Special Reference pursuant to Constitution, Section 19; Reference by The East Sepik Provincial Executive v Hon Dr Allan Marat MP, Minister for Justice & Attorney-General and Hon Jeffery Nape MP, Speaker of the Parliament and Ombudsman Commission and Hon Sam Abal MP Hon Peter O’Neill MP, Prime Minister and Hon Belden Namah MP, Deputy Prime Minister and National Alliance Inc, and Grand Chief Sir Michael Somare MP (2011) SC1133

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 October 2011
• Citation: (2011) SC1133
• Docket Number: SC REF NO 3 0F 2011
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1133

Full Title: SC REF NO 3 0F 2011; Special Reference pursuant to Constitution, Section 19; Reference by The East Sepik Provincial Executive v Hon Dr Allan Marat MP, Minister for Justice & Attorney-General and Hon Jeffery Nape MP, Speaker of the Parliament and Ombudsman Commission and Hon Sam Abal MP Hon Peter O’Neill MP, Prime Minister and Hon Belden Namah MP, Deputy Prime Minister and National Alliance Inc, and Grand Chief Sir Michael Somare MP (2011) SC1133

Supreme Court: Cannings J

Judgment Delivered: 19 October 2011

SC1133

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 0F 2011

SPECIAL REFERENCE

PURSUANT TO CONSTITUTION, SECTION 19

REFERENCE BY

THE EAST SEPIK PROVINCIAL EXECUTIVE

Referrer

HON DR ALLAN MARAT MP,

MINISTER FOR JUSTICE & ATTORNEY-GENERAL

First Intervener

HON JEFFERY NAPE MP, SPEAKER OF THE PARLIAMENT

Second Intervener

OMBUDSMAN COMMISSION

Third Intervener

HON SAM ABAL MP

Fourth Intervener

HON PETER O’NEILL MP, PRIME MINISTER

Fifth Intervener

HON BELDEN NAMAH MP, DEPUTY PRIME MINISTER

Sixth Intervener

NATIONAL ALLIANCE INC

Seventh Intervener

GRAND CHIEF SIR MICHAEL SOMARE MP

Eighth Intervener

Waigani: Cannings J

2011: 11, 12, 13, 14, 17, 19 October

Taking of evidence and statement of facts by a single Judge of the Supreme Court upon direction by Supreme Court – Supreme Court Rules, Order 3, Rule 3.

The Supreme Court, constituted by five Judges, directed a single Judge of the Supreme Court to conduct a hearing for the purpose of taking evidence concerning 47 disputed facts in regard to a reference under Section 19 of the Constitution.

Found:

1) The 47 disputed facts were placed into nine categories, seven of which, it transpired, upon the taking of evidence, were either wholly or largely uncontentious.

2) Two categories have remained in dispute: whether as a fact, the East Sepik Provincial Executive authorised the Reference and whether Sir Michael Somare has been at any time of unsound mind.

3) On those issues it was found:

(a) that the East Sepik Provincial Executive Council authorised the Reference; and

(b) that Sir Michael Somare has not at any material time been of unsound mind and is not of unsound mind.

Cases cited

The following cases are cited in the findings:

Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421

Enforcement Pursuant to Section 57 Constitution, Application by Francis Gem (2010) SC1065

In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution, East Sepik Province (2006) N3796

Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078

Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405

SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917

SCR No 4 of 1980; Re Petition of MT Somare (No 2) [1982] PNGLR 65

Shaw v Commonwealth of Australia [1963] PNGLR 119

Dates

The events referred to herein occurred in 2011 unless otherwise indicated.

TAKING OF EVIDENCE AND STATEMENT OF FACTS

This is the taking of evidence by a single Judge of the Supreme Court and statement of facts found, upon direction of the Supreme Court.

Counsel

I R Molloy & J Alman, for the referrer

J A Griffin QC & P Tabuchi, for the first intervener

R J Webb QC, K Frank, N Kera & A MacDonald, for the second intervener

V L Narokobi, for the third intervener

D C Kerr SC & P Kuman, for the fourth intervener

M M Varitimos & F A Griffin, for the fifth and sixth interveners

J K Gawi, for the seventh intervener

M N Cooke QC, G N Egan & J Wohuinangu, for the eighth intervener

19 October, 2011

1. CANNINGS J: I have been directed by the Supreme Court under Order 3, Rule 3 of the Supreme Court Rules to conduct a hearing for the purposes of taking evidence and to state the facts as I find them, and to provide my statement of facts to the Supreme Court by 19 October 2011, in regard to a reference by the East Sepik Provincial Executive under Section 19 of the Constitution. The rationale for this procedure was explained by the Supreme Court in Enforcement Pursuant to Section 57 Constitution, Application by Francis Gem (2010) SC1065: the Supreme Court, which in the present case is constituted by five Judges, is usually not well-suited when exercising its original jurisdiction to conducting a trial on or determining disputed facts. This task can be more effectively undertaken by a single Judge.

