Application pursuant to Constitution, Section 18(1) Application by the Honourable Belden Norman Namah MP, in his capacity as the Leader of the Opposition (2020) SC1946

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Mogish J, Cannings J, Manuhu J, Shepherd J
• Judgment Date: 29 May 2020
• Citation: (2020) SC1946
• Docket Number: SCCOS No 1 of 2020
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1946

Full Title: SCCOS No 1 of 2020; Application pursuant to Constitution, Section 18(1) Application by the Honourable Belden Norman Namah MP, in his capacity as the Leader of the Opposition (2020) SC1946

Supreme Court: Kandakasi DCJ, Mogish J, Cannings J, Manuhu J, Shepherd J

Judgment Delivered: 29 May 2020

SC1946

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 1 OF 2020

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY

THE HONOURABLE BELDEN NORMAN NAMAH MP,

IN HIS CAPACITY AS THE LEADER OF THE OPPOSITION

Waigani: Kandakasi DCJ, Mogish J,

Cannings J, Manuhu J, Shepherd J

2020: 13th, 29th May

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether applicant suspended from duty at time of making application – Organic Law on the Duties and Responsibilities of Leadership, s28 (suspension) – whether suspension of applicant affects competency of proceedings commenced in capacity as Leader of the Opposition.

The first, second and fifth interveners objected to the competency of an application by the Leader of the Opposition under s 18(1) of the Constitution, which challenged the constitutionality of appointment of the Prime Minister. The principal ground of objection was that on the date of filing the application, through to the date of hearing the objection to competency, the applicant was suspended from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership due to allegations against him of misconduct in office, which had been referred to a Leadership Tribunal, and resulted in a decision that he was guilty of misconduct in office and recommended for dismissal from office. The applicant contended that he was neither dismissed nor suspended at the relevant time as the National Court had, in judicial review proceedings he commenced that challenged the decision of the Tribunal, stayed the decision of the Tribunal and the proceedings before it, the effect of which was to stay his suspension.The applicant further argued that if the Court found that he was suspended, it had no effect on the competency of the proceedings as he still had capacity to commence proceedings as Leader of the Opposition, the office which he continued to occupy.

Held:

(1) The applicant was suspended from duty under s 28 of the Organic Law on 18 October 2017 when the Public Prosecutor referred a matter regarding him to a second Leadership Tribunal. From that date to 4 July 2018 nothing happened that had the effect of setting aside, dissolving, staying or otherwise neutralising the applicant’s suspension.

(2) The order of the National Court of 5 July 2018, which granted a stay of the decision of the Leadership Tribunal, did not stay the proceedings of the Tribunal generally and did not stay the applicant’s suspension.

(3) The effect of the suspension was amongst other things to suspend him from duty as Leader of the Opposition, including suspending him from exercising all powers, functions, duties and responsibilities of Leader of the Opposition, which extended to commencing proceedings under s 18(1) of the Constitution, in his capacity as Leader of the Opposition to challenge a decision of the Parliament regarding appointment of a Prime Minister.

(4) The commencement of proceedings in his capacity as Leader of the Opposition involved exercise of a power and duty, from which the applicant was suspended, with the effect that the applicant had not properly engaged the jurisdiction of the Court. The proceedings were therefore incompetent.

(5) The objection to competency was upheld and the proceedings were entirely dismissed. Parties were ordered to bear their own costs as the issue of the applicant’s suspension ought to have been raised by the interveners much earlier.

