Kipalan v National Parliament [2004] PGSC 42; SC728 (31 March 2004)

SC728

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE HELD AT WAIGANI]

SC OS NO. 3 OF 2003

Between:

SIR ALBERT KIPALAN
-First Plaintiff-

And:

ILA GENO, CHIEF OMBUDSMAN
-Second Plaintiff-

And:

THE NATIONAL PARLIAMENT
-First Defendant-

And:

HON. JEFFREY NAPE, ACTING SPEAKER OF THE NATIONAL PARLIAMENT
-Second Defendant-

And:

ANO PALA, CLERK OF THE NATIONAL PARLIAMENT

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-Third Defendant-

And:

SIR PATO KAKARAYA
-Fourth Defendant-

And:

THE NATIONAL EXECUTIVE COUNCIL
-Fifth Defendant-

And:

RT. HONOURABLE MICHAEL SOMARE, PRIME MINISTER
-Sixth Defendant-

Waigani: Kapi CJ, Injia Dep.CJ, Hinchliffe J, Salika and Sakora JJ
2004: February 23rd - 24th, March 31st

CONSTITUTIONAL LAWS - National Parliament - Election for Nomination of Governor-General - Duties of Clerk to supervise election - Compliance with mandatory Constitutional Laws and procedures-Proposal Form initially undated by Proposer and subsequently dated by Proposed Candidate with wrong date - Whether Proposal Form invalid - Whether subsequent decision by the Parliament to nominate the person proposed for appointment as the Governor-General invalid: ss 4 5 of Organic Law Nomination of Governor-General.

CONSTITUTIONAL LAW - National Parliament - Election of Governor-General - Equality of votes between more than two candidates - Speaker's 3
"casting vote" given on third ballot valid - s 9 (5) of Organic Law on Nomination of Governor-General.

CONSTITUTIONAL LAW - Head of State - The Queen - Advice given to the Queen of Parliament's Nominee for the position of Governor-General - Subsequent appointment by the Queen of person nominated by Parliament - Whether advice given and appointment made justiciable Constitution, ss 86 (4), 88 (1) and 89 (a).

CONSTITUTIONAL LAW - National Parliament - Standing Orders - Ringing of bells before commencement of each ballot - Whether continued presence of Members of Parliament throughout each ballot required - Whether Standing Orders providing for ringing of bells and opening or closing of doors of Chamber of Parliament "jusiticiable" ss, 88 (2) and 134 of the Constitution, and s 6 of Organic Law on Nomination of Governor-General.

WORDS AND PHRASES - Meaning of "advice (if any) "- Constitution s 86 (4) and "exhaustive secret ballot" in s 88 (2) of the Constitution.

Cases cited in the judgment:
Opal Kunangel [1991] PNGLR 1
Sir Albert Kipalan & Ombudsman Commission and Another v The National Parliament and Others (Unreported Judgment of the Supreme Court dated 21st November, 2003 SC721.
State v John Mogo Wollom [1975] PNGLR 311
The State v The Independent Tribunal: Ex parte Sasakila [1976] PNGLR 491,
Wari & Others v Ramoi & Dibela [1986] PNGLR 112

Counsel:
L. Henao for the First Plaintiff
D. Cannings for the Second Plaintiff
J. Nonggorr for the First and Third Defendant

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H. Leahy for the Second Defendant
C. Narakobi with B. Meten for the for the Fourth Defendant
F. Kuvi for the Fifth Defendant
S. Singin for the Sixth Defendant

31st March, 2004

BY THE COURT: Papua New Guinea is a Constitutional Monarchy. Under Part V of the Constitution specific provisions are made for our Head of State. Queen Elizabeth II of the United Kingdom is the Queen and the Head of State of Papua New Guinea pursuant to s 82 of the Constitution which provides:

"82. Queen and Head of State.

(1) Her Majesty the Queen -

(a) having been requested by the people of Papua New Guinea, through their Constituent Assembly, to become Queen and Head of State of Papua New Guinea; and

(b) having graciously consented so to become, is the Queen and the Head of State of Papua New Guinea.

(2) Subject to and in accordance with this Constitution, the privileges, powers, functions and responsibilities of the Queen and Head of State may be had, exercised and performed through a Governor-General appointed in accordance with Division 3 (appointment, etc, of Governor-General) and, except where the contrary intention appears, reference in any law to the Head of State shall be read accordingly."

Qualifications for appointment as Governor-General are provided for under s 87 of the Constitution. It is required that the person be a citizen who is qualified to be a Member of Parliament and is a mature person of good standing who enjoys the general respect of the community. The Governor-General is appointed by the Queen and Head of State acting with, and in accordance with, the advice of the National Executive (NEC) given in accordance with a decision of the Parliament: s 88 (1) of the 5
Constitution. And the Parliament's decision to nominate a candidate for appointment must be made by a simple majority vote in an exhaustive secret ballot conducted in accordance with an Organic Law: s 88 (2) of the Constitution. The Organic Law is the Organic Law on the Appointment of the Governor-General (Organic Law).

On 21st November, 2003 the Supreme Court in SC OS No. 2 of 2003, in relation to a Constitutional challenge to the then appointment by Parliament of its nominee for the office of Governor-General made the following orders:

"1. The decision of the National Parliament made on 18 September 2003, that Sir Albert Kipalan is the Parliament's nominee for appointment as the next Governor-General is declared null and void.

2. The Speaker of the Parliament, the Honourable Bill Skate, inform the Parliament in accordance with Section 3 of the Organic Law on the Nomination of the Governor-General, that as a result of this decision, there is a vacancy in the office of the Governor-General,
   
3. The Clerk of the Parliament Mr Ano Pala, shall conduct and supervise a new election for the Parliament's nominee for the office of Governor-General in accordance with the Organic Law on the Nomination of the Governor-General, as interpreted by this Court.
   
4. The interim restraining orders granted on the 4th of November 2003 are discharged.
   
5. In relation to the objection to standing of the First Plaintiff, costs is awarded to the First, Second and Fourth Defendants. If parties do not agree on the amounts of costs, they may make appropriate application to the Supreme Court.
   
6. In relation to the substantive hearing, costs is awarded to the Second and Third Plaintiff. If parties do not agree on the amount of costs, they may make appropriate application to the Supreme Court.
   
7. These orders take effect forthwith".
   

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In compliance with the above orders on 4th December, 2003 the National Parliament elected Sir Pato Kakaraya to be the Parliament's nominee for the position of Governor-General. This decision is the subject of these proceedings.

By an Originating Summons brought under s 18 (1) of the Constitution, Sir Albert Kipalan (First Plaintiff) claims a declaratory order that the nomination of Sir Pato Kakaraya (Fourth Defendant) by the National Parliament (First Defendant) on 4tn December, 2003 as its nominee as the next Governor-General of Papua New Guinea was not conducted in accordance with the Constitution and the Organic Law on the Nomination of the Governor-General (Organic Law) and is therefore invalid.

The Second Plaintiff was joined as a party to simply support the First Plaintiff's grounds alleged in the Originating Summons.

This is the second challenge that has come before this Court on the election of Parliament's nominee for the office of the Governor-General. In the first case, as we have pointed out earlier, the National Parliament nominated the First Plaintiff and the Supreme Court declared the nomination invalid (see SC OS No. 02 of 2003 of 2003
(Unreported Judgment of the Supreme Court dated 21st November, 2003 SC721) and directed Mr Ano Pala (Third Defendant) to conduct and supervise a new election for the Parliament's nominee for the office of the Governor-General in accordance with the Organic Law.