2. The Section 19 reference raises various questions of constitutional interpretation and application relating amongst other things to the appointment on 2 August 2011 of the 5th intervener, Hon Peter O’Neill MP, as Prime Minister and the declaration on 6 September 2011 by the 2nd intervener, Hon Jeffery Nape MP, the Speaker of the National Parliament, of a vacancy in the seat of East Sepik Provincial held by the 8th Intervener, Rt Hon Grand Chief Sir Michael Somare MP. The 47 issues of fact on which I have been directed to take evidence and make findings of fact are those in paragraphs 28 to 75 of the statement of agreed and disputed facts put before the Supreme Court on 27 September 2011. The issues in those paragraphs have not been categorised or set out in chronological order, so I have categorised them myself. This will help the Supreme Court to narrow down the most contentious and relevant factual issues. The issues of fact relate to the following matters:

(1) The Leadership Tribunal proceedings of March 2011.

(2) Meetings of the Parliament in 2011.

(3) Sir Michael’s absence from the Parliament in 2011.

(4) Steps taken by the National Executive Council regarding Sir Michael’s absence and his health.

(5) Events of 2 August 2011 relating to the appointment of Mr O’Neill as Prime Minister.

(6) Events of 6 September 2011 relating to declaration of a vacancy in the East Sepik Provincial seat.

(7) Media reports of events relating to the reference.

(8) Sir Michael’s medical treatment and his soundness of mind.

(9) Decisions and resolutions of the referrer.

3. During the course of taking the evidence it became apparent that, in fact, the parties were not in dispute as to all of the issues of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts. Many issues turned out to be largely uncontentious. Some parties did not dispute the facts but submitted that they were irrelevant. I have taken the approach that I should make a finding of fact on each of the issues of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts, irrespective of its relevance. However, in my conclusion I will highlight those issues of fact that have been the most contentious and that I consider are most relevant to the questions of constitutional interpretation and application that form the Reference. This statement of facts is set out as follows.

PART A – THE EVIDENCE: this contains a summary of the evidence that has been taken.

PART B – FINDINGS OF FACT: this records my statement of facts according to the nine categories of fact outlined above.

PART C – STATEMENT OF FACT IN RELATION TO EACH ISSUE OF FACT: this records my findings of fact in relation to each issue of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts.

PART D – CONCLUSION: I summarise my findings on the issues of fact that have been most contentious and which are considered most relevant to determination of the Reference.

PART A: THE EVIDENCE

4. It became evident at the start of the hearing that the nine parties to the reference fall into three camps:

· the referrer and those parties aligned with it, who it is expected will at the hearing of the reference support the referrer’s contentions, viz the 4th intervener, Hon Sam Abal MP; the 7th intervener, National Alliance Inc; and the 8th intervener, Grand Chief Sir Michael Somare MP; and

· the 1st intervener, Hon Dr Allan Marat MP, Minister for Justice and Attorney-General, and those parties aligned with him, who it is expected will at the hearing of the reference support his contentions, viz the 2nd intervener, Hon Jeffery Nape MP, the Speaker of the National Parliament; the 5th intervener, Hon Peter O’Neill MP, Prime Minister; and the 6th intervener, Hon Belden Namah MP, Deputy Prime Minister; and

· the 3rd intervener, the Ombudsman Commission, which indicated through its Counsel, Mr Narokobi, that it was not aligned with any of the parties, and did not propose to adduce any evidence.

5. I directed that the evidence would be taken first from the referrer and the parties aligned with it, and then from the 1st intervener and parties aligned with him. The referrer and the parties aligned with it called nine witnesses to give oral evidence, all of whom had sworn affidavits and were cross-examined on them. Five affidavits by witnesses who were not available for cross-examination were admitted into evidence, against the objections of the 1st intervener and...