SCR 1 of 2012; Reference Pursuant to Constitution, Section 19(1); Reference by DR ALLAN MARAT, MP in his capacity as the Attorney - General and Principal Legal Adviser to the National Executive Council. In the matter of Prime Minister and NEC Act 2002 Amendments and Reserve Powers of the Governor General. ; SCR 2 of 2012; Reference by the National Parliament pursuant to Constitution, Section 19 (1) and (3) (a). In the Matter of: Sections 104 (2)(d); 109, 110, 115,141 (a), 142(2) of the Constitution; Prime Minister and National Executive Council (Amendment) Act 2011; Prime Minister and National Executive Council (Amendment No 2) Act 2011 (2012) SC1187.

• Jurisdiction: Papua New Guinea
• Judge: Waigani: Injia CJ, Salika Dep. CJ, Sakora, Kirriwom & Gavara-Nanu JJ
• Court: Supreme Court
• Citation: (2012) SC1187.
• Year: 2012
• Judgement Number: SC1187

Full Title: SCR 1 of 2012; Reference Pursuant to Constitution, Section 19(1); Reference by DR ALLAN MARAT, MP in his capacity as the Attorney - General and Principal Legal Adviser to the National Executive Council. In the matter of Prime Minister and NEC Act 2002 Amendments and Reserve Powers of the Governor General. ; SCR 2 of 2012; Reference by the National Parliament pursuant to Constitution, Section 19 (1) and (3) (a). In the Matter of: Sections 104 (2)(d); 109, 110, 115,141 (a), 142(2) of the Constitution; Prime Minister and National Executive Council (Amendment) Act 2011; Prime Minister and National Executive Council (Amendment No 2) Act 2011 (2012) SC1187.

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

Judgment Delivered: May 21 2012

SC1187

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 1 of 2012

Reference Pursuant to Constitution, Section 19 (1)

Reference by DR ALLAN MARAT, MP in his capacity as the Attorney - General and Principal Legal Adviser to the National Executive Council.

In the matter of Prime Minister and NEC Act 2002 Amendments and Reserve Powers of the Governor General.

SCR 2 of 2012

Reference by the National Parliament pursuant to Constitution, Section 19 (1) and (3) (a).

IN THE MATTER of:

Sections 104 (2)(d); 109, 110, 115,141 (a), 142(2) of the Constitution;

Prime Minister and National Executive Council (Amendment) Act 2011;

Prime Minister and National Executive Council (Amendment No 2) Act 2011.

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

2012: April 2, 3, 4, 5 & May 21.

CONSTITUTIONAL LAW – Constitution s. 19 (2) – Binding effect of the opinions of the Supreme Court in Supreme Court References – Doctrine of separation of powers – Constitution s. 99 (3) – Constitution the Supreme law – Constitution ss. 9; 10 and 11 – Supreme law making powers of the Parliament - Supreme Court has unlimited jurisdiction – Constitution s. 99 (2) (c ) - Supreme Court has inherent power – Constitution s. 155 (2) (b) and (4) – Constitution is Supreme over all three arms of the government – Scheme of the Constitution - Supreme Court Act (Ch No 37), ss 1 & 7.

CONSTITUTIONAL LAW – Constitution s. 19 (1) and (3) - Practice and Procedure – Constitutional References – Interpretation and application of Constitutional Law – Amendments to Prime Minister and Executive Council Act 2002 – Such amendments having retrospective effect; setting limit to duration of Acting Prime Minister and setting age limit of Prime Minister at 72 – Appointment of Prime Minister – Doctrine of res judicata – Doctrine of Separation of Powers - Constitution , ss38, 50, 141, 109, 110, 141, 142 ; Prime Minister and National Executive Council Act 201, ss 2, 3, 4 and 6.

CONSTITUTIONAL LAW – Constitution s. 86 – Justiciability of the advice given to the Head of State – Justiciability of the decisions by the Head of State – Whether the Head of State has discretion on advice by Parliament regarding election of the Prime Minister – Constitution s. 142 (2) – Scheme of the Constitution.

CONSTITUTIONAL LAW – Validity of decision by Parliament to rescind previous grant to Member of Parliament leave of absence from sitting of Parliament - Constitution, s 50, s 104 (2)(d) & s 135; Organic Law on National and Local-Level Government Elections, s 4, 228, 229.

CONSTITUTIONAL LAW – Constitution s. 153 (4) – Validity of executive acts – Constitutional safeguard and protection over executive acts – Actions taken by Ministers not open to challenge – Constitution s. 141 - Prime Minister occupying office without legal right – De facto Prime Minister – De facto government – Meaning of a de facto government.

