Haiveta, Leader of the Opposition v Wingti, Prime Minister; Attorney-General; and National Parliament of PNG [1993] PGLawRp 563; [1994] PNGLR 160 (25 November 1993)

PNG Law Reports 1994

[1994] PNGLR 160 - Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister; Attorney-General; and National Parliament of PNG 

[1994] PNGLR 160

N1188

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CHRISTOPHER HAIVETA, LEADER OF THE OPPOSITION

V

PAIAS WINGTI, PRIME MINISTER OF PAPUA NEW GUINEA;

ATTORNEY GENERAL, AS NOMINAL DEFENDANT FOR THE HEAD OF STATE; and

NATIONAL PARLIAMENT OF PAPUA NEW GUINEA (NO 1)

Waigani

Sheehan J

2 October 1993

12-15 October 1993

20-22 October 1993

25-28 October 1993

1-4 November 1993

8-12 November 1993

15 November 1993

 25 November 1993

PARLIAMENT - Resignation and re-appointment of Prime Minister - compliance with Constitution s 142(3).

CONSTITUTIONAL LAW - Interpretation and application of Constitutional Laws - Jurisdiction of National Court to interpret and apply Constitutional Laws.

CONSTITUTIONAL LAW - Internal procedures of the Parliament - Justiciable where provided for by Constitutional Law - Constitution s 134.

CONSTITUTIONAL LAW - The Parliament - Motions of confidence in Prime Minister permitted.

CONSTITUTIONAL LAW - Resignation of Prime Minister - Vacancy in Prime Minister's office - Vacancy arises when Head of State notified of resignation - Constitution ss 142(3) and 146.

Facts

The Speaker of the Parliament notified the House at its sitting on 24 September 1993 that:

N2>1.       he had been advised by the Governor-General that the Prime Minister, Mr Paias Wingti, had resigned from office on 23 September 1993; and

N2>2.       the Constitution required that the first matter of business for the House must be the election of a new Prime Minister.

The sole nomination was that of Mr Wingti, and a vote confirmed his re-election as Prime Minister. The Leader of the Opposition made application by originating summons, claiming declarations that:

N2>1.       Mr Wingti was not duly elected Prime Minister on 24 September and that his election was null and void; and

N2>2.       Mr Wingti's resignation as Prime Minister remained in force until a new Prime Minister was elected or, alternatively, that the date of his appointment was that of his initial appointment following the general election in 1992.

Section 142(3) of the Constitution is in the following terms:

"If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day."

The plaintiff argued that the Prime Minister's letter of resignation was received by the Governor-General on 24 September 1993 and, accordingly, the appointment of a new Prime Minister should not have been considered on that day. Even if the resignation letter was received by the Governor-General on 23 September 1993, the question of appointment of a Prime Minister arose only when Parliament was first informed of the resignation on 24 September. In either case, the requirement for appointment of a new Prime Minister "on the next sitting day" was not complied with. The plaintiff also argued that the purpose of the first defendant in resigning and being re-appointed was to defeat the provisions on no-confidence motions in s 143 of the Constitution and so was contrary to the Constitution and the spirit of the Constitution. The first and second defendants objected to the jurisdiction of the National Court to deal with the issues raised by the plaintiff on the grounds that:

N2>1.       the declarations sought involved interpretation and application of the Constitution, a jurisdiction reserved to the Supreme Court by s 18 of the Constitution; and

N2>2.       the issues raised involved internal procedures of the Parliament, made non-justiciable by ss 115 and 134 of the Constitution.

The first defendant also claimed abuse of process by the plaintiff in his use of an originating summons rather than initiating proceedings under Order 16 of the National Court Rules.

Held

N1>1.       Although an application by way of judicial review may have been more appropriate, an application for a declaration might be made by originating summons (following NEC v PEA [1993] PNGLR 264).

N1>2.       The reservation to the Supreme Court under s 18 of the Constitution of the jurisdiction of interpretation and application of the Constitution is expressed to be "subject to" the Constitution. The National Court is vested with jurisdiction to interpret and apply the Constitution by ss 22, 23, 57, 58 and 135, and under s 18 when determining whether an issue of interpretation or application is trivial or vexatious. In this case, as all parties agree the election of Prime Minister must be held on the sitting day after a vacancy occurs, the issue before the National Court is not so much interpretation of the Constitution but enforcement of the requirements of s 142.

N1>3.       Where a procedure for the conduct of an action of the Parliament is provided for by a Constitutional Law, the question whether that procedure was followed is justiciable, by virtue of the words introducing s 134 of the Constitution ("Except as is specifically provided by a Constitutional Law"), distinguishing the decision of the Supreme Court in Mopio v Speaker of the National Parliament [1977] PNGLR 420. Section 142 is a provision prescribing a procedure for the conduct of parliamentary action.

N1>4.       There is nothing in s 145 of the Constitution that prevents a Prime Minister from resigning and seeking immediate re-appointment as Prime Minister.

N1>5.       The plaintiff's evidence was not sufficient to establish that the Prime Minister resigned on 24 September 1993, rather than 23 September.

N1>6.       The occasion for appointment of a new Prime Minister arose when the Prime Minister's letter of resignation was given to the Governor-General on 23 September, there being nothing in s 142 of the Constitution indicating that a vacancy in the Office of the Prime Minister arises only when the Parliament is informed of the vacancy.

N1>7.       The appointment of Prime Minister on 24 September was, therefore, valid, an outcome which the plaintiff conceded followed from the finding as to the point in time when the occasion for appointment arose.

N1>8.       The plaintiff's application for a declaration that the date of appointment of the Prime Minister was that of his appointment following the 1992 general elections was irrelevant upon the finding that the appointment of 24 September was valid. In any event, it involved a hypothetical question not arising on the facts.

N1>9.       The plaintiff's applications were dismissed.

Cases Cited

Papua New Guinea cases

Capek v Yacht "Freja" [1980] PNGLR 161.

Joshua v Meya [1988-89] PNGLR 1988.

Koroka v Kapal [1985] PNGLR 117.

Lowa v Akipe [1991] PNGLR 265; [1992] PNGLR 399.

Malapu v Electoral Commission [1987] PNGLR 128.

Masive v Okuk [1985] PNGLR 105.

Mopio v Speaker of the National Parliament [1977] PNGLR 420.

NEC v PEA [1993] PNGLR 264.

PNG Coffee Industry Board v Panga Coffee [1990] PNGLR 363

Public Services Commission v PNG [1994] PNGLR 603.

Raz v Matane [1985] PNGLR 329.

SCR No 2 of 1981; Re Criminal Code s 19 [1982] PNGLR 150.

SCR No 4 of 1980; Re Petition of Somare [1981] PNGLR 265.

Other cases cited

Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271; 53 LJQB 209; 50 LT 620; 32 WR 552, DC.

Browne v Dunn (1893) 6 R 67.

Fotofili v Siale [1987] TOPC 2; [1988] LRC (Const) 102.

Lim Kit Siang v Dato Seri Dr Mahathir Mohammed [1988] LRC (Const) 29.

O'Reilly v Mackman [1983] UKHL 1; [1982] 3 WLR 1096; [1983] 2 AC 237; [1982] 3 All ER 1124.

Counsel

L Henao, for the plaintiff.

J Reeve, for the first defendant.

R Pato, for the second defendant.

J Briggs, for the third defendant

25 November 1993

SHEEHAN J:  The National Parliament commenced its September session on 21 September 1993. On the morning of 24 September, the Speaker notified the House that he had been advised by the Head of State that the Prime Minister (the first defendant) had on 23 September formally resigned his office. This was confirmed by a letter from the Prime Minister himself to the House in which he stated, inter alia, that he was seeking a vote of confidence in himself and his government.

