Sir Albert Kipalan and Ila Geno, Chief Ombudsman v The National Parliament, Honourable Jeffrey Nape, Acting Speaker of the National Parliament, Ano Pala, Clerk of the National Parliament, Sir Pato Kakaraya, The National Executive Council and the Right Honourable Michael Somare, Prime Minister (2004) SC728

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sakora J
• Judgment Date: 31 March 2004
• Citation: (2004) SC728
• Docket Number: SC OS No 3 of 2003
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC728

Full Title: SC OS No 3 of 2003; Sir Albert Kipalan and Ila Geno, Chief Ombudsman v The National Parliament, Honourable Jeffrey Nape, Acting Speaker of the National Parliament, Ano Pala, Clerk of the National Parliament, Sir Pato Kakaraya, The National Executive Council and the Right Honourable Michael Somare, Prime Minister (2004) SC728

Supreme Court: Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sakora J

Judgment Delivered: 31 March 2004

SC728

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE HELD AT WAIGANI]

SC OS NO. 3 OF 2003
Between

SIR ALBERT KIPALAN
-First Plaintiff-

And:

ILA GENO, CHIEF OMBUDSMAN
-Second Plaintiff-

And:

THE NATIONAL PARLIAMENT
-First Defendant-

And:

HON. JEFFREY NAPE, ACTING SPEAKER OF THE NATIONAL PARLIAMENT
-Second Defendant-

And:
ANO PALA, CLERK OF THE NATIONAL PARLIAMENT

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-Third Defendant-
And:

SIR PATO KAKARAYA
-Fourth Defendant-
And:

THE NATIONAL EXECUTIVE COUNCIL

-Fifth Defendant-
And:

RT. HONOURABLE MICHAEL SOMARE, PRIME MINISTER

-Sixth Defendant-

Waigani : Kapi CJ, Injia Dep.CJ, Hinchliffe J, Salika and Sakora JJ 2004: February 23rd - 24th , March 31st

Constitutional Laws - National Parliament - Election for Nomination of Governor-General - Duties of Clerk to supervise election - Compliance with mandatory Constitutional Laws and procedures-Proposal Form initially undated by Proposer and subsequently dated by Proposed Candidate with wrong date - Whether Proposal Form invalid - Whether subsequent decision by the Parliament to nominate the person proposed for appointment as the Governor-General invalid: ss 4 5 of Organic Law Nomination of Governor-General.

Constitutional Law - National Parliament - Election of Governor-General - Equality of votes between more than two candidates - Speaker's

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"casting vote" given on third ballot valid - s 9 (5) of Organic Law on Nomination of Governor-General.

Constitutional Law - Head of State - The Queen - Advice given to the Queen of Parliament's Nominee for the position of Governor-General - Subsequent appointment by the Queen of person nominated by Parliament - Whether advice given and appointment made justiciable Constitution, ss 86 (4), 88 (1) and 89 (a).

Constitutional Law - National Parliament - Standing Orders - Ringing of bells before commencement of each ballot - Whether continued presence of Members of Parliament throughout each ballot required - Whether Standing Orders providing for ringing of bells and opening or closing of doors of Chamber of Parliament "jusiticiable" ss, 88 (2) and 134 of the Constitution, and s 6 of Organic Law on Nomination of Governor-General.

Words and phrases - Meaning of "advice (if any) "- Constitution s 86 (4) and "exhaustive secret ballot" in s 88 (2) of the Constitution.

Cases cited in the judgment Opal Kunangel [1991] PNGLR 1

Sir Albert Kipalan & Ombudsman Commission and Another v The National Parliament and Others (Unreported Judgment of the Supreme Court dated 21st November, 2003 SC721.

State v John Mogo Wollom [1975] PNGLR 311

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

Wari & Others v Ramoi & Dibela [1986] PNGLR 112

Counsel:

L. Henao for the First Plaintiff

D. Cannings for the Second Plaintiff

J. Nonggorr for the First and Third Defendants

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H. Leahy for the Second Defendant

C. Narakobi with B. Meten for the for the Fourth Defendant F. Kuvi for the Fifth Defendant

S. Singin for the Sixth Defendant

31st March, 2004

BY THE COURT: Papua New Guinea is a Constitutional Monarchy. Under Part V of the Constitution specific provisions are made for our Head of State. Queen Elizabeth II of the United Kingdom is the Queen and the Head of State of Papua New Guinea pursuant to s 82 of the Constitution which provides:

"82. Queen and Head of State.

