SC REF NO.3 OF 2011; Reference pursuant to Constitution Section 19; Reference by the East Sepik Provincial Executive (-Referor-) and Hon. Dr Allan Marat, MP as The Minister for Justice and Attorney - General (-First Intervenor-) and Hon. Jeffery Nape MP, as Speaker of Parliament (-Second Intervenor-) and The Ombudsman Commission of Papua New Guinea (-Third Intervenor-) and Hon. Sam Abal MP (-Fourth Intervenor-) and Hon. Peter O'neill MP, as Prime Minister of Papua New Guinea (-Fifth Intervenor-) and Hon. Belden Namah MP, as the Deputy Prime Minister of Papua New Guinea (-Sixth Intervenor-) and National Alliance Inc. (-Seventh Intervenor-) and Grand Chief Sir Michael Somare MP (-Eighth Intervenor-) 2011 SC1154

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ; Salika Dep.CJ; Sakora, Kirriwom & Gavara-Nanu JJ
• Judgment Date: 12 December 2011
• Court: Supreme Court
• Judgement Number: SC1154

Full Title: SC REF NO.3 OF 2011; Reference pursuant to Constitution Section 19; Reference by the East Sepik Provincial Executive (-Referor-) and Hon. Dr Allan Marat, MP as The Minister for Justice and Attorney - General (-First Intervenor-) and Hon. Jeffery Nape MP, as Speaker of Parliament (-Second Intervenor-) and The Ombudsman Commission of Papua New Guinea (-Third Intervenor-) and Hon. Sam Abal MP (-Fourth Intervenor-) and Hon. Peter O'neill MP, as Prime Minister of Papua New Guinea (-Fifth Intervenor-) and Hon. Belden Namah MP, as the Deputy Prime Minister of Papua New Guinea (-Sixth Intervenor-) and National Alliance Inc. (-Seventh Intervenor-) and Grand Chief Sir Michael Somare MP (-Eighth Intervenor-) 2011 SC1154

Supreme Court: Injia, CJ; Salika Dep.CJ; Sakora, Kirriwom & Gavara-Nanu JJ

Judgment Delivered: 12 December 2011

SC1154

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO.3 OF 2011

BETWEEN:

REFERENCE PURSUANT TO CONSTITUTION SECTION 19

AND:

REFERENCE BY THE EAST SEPIK PROVINCIAL EXECUTIVE

-Referor-

AND:

HON. DR ALLAN MARAT, MP

as the Minister for Justice and Attorney - General

-First Intervenor-

AND:

HON. JEFFERY NAPE MP,

as Speaker of Parliament

-Second Intervenor-

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

-Third Intervenor-

AND:

HON. SAM ABAL MP

-Fourth Intervenor-

AND:

HON. PETER O'NEILL MP,

as Prime Minister of Papua New Guinea

-Fifth Intervenor-

AND:

HON. BELDEN NAMAH MP,

as the Deputy Prime Minister of Papua New Guinea

-Sixth Intervenor-

AND:

NATIONAL ALLIANCE INC.

-Seventh Intervenor-

AND:

GRAND CHIEF SIR MICHAEL SOMARE MP

-Eighth Intervenor-

Waigani: Injia, CJ; Salika Dep.CJ; Sakora, Kirriwom & Gavara-Nanu JJ

2011: 12th December

Special Reference s19 (3)(b) of the Constitution – Removal of Prime Minister – Appointment of Prime Minister – Removal of Member of Parliament - Constitution, . s142 (2), (3), (4) (5); s103(3)(b), s104 (2) (d), s 133, s 134, s 135, s 141 (a), s 86 (4), Schedule 1.10 (3) .? Organic Law on National and Local-Level Government Elections (OLNLLGE), Part XVIII, Division 2 (ss 228 – 233).

FACTS

Prime Minister Sir Michael Somare was absent from the country and in Singapore from 24th March 2011 to 26th August 2011 for medical treatment. During that time there were 3 meetings of the Parliament in May, June and August. Sir Michael had leave of the Parliament to be absent from the May meeting. On 2nd August 2011, Parliament passed a motion declaring that there was a vacancy in the office of Prime Minister and immediately thereafter elected the Hon Peter O’Neill as Prime Minister. There was a further meeting of the Parliament in September and Sir Michael attended that meeting on 6th September. Subsequently on that day the Speaker declared that Sir Michael Somare had lost his seat in Parliament by virtue of having been absent from Parliament without leave for 3 consecutive sittings of the Parliament.

HELD

Injia CJ, Kirriwom J and Gavara-Nanu J (Salika DCJ and Sakora J dissenting)

1. The occasions and methods for removing a Prime Minister are restricted to those specified in constitutional laws;

2. Sir Michael Somare was not lawfully removed from office as Prime Minister;

Injia CJ, Salika DCJ, Kirriwom J and Gavara Nanu J (Sakora J dissenting):

3. A Prime Minister can only be elected on a day following the day of the Speaker’s advice to Parliament that there is a vacancy in the office of Prime Minister.