The Speaker notified the House that, by virtue of the Constitution, the first matter of business must be the election of a new Prime Minister. Despite objection from Opposition members, he then called for nominations. The member for Western Highlands, Mr Paias Wingti, was the only nomination. After a vote was taken, in the absence of a body of Opposition members who had walked out, the Speaker confirmed Mr Wingti's re-election as Prime Minister.

That election and the re-appointment of Mr Wingti to the office of Prime Minister by the Head of State are now challenged by the Leader of the Opposition, who makes application to this Court under originating summons process. His summons, as amended, sets out the relief sought.

"The Plaintiff Claims:

1.       A DECLARATION that the First Defendant was not duly elected as Prime Minister on the 24th day of September 1993, and, that his election and appointment as Prime Minister be declared null and void.

2.       A DECLARATION that the resignation of the First Defendant as Prime Minister remains in force until a new Prime Minister is duly elected.

2A.     Alternatively, a declaration for the purposes of s 145(4) of the Constitution, that the date of appointment of the First Defendant as Prime Minister is the date of his initial appointment following the 1992 National General Elections.

3.       ANY other Order the Court deems fit.

4.       AN ORDER that the First and Second Defendants pay the Plaintiff's costs in these proceedings."

THE Plaintiff claims an order that a new election of the Prime Minister be conducted in accordance with s 142(3) of the Constitution.

PROCEDURE

The first and second defendants responded to these claims with an immediate challenge to the jurisdiction of this Court to entertain the application. They contended that the National Court has no jurisdiction in the interpretation and application of the Constitution and that the proceedings of the National Parliament are not justiciable. It was at this point that the National Parliament sought to be joined, and was joined, in these proceedings. It too challenges the jurisdiction of the Court in these matters, asserting that the internal procedures of Parliament are for Parliament alone to determine and regulate.

In the ordinary course, a challenge that a court has no jurisdiction in a matter before it has to be the first issue determined. A court will not enter on the hearing of a dispute unless it can be shown that it has the jurisdiction to do so.

Again, in the ordinary course, the nature of the dispute will not require more than an assertion of facts, either in the pleadings or in allegations in the affidavits filed, for the question of jurisdiction to be considered and determined.

Jurisdiction was not immediately argued on the summons as filed because of the particular course this matter took. That course is detailed below. Nonetheless, once the parties' cases were fairly before the Court, the jurisdiction question was the first issue determined.

In this case, the plaintiff filed affidavits, as is usual, but subsequently also sought leave to call additional evidence, orally, in lieu of affidavits, to establish the total fact basis of his application.

There was strenuous opposition by the defence that the application should remain as it was. They said that the "case" as stated in the originating summons itself raised insuperable jurisdictional barriers. Counsel for the plaintiff argued that the evidence to be adduced, evidence only lately obtained, was not only vital to its case but also impinged on the jurisdictional questions. Counsel for the plaintiff said that the evidence to be given challenged the assumption that the date of the letter of resignation of the Prime Minister was, in fact, the date of actual resignation. Counsel for the first defendant, supported by other defence counsel, contended that it was clear from the Hansard report that the basis of any claim could only rest on the facts stated there. Any further enquiry was simply a fishing expedition to try and find facts in the hope that they may be relevant.

The Court ruled that before questions of jurisdiction were contested, it was appropriate that the plaintiff at least be permitted to put the complete fact basis of his claim. That he wished to do so by calling witnesses who might otherwise have given affidavits did not change that. In any case, the Court was of the view that whether the evidence to be adduced did, in fact, turn out to be critical or relevant to the jurisdiction issue could only be determined once it was before the Court. At the point of application to call the evidence, plaintiff's counsel had at least made out an arguable case that it was. Accordingly, leave was given to adduce that evidence.

The defence, wishing to maintain their position as in a situation where the whole of the plaintiff's case was in affidavit form, sought and were granted leave to hear the whole of the plaintiff's oral evidence, with the right of cross-examination and to call rebuttal evidence, by affidavit or otherwise, reserved.

At the conclusion of examination in chief of the plaintiff's witnesses, the defence again sought to argue jurisdiction. The Court ruled that since it was possible that the plaintiff's contentions might well affect the issue of jurisdiction, the fact situation would need to be established first. Otherwise, the Court could be placed in a position of determining jurisdiction on facts that might subsequently prove to be wrong. As well, because the plaintiff had indicated that even if the facts, as presently asserted, were not finally determined in its favour, it was possible that a Supreme Court reference under s 18 of the Constitution might well be necessary. The Court considered that the fact situation would have to be clear in the event that the Court needed to resort to that course. To do otherwise would be to adopt a stop/start procedure that could only prolong the proceedings.

The defence thereupon filed some 20 affidavits in rebuttal, and there then followed cross-examination of the witnesses. With all the facts and evidence in, each counsel filed and presented written submissions on both the issues of jurisdiction and justiciability, and the substantive claim as well.

ORIGINATING SUMMONS OR JUDICIAL REVIEW

Before going to those submissions, a procedural objection raised by the first defendant can be conveniently dealt with at this point. The point taken was that this application, if it was to be made at all, should have been by way of judicial review. While it would fail in any case, because of lack of jurisdiction, failure to use the procedure under Order 16 of the National Court Rules is an abuse of process, which counsel said was additional reason for dismissal of the application.

The "general rule" that failure to use the O 16 procedure would be an abuse of process, since that procedure has been specifically provided for pursuit of private rights in public law, follows the English decision O'Reilly v Mackman [1983] UKHL 1; [1982] 3 WLR 1096. The approach in that decision, which is a landmark in judicial review, had been favoured, though without being finally endorsed, in PNG decisions such as Masive v Okuk [1985] PNGLR 105; Malapu v Electoral Commission [1987] PNGLR 128; and PNG Coffee Industry Board v Panga Coffee [1990] PNGLR 363.

The issue arose again recently before the Supreme Court in NEC v PEA [1993] PNGLR 264, which held that the adoption of originating process under Order 4 rather than judicial review procedure under Order 16 is not necessarily an abuse of process, but the Court always has the discretion to direct the more appropriate procedure.

The discretion remains with the Court. Illustrative of that fact is the fact that by Order 1 of the National Court Rules, non-compliance with any of the rules does not render any proceedings void unless the Court so directs (O 1 r 8). Indeed, the Court may dispense with compliance with the rules at any time, whether before or after the time for compliance arises (O 1 r 7).

Therefore, notwithstanding that it may be argued that this application might have been more appropriately brought by way of application for judicial review, application by originating process is not obviously inappropriate.

SUBMISSIONS

The Court has been greatly assisted in this trial by the very able and professional efforts of counsel. The issues have been extensively argued. Likewise, the facts in dispute have been examined in meticulous detail. It is not possible in this decision to detail each and every argument advanced. Though careful consideration has been given to each of these, a bare summary of main contentions must suffice.

THE PLAINTIFF'S CASE

The plaintiff's case is summarised in the submission of his counsel, Mr Henao:

He challenges the appointment of the first defendant on 24 September 1993 on the following grounds:

1.       The first defendant's notice of resignation was received by the Head of State on 24 September 1993, the day he was re-elected by Parliament and subsequently re-appointed by the Head of State. This, the plaintiff says, is contrary to s 142(3) of the Constitution because the question of appointment was not considered by Parliament "on the next sitting day".

2.       Even if the first defendant's notice of resignation was received by the Head of State on 23 September, the re-election and the subsequent re-appointment on the 24th was still invalid under s 142(3) of the Constitution, because the question of the appointment of the Prime Minister first arose when the Parliament was first informed on the 24th and, therefore, the requirement under s 142(3) for such an appointment to be considered "on the next sitting day" was not complied with.