Consequently, on 25th November, 2003 the Hon Jeffrey Nape, the Acting Speaker (Second Defendant) informed the Parliament of the vacancy in the office of 7
the Governor-General and invited proposals for nominations and further advised the Members that the nominations would close on 28th November, 2003. This date was subsequently extended to 1st December, 2003.

1. Facts

The evidence before us consists of two (2) affidavits filed by the Plaintiffs and four affidavits filed by the Defendants. The Plaintiffs rely on the affidavit of the First Plaintiff sworn on 17th December, 2003 and the affidavit of the Second Plaintiff sworn on 7th January, 2004. The Defendants rely on two (2) affidavits sworn by the Third Defendant on 7th and 20th January, 2004 respectively. They also rely on two (2) affidavits sworn by the Fourth Defendant on 8th January, 2004 and 30th January, 2004 respectively.

The evidence is in three parts. First, most of the facts relating to the scrutiny of the Proposal Forms between 25th November and 1st December are deposed to by the First Plaintiff, The Second Plaintiff, Third Defendant and the Fourth Defendant. They are not contested. These are set out in paragraphs (a) - (h) below.

Second, the facts relating to the voting in the Parliament which occurred on 4th December, 2003 are agreed between the parties and they are set out in the Agreed Statement of Facts filed on 3rd February, 2004. We reproduce these in paragraphs (i) - (o) below.

Third, the facts relating to the subsequent advice given by the National Executive Council (NEC) and the appointment of the Governor-General by Her Majesty the Queen are not contested. These are set out in paragraph (p) below.

In relation to the Proposal Forms, the facts are as follows:-

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On 25th November, 2003 the Second Defendant informed the Parliament of the vacancy in the office of the Governor-General and invited proposals for nominations, and he further advised Parliament that nominations will close on 28th November, 2003.

(b) On 28th November, 2003 the Third Defendant received Proposal Forms for nomination in respect of Sir Paulias Matane, First Plaintiff and the Fourth Defendant respectively.

(c) The Fourth Defendant personally delivered his Proposal Form to the Third Defendant on 28th of November, 2003 at the latter's office. Fourth Defendant's Proposal Form was complete with all the particulars except the date. The Proposal Form had the name and signature of the Proposer, namely, the Member for Rai Coast Mr James Yali but the date section was not filled in. The Proposed and the Fourth Defendant also signed. Fifteen (15) Members were shown as having signed the Proposal Form on dates between 25th - 27th November and two (2) Members signed the Proposal Form on the 28th November.

(d) Upon noticing the date missing, the Third Defendant advised the Fourth Defendant that he will not accept the form without the date being put on the Proposal Form. The Fourth Defendant then left the Third Defendant's office and returned later on the same day with the same completed form but with a date inserted, as being the 28th November, 2003. The Third Defendant then accepted the Proposal Form.

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In his affidavit sworn on 30th January, 2004 the Fourth Defendant says he entered the date 28th November, 2003 on the Proposal Form. He also said that he himself and the Proposer Mr Yali, signed the Proposal Form on 25th November before the seventeen (17) Members signed the Proposal Form.

(f) On 28th November, 2003 the Third Defendant extended the nomination date to 1st December, 2003 as stated in paragraph 6(b) of the Third Defendant's affidavit of 7th January, 2003.

(g) On 1st December, 2003 the Second Defendant informed Parliament that the closing date for nominations has been extended to 1st December, 2003 as stated also in paragraph 6(b) of the Third Defendant's affidavit.

(h) On 1st December, 2003 the Third Defendant received new Proposal Forms in respect of the First Plaintiff and Sir Paulias Matane, the Fourth Defendant's Proposal Form remained the same.

The facts in relation to voting in Parliament on 4th December, 2003 are as follows:-

(i) On 4th December, 2003 Parliament met to elect its nominee for appointment as Governor-General and that was the substantive business before it as deposed to in paragraphs 19 & 20 of the Third Defendant's affidavit. The Third Defendant furnished the Second Defendant the list of candidates for election. The candidates were Sir Paulias Matane, The First Plaintiff and the Fourth Defendant.

(j) The Second Defendant took the chair at 10:30 a.m. and after prayers were read the Second Defendant informed Parliament that Hon. Ben Semri, the Member for Middle Ramu was reinstated as a Member of Parliament by the Supreme Court and was welcomed back. The Member was not present in the Chamber at that time.

First Ballot

(k) The first ballot was conducted as deposed to in paragraph 22 of the Third Defendant's affidavit and the main points were:-

(i) The Second Defendant read out the names of the candidates and advised Parliament that there were ninety (90) Members present in the chamber, excluding the chair.

(ii) Bells were rung and the doors remained open and after the ringing of the bells, the doors were closed.

(iii) Ninety (90) ballot papers were distributed to the Members.

(iv) The Members voted and the results were:

Sir Albert Kipalan 30

Sir Paulias Matane 30

Sir Pato Kakaraya 30

(v) The Second Defendant informed Parliament that there will be another secret ballot. The Hon. Luther Wenge raised a point of order as to what will happen if the votes were equal again. The Second Defendant advised that if the votes are equal after the next secret ballot, the chair will decide.

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(l) Hon. Ben Semri was not present in the chamber and did not vote. Second Ballot

(m) The second ballot was conducted as deposed to in paragraphs 22 and 23 of the Third Defendant's affidavit and the main points were:-

(i) Hon. Ben Semri had arrived and the Second Defendant welcomed him and allowed him to take his seat.

(ii) The Second Defendant announced that there were ninety one (91) Members in the chamber.

(iii) Bells were rung and the doors remained open. After the ringing of the bells, the doors were closed and ninety-one (91) ballot papers were distributed to the Members.

(iv) The second vote was taken and the results were:

Sir Albert Kipalan 31

Sir Paulias Matane 30

Sir Pato Kakaraya 30

Third Ballot

(n) The third ballot was conducted as deposed to in paragraph 25 of the Third Defendant's affidavit and the main points were:-

(i) The Second Defendant advised the Members that another ballot (third ballot) will be conducted and it will be only between The Fourth Defendant and Sir Paulias Matane "to eliminate one of them".

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Member for Huon Gulf, Hon. Sasa Zibe arrived and took his seat for the first time. The Second Defendant announced that there were now ninety two (92) ballot papers to be distributed.

(iii) The vote was taken and the result was:

Sir Pato Kakaraya	46
Sir Paulias Matane	46

Casting Vote

(iv) The Second Defendant cast his vote to eliminate one of the candidates (and gave his reasons). The result was:

Sir Pato Kakaraya	47
Sir Paulias Matane	46

(v) The Second Defendant eliminated Sir Paulus Matane and advised the Members that the candidates for the next ballot will be the First Plaintiff and the Fourth Defendant.

Fourth Ballot

The fourth ballot was conducted as deposed to in paragraph 26 of the Third Defendant's affidavit and the main points were:-

(i) Bells were rung again and when all the Members were in the chamber, doors were locked. The Second Defendant

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requested the Third Defendant to count the Members present in the chamber.

(ii) Upon advice, the Second Defendant informed Parliament that there were now ninety two (92) Members present in the chamber and ninety two (92) ballot papers were distributed.

(iii) The vote was taken and the results were:

Sir Albert Kipalan	39
Sir Pato Kakaraya	52
Informal	1

(o) The Second Defendant announced that the swearing-in of the Governor-General by the Chief Justice will take place on 20th January, 2004. Parliament adjourned at 12:55p.m.