Cases Cited

The following cases are cited in the judgment:

Application by Namah (2020) SC1932

Application by Namah (2020) SC1934

Namah v Higgins Tribunal (2018) N7351

Namah v Poole Tribunal (2015) N6121

Namah v Poole Tribunal (2016) N6397

Pruaitch v Manek (No 1) (2010) SC1052

Pruaitch v Manek (No 2) (2011) SC1093

Re the Honourable Belden Namah MP, Member for Vanimo-Green (2018) N7194 (LT)

SC Ref No 1 of 2017, Re Constitution, Section 28(5) and the Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645

SC Ref No 2 of 1982, Re Kunangel [1991] PNGLR 1

SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 1) (2016) SC1508

SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 2) (2016) SC1516

Somare v Manek [2011] 1 PNGLR 220

Wingti v Rawali (2010) N3982

OBJECTION

This was an objection to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant

M Nale & A Serowa, for the First Intervener

N Yalo, for the Second Intervener

C Mende, for the Third Intervener

P Kuman, for the Fourth Intervener

R Leo, for the Fifth Intervener

29th May, 2020

1. BY THE COURT: This is a ruling on objections to competency of an application to the Supreme Court under s 18(1) of the Constitution. The application was filed by the applicant the Honourable Belden Norman Namah MP in his capacity as the Leader of the Opposition on 30 March 2020, and amended on 13 April 2020.

2. The applicant challenges the constitutionality of the appointment on 30 May 2019 of the Prime Minister, the Honourable James Marape MP. He contends that the decision of the Parliament of that day to appoint Mr Marape as Prime Minister was made inconsistently with ss 50 (right to vote and stand for public office), 108 (functions of the Speaker and Deputy Speaker),114 (voting in the Parliament) and 142 (the Prime Minister) of the Constitutionand is accordingly invalid and ineffective.

3. Five parties have been granted leave under Division 4.7 of the Supreme Court Rules 2012 to intervene in the proceedings:

· the first intervener, the Prime Minister, the Honourable James Marape MP; and

· the second intervener, the Deputy Prime Minister, Minister for Justice and Attorney-General, the Honourable Davis Steven MP; and

· the third intervener, the Speaker of the National Parliament, the Honourable Job Pomat MP; and

· the fourth intervener, the Registrar of Political Parties, Dr Alphonse Gelu; and

· the fifth intervener, Pangu Pati Inc.

4. The first, second and fifth interveners have filed separate notices of objection to competency of the application. It is those three objections on which we are ruling.

5. The grounds of objection raised by the interveners overlap and some were abandoned at the hearing of the objections, leaving one only to be determined: that on the date of filing the application, through to the date of hearing the objections to competency, the applicant was suspended from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership (the Organic Law), due to allegations against him of misconduct in office, which had been referred to a Leadership Tribunal and had resulted in a decision that he was guilty of misconduct in office and recommended for dismissal from office.

6. The interveners argue that this rendered the proceedings incompetent, as the applicant lacked authority to commence proceedings as Leader of the Opposition.

7. The applicant contends that he was not suspended at the relevant time. He argues that when the National Court stayed the Leadership Tribunal proceeding and its decision, in judicial proceedings he commenced challenging the Leadership Tribunal proceedings, it effectively stayed his suspension. The applicant further argued that even if he were suspended, it had no effect on his capacity to commence proceedings as Leader of the Opposition as he still occupied that office.

8. Two issues therefore arise:

1. Was the applicant suspended from duty on the date of filing the application, 30 March 2020?

2. If yes, does that render the proceedings incompetent?

1 WAS THE APPLICANT SUSPENDED ON THE DATE OF FILING THE APPLICATION, 30 MARCH 2020?

9. The interveners argue that the applicant has been suspended at least since 18 October 2017 when the matter concerning him was referred to a Leadership Tribunal chaired by Justice Higgins. The applicant argues that though he might have been suspended when the Tribunal was dealing with his matter, he was not suspended on the date of filing his application, 30 March 2020, as the Leadership Code proceedings regarding him were stayed by an order of the National Court on 5 July 2018, and that order remains in force.

Facts

10. To assess those arguments we need to make some findings of fact. There have been two leadership tribunals appointed to determine allegations of misconduct in office regarding the applicant, which were originally referred by the Ombudsman Commission to the Public Prosecutor on 13 April 2015.

11. The first tribunal, chaired by Justice Poole, was appointed by the then Chief Justice Sir Salamo Injia on 9 October 2015. The matter regarding the applicant was referred by the Public Prosecutor to the Poole tribunal on 24 November 2015(after an...