(1) Her Majesty the Queen -

(a) having been requested by the people of Papua New Guinea, through their Constituent Assembly, to become Queen and Head of State of Papua New Guinea; and

(b) having graciously consented so to become, is the Queen and the Head of State of Papua New Guinea.

(2) Subject to and in accordance with this Constitution, the privileges, powers, functions and responsibilities of the Queen and Head of State may be had, exercised and performed through a Governor-General appointed in accordance with Division 3 (appointment, etc, of Governor-General) and, except where the contrary intention appears, reference in any law to the Head of State shall be read accordingly."

Qualifications for appointment as Governor-General are provided for under s 87 of the Constitution. It is required that the person be a citizen who is qualified to be a Member of Parliament and is a mature person of good standing who enjoys the general respect of the community. The Governor-General is appointed by the Queen and Head of State acting with, and in accordance with, the advice of the National Executive (NEC) given in accordance with a decision of the Parliament: s 88 (1) of the

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Constitution. And the Parliament's decision to nominate a candidate for appointment must be made by a simple majority vote in an exhaustive secret ballot conducted in accordance with an Organic Law: s 88 (2) of the Constitution. The Organic Law is the Organic Law on the Appointment of the Governor-General (Organic Law).

On 215t November, 2003 the Supreme Court in SC OS No. 2 of 2003, in relation to a Constitutional challenge to the then appointment by Parliament of its nominee for the office of Governor-General made the following orders:

"i. The decision of the National Parliament made on 18 September 2003, that Sir Albert Kipalan is the Parliament's nominee for appointment as the next Governor-General is declared null and void.

2. The Speaker of the Parliament, the Honourable Bill Skate, inform the Parliament in accordance with Section 3 of the Organic Law on the Nomination of the Governor-General, that as a result of this decision, there is a vacancy in the office of the Governor-General,

3. The Clerk of the Parliament Mr Ano Pala, shall conduct and supervise a new election for the Parliament's nominee for the office of Governor-General in accordance with the Organic Law on the Nomination of the Governor-General, as interpreted by this Court.

4. The interim restraining orders granted on the 4th of November 2003 are discharged.

5. In relation to the objection to standing of the First Plaintiff, costs is awarded to the First, Second and Fourth Defendants. If parties do not agree on the amounts of costs, they may make appropriate application to the Supreme Court.

6. In relation to the substantive hearing, costs is awarded to the Second and Third Plaintiff. If parties do not agree on the amount of costs, they may make appropriate application to the Supreme Court.

7. These orders take effect forthwith".

2.

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In compliance with the above orders on 4th December, 2003 the National Parliament elected Sir Pato Kakaraya to be the Parliament's nominee for the position of Governor-General. This decision is the subject of these proceedings.

By an Originating Summons brought under s 18 (1) of the Constitution, Sir Albert Kipalan (First Plaintiff) claims a declaratory order that the nomination of Sir Pato Kakaraya (Fourth Defendant) by the National Parliament (First Defendant) on 4tn December, 2003 as its nominee as the next Governor-General of Papua New Guinea was not conducted in accordance with the Constitution and the Organic Law on the Nomination of the Governor-General (Organic Law) and is therefore invalid.

The Second Plaintiff was joined as a party to simply support the First Plaintiff's grounds alleged in the Originating Summons.

This is the second challenge that has come before this Court on the election of Parliament's nominee for the office of the Governor-General. In the first case, as we have pointed out earlier, the National Parliament nominated the First Plaintiff and the Supreme Court declared the nomination invalid (see SC OS No. 02 of 2003 of 2003

(Unreported Judgment of the Supreme Court dated 21st November, 2003 SC721)) and directed Mr Ano Pala (Third Defendant) to conduct and supervise a new election for the Parliament's nominee for the office of the Governor-General in accordance with the Organic Law.

Consequently, on 25th November, 2003 the Hon Jeffrey Nape, the Acting Speaker (Second Defendant) informed the Parliament of the vacancy in the office of

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the Governor-General and invited proposals for nominations and further advised the Members that the nominations would close on 28th November, 2003. This date was subsequently extended to 1st December, 2003.

1. Facts

The evidence before us consists of two (2) affidavits filed by the Plaintiffs and four affidavits filed by the Defendants. The Plaintiffs rely on the affidavit of the First Plaintiff sworn on 17th December, 2003 and the affidavit of the Second Plaintiff sworn on 7th January, 2004. The Defendants rely on two (2) affidavits sworn by the Third Defendant on 7th and 20th January, 2004 respectively. They also rely on two (2) affidavits sworn by the Fourth Defendant on 8th January, 2004 and 30th January, 2004 respectively.

The evidence is in three parts. First, most of the facts relating...