The facts in relation to the Queen's appointment of the Governor-General are as follows:

(p) On 16th December, 2003 the Queen appointed the Fourth Defendant as the Governor-General by placing her signature on an instrument provided by the Prime Minister.

2. Compliance with S. 4 of the Organic law

The First Plaintiff in his amended Originating Summons relies on two (2) grounds to have the election of the Fourth Defendant declared null and void. The grounds are:-

1. The Fourth Defendant's Proposal Form was defective; and
   

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2. The election procedure adopted and followed on 4th December, 2003 was not in accordance with the Organic Law.
   

The central issue for determination by this Court is whether the nomination of the Fourth Defendant by Parliament for appointment as Governor-General was valid.

In order to answer the central issue, the following questions necessarily arise:-

(i) Was the Fourth Defendant's Proposal Form defective?

(ii) If the Proposal Form was defective what was required to be done to comply with the Organic Law?

(iii) What is the correct procedure for the nomination for appointment of Governor-General on the floor of Parliament as envisaged by s. 4 and s. 5 of the Organic Law?

Counsel for the First Plaintiff, Mr Henao submitted that on the face of the Fourth Defendant's Proposal Form dated the 28th November, 2003 there are only two (2) legitimate supporters supporting the proposal of Mr James Yali. This is because only two Members, the Member for Central Bougainville and the Member for Madang Open whose signatures are dated 28th November, 2003 the same date the Proposer is deemed to have made the proposal and duly signed. The other fifteen (15) supporters signed the Proposal Form on 25th, 26th and 27th November, 2003. It was submitted that those who signed on the 25th, 26th and 27th November, 2003 signed without there being a proposal.

Evidence has been given by way of affidavits by the Third Defendant and the Fourth Defendant. They have each given an account of what happened and have given an explanation of how and why the Proposal Form is dated the 28th November, 2003 and not the 25th November, 2003 as it ought to have been. The Defendants

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argued that given the explanation, the Proposal Form was valid and properly accepted by the Third Defendant to proceed to the next stage of the nomination process.

Was the Fourth Defendant's Proposal Form defective?

The starting point to answer this question is the Organic Law. Section 4 is the relevant provision which provides:-

"4. Proposals for nomination.

1. A proposal for nomination shall be –

(a) in the form in Schedule 1; and

(b) contain the signature or other mark of-

(i) the proposer; and

(ii) the person proposed as accepting the nomination: and

(iii) not less than 15 other members of the Parliament; and

(c) handed to the Clerk at any time before the commencement of voting.

2. A member of the Parliament shall not propose more than one person as a candidate for election as the Parliament's nominee."

In construing the requirements of a Proposal, s 4 must be read as a whole. According to the facts of the present case, the requirement of Subsection (2) is not in issue. The requirements of Subsection (1) are in issue. In construing the total requirements of Subsection (1), the requirements of the Form in Schedule 1 under Subsection (1) (a) must be read together with the other requirements in Subsection (1) (b). When so read, in our view the following are the requirements:-

(i) a Proposer must propose a candidate; and
(ii) a Proposer must date the proposal to show when the Proposal Form was made; and
(iii) the Proposer must sign or put his mark and put the name of his electorate on the Proposal Form; and
(iv) the Proposed candidate must then accept the proposal by signing on the space provided on the Proposal Form; and

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(v) only after completing the above four (4) steps, fifteen (15) other Members of Parliament must then lend their support for the proposal by signing on the space provided on the form and set out the name of their respective electorates.

Moreover, the Supreme Court recently discussed fully the requirements of s 4 in SC OS No. 2 of 2003. The Court said:-

"We consider that the provision is expressly in mandatory terms. The provision relates to two matters. First, the Proposal Form for nomination should be in accordance with Schedule 1.

3. Proposal Form - schedule I s.4(1) (a).

The importance of the Proposal Form prescribed in Schedule 1 cannot be understated. This form is not like other forms prescribed by statutes and regulations. The form contains the matters contained in s.4(1)(b) and additional relevant matters to be filled in. The Proposal Form is prescribed by the Organic law and all the requirements of this form must be complied with strictly. Indeed this form plays a vital role in the election procedure. The information in the form provides the evidence or material upon which the Clerk discharges his duties under s.5(1) and s.6. The form makes revisions for some of the key players in the election process to complete including the proper acceptance of the proposal by the Proposed candidate and the support of the Proposed candidates by a fixed number of Members in the Parliament. From this form, the Clerk compiles a list of candidates by a fixed number of members in the Parliament. From this form, the Clerk compiles a list of candidates and submits to the Speaker for voting by the Parliament. The rejection of this Proposal Form by the Clerk gives an aggrieved person the right to appeal to the National Court, pending the determination of which, no election of the Governor-General takes place. It is therefore the duty of the Clerk to ensure that the Proposal Form handed to him under s.4(1)(a) strictly conforms to Schedule 1. In our opinion, whatever the Schedule provides it is mandatory and shall be complied with. This interpretation comes from s. 4 (1) (a) of the Organic Law. We do not accept the alternative proposition that s. 4 (1) (a) is directory only and that s. 4 (1) (b) is mandatory. This view is supported by s. 5 (1) (a) and (b). That is, that if these requirements are not complied with, a Proposal Form may be rejected by the Clerk. This confirms that the requirement in s. 4 (1) (a) and (b) are expressed in mandatory terms."

The Supreme Court then went on to discuss the requirement that a Proposer's support of the Proposed as set out in the Proposal Form must be real, genuine and meaningful. The Court said:-

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"Moreover, common sense dictates that where a person proposes a particular person for nomination as Governor-General, that proposal must be meaningful, genuine and real. The same can be said of a particular proposal. The support must be meaningful, genuine and real. The office of Governor-General is a high office. The Governor-General takes precedence in rank immediately after the Head of State (Section 84 of the Constitution). Therefore the proposal and support for nomination for the position of Governor-General in our view is very serious and important business of Members of Parliament."
Section 4 has to be read together with s 5 which provides:

"5. Rejection of proposals.

(1) The Clerk may reject a proposal for nomination where –

(a) the proposal is not in the prescribed form; or
(b) the proposal is not signed by at least fifteen (15) Members of the Parliament: or
(c) he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor General.

(2) Where the Clerk rejects a proposal for nomination he shall immediately inform the speaker, the proposer and the person proposed of his reasons for so doing.

(3) A person aggrieved by a decision of the Clerk may, within five days after the decision, appeal against the decision to the National Court.

(4) An election under this Law shall not be held until all appeals under this section have been dealt with."

The Clerk has power to reject a proposal for nomination if it is not in the prescribed form (s 5 (1) (a)). The question which has arisen in this case relates to the date of the proposal in the form.

What is the significance of the Date on the Proposal Form?

We accept that the requirement to put the correct date on the Proposal Form may, on the face of it, appear to be a formal requirement. Nonetheless, as the Court said in SC OS No. 2 of 2003, s. 4 is expressed in mandatory terms and all the requirements of s 4 including Schedule 1 referred to in Subsection 1 (a) must be strictly complied with. The date is significant because it will show when the Proposer

is
proposed the candidate for the particular election in question. The date must be filled in by the Proposer at the time he places his signature or mark.

Dates, times and time frames or limits are an essential part of everyday life. Everyday activities and modern businesses in particular, are conducted on time frames and dates. Dates and times are an integral part of documents, work schedules, etc. There are time limits to be observed and actions taken within frames. Failure to date the document or state the incorrect dates on a document can cause disruptions to many planned businesses, meetings and transactions. The validity of formal documents may depend on the dating of documents.

