Special Reference pursuant to Constitution, Section 19 In the Matter of Re-Election of the Governor-General, Sir Paulias Matane, for the Second Term and Interpretation of Section 87(5) and 88 of the Constitution; Reference by the Morobe Provincial Executive (2010) SC1085

• Jurisdiction: Papua New Guinea
• Citation: (2010) SC1085
• Date: 10 December 2010
• Docket Number: SC REF NO 4 0F 2010
• Court: Supreme Court
• Year: 2010

Full Title: SC REF NO 4 0F 2010; Special Reference pursuant to Constitution, Section 19 In the Matter of Re-Election of the Governor-General, Sir Paulias Matane, for the Second Term and Interpretation of Section 87(5) and 88 of the Constitution; Reference by the Morobe Provincial Executive (2010) SC1085

Supreme Court: Sakora J, Batari J, Cannings J, Manuhu J, Gabi J

Judgment Delivered: 10 December 2010

CONSTITUTIONAL LAW—appointment of Governor-General by the Queen and Head of State—whether proper procedures followed—Constitution, Division V.3: appointment etc of Governor-General—Organic Law on the Nomination of the Governor-General.

A referring authority filed a special reference to the Supreme Court under s19 of the Constitution seeking the Court’s opinion on eight questions of interpretation and application of the Constitutional Laws relating to the re-appointment, by the Queen and Head of State, of the Governor-General. The questions concerned, in particular, s87(5) of the Constitution (no person is eligible for appointment more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term). s88(1) of the Constitution (the Governor-General shall be appointed by the Queen and Head of State, acting with and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament), s88(2) of the Constitution (a decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot, in accordance with an Organic Law) and s95 of the Constitution (if there is a vacancy in the office of Governor-General, the Speaker is the Acting Governor-General). The material facts were undisputed, including that, though the Parliament voted by two-thirds absolute majority to approve the appointment of the immediate past Governor-General for a second term, no exhaustive secret ballot was conducted and that on the day that the Parliament gave its approval, that person’s first term of office had expired and the Parliament was presided over by the Speaker, contrary to s95(4) of the Constitution (during any period when he is the Acting Governor-General, the Speaker shall not exercise or perform any of the other powers, functions, duties and responsibilities of the office of Speaker).

Held:

(1) The Parliament, and in particular the Speaker, breached s88(2) of the Constitution—which requires that every decision of the Parliament to nominate a person for appointment as Governor-General be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law, including where a person proposed for nomination has been approved for appointment for a second term—by not having an exhaustive secret ballot and not allowing any other candidates to be considered for nomination.

(2) The Speaker breached s95(4) of the Constitution by exercising the powers, functions, duties and responsibilities of the Speaker during a period when he was by virtue of s95(2)(a) of the Constitution the Acting Governor-General.

(3) The breaches of s88(2) and s95(4) of the Constitution and related Constitutional Laws were serious and extensive and resulted in most of the eight questions being answered in the manner proposed by the referrer.

(4) The Court was obliged, by virtue of its duty to uphold the Constitution and the Rule of Law, to give its binding opinion that the nomination, and consequently the appointment, of the Governor-General was unconstitutional, and to declare that the appointment was null and void and to order that it is quashed and that the Parliament be called to meet as soon as practicable, in view of the vacancy in the office of Governor-General, to nominate the next Governor-General.

Cases cited

The following cases are cited in the judgment:

Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC1057; 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

SPECIAL REFERENCE

This was a Constitution, s19 reference.

10 December, 2010

1. BY THE COURT: The Morobe Provincial Executive has applied to the Supreme Court under Section 19 of the Constitution for its opinion on eight questions relating to the interpretation and application of the Constitutional Laws. The questions surround the decision of the National Parliament on 25 June 2010 to nominate Sir Paulias Matane for appointment as Governor-General. The questions are in the nature of a challenge to the constitutionality of Sir Paulias’s appointment.

2. The Queen and Head of State of Papua New Guinea, Queen Elizabeth II, appointed Sir Paulias as the Governor-General in accordance with the advice of the National Executive Council given in accordance with the decision of the Parliament. Sir Paulias was originally appointed as Governor-General in 2004 for a six-year term. His most recent appointment was for his second term as Governor-General.

3. The referrer’s questions concern, in particular, the following provisions of the Constitution:

• s87(5), which provides that no person is eligible for appointment more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term;

• s88(1), which provides that the Governor-General shall be appointed by the Queen and Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament;

• s88(2), which provides that a decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot, in accordance with an Organic Law; and

• s95, which provides, amongst other things, that if there is a vacancy in the office of Governor-General, the Speaker is the Acting Governor-General.

4. The full text of Part V (the head of state) of the Constitution, in which these provisions are found, together with the Organic Law on the Nomination of the Governor-General, are set out in appendixes to this judgment.

5. The material facts are undisputed, including that, though the Parliament voted by two-thirds absolute majority to approve the appointment of Sir Paulias for a second term, no exhaustive secret ballot was conducted and that on the day that the Parliament gave its approval, Sir Paulias’s first term of office had expired and the Parliament was presided over by the Speaker, Hon Jeffrey Nape MP, contrary to Section 95(4) of the Constitution. This provision states that, during any period when he is the Acting Governor-General, the Speaker shall not exercise or perform any of the other powers, functions, duties and responsibilities of the Office of Speaker.

PARTIES

6. Five parties were granted leave to intervene in the reference. Three of them were candidates for the office of Governor-General by virtue of their being proposed, along with Sir Paulias, for nomination:

• the first intervener, Mr Ronald Rimbao;

• the third intervener, Sir Pato Kakaraya; and

• the fifth intervener, Sir Makena Geno.

7. Those three interveners generally support, with some exceptions, the submissions of the referrer. They say that the nomination and the appointment of Sir Paulias were unconstitutional and that the Court should quash Sir Paulias’s appointment.

8. The second intervener, the National Parliament, opposes most of the referrer’s submissions and argues that the Constitutional Laws were substantially complied with and that Sir Paulias’s appointment should not be disturbed.

9. The fourth intervener, the Attorney-General, Hon Ano Pala MP, proposes answers to the questions that would generally lead to the conclusion that Sir Paulias’s appointment was unconstitutional; however, in significant respects the propositions advanced by the Attorney-General differ from those of the referrer.

10. We will begin by setting out the facts on which the eight questions are based. We will then set out and give an opinion on each question. We conclude by making a number of consequential declarations and orders based on our answers to the questions that are an integral part of our opinion.

THE FACTS

11. We base our determination of the facts on a statement of facts agreed to by the parties, subject to modification and clarification arising from...