3.       In addition to those two main issues, the plaintiff claims:

(a)      The September session of Parliament, the subject of these proceedings, was a ploy by the Government, especially by the Prime Minister and the Speaker, to have the first defendant re-elected as the Prime Minister and not for the purpose of amending the Organic Law on Provincial Government to effect the report of the bi-partisan committee headed by the Hon Ben Micah.

(b)      The resignation and the re-election of the first defendant as Prime Minister was calculated and designed to secure his re-election in such a way that no other member of the Parliament, particularly from the Opposition ranks, would contest the election of the Prime Minister at the time.

(c)      The following officials were the main players in the scheme: the Prime Minister, the Speaker, and the Governor-General.

A further ground or argument advanced by the plaintiff in submissions was that the constitutional purpose of ss 142 and 146 of the Constitution dealing with the resignation of and election of the Prime Minister is not to be used to defeat the purposes of s 145, which deals with votes of no confidence. The plaintiff maintained that since the avowed purpose of the Prime Minister's resignation and re-election was to avoid a future vote of no confidence, then such action must be contrary to the spirit of the Constitution and, accordingly, invalid.

On the issues of jurisdiction, the plaintiff's submissions were as follows:

Under s 23(2) of the Constitution, the National Court has power to remedy the breach of a constitutional duty. It provides:

N2>"(2)     Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution."

In SCR No 2 of 1981 [1981] PNGLR 518, the Court said that the purpose of a special reference to the Supreme Court under s 19(1) of the Constitution of any question "relating to the interpretation or application of any provision of a Constitutional Law" is:

N2>1.       to establish what the law on a particular constitutional point is, to interpret a word or words or provision of a relevant Constitutional Law, and;

N2>2.       to establish what the Constitutional Law is on a particular issue; to apply, by interpreting the same, any Constitutional Law which is relevant to the issue raised in the reference.

The decision of Andrew J in Joshua v Meya [1988-89] PNGLR 188 at 192, where he examines and distinguishes Mopio v Speaker [1977] PNGLR 420 and Koroka v Kapal [1985] PNGLR 117, was cited in support.

THE DEFENCE CASE

The case for each defendant is the same. They say, first and foremost, that the plaintiff's application is ill conceived, since the National Court has no jurisdiction to interpret or apply Constitutional Laws. By s 18 of the Constitution, that jurisdiction is reserved exclusively for the Supreme Court. Secondly, neither the Supreme Court nor the National Court can intervene in matters which are solely the preserve of the Parliament.

The defendants say that there can be no question but that the issues raised by the originating summons involve the interpretation and application of Constitutional Laws, namely ss 142(3), 145(4) and 146 of the Constitution. The defendants say it is for the plaintiff to show or claim the constitutional basis empowering the grant of jurisdiction to the National Court to deal with these matters, and that it is unable to do. If the National Court does not have jurisdiction to entertain the application, then neither does it have the authority to refer any constitutional questions that arise from it.

Allied to these defences is the contention that, in any case, the whole of the plaintiff's claim is non-justiciable. It is concerned with the internal procedures of Parliament and, accordingly, by s 134 of the Constitution, is not a matter that the courts, whether the National Court or the Supreme Court, can enquire into.

But even if the Court were to find jurisdiction, in this matter, the defence asserts that, on a factual basis as well, the plaintiff must fail since the resignation and re-election of the Prime Minister plainly complied with the required constitutional procedures.

The following extract from Mr Reeve's submissions covers the major arguments of the defendants on jurisdiction.

N2>"(a)     Section 18(1) of the Constitution precludes the National Court exercising original jurisdiction to interpret or apply ss 146, 142 or 145 of the Constitution unless another provision can be pointed to which confers such jurisdiction on the National Court so as to bring the matter within the opening words of s 18(1) - 'Subject to this Constitution ...'

N2>(b)      None of ss 146, 142 or 145 in its own terms is 'another provision' vesting original jurisdiction in this Court.

N2>(c)      No such other provision has been pointed to or mentioned and none is pleaded and for these reasons the summons must be dismissed as it is not properly before this Court (Raz v Matane [1985] PNGLR 329).

N2>(d)      Neither s 166 nor any of the constitutional provisions therein specified is 'another provision' vesting original jurisdiction in this Court and no such section has been pointed to or mentioned and none is pleaded.

N2>(e)      Section 155(4) is not 'another provision' for the purposes of the opening words of Section 18(1) - it is a machinery provision relating to proceedings properly instituted in the correct forum.

N2>(f)      Sections 22 and 23 do not assist the plaintiff as they do not confer rights (Mopio v Speaker [1977] PNGLR 420) and clearly they do not confer original jurisdiction to interpret and apply sections in the National Court.

N2>(g)      Section 41 (harsh or oppressive) cannot assist and furthermore it has not been pleaded."

Again, the arguments of the defendants as regards justiciability are summarised in the following:

N2>1.       Section 115 of the Constitution deals with Parliamentary privileges and provides in subsection (2):

"There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament)."

N2>2.       Section 134 of the Constitution, dealing with procedures, provides:

"Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under s 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

N2>3.       Schedule 1.7 of the Constitution provides:

"Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code)."

It is timely, considering ss 115 and 134 of the Constitution, to recall the separation of powers. As was said in the often quoted headnote of the English case of Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271:

"The House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law ..."

The like situation to that described is quite clearly what it is sought to achieve for the National Parliament in this country in s 115(2) and s 134 of the Constitution. Such a situation is clearly contemplated, where there is a separation of powers between the judiciary and the legislature.

All of ss 115, 134, and 142(4) of the Constitution were considered by the Supreme Court in Mopio v Speaker [1977] PNGLR 420. Mr Mopio, who was a then Minister of the National Parliament, contended that the requirements of s 142(4) of the Constitution were not complied with in respect of the appointment of Mr Michael Somare (as he then was) as Prime Minister after the general election held in 1977. The proceedings were apparently originally instituted in the Supreme Court. An objection was taken to the proceedings on the grounds of non-justiciability under s 115(2) and 134 of the Constitution.

In the course of its judgment, the Supreme Court refers to ss 22, 23, 50, and 57 of the Constitution and goes on to find at page 423:

"Further, s 22 in its generality must give way to the particular provisions of s. 134. Section 142(4) provides merely for the time for the question of the appointment of Prime Minister to be considered, and the order of business - whether on one day or more than one day - in which it is to be dealt with by the Parliament.

These are matters which concern the conduct of the business of the Parliament and its procedure. Accordingly as the issues before the Court involve the question whether that procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, this Court has no jurisdiction to entertain the case not before it.

The Court is not to be taken as accepting as correct that construction of s 142(4) which is contended for by Mr Mopio.

A further insuperable difficulty for Mr Mopio is that insofar as the application takes the form of a reference for the interpretation of the Constitution, s 19(3) provides that only certain designated authorities may make such a reference to this Court, and Mr Mopio cannot bring himself within that provision."

The decision in Mopio's case is a Supreme Court decision, binding on the National Court by virtue of Sch 2.9 of the Constitution.

DECISION

The first issue is the challenge by the defendants to the National Court's authority to hear this application at all. The defendants say that the plaintiff's claim involves interpretation of Constitutional Laws, which concerns a jurisdiction that is the sole preserve of the Supreme Court. The decision in Mopio v Speaker of the National Parliament was cited in support. The defendants further say that even if the National Court were accorded a jurisdiction of interpretation and application of Constitutional Laws, it will still be excluded from these matters by the non-justiciability provisions of the Constitution. Section 134 excludes the courts from enquiring into the procedures of Parliament and, once again, the decision in Mopio's case confirms this.

