S.C.A. No 1 of 2016; Application Pursuant to Constitution Section 18(1); Application by Rt. Hon. Mekere Morauta KCMG and Hon. Ano Pala MP, Minister for Justice and Attorney General and Theodore Zurenuoc MP, Speaker of the National Parliament and the Independent State of Papua New Guinea and Hon Peter O’Neill MP, Prime Minister and the National Executive Council (2016) SC1529

• Jurisdiction: Papua New Guinea
• Judge: Yagi & Sawong JJ.
• Judgment Date: 19 August 2016
• Citation: (2016) SC1529
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1529

Full Title: S.C.A. No 1 of 2016; Application Pursuant to Constitution Section 18(1); Application by Rt. Hon. Mekere Morauta KCMG and Hon. Ano Pala MP, Minister for Justice and Attorney General and Theodore Zurenuoc MP, Speaker of the National Parliament and the Independent State of Papua New Guinea and Hon Peter O’Neill MP, Prime Minister and the National Executive Council (2016) SC1529

Supreme Court: Yagi & Sawong JJ.

Judgment Delivered: 19 August 2016

SC1529

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

S.C.A. No. 01 OF 2016

APPLICATION Pursuant to Constitution Section 18(1)

APPLICATION BY RT. HON. MEKERE MORAUTA KCMG

AND

HON. ANO PALA MP, MINISTER FOR JUSTICE AND ATTORNEY GENERAL

First Intervener

AND

THEODORE ZURENUOC MP

SPEAKER OF THE NATIONAL PARLIAMENT

Second Intervener

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Intervener

AND

HON PETER O’NEILL MP,

PRIME MINISTER

Fourth Intervener

AND

THE NATIONAL EXECUTIVE COUNCIL

Fifth Intervener

Wagani: Kandakasi, Yagi & Sawong JJ.

2016: 1st July &19th August

CONSTITUTIONAL LAW – Practice and procedure – Application under Constitution, Section 18(1) (original interpretative jurisdiction of the Supreme Court) – Declaration sought as to interpretation and application of provisions of the Constitution - Divestment of shares in a company held by a foreign company by an Act of Parliament – Application by chairman of foreign company and not the company - Question of standing - Whether applicant has standing to make application – Preferred interpretation and application of a Constitutional provision not specified – Competence of Application.

Cases cited:

Belden Norman Namah MP v. Rimbink Pato MP, National Executive Council & The State (2014) SC1304.

Chief Collector of Taxes v Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853

Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176.

Eremas Wartoto v. The State (2015) SC1411.

Internal Revenue Commission v. Dr Pirouz Hamidian-Rad (2002) SC692./

Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106.

Pinpar Developer Pty Ltd v. TL Timber Development Pty Ltd (2006) N3075.

Re Application by Ila Geno (2014) SC1313.

Re Election of Governor-General (No 1) (2003) SC721.

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

Re Petition of MT Somare [1981] PNGLR 265.

The State v. Graham Yotchi Wyborn (2005) N2847

Work Cover Authority of NSW v. Placer (PNG) Exploration Ltd (2006) N3003.

Counsel:

G. Egan & N. Yalo, for the Applicant

A. Manase & Kola, for the First and Third Intervenors

M. Boas, for the Second Intervenor

E. Asigau, for the Fourth and Fifth Intervenors

19th August, 2016

1. BY THE COURT: This proceeding has been filed pursuant to s.18 (1) of the Constitution and under Part 2 of the Supreme Court Rules 2012. Under Order 4 Rule 16 and 17 of the Supreme Court Rules the substantive matter cannot be set down for hearing unless an applicant has been granted locus standi or standing to bring the application. The interveners argue that, the Applicant, Sir Mekere does not have such standing. They also argue that the application is incompetent because it fails to specify any Constitutional interpretation and or application question.

Issue for Determination

2. Hence the issues for consideration and determination are these:

(1) Does Sir Mekere as Chairman of PNG Sustainable Development Program Ltd (SDP) board of directors have the necessary locus standi to bring this proceeding? and

(2) Is the application incompetent for failure to specify any Constitutional interpretation and application question?