Dates and time frames are an integral part of important government business - in the Courts, at Parliament House and in the general public service. Statutory instruments, Court documents and so on are required to be dated. Without dates, the documents are defective and rendered ineffective and meaningless particularly when it comes to determining compliance with time limits. To suggest as Dr. Nonggorr did in his submission that a "date is just a date" and therefore of no significance in this case is not correct and therefore we reject it.

Indeed s 4 (1) (a) of the Organic Law recognizes the importance of date or time when it says the completed Proposal Form shall be "handed to the Clerk at any time before the commencement of voting". If the Proposal Form were undated or incorrectly dated for instance, how would the Clerk know if this Proposal is genuine and submitted in respect of the impending subject election as opposed to a previous election. The date in this Proposal Form prescribed by Schedule 1 is an express Constitutional requirement and it underpins the importance of the Proposal Form. The Proposal Form is a Constitutional document. The requirement to insert the date or correct date on the form is a Constitutional requirement. A Proposal Form without a 19
date or without the correct date, or for a Proposed to date the form for the Proposer is a material defect on the Proposal Form.

Returning to the five (5) requirements under s. 4 which we set out earlier, the evidence indicates that the Third Defendant dealt with the Proposal Form for the Fourth Defendant on two occasions. The first occasion was when the form was initially handed to the Third Defendant on the 28th November without the date of the proposal. It is clear that the Proposer, Mr James Yali never dated the Proposal Form.

The Proposal Form is designed in such a way that anyone making the proposal cannot miss the date section on the Proposal Form. The form itself contains the space where the day and month and the year are to be inserted. Therefore, the date is a mandatory requirement of the Proposal Form. Any proposal for nomination without a date of the proposal would be in breach of a mandatory requirement of the Organic Law (s 4 (1) (a) )

We consider that the Third Defendant properly rejected the Proposal Form on the basis that the proposal date was not filled in (s 5 (1) (a) of the Organic Law).

The second occasion arose when after the Third Defendant rejected the form, the Fourth Defendant left the Clerk's office with the form and he filled in the proposal date as 28th November, 2003 and returned later the same day and presented the amended form to the Third Defendant.

The question then arises; did the Third Defendant have power to receive the amended document? Counsel for the Defendants were unable to point to any provision which gives the Third Defendant power to accept an amended document. So far as the defect in the present case involves a mandatory requirement, we cannot find any power in the Third Defendant to direct an amendment and then

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subsequently accept the amended document. If the Parliament intended this it would have said so. His power is confined to whether or not the proposal form complies with s 4 of the Organic Law. Whether he is right or wrong can only be reviewed by the National Court under s 5 (3) of the Organic Law. We have reached the conclusion that the Third Defendant acted beyond his power when he accepted the amended Proposal Form for the Fourth Defendant.

However, on the other hand, if the Third Defendant has power to accept an amended Proposal Form, we consider that in the present case, he ought to have rejected the Proposal Form on other grounds.

In this regard, the Plaintiffs contend that the Proposal Form of the Fourth Defendant was invalid because on the face of the Proposal Form the Proposer proposed the Fourth Defendant on the 28th November, 2003. Fifteen (15) other Members of Parliament signed the Proposal Form in support of the Fourth Defendant prior to the 28th, that is on 25th, 26th and 27th November, 2003. The Plaintiffs argue how fifteen (15) other Members can support a candidate on the 25th 26th 27th November when the proposal itself was made on 28th November, 2003. They argued that there is no provision for fifteen (15) other Members to support a proposal by signing the Proposal Form before the actual proposal. On the face of the Proposal Form, it is open for an inference to be drawn that the supporters signed the Proposal Form before the proposal was made.

The Third and Fourth Defendants have each filed affidavits explaining how the Proposal Form came to be dated "28th November, 2003". They both say that on the 28th November the Fourth Defendant submitted his Proposal Form to the Third Defendant. The Proposal Form had the signatures of seventeen (17) other Members of Parliament as supporters but was not dated. The Third Defendant told the Fourth Defendant that he would not accept the form unless it was dated. The Fourth 21
Defendant then left the Third Defendant's office and inserted the date and then later returned and handed the amended proposal to the Third Defendant. This time the Third Defendant accepted the form. The Fourth Defendant maintains in his affidavit that Mr Yali and himself signed the form on 25th November, 2003 and that the seventeen (17) other Members of Parliament signed only after Mr Yali and himself had signed.

Although the Organic Law does not specifically state as to who is to fill in that part of the form, by necessary implication it is only proper that it should be done by the Proposer. This is because the Proposer proposes and then dates the document and then signs, as well as indicating the electorate he represents in Parliament. In a situation such as this where the Proposed fills in the date and the month, the veracity and genuineness and integrity of the Proposal Form is called into question.

In our opinion s. 4 of the Organic Law envisages that there must be a proposal before other Members of Parliament can give support. In other words the fifteen (15) other Members of Parliament must support a proposal and not merely sign a blank document. In this case, the proposal for nomination was made on the "28th November, 2003" on the face of the record. This factor must in turn adversely affect the validity of the signatures of those members of Parliament who signed their support on the 25th, 26th and 27th November, 2003. The result is that the proposal only has two (2) Members of Parliament validly supporting it. The consequence would be that the Proposal Form ought to have been rejected by the Third Defendant under s. 5(1) (b) of the Organic Law.

It is apparent from the Third Defendant's affidavit that he did not notice this glaring error on the face of the document in so far as the dates on the forms were concerned. The Third Defendant ought to have been even more careful and a lot more vigilant when the document came through his hands and his office.

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Do the explanations remove the defect in the Proposal Form?

The affidavits of the Third and Fourth Defendants explain how the date "28th November 2003" found its way into the Form. The date was inserted by the Proposed and probably explains why the wrong date was inserted. In the result, he post dated the Form after the Proposer and the fifteen (15) supporters have signed the Form on earlier dates. It is our view that no amount of explanation will cure the defect on the face of the Form. The act of nominating the Fourth Defendant for appointment as Governor-General has been done through a defective Proposal Form. This amounts to non-compliance with the Constitution and the Organic Law. The form remains defective.

In the present case, the Clerk fell into error in failing to reject the Fourth Defendant's Proposal Form for stating the wrong date on the second occasion.

Before we leave this issue it is important to address the question; what would the Proposer have done to comply with s 4 of the Organic Law? The Proposer had time to file a new document. He could have signed a new Proposal Form and dated it 28th November, 2003 and get the Proposed to also sign it on 28th November and then get the Members to support it on the 28th November or on a subsequent day before the 1St December 2003. Such a document would have satisfied the requirements of s 4 of the Organic Law.

3. Conduct of Voting in Parliament: ss 6, 7, 8, & 9 of the Organic Law

The Plaintiffs further allege that the voting proceedings were not conducted in accordance with the Organic Law.

