Special Reference Pursuant to Constitution, Section 19 by the East Sepik Provincial Executive and 21 Related Matters (2013) SC1236

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 03 July 2013
• Citation: (2013) SC1236
• Docket Number: SC REF NO 3 0F 2011
• Court: Supreme Court
• Year: 2013
• Judgement Number: SC1236

Full Title: SC REF NO 3 0F 2011; Special Reference Pursuant to Constitution, Section 19 by the East Sepik Provincial Executive and 21 Related Matters (2013) SC1236

Supreme Court: Cannings J

Judgment Delivered: 3 July 2013

SC1236

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 0F 2011

SPECIAL REFERENCE PURSUANT TO CONSTITUTION,

SECTION 19 BY THE EAST SEPIK PROVINCIAL EXECUTIVE

AND 21 RELATED MATTERS

Waigani: Cannings J

2013: 21, 29 May, 5, 25 June, 3 July

PRACTICE AND PROCEDURE – summary disposal of Supreme Court matters: Supreme Court Rules 2012, Order 13, Rule 16 – distinction between powers of Judge and those of Court.

PRACTICE AND PROCEDURE – withdrawal of proceedings – when leave of the Court required: Supreme Court Rules 2012, Order 11, Rule 29.

COSTS – discretion as to costs may be exercised at any stage or after conclusion of proceedings: Supreme Court Rules 2012, Order 13, Rule 16.

The Chief Justice directed that in relation to a Supreme Court special reference under Section 19 of the Constitution and 21 related matters, all proceedings, interlocutory applications and consequential matters be referred to a single Judge of the Supreme Court for mention and directions. That Judge called each of the 22 matters for mention, heard from the parties, assessed the status of each matter and gave directions and/or orders with a view to bringing each matter to an expeditious finality.

Held:

(1) Three of the matters (Nos 1, 2 and 3 on the schedule) have unresolved applications for costs (as well as un-prosecuted applications to set aside rulings) so these matters were referred to the full court of the Supreme Court for determination.

(2) One matter (No 4) was discovered to be unrelated to the other matters in the schedule and was adjourned to the Registry.

(3) Six matters (Nos 5, 6, 7, 8, 12 and 16) have had no activity on the file for a long period and were referred to the full court of the Supreme Court for summary determination.

(4) Seven matters (Nos 9, 10, 11, 13, 14, 15 and 20) were disposed of, notices of withdrawal having been filed in accordance with Order 11, Rule 29 of the Supreme Court Rules 2012.

(5) Three of the matters (Nos 17, 18 and 19) were the subject of orders under Section 155(4) of the Constitution, having regard to the circumstances of each matter.

(6) One matter (No 21) was discovered to have already been completed.

(7) One matter (No 22) was referred to the full court of the Supreme Court to determine whether leave to discontinue the proceedings should be granted.

Cases cited

The following cases are cited in the judgment:

Fred Yakasa v Toami Kulunga and the State (2012) N4550

Haiveta v Wingti (No 3) [1994] PNGLR 197

Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88

Lemba Takail v William Wulat (1982) N371 (M)

Reference by the Morobe Provincial Executive (2012) SC1202

SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive (2011) SC1154

SC Ref Nos 1 & 2 of 2012, References by the Attorney-General and the National Parliament (2012) SC1187

SCR Nos 12 and 12A of 1984; Joe Parakas v The State [1985] PNGLR 224

Somare v Nape OS No 728 of 2011, 20.09.11 unreported

Somare v Nape SCOS No 3 of 2012, 04.04.12 unreported

Tama Nou v The State (1990) N892

The State v Junior Steven Gawi [1988-89] PNGLR 118

The State v Simon Paul Korai (2009) N3820

DIRECTIONS

This was a series of directions hearings by a Judge of the Supreme Court pursuant to directions of the Chief Justice.

3 July, 2013

1. CANNINGS J: I have been required by directions of the Chief Justice Sir Salamo Injia given on 3 May 2013 to call up and mention and where necessary give directions regarding the proceedings known as Supreme Court Reference (SC Ref) No 3 of 2011: Special Reference by the East Sepik Provincial Executive. His Honour required that I deal with these matters in my capacity as a Judge of the Supreme Court.