4. Mr Peter O’Neill was not lawfully elected as Prime Minister, the election was unconstitutional and invalid;

5. The National Court has exclusive jurisdiction as to whether the seat of a member has become vacant by reason of facts arising under Section 104(2)(d) of the Constitution;

6. The declaration made by the Speaker on 6th September 2011 that Sir Michael Somare had lost his seat by reason of being absent from Parliament for three consecutive meetings of Parliament pursuant to Section 104(2)(d) of the Constitution is unconstitutional and invalid.

7. The meaning of “person of unsound mind” in Section 103(3)(b) of the Constitution is the meaning given by Section 81 of the Public Health Act Chapter 226

NOTE: The questions raised in the Reference and the answers of the members of the Court appear at the end of the judgment.

Cases Cited:

Papua New Guinea Cases

Alois Kingsly Golu v National Executive Council [2011] PGNC 134; N4425

Application by Francis Gem (2010) SC 1065

Avia Aihi v The State (No.1) [1981] PNGLR 81

Burns Philp v The State & Ors [1989] PGNC 24, N769

Constitution: Application by Gabriel Dusava (1998) SC581;

Derbyshire v Tongia [1984] PNGLR 148

Douglas Charles Dent v Thomas Kavali [1981] PNGLR 488

Ex parte Moses Sasakila [1976] PNGLR 491

Francis Koimanrea v Alois Sumunda, the Electoral Commissioner & Paul Tiensten, Unreported, March 2003

Hagai Joshua v Aron Meya [1998-89] PNGLR 188

Haiveta v Wingti (No. 3) [1994] PNGLR 197

Haivila Kavu v Mark Maipakai [2011] PGNC 82; N4094

In re Election of the Governor General (2010) SC 1085

Isidore Kaseng v Namaliu and The State [1995] PNGLR 481

James Mopio v The Speaker [1977] PNGLR 420

Kaguel Koroka v Phillip Kapel & Ors [1985] PNGLR 117

Kaseng v Namaliu [1995] PNGLR 481

Kekedo v Burns Philp (PNG) Ltd [1988 – 89] PNGLR 122,

Kila Wari and others v Gabriel Ramoi and Another [1986] PNGLR 112,

Launa v Alphonse Willie (2004) N2595

Lionel Gawi v The State (2006) SC850,

Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854

Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty. Ltd (No.1) [1977] PNGLR 80

Minister for Lands v Frame [1980] PNGLR 433

Morobe Provincial Government v Minister for Village Courts & The State (1994) N1215,

Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNLR 608

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

New Guinea Cocoa (Export) Pty. Ltd v Basis Vedbaek [1980] PNGLR 205

Paru Aihi v Sir Moi Avei & The Electoral Commission of PNG, Unreported, SC720

Paul Kipo v Rova Maha [1994] PGNC 15; N1252

Peter Makeng & Ors v Timbers (PNG) Limited N3317

Premdas v The State [1979] PNGLR 329.

Public Prosecutor v John Aia of Mondo and Peter Pino of Idu [1978] PNGLR 224

Public Service Commission v Independent State of Papua New Guinea [1994] PNGLR 603

Re Election of Governor General; Reference by Morobe Provincial Executive (2010) SC 1085

Re Election of Governor–General (No 1) (2003) SC721

Re Election of Governor–General (No 2) (2004) SC728

Re Election of Governor-General (No 3) (2004) SC752

Re Election of Governor-General (No 4) (2004) SC773

Re Joseph Auna [1980] PNGLR 500

Re Reference by Ken Norae Mondiai (2010) SC1087

Re Sitting Days of the Parliament and Regulatory Powers of Parliament (2002) SC722

Reference No 2 of 1976 [1976] PNGLR 228

Reference by the Ombudsman Commission of PNG (2010) SC 1027

Reference by the Ombudsman Commission of PNG (2010) SC1058

Rundle v MVIT [1987] PNGLR 44

Rundle v MVIT [1988] PNGLR 20

Safe Lavao v The Independent State of Papua New Guinea [1978] PNGLR 15

SC Ref by Ombudsman Commission re Amendments to Forestry Act (2010) SC 1088.

SC Reference No 4 of 1990 Special Reference Pursuant to Section 19 of the Constitution in the Matter of a Reference By The Acting Principal Legal Adviser Re Meeting of Parliament [1994] PNGLR 141

SC Reference No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 261

SCR No 1 of 1992; re Constitutional Amendment No 15 [1992] PNGLR 73

SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336;

SCR No 3 of 1999:Re Calling of the Parliament [1999] PNGLR 285

SCR No. 1 of 1997 Re s 19 of the Constitution Reference by the Principal Legal Advisor [1998] PNGLR 453

SCR No. 2 of 1982; Re Kunangel [1991] PNGLR 1

Special Reference by Fly River Provincial Executive, re Organic Law on Integrity of Political Parties and Candidates (2010) SC 1057

The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491

Titi Christian v Rabbie Namaliu (1996) OS No 2 of 1995, Unreported and Unnumbered Judgement of Amet CJ, Kapi Dep CJ, Salika, Doherty & Andrew JJ dated 18 July 1996

Titus Taber v Keran Rimbao (1998) N1767

Tom Korea v Sepoe Karawa [1989] PGNC 33; N791

Overseas case

Armstrong v Budd (1969) 71 SR (NSW) 386

Begum Nusrat...