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They rely on five grounds:

"2. The voting proceedings on 4th December, 2003 were not conducted in accordance with the Organic Law for the following reasons:-

(a) The Acting Speaker failed to cast his vote at the end of the first ballot when the three (3) candidates, the Plaintiff, the 4th Defendant and Sir Patulous Matane were tied at thirty (30) votes each in order to determine which two (2) candidates should proceed to the next ballot, and by failing to do so the procedures prescribed under section 9 (5) of the Organic Law were not complied with, and/or in the alternative,
(b) The second ballot in which the Member for Middle Ramu voted for the first time was in effect for the purpose of determining which two (2) candidates would have the least votes so that those two candidates would proceed to the next ballot to determine who should be excluded from the subsequent ballot to contest the final ballot, and by allowing the Member for Middle Ramu to so vote he was purporting to exercise the powers of the Acting Speaker under s 9 (5) of the Organic Law and as such this ballot was conducted in breach of s 9 (5) of the Organic Law; and/or in the alternative,
(c) The manner in which the 2nd, 3rd and 4rh ballots were conducted by allowing the Member for Middle Ramu and the Member for Huon Gulf who did not vote in the Id ballot, in effect disregarded or gave no meaning to the 1 st ballot, therefore the conduct of the 2nd 3rd and 4rh ballots were not in accordance with section 9 of the Organic Law.
(d) The Clerk by distributing or caused to be distributed ballot papers to the Member for Middle Ramu and the Member for Huon Gulf (who did not vote in the first ballot) to vote in the subsequent ballots was in breach of his duty under section 6 (b) of the Organic Law, and/or in the alternative, the subsequent ballots in which the two (2) Member took part in were not conducted according to sections 6 (b) of the Organic Law. The second and the subsequent ballots were conducted contrary to the provisions of the Organic Law in that the Clerk and the Acting Speaker allowed members who were not present when the ballot papers were distributed in accordance with section 6 (b) of the Organic Law to vote and such conduct invalidated the voting for Parliament's nomination for the office of the Governor-General."

The First Plaintiff abandoned ground 2 (a) at the hearing.

The remaining grounds arise for consideration on the basis of the undisputed fact that the Member for Ramu, the Hon. Ben Semri entered the Chamber of the Parliament after the first ballot was conducted and was allowed to participate in the second and subsequent ballots.

24
The Member for Huon Gulf, the Hon. Sasa Zibe was also allowed to enter the Chamber after the second ballot and allowed to participate in the third and subsequent ballots.

Ground (b) and (c) have been stated in the alternative so far as they relate to the participation by Mr Semri in the conduct of the ballots. Ground (b) alleges that when Mr. Semri voted, he was purporting to exercise the powers of the Second Defendant contrary to s 9 (5) of the Organic Law. We cannot find any evidence to support this proposition. We simply infer from the facts that the Member simply cast his vote in favour of the First Plaintiff. In our view, ground (b) is not tenable.

We will therefore consider the alternative ground under (c). Counsel for the First and the Second Plaintiffs submit that the Constitution, s 88 (2) provides for a process of an "exhaustive secret ballot" to elect the Parliament's nominee. It provides:

"88. Appointment to office

(2) A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law."

They submit that in an "exhaustive secret ballot", only members who are present when the ballot papers are distributed to members and participate in the first ballot are allowed to participate in all subsequent ballots. In support of this submission, they rely on s 6 of the Organic Law which provides:

25

"6. Functions of Clerk prior to ballot

The Clerk shall, immediately before the commencement of voting –

(a) furnish the Speaker with a list of all candidates for election and the Speaker shall declare the names to the Parliament; and

(b) distribute or cause to be distributed to each member present in the Parliament at that time a ballot-paper in a form approved by the Clerk."

They submit that in the present case, when the voting commenced, Mr Semri and Mr Zibe were not present and did not participate in the first ballot. Therefore, they submit that when the Second Defendant allowed them to participate in the subsequent ballots, this was in breach of the Constitution and the Organic Law.

On the other hand, Counsel for the Defendants submit that the process that took place was conducted in a manner within the meaning of the words "exhaustive secret ballot" under s 88 (2) of the Constitution, and therefore, the nomination by the Parliament is valid. In particular, they submit that the procedure for allowing a Member to enter the Chamber of Parliament to cast a vote is determined by the Standing Orders of the Parliament, and is not the subject of s 88 (2) of the Constitution or the provisions of the Organic Law.

Consequently, they submit that under the Standing Orders, each ballot is conducted with the ringing of the bells for two minutes, at the end of which the doors are closed but are not locked (see Schedule 2 of the Standing Orders). They submit that the ballots in the present case were conducted in accordance with these Standing Orders.

26

This issue calls for the proper construction of the words "exhaustive secret ballot" under s 88 (2) of the Constitution. There is no definition of these words in the Constitution or the Organic Law. Counsel have not been able to find any assistance from the Draft of the Constitution or the debates of the Constituent Assembly as aid to the construction of these words (s 24 (1) of the Constitution).

The Organic Law envisages a number of circumstances in an exhaustive secret ballot. Section 7 deals with the situation where only one person is proposed for nomination. Section 8 deals with the situation where only two persons are proposed, and s 9 deals with the situation where there are more than two proposals.

We are not aware of any technical meaning that should be attributed to "exhaustive secret ballot" in the different situations. The key word to be interpreted is "exhaustive". The Concise Oxford Dictionary 9th Edition defines "exhaustive" to mean "1. thorough, comprehensive 2. tending to exhaust a subject". So far as this relates to the nomination of a person for appointment as Governor-General, the process of voting must be comprehensive (or continue) until all the candidates are eliminated and a person is nominated.

Having regard to s 7, 8 and 9 of the Organic Law, the subject matter, namely, the election of the Parliament's nominee, the process must continue until a person is nominated in accordance with s 88 (2) of the Constitution. The "exhaustive secret ballot" has another important feature and that is the provision for resolving any equality of votes by the Speaker in order to reach a result. We will return to discuss this later.

27

The Organic Law deals with certain aspects of the ballot such as the duty of the Clerk to furnish the list of candidates (s 6 (a) of the Organic Law) and distribution of ballot papers to members who are present in the Parliament (s 6 (b) of the Organic Law). However, it does not exhaustively deal with other necessary procedures for conducting the ballot. For instance, at what point in time does the Speaker call for a vote to be taken? How long may the bells ring (if any) and for how long before the members may cast their votes? There is no provision for such procedural matters either in the Constitution or the Organic Law. If the Parliament intended to deal with such issues, it would have provided for them expressly in the Constitution or the Organic Law as it has done so with such matters as distribution of the ballot papers.

We consider that these are matters left to be dealt with under the Standing Orders. Schedule 2 expressly provides for the election of the Deputy Speaker of the Parliament. This Schedule of its own provision is made applicable to the nomination of a person to be Governor-General. We should add that this Schedule has to be read subject to the provisions of the Organic Law.

The Standing Orders provide for the ringing of bells. Where there are three or more candidates as in the present case, the voting commences with the ringing of bells for two minutes before the vote is taken. If no candidate scores a simple majority (s 88 (2) of the Constitution), the ballot continues as previously with the exclusion of the candidate with the least votes.

28
Neither the Constitution nor the Organic Law makes provision for ringing of bells. We note that in the present case, each ballot was conducted with the ringing of the bells. It is obvious to us that the bells are rung to indicate to Members that a vote is about to take place on the floor of the Parliament and they must get to the Chamber within the two minutes. That is a matter of parliamentary practice which is non-justiciable (s 134 of the Constitution)

So far as who may participate in a ballot, the Organic Law makes express provision for Members to be present at the time a ballot is conducted. It does not make any provision for who may participate in the subsequent ballots if the need arises.

Whether or not the same Members who participate in the first ballot ought to be the same Members in the subsequent ballots is a substantive policy issue which ought to be expressed clearly. It is not a matter for this Court to determine by judicial act.

We have reached the conclusion that the words "exclusive secret ballot" does not indicate who may be entitled to vote at the subsequent ballots. For instance, if the Parliament is adjourned for one sitting day under s 8 (4) of the Organic Law, the provision does not indicate who may be entitled to attend and vote under s 8 (5) of the Organic Law. If it was intended to maintain the same members who voted under s 3 (b) and 4 (a) of the Organic Law, the provision would have expressly provided for it. Members may not attend another sitting day for a variety of reasons. The Parliament may not sit for lack of a quorum. If it was intended for the same members who voted on the first ballot to vote in the subsequent ballots, it would have said so.