2. SC Ref No 3 of 2011 was a Special Reference under Section 19 of the Constitution which raised 33 questions of constitutional interpretation and application regarding the appointment on 2 August 2011 of Hon Peter O’Neill MP as Prime Minister. The Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J and Gavara-Nanu J) largely determined the matter by delivery of judgment on 12 December 2011. However there appeared to be some issues outstanding including the question of costs and charges of contempt of court in connection with SC Ref No 3 of 2011. I have seen it as my task to clarify what issues remain unresolved and to determine them in so far as I am able as a single Judge of the Supreme Court to do so and where I am not able to do so, to make orders aimed at bringing the proceedings to an expeditious finality.

3. The Chief Justice’s directions of 3 May 2013 required that I also call up and mention and where necessary give directions regarding 21 other matters, which are considered to be connected with SC Ref No 3 of 2011. The upshot is that I have inquired into the status of 22 matters listed in the schedule to the Chief Justice’s directions. I conducted hearings on 21 May, 29 May, 5 June and 25 June 2013.

1 SC REF NO 3 0F 2011: SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19 BY THE EAST SEPIK PROVINCIAL EXECUTIVE

W Thomas & J A Kumbari for the referrer, East Sepik Provincial Executive

P Tabuchi for the first & sixth interveners, Hon Dr Allan Marat MP & Hon Belden Namah MP

T Twivey-Nonggorr for the second intervener, Speaker of the National Parliament

M N Wilson & C Karaiye for the fifth intervener, Hon Peter O’Neil MP

J Gawi & S P Pokawin for the seventh intervener, National Alliance Inc

P J Wright & J Wohuinangu for the eighth intervener, Grand Chief Sir Michael Somare MP

4. This special reference was filed on 5 August 2011, three days after the appointment of Hon Peter O’Neil MP as Prime Minister. It was substantively determined by delivery of judgment on 12 December 2011 (Reference by the East Sepik Provincial Executive (2011) SC1154). The questions of constitutional interpretation and application were by majority (Injia CJ, Kirriwom J, Gavara-Nanu J; Salika DCJ, Sakora J dissenting) largely decided in the manner contended for by the referrer and the Court made the following order:

1 The Hon Sir Michael was not lawfully removed from office as Prime Minister by Parliament on 2 August 2011.

2 The Hon Peter O’Neill was not lawfully appointed as Prime Minister by Parliament on 2 August 2011.

3 The National Court has exclusive jurisdiction to determine any questions as to whether the seat of a member has become vacant.

4 The Speaker’s decision of 6th September 2011 to declare that Sir Michael Somare had lost his seat was in breach of Constitution s 104(2)(d), s 135 [and] s 228 and s 229 of the Organic Law on National and Local-level Government Elections.

5 The Hon Sir Michael is not a person of unsound mind within the meaning of s 103(b) of the Constitution and the Public Health Act (Ch 226).

6 The Hon Sir Michael Somare is restored to office as Prime Minister forthwith.

5. There are four outstanding matters:

(a) an application filed on 28 March 2012 by the fifth intervener Hon Peter O’Neil MP seeking amongst other things orders that the Supreme Court judgment of 12 December 2011 be set aside;

(b) an application filed on 29 March 2012 by the second intervener the Speaker of the National Parliament seeking amongst other things orders that the Supreme Court set aside its ruling of 12 December 2011;

(c) a notice of motion filed on 27 May 2013 by the seventh intervener National Alliance Inc seeking amongst other things costs on a solicitor-client basis against the first, second, fifth and sixth interveners;

(d) a notice of motion filed on 27 May 2013 by the eighth intervener Grand Chief Sir Michael Somare MP seeking amongst other things costs on a solicitor-client basis against the first, second, fifth and sixth interveners (the interveners who argued against the propositions advanced by the referrer).

6. During the course of the hearings before me counsel for the parties involved in the above unresolved applications and motions suggested that it was likely that these matters would be resolved and that a draft consent order would be handed up for my consideration. By the last hearing on 25 June 2013 more than a month had passed since the first hearing on 21 May 2013 and I expressed the view that that was enough time and that it was preferable in the absence of agreement amongst the parties that I make a decision on what should be done. There was no objection to that proposal so I have decided as follows.

7. As to (a) and (b) I note that 16 months have passed since the applications were filed. The applicants have failed to prosecute the applications and there has been no application by other parties to have them summarily determined. The two applications appear ripe for summary disposal under Order 13, Rule 16 (summary disposal) of the Supreme Court Rules 2012, which states:

The Court may summarily determine a matter:

(a) on application by a party; or

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