We know of no other case in which a party to a Section 18(2) Supreme Court reference has made an application to dismiss the reference before it is heard. The best and safest course of action for the Public Prosecutor would have been to apply for directions under Section 185 of the Constitution and/or Order 11, Rule 9 of the Supreme Court Rules (Talibe Hegele v Tony Kila (2011) SC1124).

15. Section 185 of the Constitution states:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

16. Order 11, Rule 9 of the Supreme Court Rules states:

Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.

17. Neither of those ways of seeking clarification of the correct procedure has been invoked. No appeal and no review is...