29
Similarly, Members are entitled to move in and out of the Chamber for a variety of reasons. If it was intended to keep all Members in the Chamber from the beginning of the ballot to the end, it would have said so. As we have already pointed out, s 8 (4) allows for an adjournment of the sittings to another day.

For these reason we would reject the proposition put by the Plaintiffs.

We now turn to consider the question of equality of votes that may occur during the election. The Speaker has a duty to cast his vote where there is equality of votes.

Counsel for the Plaintiffs submit that the Second Defendant fell into error in not exercising this duty when there was an equality of votes between the Fourth Defendant and Sir Paulias Matane after the second ballot. This submission is supported by Counsel for the Sixth Defendant.

Counsel for the First, Second, Third, Fourth and Fifth Defendants submit that the Second Defendant did not fall into error in not exercising his casting vote after the second ballot. They submit that the occasion for the Second Defendant to cast his vote arose after Sir Paulias Matane and the Fourth Defendant had equality of votes after the third ballot.

This issue requires proper construction of s 9 of the Organic Law which provides:

30

"9. Voting where more than two reasons proposed.

(1) Where more than two persons have been proposed as the Parliament's nominee, each member present shall:

(a) indicate on the ballot paper the name of the candidate for whom he votes; and

(b) deliver his ballot paper to the Clerk.

(2) The Clerk shall, as soon as he has received all the ballot papers, in the presence of the members present, count the votes for each candidate and furnish the result to the Speaker.
(3) As soon as he has been furnished with the result of the ballot the Speaker shall declare the candidate with the least number of votes to be excluded from further ballots and a second ballot shall be held immediately and so on until there are only two candidates remaining.
(4) Where only two candidates remain in accordance with Subsection (3) the further ballots shall be conducted in accordance with Section 8 as though those two candidates were the only candidates nominated.
(5) Where in any ballot conducted under Subsection (3) no decision can be made as to which candidate to exclude from a subsequent ballot because two or more candidates have an equality of votes, a ballot shall be conducted as between those candidates only to determine which should be excluded and, if after conducting that ballot there is still an equality of votes, the Speaker shall cast his vote to determine which of the candidates is to be excluded from subsequent ballots.
(6)

This provision deals with the situation where more than two persons are proposed for nomination. A feature of this provision is that a candidate who scores the least number of votes is excluded from further ballot (s 9 (3)). This provision indicates that one candidate is eliminated at a time. This provision is not applicable in this case because there was no candidate with a least number of votes as they all scored thirty (30) votes each in the first ballot.

Section 9 (4) was not applicable after the first ballot.

31

Section 9 (5) is the applicable provision. It is helpful to construe the provision in parts. The first part: "Where in any ballot conducted under Subsection (3) no decision can be made as to which candidate to exclude from a subsequent ballot because two or more candidates have an equality of votes,...". The reference to s 9 (3) in this part is a reference to the result of the ballot under s 9 (1) which has equality of votes and which is furnished to the Speaker under s 9 (3). Up to this point, only the first ballot is conducted under s 9 (1). Where there is a candidate with a least number of votes, that candidate is excluded under s 9(3).

However, where no decision can be made because of equality of votes, then the next part of the provision comes into play: "...a ballot shall be conducted as between those candidates only to determine which should be excluded and, if after conducting that ballot there is still an equality of votes,..."

In the present case, the three candidates had equal votes in the first ballot. The Second Defendant proceeded in accordance with this part and conducted the second ballot to resolve the equality of votes amongst the three candidates. The result was:

Sir Albert Kipalan 31 votes

Sir Pato Kakaraya 30 votes

Sir Paulias Matane 30 votes

32

On this result, there was still an equality of votes and a decision could not be made to exclude a candidate from further ballot in accordance with s 9 (3). To resolve this issue, s 9 (5) provides: "..the Speaker shall cast his vote to determine which of the candidates is to be excluded from subsequent ballots."

We consider that the Second Defendant ought to have cast his vote at this point to resolve the equality of votes as between Sir Paulias Matane and the Fourth Defendant. In not doing so, he failed to comply with s 9 (5) of the Organic Law.

The question then arises; should the Speaker cast his vote in favour of the candidate he prefers to be nominated as Governor-General, or should he cast his vote to simply determine which of the candidates is to be excluded from subsequent ballots?

In construing this provision, it is important to examine the purpose of the "casting vote" by the Speaker. In the first place, the Speaker does not participate in the vote (see SC OS 2 of 2003, (Unreported Judgment of the Supreme Court dated 21St November, 2003, SC721)). Where there is only one person proposed, s 7 of the Organic Law provides for each Member present to indicate whether or not he/she agrees with the proposal. The Clerk then furnishes the result to the Speaker. The Speaker does not take part in the vote.

Where there are only two candidates proposed, the Speaker does not take part in the ballot until an equality of votes between the two proposals is incapable of resolution. Section 8 (5) of the Organic Law provides: "the Speaker shall cast his vote".

33
It is clear from this context that the Speaker casts his vote in favour of the candidate he prefers to be the Governor-General.

In contrast, s 9 (5) of the Organic Law provides "...the Speaker shall cast his vote to determine which of the candidates is to be excluded from subsequent ballots". Section 9 deals with resolution of equality of votes and not necessarily dealing with the Speaker's preference for the candidate to be the nominee for the office of Governor-General. The Speaker is given that opportunity to cast his vote for his preferred candidate under s 8 (5) of the Organic Law if there is an equality of votes with the remaining two candidates.

Having regard to the matters we have just considered, we accept the proposition that when the need for the Speaker to cast his vote arises under s 9 (5) of the Organic Law, he must cast his vote to indicate which of the candidates with the equality of votes should be excluded from further ballots.

Therefore, we draw this to the attention of the Speaker (or Acting Speaker) that there is a distinction between his vote under s 8 (5) and s 9 (5) of the Organic Law.

To interpret s 9 (5) to mean casting a vote for the preferred candidate (as in s 8 (5)), would lead to a gap in the law in some circumstances. For instance, if after the second ballot is conducted, and there is still an equality of votes between the three or more candidates, if the Speaker casts his vote for the preferred candidate, it would have the result of giving one of the candidates with an extra vote and the remaining candidates would remain with equality of votes. The result is that there is no candidate 34
with the least number of votes. The Speaker is incapable of excluding any candidate in those circumstances. He has only one casting vote and he would have used up that right under s 9 (5) at that stage. There is no provision for dealing with that situation. That would result in a gap in the Organic Law.

The construction we have adopted is capable of excluding one candidate each time there is an equality of votes in the circumstances set out under s 9 (5) of the Organic Law. This should enable the Speaker to exclude a candidate in order for a subsequent ballot to be conducted and this would be repeated until only two candidates remain.

In the result, we consider that the second ballot was conducted in accordance with s 9 (5). However, the Second Defendant failed to exercise his discretion to resolve the equality of votes after the second ballot.

4. Non-Justiciability of National Executive Council's Advice to the Queen and Queen's Appointment of Sir Pato Kakaraya: Constitution S. 86 (4) & s.88 (1), s .89 (a)
   

Counsel for the Defendants further submit that even though the election was conducted contrary to law, the nomination by the National Parliament in the present case should be upheld on two basis. First, the Fourth Defendant has been appointed by the Queen and it may not be questioned by this Court under s. 86 (4) of the Constitution which provides:

"86. Functions, etc

(1) (2) (3)

(4) The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable."