What then is the National Court jurisdiction, and where does it lie? By s 166 of the Constitution, the National Court is given unlimited jurisdiction. It provides:

N2>"166.   Jurisdiction of the National Court

(1)      Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2)      In particular, the National Court has the jurisdiction set out in:

(a)      Section 22 (enforcement of the Constitution); and

(b)      Subdivision III.3.D (enforcement); and

(c)      Section 155 (the National Judicial System).

and otherwise as provided by this Constitution or any other law."

Miles J in Capek v Yacht "Freja" [1980] PNGLR 161, a National Court decision, said at 168:

"Without wishing to lay down a definitive interpretation of s 166, I think s 166 has to be read subject to Sch 2.6 of the Constitution, in other words, within the laws applicable to Papua New Guinea by virtue of the Constitution itself. The court's jurisdiction is not restricted as to subject-matter or as to remedy."

I would respectfully agree. The keys, and the only words of limitation, are "subject to ... the Constitution".

The substance of the defendants' argument is that the jurisdiction of the National Court is in some way limited by s 166(2). The defendants would argue that "interpretation or application" encompasses the whole of jurisdiction in constitutional matters and that that jurisdiction lies with the Supreme Court alone. Such "enforcement" authority, other than jurisdiction that the National Court may have specifically granted to it within the Constitution, relates essentially to defined rights that are not relevant to the issue raised by the plaintiff. In fact, it is not s 166(2) that sets limits on National Court jurisdiction with respect to the Constitution. It is the Constitution itself.

Section 166 does not read "subject to subsection (2)", It simply says "subject to the Constitution". To illustrate the point, suppose a law were made by which a PNG Sports Federation was given "unlimited jurisdiction in the promotion and administration of sports in Papua New Guinea". Would that "unlimited jurisdiction" be cut down by a subsection saying "in particular the Federation shall have authority to conduct competitions and select national teams"? It is plain it would not. The matters particularised are simply an indication of some of the undertakings that it may conduct. Similarly, the "unlimited jurisdiction" of the National Court is not cut down by s 166(2). It only particularises some of the functions that the Court may undertake.

Subject to the Constitution then, by s 166, the jurisdiction of the National Court is unlimited. In particular, it has a jurisdiction in the enforcement of the Constitution (s 22), enforcement in human rights, and the general authority set out in s 155.

But if those matters in s 166(2) were meant to be exhaustive in regards to the Constitution, there would also have been mentioned other particular jurisdictions within the Constitution specifically given to the National Court, such as s 23 and s 135. A comparison with s 162, which sets out the jurisdiction of the Supreme Court, is instructive:

N2>"162.   Jurisdiction of the Supreme Court

(1)      The jurisdiction of the Supreme Court is as set out in:

(a)      Subdivision II.2.C. (constitutional interpretation); and

(b)      Subdivision III.3.D (enforcement); and

(c)      Section 155 (the National Judicial System)

and otherwise as provided by this Constitution or any other law."

Once again, if a strict interpretation were to be used, then apart from the interpretative provisions, the Supreme Court is accorded the same jurisdiction as the National Court, though suprisingly no mention is made of the constitutional powers of enforcement under ss 22 and 23. In fact, the "unlimited jurisdiction" of that Court is only found in s 99(2)(c) of the Constitution. This is not to derogate from the jurisdiction of the Supreme Court, but it is indicative of the generality of both sections. It also indicates that the enforcement jurisdiction of the National Court has to be at least as unlimited as that of the Supreme Court. Of course, the major difference between the two is that, by s 18, the superior court has sole and unlimited jurisdiction to determine the meaning and application of all provisions of the Constitution.

Section 18 reads as follows:

N2>"(1)     Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

N2>(2)      Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate."

There can be no question but that defence counsel are wholly right when they say that, subject to the Constitution, s 18 vests the Supreme Court with the exclusive original jurisdiction to determine the interpretation and the application of the provisions of a Constitutional Law. Consequently, any application for the interpretation of meaning and or the application of Constitutional Laws must be made directly to the Supreme Court. When constitutional questions arise in lower courts, they must be referred to that Court for determination. If they do not arise in the course of a lower court hearing because that court has no jurisdiction to hear a matter, then there is, of course, no jurisdiction to refer either.

But the Constitution and decided cases show that the National Court, too, has specific powers of constitutional interpretation and application, provided under the Constitution, for example, ss 22, 23, 57, 58, and 135 (see Raz v Matane [1985] PNGLR 329). In that case, Kapi DCJ said that where the Constitution gives authority to the National Court to interpret or apply a Constitutional Law, then it may do so. If the Constitution does not give that authority, then, unless it comes within the s 18(2) proviso, the question must be referred. The learned Judge went further, offering the opinion at p 341 that:

"... where the Constitution or any constitutional law gives jurisdiction to the National Court to interpret or apply a constitutional law, unless there is also a discretion given to refer such matters to the Supreme Court, I form the tentative view that the Court is bound to interpret and apply such a provision. The only way such a matter may come before the Supreme Court is by way of an appeal."

The National Court's function and jurisdiction is to uphold the whole of the law. That includes, in particular, the law which creates it, the Constitution. If that law is plain and clear, then the Court must uphold it. It has the jurisdiction to act. But if it is not clear, then the National Court has no brief, no authority, no jurisdiction to interpret it.

Section 18 plainly says this when it speaks of questions arising in the course of a matter in the National Court (or any lower court) that it is properly seised of. If the constitutional matter which arises is not trivial, vexatious, or irrelevant, it shall refer the matter to the Supreme Court. If it is one of these or if, indeed, no constitutional question arises at all, then the Court may proceed to deal with the matter, either by putting the matter aside, if that is what it required, or carrying out the law.

Again, s 18 does not say that the moment the words "constitutional question" is heard in the National Court that it must close up shop. On any reading of s 18, the National Court is obliged to consider that "constitutional question" to determine as a preliminary matter whether it be trivial, vexatious, or irrelevant. To that extent, at least, the National Court may be said to have a more general authority, or power, to interpret a constitutional question.

In so doing, the National Court is not usurping the Supreme Court's interpretive jurisdiction in matters not specifically authorised. It is not simply determining its own interpretation or application. Section 18 gives the National Court authority to decide whether or not there is a question requiring referral. Section 18 says that when such questions arise in the course of an action in the lower courts, then (subject to the proviso) that question shall be referred.

Lowa v Akipe [1991] PNGLR 265 was cited in support by Mr Pato. In that case, the plaintiff sought declarations from the National Court that certain sections of the Mining Act were unconstitutional. It was held that the National Court had no jurisdiction to entertain such questions. The Supreme Court confirmed that any question of the interpretation or application of a Constitutional Law must be dealt with by the Supreme Court, and any referral from the National Court must arise in the course of proceedings properly before that Court. In that case, they were not.

I agree with Mr Pato's submissions based on that decision, that it is not open to any person to simply ask the National Court to decide a constitutional question. The issues should arise incidentally to the matter before it.

But if the National Court were to find the Constitutional Law speaks plain and clear, that it is self executing and requires no interpretation, then obviously the National Court can and must uphold that law. It can enforce it, and to do so it can entertain applications to make orders or declarations or such other orders (eg as per s 155(4) or even s 155(5)) as may be necessary to enforce it. Those powers are as wide as is necessary. (see SCR 2 of 1981 [1982] PNGLR 150, where the five judges gave their opinions as to the breadth of s 155(4)).

The plaintiff contends that s 142(3) of the Constitution provides a procedure for the election of a Prime Minister if a vacancy occurs when Parliament is in session. It reads:

"If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day".