3. These questions can be dealt with together since, the issue of competence goes into the requirements the applicant must meet to enable the Court to determine the question of standing in his favour.

The relevant factual background

4. The relevant factual background to this proceeding is this. Sir Mekere is a prominent distinguished senior citizen of Papua New Guinea (PNG). In 1972, he has been the Economist with the Office of the Economic Advisor. Later in the period 1973 – 1982 he was the Secretary for the Department of Finance. Thereafter, from the period 1983 – 1992, he was the Managing Director of the then Papua New Guinea Banking Corporation. In the period 1993 – 1994, he was the Governor of Bank of PNG before entering politics and becoming a Member of Parliament for the period 1997 – 2012. In his political life, he held the positions of Minister for Planning and Implementation from 1997 – 1998; Minister for Fisheries from 1998 – 1999; Minister for Public Enterprises from 2011 – 2012. He also held the position of Leader of the Opposition in the period 2002 – 2004 and 2007 – 2011. The highest position he held was the position of the Prime Minister of Papua New Guinea for the period 1999 – 2002.

5. Sir Mekere has since left politics and took up the position of the Chairman of board of SDP, a position he still holds today. The SDP is a company limited by guarantee and is incorporated in the Republic of Singapore, by reason of which it is a foreign company. The company held 122, 200,000 shares in Ok Tedi Mining Limited (OTML). In September 2013, the PNG National Parliament enacted the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013 (“TSA Act”). Following the enactment and coming into operation of the TSA Act, the SDP’s shares in OTML were cancelled and transferred to the Independent State of Papua New Guinea. The Constitution by s. 53 and s. 5 of the TSA Act provide for compensation to be paid for acquisition of property by the State. It is not clear if compensation has been claimed and the relevant process exhausted in this case. The main relief sought by the SDP through Sir Mekere is to have its shares returned and in the alternative, it be paid a fair and reasonable compensation reflective of the value of the shares.

6. Since leaving politics and the public service and later the divestment of the SDP’s shares in OTML, Sir Mekere has been occasionally making media releases in relation to public interests matters. The media release are assumed to have been read widely by the members of the public.

7. Being aggrieved by the enactment of the TSA Act and its application against SDP’s interest, SDP commenced proceedings in the International Centre for the Settlement of Investment Disputes Tribunal (ICSID). On 5th May 2015, the ICSID Tribunal handed down its decision dismissing SDP’s claim on the basis of the Tribunal lacking jurisdiction. The matter is now pending in the High Court of Singapore on SDP’s application.

8. In this proceeding, Sir Mekere is asking the Court to declare that on a proper interpretation, construction or application of the provisions of Sections 32, 33, 34, 38, 39, 41 and 53 of the Constitution, the TSA Act is unconstitutional, invalid, and of no force or effect. He then requests the Court to grant orders, among others, that the TSA Act in its entirety is unconstitutional and is therefore null and void and of no force or effect. He is also seeking other remedies that are set out in the application.

Relevant principles on locus standi or standing

9. Turning firstly to the question of locus standi or standing, we note there are number of Supreme Court authorities dealing with the subject. These include: Re Petition of MT Somare;

[1981] PNGLR 265.

91 Re Election of Governor-General (No 1);

(2003) SC721.

102 Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State

(2014)SC1304.

113 and In re Application by Ila Geno.

(2014) SC1313.

124

10. The decision in Re Somare, first dealt with the question of locus standi or standing in the Supreme Court in respect Constitutional references and is the leading authority on that question. The decision in the Application by Ila Geno, succinctly summed up the relevant principles enunciated by the decision in Re Somare which appear in the head note to that decision as follows:

“The Somare rules as to standing may be described as:

(a) The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

· has personal interests or rights that are directly affected by the subject matter of the application; or

· is a citizen who has a genuine concern for the subject matter of the application; or

· is the holder of a public office, the functions of which relate to the subject matter of the application.

(b) The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.

(c) The applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.

(d) The fact that there are other ways of having the constitutional issues determined by the Supreme Court...