Special Reference pursuant to Constitution, Section 19 (1); Special Reference by the Ombudsman Commission; In the matter of the Constitution Sections 105 and 187C, The Organic Law on National and Local Level Government Elections Section 177, 271, 281 and 285 and the Organic Law on Provincial Governments and Local Level Government Section 26 and 34 (2019) SC1815

• Jurisdiction: Papua New Guinea
• Judge: Salika, CJ
• Judgment Date: 28 May 2019
• Citation: (2019) SC1815
• Docket Number: SC REF 02 OF 2019
• Court: Supreme Court
• Year: 2019
• Judgement Number: SC1815

Full Title: SC REF 02 OF 2019; Special Reference pursuant to Constitution, Section 19 (1); Special Reference by the Ombudsman Commission; In the matter of the Constitution Sections 105 and 187C, The Organic Law on National and Local Level Government Elections Section 177, 271, 281 and 285 and the Organic Law on Provincial Governments and Local Level Government Section 26 and 34 (2019) SC1815

Supreme Court: Salika, CJ

Judgment Delivered: 28 May 2019

SC1815

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF 02 OF 2019

SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 (1)

SPECIAL REFERENCE BY THE OMBUDSMAN COMMISSION

IN THE MATTER OF THE CONSTITUTION SECTIONS 105 AND 187c, THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS SECTION 177, 271, 281 AND 285 AND THE ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL LEVEL GOVERNMENT SECTION 26 AND 34.

Waigani: Salika, CJ

2019: 28 May

SUPREME COURT – Practise and Procedure in Application for Leave to Intervene – Special Supreme Court Reference – Criteria to intervene

Counsel:

Ms Koralyo, for the Referrer

Mr Ranewa, for the Respondent / First Intervener

Mr T Dawidi, for the Applicant / Second Intervener

Mr R Saulep, Third Intervener

28th May, 2019

1. SALIKA CJ: INTRODUCTION: This is an application for leave to intervene by the Minister for Inter-Government Relation pursuant to Order 4 Rules 19, 20, 21 and 22 of the Supreme Court Rules. The grounds relied on to intervene by the applicant are:

· The Minister Keven Isifu is the Minister for Inter-Government Relations and a Member of Parliament and is a member of the National Executive Council.

· The Minister has an interest in the matter and seeks leave to join as a party to the proceedings.

· Under the Local Level Government (LLG) Administration Act, the LLG’s come under his political administration and the Department of Provincial and Local Level Government Affairs.

· Under the said Local Level Government Administration Act, the Minister signs and issues the writs for the LLG Election and not the Electoral Commissioner.

ISSUE

2. The issue in this application is whether the applicant should be granted leave to be an intervener in the Special Reference.

3. On 25 April 2019 the applicant Minister signed and issued the writs for the LLG Elections. Under dot point 4 above the Minister/Applicant has completed his role in the signing and issuance of the writ.

4. The matter of Administration of the LLGs under the relevant law by his department/Ministry do not arise. Administration of the LLGs must continue as normal operations.

5. The real issue in the substantive reference is for the Electoral Commissioner to conduct the LLG Elections as soon as possible. What are the causes for the delay of the conduct of these elections? The applicant is of no assistance there.

6. The other issue is whether the Electoral Commissioner has power to defer elections for over 3 months? Again the Minister is of no assistance there.

7. Whatever remaining interests he has can be adequately represented by the Attorney General and the Electoral Commission. See Namona Oala (2011) SC1128. There is no real utility for the applicant to intervene.

8. In any case the remaining interests that the applicant says he has is that he as the relevant Minister is responsible for the political administration of the Local Level Government Administration Act. The Applicant is the political head and the portfolio Minister for Local Level Governments but the administrative responsibility belongs to the Departmental Head. The Minister is not responsible for the administrative functions of the LLGs. There must be clear demarcation of political responsibilities as against administrative responsibilities. Politicians should not be administrators and assume administrative responsibilities. That is the function of the public servants. The Minister will be briefed by his departmental head.

CRITERIA TO BE JOINED AS AN INTERVENER

9. I have been referred to case precedents of Reference by Igo Namona Oala (2011) SC1128. In that decision the Court there said that the discretion to grant leave to intervene is a very wide one and that an Applicant must have a substantial interest in the issues to be decided in the case. The interest can be direct or in effect an interest in another proceeding. Therefore one of the criteria identified in that case is that the applicant must have a substantial interest in the case.

10. In Don Pomb Polye v Theodore Zurenuoc the Supreme Court said “we do not consider the applicants intervening in this case have any real interest in the substantive issue before the Court for determination”.

With respect the Applicant in this matter, while he has the political interest in the administration of the LLGs, the substantive issue before the Court is not one of political administration. It relates to election of Ward Members for the LLGs. That responsibility belongs to the Electoral Commission. Another criteria identified in that case is that the applicant must have a real interest in the substantive issue.

11. The issues in the Reference will be whether the Electoral Commission has power to extend LLG Election beyond 3 months. That is not an issue that affects the Applicant here with respect. He therefore has no real interest in the substantive issue.

12. Furthermore there is no utility too for the applicant to be an intervener. The Attorney General will cover for him who is already an intervener.

13. Accordingly the evidence adduced by the Applicant that he has a real interest falls short of showing any substantive and substantial interest.

Accordingly his application to intervene is refused.

____________________________________________________________

Ombudsman Commission: Lawyer for the Referrer

Kawat Lawyers: Lawyer for the Respondent / First Intervener

Dawidi Lawyers: Lawyer for the Second Intervener

Saulep Lawyers: Lawyer for the...