Simply stated, the Prime Minister shall be elected on the "next sitting day" after a vacancy occurs. The plaintiffs say that that vacancy and the election occurred on the same day and that, therefore, there has been a breach of a procedure laid down by a Constitutional Law. A breach, furthermore, which can be remedied by the National Court giving the relief sought using its powers under ss 22, 23, or 155 of the Constitution.

In fact, both the plaintiff and defendants say the same thing; namely, that s 142 requires the election of Prime Minister to be held on the next sitting day. The issue is not one of interpretation or application but, essentially, one of fact. Did the Prime Minister resign one day and was he re-elected the next? From the outset, there has really been no question of interpretation of a Constitutional Law calling for the Supreme Court's original jurisdiction. It is simply a matter of fact for this Court to determine: was the constitutional procedure followed? The decision of the Privy Council of Tonga in Fotofili v Siale [1987] TOPC 2; [1988] LRC (Const) 102, cited by the plaintiff, is persuasive. It was said in that case.

"If, on a true construction of the Constitution, some event or circumstance is made a condition of the authentic expression of the will of the legislature, or otherwise of the validity of a supposed law, it follows that the question whether the event or circumstance has been met is examinable in the Court, notwithstanding that the question may involve the internal proceedings of the Assembly."

Similarly, in a recent National Court decision, Public Services Commission v PNG [1994] PNGLR 603, Salika J said at 607:

"Where the Constitution imposes a duty or obligation it must be carried out. Here, in my view, s 193(3) imposes a duty on the NEC to consult with the PSC in making appointments under s 193(1)(a) ....

It is not the court's function to interfere with the functions of the National Executive Council in carrying out their duties. However, the courts, as guardians of the law, are duty bound to ensure that the letter of the law is adhered to."

To my mind, this is simply an application to the National Court seeking that the requirements of a Constitutional Law be carried out. There is no question of interpretation as to meaning or application requiring the exclusive jurisdiction of the Supreme Court. The words are plain and speak clearly. Sch 1.5 of the Constitution provides:

N2>"Sch 1.5.       Fair meaning to be given to language used

(1)      Each Constitutional Law is intended to be read as a whole.

(2)      All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning."

And, more importantly, s 11 of the Constitution, which declares the Constitution as the Supreme Law, goes on to say at 11(2):

"The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit."

Accordingly, I find the defendant's objection to jurisdiction, on the basis that the National Court is excluded by s 18 of the Constitution, does not hold.

But the defendants say that, in fact, the Supreme Court in Mopio's case has already decided that neither that court nor any court has any jurisdiction in questions regarding the procedure set down in s 142, since, by s 134 of the Constitution, such matters are non-justiciable.

With the greatest respect, I believe that the decision in Mopio's case must be distinguished as being a matter decided on its own facts. Issues concerning this present application in regard to locus standi, justiciability, or the extent of the privileges of Parliament were not argued before that Court. Such of those issues as were raised by the Court itself must be said to be obiter.

However, it is appropriate to examine the questions of justiciability first in order to follow why this Court does not feel that the Mopio decision is sufficiently on point to settle the issue now before it.

The Constitution states in Sch 1.7 that "non-justiciable" means that "where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal ...." Non-justiciability stems from an acknowledgement of the separate roles of the Parliament and the judiciary. This concept is commonly referred to as the separation of powers.

SEPARATION OF POWERS

Counsel for the first defendant commenced his submissions on this Court's jurisdiction with the remark that, "As lawyers, we tend to think and speak of the independence and separation of powers of the judiciary without great consideration for the equally entrenched right vested in the executive and legislative arms of government."

I do not agree. Indeed, I think it all but impossible for the judiciary to assert its independence without proper consideration of the other arms of government. The three are inter-dependent, and without the recognition and support of each other, constitutional integrity must fail.

Section 99 of the Constitution provides that the National Government shall consist of the National Parliament, the National Executive Council, and the National Judicial System. All three are created by the Constitution, and each derives its jurisdiction and authority from it. Simply stated, the courts, the National Parliament, and the National Executive Council are created by, and are subject to, the Constitution, the Supreme Law.

But though the judiciary and the Parliament have exclusive jurisdiction in their separate spheres and, by s 99(3), are in principle required to function separately, they are, nonetheless, mutually dependent. The judiciary relies on the Parliament to uphold its independence as protector of the Constitution. The judiciary, the courts, likewise have the duty of ensuring the independence and authority of the Parliament.

The constitutional function of the courts is succinctly described in terms apt for PNG by Salleh Abas, President of the Malaysia High Court, in Lim Kit Siang v Dato Seri Dr. Mahathir Mohammed in [1988] LRC (Const) 29 at 36:

"When we speak of government it must be remembered that this comprises of three branches, namely, the legislature, the executive and the judiciary. The courts have a constitutional function to perform and they are the guardian of the Constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review - a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both".

Cognisant of their roles and authority under the Constitution, both the National Parliament and the courts are at all times sensitive, as they must be, to any incursion on their jurisdiction. Just as the judiciary maintains its independence, so, too, the National Parliament maintains the prerogative of having exclusive say over its own proceedings and procedures. It is, therefore, with care and precision that questions relating to the boundaries of court and parliamentary jurisdiction must be determined.

JUSTICIABILITY

We have seen the jurisdiction of the Supreme and National Court in ss 162 and 166 of the Constitution. The jurisdiction of the Parliament, other than its legislative powers (s 109), is contained in s 115. That section sets out the powers, privileges, and immunities of the Parliament. Section 3 of the Parliamentary Powers and Privileges Act Ch 24 adds to those, adopting the privileges of the United Kingdom's House of Commons as of 1901.

The House of Commons recognises no authority of the courts over any of its internal powers, privileges, immunities, or internal procedures. That is spelt out in Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271, a decision quoted in the Mopio decision. Indeed, the Supreme Court in Mopio's case appears to have accepted the defence submission in that case, that the same total immunity applies to the Parliament in Papua New Guinea. That is not so. Section 115(1) is the key. It says:

"The powers (other than legislative powers), privileges and immunities of the Parliament and of its members and committees are as prescribed by or under this section and by any other provision of this Constitution." (emphasis added)

That simply says that the privileges of Parliament are as provided by the Constitution. They are not without limit. So, such other privileges as may be claimed must, nonetheless, comply with the Constitution. Thus, while s 115(2) and the subsections that follow it say the exercise of those freedoms of speech, debate, and proceedings shall not be questioned in any court, that can only be read as subject to the Constitution.

Even s 134 of the Constitution, which defines proceedings of the Parliament as non-justiciable, expresses itself to be subject to the Constitution. It reads:

"Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under s 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it". (emphasis added)

The net effect of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.

Examples of such Constitutional Laws relating to procedure within Parliament would be ss 13 and 14 of the Constitution, relating to the alteration to the Constitution, s 113 relating to the quorum of Parliament, s 124 relating to the calling of Parliament and the required number of sittings each year, and even s 145 relating to votes of no confidence.

Section 142 is another such Constitutional Law. In the event of a vacancy of Prime Minister, it prescribes, inter alia, the time when an election shall be held and even the priority it shall take on the Parliament's agenda for that day.

It may be seen, therefore, that a justiciable issue arises, and it is here that the Supreme Court's decision in Mopio's case must be examined. I would add, with respect, that what follows is not a critique of that decision but only the reasons that this Court holds that it should be distinguished.

It was Mr Mopio's contention that the proper construction of s 142(4) meant that the election of the Prime Minister should take place on the day after the election of the Speaker. The report of the decision commences at p 420 in these terms:

"These were applications for prohibition, declaration and determination of a question relating to the interpretation of s 142(4) of the Constitution, instituted by a member of the National Parliament. The principal relief sought was a declaration that the appointment of a Prime Minister was null and void and that a new election of a Prime Minister should be ordered".