35

The relevant facts in this regard may be summarized as follows. It is not disputed that the decision of the National Parliament has been conveyed to the National Executive Council and that the Prime Minister has conveyed the decision to the Queen. The Queen appointed the Fourth Defendant on 16th December, 2003 in accordance with s. 88 (1) of the Constitution.

Counsel for the Defendants submit that under s. 86 (4) the appointment made by the Queen is non justiciable and therefore immune from judicial review.

Counsel for the Plaintiffs submit that s. 86 (4) does not and cannot protect an executive act which is done contrary to law. They further submit that the advice given is that the Fourth Defendant is the Parliament's nominee for appointment by the Queen. They submit that this case is about compliance by the Second Defendant and the National Parliament in nominating the Fourth Defendant.

The meaning and the scope of s. 86 (4) of the Constitution was considered and determined in Wari & Others v Ramoi & Dibela [1986] PNGLR 112. In considering the scope of s. 86 (4), Kidu CJ held:

"I consider that it is because the Head of State cannot act otherwise than on advice of the National Executive Council or a body prescribed by law that s.86(4) of the Constitution ensures that whatever advice is given and by whom is non-justiciable: the question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.

"This means of course that no Court has jurisdiction to look into questions relating to the advice given to the Head of State (see Sch 1.7 of the Constitution and The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, per Frost CJ at 499, and per Saldanha J at 504). This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v Frame (at 477) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged:

36

To maintain that because the Governor-General has caused a regulation to be published in the Gazette following on advice, and because the advice received by the Governor-General is non-justiciable means that no consequent regulation can be challenged as ultra vires is a proposition of a law so fundamentally misconceived as to warrant no further consideration.

If the proposition rejected by Pratt J was indeed the law it would cause grave constitutional and legal problems."

This issue is extensively discussed by Kapi DCJ (as he then was). See also the decision of Amet J (as he then was). This case established the proposition that s. 86 (4) does not protect executive acts from judicial review if it is shown that the advice given to the Head of State is inconsistent with a constitutional law or is ultra vires.

Unlike the situation in SC OS No. 02 of 2003, the Queen by instrument signed on 16th December, 2003 appointed the Fourth Defendant as the Governor-General of Papua New Guinea. The question is whether, it makes any difference to the invalidity of the nomination process in Papua New Guinea which preceded her appointment of the Fourth Defendant.

The position of the Queen in the structure of government in Papua New Guinea is spelt out clearly in the Constitution. The Queen occupies an important and high office in Papua New Guinea. Under the Constitution she is the Queen of Papua New Guinea and the Head of State. She "takes precedence in rank over all other persons in Papua New Guinea" (s. 84 of the Constitution). She is widely respected by many nations of the world. She is a symbol of good governance. She represents continuity, stability and unity for peoples of many nations of the world including Papua New Guinea. It is accepted that insofar as the exercise of government power and performance of public functions under written law in Papua New Guinea is concerned, her position is basically symbolic and ceremonial. But for all other intent and purposes, she is a very important person to whom Papua New Guinea can look to for advice or counsel in all aspects of governance as Papua New Guinea takes its 37
place in the modern community of nations. She must have a real interest in the social, political and even economic development in Papua New Guinea.

The Queen's duties in Papua New Guinea are performed by her personal representative, the Governor-General, who is a citizen of Papua New Guinea. The Governor-General is personally appointed by the Queen who acts "only with, and in accordance with" the advice given by the NEC: ss. 82, 86 (1) & 88(1) of the Constitution. The NEC's advice to the Queen must be "given in accordance with a decision of the Parliament" to nominate a person in accordance with s 88 of the Constitution. The Queen's functions are as prescribed by written law (Wari v Ramoi & Dibela (supra)). The principles in that case relate to the performance of the functions of the Governor-General in Papua New Guinea.

Those principles apply equally to the Queen when she acts personally. The Queen is required to act in accordance with the laws of Papua New Guinea when she is requested to perform the duties of the Head of State personally. This principle was established soon after independence in the State v John Mogo Wollom [1975] PNGLR 311. Frost CJ said:

"Now under the Constitution the principles and rules of the common law which are adopted under Sch. 2.2(1) (Adoption of a common law) include the principles and rules relating to the Royal Prerogative, except (inter alia) to the extent that they are inconsistent with a Constitutional Law which, of course, includes the Constitution. (See Sch.2.2. (1)(a) and (2); Sch.1.2.) But an examination of the relevant constitutional provision shows, in my opinion, that the powers associated with the structure of government only as defined therein, and to use the words of Quick and Garran in referring to the prerogative powers of the Governor-General in the Australian Constitution, have become "detached from the prerogative: The Annotated Constitution of Australian Commonwealth,1901,at p.406."

Later in re Opal Kunangel [1991] PNGLR 1 at p. 28, Gajewicz J re-iterated the same principles as follows:

38

"When Her Majesty the Queen graciously consented to become the Queen and Head of State of Papua New Guinea, she also consented to the principles and rules relating to the Royal prerogative subject to certain exceptions. One such exception is that when they are inconsistent with a constitutional law or statute, the latter shall prevail: Constitution, Sch 2.2 (2)."

The Queen's appointment of her personal representative to execute administrative or executive decisions is a matter traditionally within Her Majesty's royal prerogative. Likewise the appointment of her personal representative the Governor-General in Papua New Guinea is a matter of Her Majesty's royal prerogative. But under our constitutional scheme, she has no choice as to who she appoints; she must appoint the person in the instrument of advice given by the NEC. The NEC also has no choice but to advise the Queen of the Parliament's choice of nominee for the position of Governor-General. It is therefore fair to say that insofar as the appointment of a particular person to the position of Governor-General is concerned, both the NEC and the Queen simply endorse the Parliament's decision. Therefore, the real decision to appoint a person to be the Governor-General is made by the National Parliament.

It is submitted by Mr. Narokobi for the Fourth Defendant that by virtue of s. 89(a) of the Constitution, notwithstanding the non-occurrence of the Declaration of Royalty and Declaration of Office before the Chief Justice in the Parliament under s. 90, the Fourth Defendant assumed office as the Governor-General when the Queen appointed him on 16th December, 2003. He submits by virtue of s. 86 (4), the Queen's decision to act on the advice of the NEC and appoint the Fourth Defendant is non-justiciable.

Section 89 (a) provides:

"Notwithstanding Section 90 (Declaration of Loyalty, etc) for the purpose of this Constitution a person appointed as Governor General takes office-(a) subject to paragraph (b), at the end of his predecessor's term of office"

39

In our view, the Queen's appointment of the Governor-General is subject to one important condition precedent - that the Parliament's decision to nominate the person concerned is done in accordance with the Constitution and Organic Law. Section 86 (4) is not intended to nor does it protect from judicial scrutiny, an appointment by the Queen based on a decision of the Parliament which is unconstitutional, illegal or ultra vires. There is no question of the justiciability of the Parliament's decision. The Parliament must strictly follow the procedures prescribed by the Constitution and the Organic Law. Failure to do so will result in a nullity of the decision and all other actions taken pursuant to that decision. The Supreme Court enunciated these principles recently in SC OS No. 2 of 2003.

On a first glance of s. 86 (4), one gets the impression that advice given by the NEC of the person nominated for the position of Governor-General by the Parliament is non-justiciable. But on a closer reading of Subsection (2) and (4), this is not so. It is necessary to construe Subsection (1) in the light of Subsection (1) and (2) and S.88 (1).