PARLIAMENT – Legislative arm of Government – Independent from Executive and Judicial arms - Separation of Powers - Supreme law maker – Laws passed subject to the Constitution – Supremacy of the Constitution – Constitution, ss.99(2) and (3), 100, 138 & 158

JUDGMENTS AND ORDERS – Enforcement – Compliance with – Duty of all persons to obey without fail – Neither Parliament nor elected Members of Parliament, individually and collectively, are exempted from complying with Court Orders, Judgments, Decisions, Rulings or Opinions – Parliamentary privileges - Separation of powers do not apply – Misconception – Constitution , ss.155(6), 115 and 99(3).

Facts:

These special references are brought under s19 of the Constitution by the Attorney-General (SC Ref No 1 of 2012) and the National Parliament (SC Ref No 2 of 2012) respectively. They seek the Supreme Court’s opinion on the interpretation and application of certain provisions of the Constitution. The validity of decisions in question include Parliament’s decision made on 9th December to rescind its earlier decision to grant leave of absence to Sir Michael Somare for the May 2011 meeting of Parliament; Parliament’s decision made on 12th December to enact the Prime Minister and National Executive Council (Amendment Act) 2011 which amended the Prime Minister and National Executive Council Act 2002; Parliament’s decision made on 12th December to declare a vacancy in the office of the Prime Minister; Parliament’s decision made on 12th December to re-elect Peter O’Neill as Prime Minister; the actions of the Governor - General Sir Michael Ogio taken on 13th December 2011 to recognize and give effect to the Supreme Court’s decision given on 12th December 2011 invalidating the appointment of Peter O’Neill as Prime Minister on 2nd August 2011 and restoring Sir Michael as Prime Minister; the Speaker of Parliament and Acting Governor - General Jeffrey Nape’s actions taken on 14th December to recognize Parliament’s re-election of Peter O’Neill as Prime Minister; actions of the Governor-General Sir Michael Ogio in retracting his earlier recognition of the government of Prime Minister Sir Michael Somare on 13th December 2011 and recognizing the re-appointment of Peter O’Neill; and, Parliament’s decision made on 21st December to enact the Prime Minister and National Executive Council (Amendment No 2 ) Act 2011.

Held:

(1) The Supreme Court’s judgment and orders given under s 19 of the Constitution, on 12th December 2011, in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, that Sir Michael Somare is the legitimate Prime Minister and the appointment of Peter O’Neill as the Prime Minister is unconstitutional and invalid is confirmed.

(2) Parliament’s decision made on 9th December 2011 to rescind leave of absence granted to Sir Michael Somare for the May meeting is inconsistent with s50 of the Constitution and s 11, s 19, s 155 (6) and s 157 of the Constitution; and therefore declared unconstitutional, invalid and of no effect.

(3) The Prime Minister and National Executive Council (Amendment) Act 2011 passed by the Parliament on 12th December 2011 and certified by the Speaker is inconsistent with s 38 and s 50 of the Constitution and declared unconstitutional , invalid and of no effect.

(4) The Prime Minister and National Executive Council (Amendment No 2 ) Act 2011 passed by the Parliament on 21th December 2012 and certified by the Speaker is inconsistent with s 11, s 19, s 38, s 50, s 155 (6) and s 157 of the Constitution and therefore declared unconstitutional, invalid and of no effect.

(5) The election of Peter O’Neill as Prime Minister on 12th December 2011 and his subsequent confirmation by the Speaker of Parliament the Hon Jeffrey Nape, in his capacity as Acting Governor-General, on 14th December 2011 are inconsistent with s 142 (1) and (2) of the Constitution as interpreted and applied in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, and therefore, declared unconstitutional, invalid and of no effect whatsoever.

(6) That at all material times, Sir Michael Somare was and is the member for the East Sepik Provincial seat; and, the legitimate Prime Minister of Papua New Guinea until the writs for the 2012 National elections are returned and a new Prime Minister is elected in the first sitting of the next Parliament pursuant to s 142 of the Constitution.

(7) That Prime Minister Sir Michael Somare shall be accorded full privileges and benefits as Prime Minister and Member of Parliament for East Sepik Provincial seat, effective from 2nd August 2011.

(8) Pursuant to s 153 (4) of the Constitution, and subject to the Constitution generally, the bona fide decisions and actions made and implemented by the de facto government of Peter O’Neill as Prime Minister and any of those of ministers appointed by him, between 2nd August 2011 and 20th May 2012, are not open to challenge.

(9) Pursuant to s 11, s19 (2), and s...