Although this would appear to be an application for relief within the original jurisdiction of the Supreme Court, as provided by s 18(1) of the Constitution, the Supreme Court appears to have declined to accept that jurisdiction, at least as far as the request for interpretation was concerned. It found, instead, that Mr Mopio did not have the standing required under s 19 (reserved for certain specified authorities) for an advisory opinion.

This can be contrasted with the decision of the Supreme Court in SCR No 4 of 1980 [1981] PNGLR 265, where the Leader of the Opposition was accorded standing simply as a citizen challenging a breach of the Constitution. To this extent, SCR No 4 of 1980 must be taken to overrule Mopio's case. Miles J, in SCR No 4 of 1980, also held that that part of the Mopio decision relating to standing must be held to be obiter, since it was not made pursuant to any submissions on the point.

This decision was also distinguished by Andrew J in Joshua v Meya (above), cited by the plaintiff, because that matter dealt with more than procedural matters. He found in that case that, since the requirements for a vote of no confidence had not been met, the issues were justiciable before the National Court.

Again, given the jurisdiction of s 18, the statement that it was for an applicant invoking the Supreme Court's interpretive powers to show that s 142 was mandatory rather than directory, rather than for that Court to determine, indicates that this issue was not fully considered either. Given that the interpretation and application of a constitutional provision is accorded to the Supreme Court solely, it could be argued that, since the Supreme Court did not address that issue itself, it was, again, declining its constitutional jurisdiction.

The defendant in that case argued that the provisions of s 115(2), supported by s 134, rendered the National Parliament in its procedure immune to any court enquiry. "Although Mr Mopio made no direct reply", the Court accepted that position without there being any argument as to whether s 115(1) or s 142 were Constitutional Laws placing limits on the privileges of Parliament or restrictions on its procedures.

They are, of course, Constitutional Laws. In deciding that it was for Parliament to decide the "time for the question of appointment of the Prime Minister to be considered, and the order of the business - whether on one day or more than one day," the Court can be said to have given Parliament a jurisdiction to interpret a Constitutional Law which it does not have.

For these reasons, it appears to me that the case of Mopio v Speaker is distinguishable. Accordingly, I hold there is a justiciable issue, and this Court does have the jurisdiction to entertain the plaintiff's application.

APPLICATION FOR RELIEF

The plaintiff asserts that the election of the Prime Minister on 24 September 1993 must be held void for failing to follow a procedure set down in s 142(3) of the Constitution.

The onus of proving that lies with the plaintiff. The standard of proof is the civil standard of proof on the balance of probability. Though not as onerous as the standard in criminal cases, the evidence must, nonetheless, be convincing, commensurate with the seriousness of the matter in question. The evidence, therefore, must be real and substantial.

The issue before the Court is a narrow one. Did the Prime Minister resign on the 23rd of September or on the 24th. Counsel for the plaintiff assured the Court throughout the trial there was no allegation of conspiracy. Such evidence of prior meetings of the Prime Minister and others before the events of the 23rd and 24th was adduced only for the purpose of enabling the Court better to infer that the version of events on the morning of the 24th claimed by the plaintiff is correct and, therefore, relevant for that purpose. The Court, in fact, considers the relevance of the earlier meetings marginal and the effect of that evidence, such as it is, as being a matter of weight only.

VOTES OF CONFIDENCE

Before going to the evidence itself, it is appropriate to examine briefly votes of confidence and/or no-confidence. The plaintiff says that the avowed purpose of the Prime Minister to defeat the no-confidence provisions under s 145 of the Constitution makes a mockery of the Constitution, and that the Court, therefore, must condemn it.

Section 145 provides for Parliament to remove a Prime Minister by a motion of no-confidence. To my mind, the converse has always been possible. It simply has not been done before.

Votes of confidence are a common political tool in other parliamentary jurisdictions. If a government is under political threat or wishes to ensure the passage of a particular bill, snap votes of confidence may be called at any time. If the vote of confidence fails, then not only does the government fall, but there must be a general election. Thus, the particular, and perhaps salutary, effect of a vote of confidence (and votes of no confidence) in those countries is that a vote is called not only for or against the government but for the life of that Parliament itself and the seat of every MP in it. Every MP must, therefore, take such a vote seriously indeed.

The purpose of s 145 of our Constitution is to establish whether or not there is confidence in the government. There is nothing in that section or in the Constitution that prohibits the government itself from seeking such a vote. Accordingly, I find no merit in this submission of the plaintiff.

RESIGNATION AND RE-ELECTION

The Hansard record of proceedings for 24 September 1993 shows that the Speaker of Parliament commenced proceedings with prayers at 10 am.

"FOURTH DAY

Friday 24 September 1993

The Speaker (Mr Bill Skate) took the Chair at 10 a.m. and read the Prayer.

COMMUNICATION FROM THE GOVERNOR-GENERAL - RESIGNATION OF PRIME MINISTER (RT. HON, PAIAS WINGTI, CMG)

Mr SPEAKER - Honourable members, I have received a mesage from the Governor-General, as Head of State dated 23 September 1993 and the letter from him reads:

Honourable William Skate, M.P.,

Speaker of National Parliament,

Parliament House, WAIGANI.

My Dear Speaker,

SUBJECT - RESIGNATION OF PRIME MINISTER

It is my duty as Head of State to advice you that the Prime Minister has resigned from office in accordance with the provision of Section 146, Subclause (1) of the Constitution. As Parliament is currently in session, Section 142 Subclause (2) of the Constitution requires that tomorrow, the question of the appointment of the Prime Minister be the first matter for consideration after any formal business. I await to be advised of Parliament's decision on who is to be the Prime Minister in order that I may formally appoint the Prime Minister in accordance with that decision.

Yours sincerely,

(Sgd) Sir Wiwa Korowi

Governor-General

The Speaker then read the following letter from the Prime Minister.

'Honourable Bill Skate, M.P.,

Speaker of National Parliament,

Parliament House, WAIGANI, N C D

My Dear Speaker,

For many years, the no-confidence motion provision in the Constitution has been used to destabilise the Government and the people of Papua New Guinea. It is my intention now to utilise the provisions of the Constitution to remove the imminent threat of further votes of no-confidence by having the Parliament express a vote of confidence in my position as Prime Minister. Accordingly, I have advised His Excellency, the Governor-General of my resignation as Prime Minister to provide an opportunity to the Parliament to express its confidence in my government by reappointing me as Prime Minister.

Yours sincerely,

(Sgd) Paias Wingti, M.P., Prime Minister'.

The Speaker then advised the House that (there being no other formal business) the question of election of Prime Minister should be dealt with forthwith. The election was therefore held.

The Prime Minister's letter of resignation was subsequently put in evidence. It reads.

23 September 1993

His Excellency Sir Wiwa Korowi, GCMG, KStJ.

Governor General of Papua New Guinea

Government House

P O Box 79

PORT MORESBY

Your Excellency,

RE: NOTICE OF RESIGNATION OF THE PRIME MINISTER

After careful consideration of all the implications of my decision and having regard to the need to ensure stability and public confidence in the Government of Papua New Guinea, I have decided to resign from the office of Prime Minister. Full reasons for my decision will be given tomorrow.

Accordingly, and as provided by Section 146(1) of the Constitution, I hereby give notice of and tender to you, as Head of State, my resignation as Prime Minister of Papua New Guinea.

Yours sincerely,

PAIAS WINGTI MP

Prime Minister

The Head of State replied as follows:

23 September 1993

The Right Honourable Paias Wingti, CMG, MP

Prime Minister of Papua New Guinea

Parliament House

WAIGANI

My dear Prime Minister

RE: RESIGNATION LETTER - PRIME MINISTER

I accept your letter of resignation dated 23rd September, 1993 with regret.