Section 86 must be read as a whole (Constitution Sch. 1.5). Section 86 provides:

"Division 2- Functions, etc; of the Head of State 86 Functions, etc

(1) The privileges, powers, functions and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.

(2) Except as provided by Section 96 (2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act,
(3) Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case to act, but failure to comply with this subsection does not affect the validity of an instrument.
(4) The question, what (if any) advice was given to the Head of State or by whom, is non-justiciable" ( emphasis is ours)

40

Section 88 (1) of the Constitution is also relevant to s. 86 (1), (2) and (4). This section provides:

"(1) Except in the case of the first Governor-General appointed before Independence Day. The Governor-General shall be appointed by the Head of State, acting with, and in accordance with the advice of the National Executive Council, given in accordance with a decision of the National Parliament."

The type of "advice" referred to in S.86 (2) is clear. They cover the usual advice on matters covered in Subsection (1). These include reference to the provisions of the Constitutional Law or Statute which confers the privileges, powers, functions and responsibilities on the Queen. The type of advice covered in Subsection (2) include advice of the decision made in "a particular case" by the body or authority which gives rise to an occasion for the Queen to act in accordance with the advice she is given. In the present case, reference would be made to Parliament's decision under S. 88 (1) and Her Majesty would be requested to make the appointment in accordance with the decision of the Parliament. Such advice in our view is justiciable because the NEC is required by law to give the correct advice of the matters in Subsection (1) and (2), for the Queen to act on the advice correctly. This we believe is what Kidu CJ in Wari v Ramoi meant when His Honour said:

"This means of course that no court has jurisdiction to look into questions relating to the advice given to the Head of State .... This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested."

For instance, in relation to the nomination of a person to be the Governor-General, the NEC's advice to the Queen of a person not nominated by the Parliament is clearly justiciable for the NEC cannot advise the Queen and the Queen cannot appoint someone who is not nominated by the Parliament.

41
When the term of the Governor-General has expired and there is a vacancy in the office of the Governor-General in Papua New Guinea, the occasion for the appointment of a new Governor-General by the Queen occurs. It is incumbent on the officers and authorities responsible for processing and deciding on the Parliament's nominee to ensure that the procedures prescribed by the Constitution and the Organic Law are properly and strictly complied with. Such rigorous process is there to ensure that Her Majesty's subsequent appointment of the person nominated by the Parliament is beyond question. It would diminish respect for the high office of the Queen as the Head of State of Papua New Guinea and many countries of the Commonwealth, for the Queen to be given incorrect advice and upon reliance of that incorrect advice, she so acts, in good faith.

In the present case, we have studied the instrument of advice given to the Queen by the NEC and signed by the Queen. We find the advice to be confined to matters under Subsection 86(1) and (2) and Section 88(1). We conclude that they are justiciable matters.

In the present case, with great respect to Her Majesty, we are of the view that the fact that Her Majesty appointed the Fourth Defendant on 16th December, 2003 upon advice by the NEC of Parliament's decision, makes no difference to the fact that the Fourth Defendant's nomination was not done in accordance with the Constitution and the Organic Law. The nomination was done in a manner contrary to the provisions of the Constitution and the Organic Law. Section 86 (4) cannot protect Her Majesty's decision on those grounds. We would reject the argument based on s. 86 (4) of the Constitution.

5. Prospective Over-ruling: Sch. 2.11 of the Constitution

42

We turn now to consider the second argument based on Schedule 2.11 of the Constitution. The argument is that under Schedule 2.11 of the Constitution, in the exercise of our discretion we should not allow our decision to apply to this case for special reasons. They submit that one of the reasons is that the law in this regard has been uncertain until now. It is fair they submit for the Court to direct that its decision should apply in the future nomination of Governor-General.

Schedule 2.11 provides:

"Sch 2.11 Prospective over-ruling

(1) Subject to any decision of law that is binding upon it, in over-ruling a decision of law or in making a decision of law that is contrary to previous practice, doctrine or accepted custom, a court may, for a special reason, apply its decision of law only to situations occurring after the new decision.
(2) In the circumstances described by Subsection (1), a court may apply to a situation a decision of law that was over-ruled after the occurrence of the situation, or a practice, doctrine or custom that was current or accepted at the time of the occurrence of any relevant transaction, act or event.
(3) In a case to which Subsection (1) or (2) applies, a court may make its decision subject to such conditions and restrictions as to it seem just."

Counsel has not drawn our attention to any decision of this Court on the application of this provision. This provision is applicable to a case where the Court may over-rule a previous decision or where a decision is made where it is contrary "to precious practice doctrine or accepted custom, a court may, for special reason, apply its decision of law only to situations occurring after the new decision."

We consider that neither of the situations referred to in this Schedule have arisen in the present case.

Moreover, we consider that even if the provision is applicable to the present case, there are difficulties in applying the provision in this case. The basis for giving a prospective over-ruling is "for special reason". Counsel for the Defendants submit that in the present case, the special reason is that the law has been uncertain and this is 43
the first time the law is clearly stated, and therefore this is a special reason upon which the Court should apply its decision to a future election of the Parliament's nominee for appointment as Governor-General.

It is not necessary for the present purposes to consider the meaning and scope of the words "special reason". Whatever may be the scope, the present case does not fall within the category of cases envisaged. In the present case, the law was clearly spelt out in the first case and the Court directed that the Third Defendant should conduct the new election in accordance with the Constitution and the Organic Law as interpreted by the Court.

Moreover, the evidence introduced by the Second Plaintiff indicates that the Second Plaintiff wrote to the Third Defendant to ensure that the law is complied with.

For these reasons we decline to apply Schedule 2.11 of the Constitution.

6. Orders:

For the foregoing reasons and conclusions, we make the following orders:

1. The decision of the National Parliament made on 4th December, 2003, that Sir Pato Kakaraya is the Parliament's nominee for appointment as the next Governor-General of Papua New Guinea is declared null and void ab initio.
   
   2. Consequently, the National Executive Council's advice given to the Queen and Head of State, Her Majesty Queen Elizabeth the Second under s. 88 (1) of the Constitution, on 16th December, 2003 and the 44

appointment by Her Majesty of Sir Pato Kakaraya as the Governor-General are both declared null and void ab initio.

3. The National Executive Council advise Her Majesty, the Queen and Head of State that as a result of this decision, there is a vacancy in the office of Governor-General.
   
4. The Acting Speaker of the Parliament, advise the Parliament in accordance with Section 3 of the Organic Law on the Nomination of the Governor-General that as a result of this decision, there is a vacancy in the office of the Governor-General.
   
5. The Clerk of the Parliament Mr. Ano Pala and the Speaker of the Parliament, the Honourable Bill Skate shall conduct and supervise a new election for the Parliament's nominee for the office of the Governor-General in accordance with the Constitution and the Organic Law on the Nomination of the Governor-General, as interpreted by this Court.
   
6. The interim restraining orders granted on the 9th January, 2004 are discharged.
   
7. The Defendants pay the two plaintiffs costs in agreed portions, to be
   taxed if not agreed.
   
8. These orders take effect forthwith.
   

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Lawyers for the First Plaintiff Lawyer for the Second Plaintiff
Lawyers for the First and Third Defendants Lawyers for the Second Defendant Lawyers for the Fourth Defendant Lawyer for the Fifth Defendant Lawyer for the Sixth Defendant
Henao Lawyers David Cannings Nonggorr & Associates Maladina Lawyers Narakobi Lawyers Solicitor General Sumasy S. Singin