I shall advise the Speaker of the National Parliament, the Hon William Skate, MP accordingly to advise the parliament under the appropriate section of Constitution.

Yours sincerely

SIR WIWA KOROWI, GCMG, KStJ"

The above record and correspondence show an orderly procedure. The resignation of the Prime Minister was lodged with Head of State on the 23rd of September, and an acknowledgement from the Head of State was made the same day. There is the Head of State's immediate advice of the resignation to the Speaker of the Parliament, also on the 23rd, and the Speaker's calling of Parliament to hold an election on the next day, 24 September 1993.

Little shows here on which to assert that constitutional procedures were not followed. But when Patrick Seko, Kila Oala, and Stephen Igo were subpoenaed, their evidence indicated that the path through to resignation and re-election might not have been all that smooth.

Patrick Seko, a police constable, was one of the Head of State's security officers and a driver. Kila Oala is a secretary on the Prime Minister's personal staff. Both declined to give affidavits to support the plaintiff's case because of their loyalty and concern for their respective employers. Stephen Igo is the Head of State's secretary and was subpoenaed to testify as to events at Government House on 24 September.

Mr Seko related that on the afternoon of 22 September he accompanied the Governor-General to the Travelodge Hotel, saw him secure in Room 901 on the 9th floor, then he went for his meal. On his return, he saw the Prime Minister departing the Travelodge, followed some 10 minutes later by the Speaker of Parliament. On 23 September at about 6.45 am, he went again with the Governor-General to the Travelodge, saw him to Room 901, and then left to check the mail. As he drove off, he saw the Prime Minister arriving at the Travelodge.

That evening, Mr Seko said, there was a dinner at the State House, which is in the precincts of Government House. That dinner was attended by the Prime Minister, the Attorney-General, the Minister for Communications, and the Governor-General. During that dinner, the Governor-General instructed Mr Seko to bring, first, an envelope with the Government House crest on it from his office then, a short time later, further Government House stationery, six small envelopes, five large envelopes and six letterhead sheets. He did so and saw the Governor-General direct them to be placed next to the Prime Minister.

After the dinner, when the Prime Minister and others left, Mr Seko said he was instructed by the Governor-General to go the Prime Minister's office at Parliament House to pick up letters. This he did, and he related that about 2.56 am on the 24th he was handed a sealed envelope from the hand of the Prime Minister himself, who told him to give it to the Governor-General. This he did at around 5.45 am, when His Excellency came to his house and asked for it. Mr Seko said that by holding the large envelopes which he had received from the Prime Minister that night up to the light, he was able to see that it contained 4 letters in smaller envelopes.

Kila Oala told the Court how she was called to the Prime Minister's office at Parliament House at about midnight on 23 September and, between that time and approximately 3 am of 24 September, she typed three letters on letterhead at the dictation of the Attorney-General.

N2>1.       The letter from the Governor-General to the Prime Minister, recorded above, acknowledging his resignation.

N2>2.       The letter of advice from the Governor-General to the Speaker, recorded above, advising of the Prime Minister's resignation.

N2>3.       A letter from the Attorney-General, dated 24 September, advising the Governor-General as to the duties of the Head of State on the election of a Prime Minister. It refers to the re-election of the Rt Hon Paias Wingti that day. It reads as follows:

"24 September 1993

His Excellency Sir Wiwa Korowi, GCMG, KStJ

Governor-General of Papua New Guinea

Government House

P O Box 79

PORT MORESBY

Your Excellency

RE: PROCEDURE TO BE ADOPTED BY THE HEAD OF STATE UPON AND AFTER RESIGNATION OF THE PRIME MINISTER

I refer to my letter dated 23 September 1993 advising you on the legal considerations affecting the abovementioned matter. Having regard to the circumstances of this particular resignation and re-election of the Prime Minister, I consider it my duty, as Attorney General, to offer you the following further advice.

As you are aware, the Right Honourable Paias Wingti in accordance with the provisions of s 146(1) of the Constitution resigned yesterday as Prime Minister of Papua New Guinea.

This morning Parliament re-elected him as Prime Minister. There is no legal impediment to prevent a Prime Minster from resigning and then again being re-elected as the Prime Minister.

Section 142(2) of the Constitution requires you, as Head of State, as the occasion from time to time arises, to appoint the Prime Minister in accordance with the decison of Parliament.

As the Right Honourable Paias Wingti has resigned as Prime Minister and has today been re-elected by Parliament, the Constitution requires you as Head of State to again appoint him as Prime Minister.

Yours sincerely

HON PHILEMON EMBEL LLB MP

Attorney General and Minister for Justice"

Miss Oala also related how she typed the Prime Minister's speech from handwritten notes made available to her. She did not know of any copies of the Prime Minister's letter of resignation.

Stephen Igo told the Court that he was shown the Prime Minister's letter of resignation and those from the Attorney-General on the morning of 24 September, shortly after 8 am, by the Governor-General. He was unsure of the time that he was first aware of the Attorney-General's letter of advice that spoke of the Prime Minister's re-election having been accomplished.

Two other witnesses were called by the plaintiff, namely James Egembari, a security officer and driver for the Prime Minister, and Lennie Papari, a Travelodge staff member.

James Egembari's evidence was confirmatory of Miss Oala being brought to Parliament House that night. Lennie Papari told the Court how he served the Speaker while he was in Room 901 in company of the Prime Minister and others on the afternoon of 22 September.

In summary, the plaintiff says from this evidence the Court may infer that during a series of meetings held over the 22nd and 23rd of September between the Prime Minister, the Governor-General, the Attorney-General and others (including, on 22 September, the Speaker), the proposed resignation of the Prime Minister was discussed. In the early hours of 24 September, that resignation was put into effect when all the necessary correspondence was drawn up at the Prime Minister's office and delivered by Patrick Seko to the Governor-General.

Prior to the plaintiff's evidence, the defendants had declined to offer any evidence as to the facts and circumstances of the resignation. I say that without criticism. It was their right to do so.

Suffice to say, the defendants challenged the plaintiff's witnesses on every point. Having a brief only of Patrick Seko's and Lennie Papari's evidence, plaintiff's counsel may be said to have been venturing into the unknown when leading evidence from Kila Oala, Stephen Igo, and James Egembari, staff members of the defendants. The defence counsel, on the other hand, with full instructions and affidavits filed, were able to cross-examine in detail. Once again, that merely states the situation that arose through the experience of the rules of evidence. It suggests no criticism of counsel or of the defence case.

Eleven witnesses were called to detail the defence evidence of events of 22 September. These included Christopher Magio and Alfred Woida (ADC to the Governor-General); Francis Koimanrea and Timothy Neville, government Ministers; Michael Hambu, Eric Serabeta, Henry Aoko, and Jerry Lamasisi, security officers; and two of the executive staff of the Travelodge.

They supplied "a veritable mountain of evidence", the sum of which was that while the Prime Minister and Governor-General did meet at Travelodge in Room 901 that day, it was not at the time in the afternoon nominated by Patrick Seko but, rather, in the evening. Patrick Seko was not seen to be present nor under instruction to attend. In particular, the Speaker was not present at all at that meeting.

Defence counsel drew attention to the fact that none of these 11 deponents were challenged in cross-examination. Under the rules in Browne v Dunn (1893) 6 R 67 (HL), evidence not challenged must be taken to be accepted.

The evidence that the Prime Minister had breakfast with the Governor-General on the morning of 23 September was not denied, though it was submitted there was nothing improper in it, as the Governor-General was wishing to discuss personal leave and conditions of service with the Prime Minister.

Nor was there any dispute that the dinner with the Governor-General at the State House took place largely as Patrick Seko described, though the Hon Martin Thompson, Minister of Communications, deposed that he was not present, as Patrick Seko thought.

The Hon Philemon Embel, the Attorney-General, deposed to being at that dinner and witnessing the handing over by the Prime Minister of his resignation as Prime Minister to the Governor-General. That occurred, he said, at about 9.45 pm. Up till that time, the letter which he had uplifted from Emilia Diapong, the Prime Minister's secretary, had been in his possession. It was at this time, too, he handed his own letter of advice to the Governor-General on his duties as Head of State on the resignation of a Prime Minister.

He acknowledged that after the dinner he returned to the Prime Minister's office with Government House letterheads and envelopes and in the early hours of 24 September saw to the typing of the letters described by Kila Oala. He said, however, that the second letter of advice, describing the re-election of Prime Minister as already accomplished, was accompanied by a handwritten note which stated that his advice was provisional.

The reason for the typing of the Governor-General's letters on Government House crested letterhead was in response to the need for the Governor-General to have copies of such important documents.

Emilia Diapong - personal secretary to the Prime Minister - deposed that she typed the Prime Minister's letter of resignation and saw him sign it at around 6 pm on 23 September. She later gave it to the Attorney-General, who left to join the Prime Minister at Mirigini House. She also relates that at about 6.30 pm that day she printed on appropriate letterhead the same letters as Kila Oala typed in the early hours of the next morning. These were handed to the Attorney-General, who left with these and the Prime Minister's resignation letter.

Joyce Komeng, secretary to the Speaker, deposed to having been working late on 23 September. At about 11.30 pm, the Speaker returned to his office and handed her the letter recorded above from the Governor-General, advising him of the Prime Minister's resignation.

But the sum of the plaintiff's evidence drew a flush of some 23 affidavits in reply. The examination of the plaintiff's witnesses and lengthy submissions over the past three weeks render it impossible to record this in detail. I would add here that the Parliament, while offering affidavit evidence, declined to cross-examine any of the witnesses offered.

The defence attorneys say Patrick Seko's evidence is untrustworthy, that he was untruthful. They say that on the defence evidence adduced, mostly unchallenged, his evidence cannot be accepted. In fact, I found him to be a very strong witness, striving for truth and accuracy. No reason was advanced as to why he should lie. Apart from his evidence regarding the presence of Speaker of Parliament at Travelodge (he never said he saw the Speaker in the company of the Prime Minister and Governor-General there), and disputes over the actual timing of meetings, the essential facts he related are confirmed in greater detail by defence witnesses.

Kila Oala, on the other hand, was clearly a reluctant witness for the plaintiff. The measure of her credibility, in the initial stages of her evidence at least, when she had incredible lapses of memory about who she worked with and her hours of work, could be gauged by the audible reaction of those present in court. She, nonetheless, recovered to give factual evidence as to events in the early hours of 24 September. She was, however, a much more cooperative witness in cross-examination, agreeing to, or relating, detail with a facility not shown in examination in chief. Apart from her reluctance, she was a witness of truth.

The plaintiff relies on the sum of these two witnesses' evidence, contending that the defendants' excuses for the flurry of activity in the early hours of 24 September are just not credible. Having typed all the Governor-General's letters for him, dated in advance of events, it is surely strange that the whole of those should need to be done again at midnight, merely to supply him with letterhead copies. The handwritten note as to provisional advice annexed to the second advice from the Attorney-General never resurfaced. Speeches and copies of correspondence could easily have been done the following morning in normal working hours. It was submitted that these, taken together with the several meetings of the main players during 22 and 23 September, can only lead to one conclusion. The letter of resignation was one of those in the envelope Patrick Seko delivered to the Governor-General at 5.45 am of 24 September.

But against the plaintiff's proposition of events of 24 September is the uncontroverted evidence of Emilia Diapong of witnessing the Prime Minister sign the letter of resignation on 23 September. There is the Attorney-General's evidence of that letter being handed to the Governor-General by the Prime Minister at dinner that night. This evidence was not seriously challenged in cross-examination. There is the further evidence of Joyce Komeng receiving the Governor-General's advice of resignation before midnight of the 23rd.

At best, the plaintiff's evidence as to the events of the early hours of 24 September only specifically relates to correspondence of the Governor-General and the Attorney-General. There is no direct evidence of the Prime Minister's resignation. Because that correspondence emanated from the Prime Minister's office, it can do no more than generate a suspicion that the letter of resignation, too, was delivered on 24 September. The evidence of prior meetings does not lend support to that suspicion. While the Court was not told of the actual purpose of those meetings at the Travelodge (the Governor-General's purpose of discussing personal matters never seems to have eventuated), even if there had been discussions of a possible resignation then, short of collusion or conspiracy (and such are not alleged), that would not lead to any conclusion about when the resignation, in fact, took place.

It should be noted that a very strong denial was made by the defendants that the Speaker met with the Prime Minister and Governor-General on 22 September. In fact, Patrick Seko never said he did. He said only that he saw him leaving the Travelodge. He may have been mistaken. The evidence of Lennie Papari was not strong. He found difficulty in understanding and answering defence cross-examination, and his recognition of the Speaker was dubious. His dogged sticking to one story in the face of contradicting questions was not convincing enough to give any real support of such a meeting. So, to that extent at least, "conspiracy" or "plot" theories are in no way advanced. In my view, the suspicions generated by the events of the early hours of the 24 September are insufficient to take them from suspicion to fact.

Quite apart from that, it is obvious that to achieve the purpose of a successful re-election, the need to get the procedure right was plainly a priority. The purpose of the dinner on the night of 23 September was plainly an ideal opportunity to effect resignation, leaving the election process in the house for the next morning.

I find, therefore, that the plaintiff has failed to show any evidence of substance sufficient to cause this Court to conclude that the Prime Minister resigned on 24 September 1993 rather than 23 September .

Counsel for the plaintiff had already, in his submissions, advised the Court that "if the occasion for the appointment of Prime Minister arose when the Governor-General received the Prime Minister's resignation, then the plaintiff concedes that the appointment of the new Prime Minister on 24 September was valid."

I am quite satisfied that the time that a (new) Prime Minister requires to be appointed arises immediately when the vacancy occurs. That is, in this case, upon the effective resignation of the Prime Minister. When he placed that signature with the Governor-General on the evening of 23 September, the occasion for the appointment arose.

There is nothing in s 142 of the Constitution, and in particular s 142(3), that gives an indication that the vacancy arises when the Parliament is so informed. If, in fact, it were necessary, and I do not say it is, then it may be said that, in any case, advice to the Speaker is advice to the House, since the Speaker has amongst his functions the regulating of its proceedings. (s 108 Constitution)

Accordingly, I find that the plaintiff's application for a declaration that the first defendant was not duly elected on 24 September 1993 must be declined.

With that ruling, the declaration sought that the resignation of the Prime Minister remain in force till a new Prime Minister is elected no longer has meaning.

That leaves the declaration sought in para 2A, that the Prime Minister's appointment is not 24 September 1993 but the date of his first election following the 1992 General Elections. Having made the concession that the appointment was validly made on 24 September, this application is declined. It is, in any case, as the defendants submit, a hypothetical question, a matter not arising in the course of proceedings before this Court and, therefore, not within the jurisdiction of this Court or referrable under s 18 of the Constitution.

In the result, then, the applications of the plaintiff are dismissed.

Lawyer for the plaintiff: Henao Lawyers.

Lawyer for the first defendant: Warner Shand.

Lawyer for the second defendant: Pato Lawyers.

Lawyer for the third defendant: Blake Dawson Waldron.