In the Matter of an Application for Judicial Review Pursuant to Constitution Section 155(4); Skate v Nape [2004] PGSC 5; SC754 (9 July 2004)

SC754

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SC OS NO. 03 OF 2004

IN THE MATTER OF AN
APPLICATION FOR JUDICIAL REVIEW
PURSUANT TO CONSTITUTION, SECTION 155(4)

AND IN THE MATTER OF AN APPLICATION
RELATING TO THE INTERPRETATION AND/OR
APPLICATION OF A PROVISION OF THE
CONSTITUTION REQUIRING THE ORIGINAL
JURISDICTION OF THE SUPREME COURT
UNDER THE CONSTITUTION, SECTION 18(1)

BETWEEN:

HON. BILL SKATE
First Plaintiff

AND:

HON. PETER O’NEIL, MP AND MEMBERS OF THE
PARLIAMENT IN THE OPPOSITION
Second Plaintiff

AND:

HON. JEFFREY NAPE, MP, SPEAKER OF PARLIAMENT
First Defendant

AND:

HON. PATRICK PRUAITCH, MP, LEADER OF
GOVERNMENT BUSINESS
Second Defendant

AND:
RT. HON. SIR MICHAEL T. SOMARE, KT. GCMG,
MP, PRIME MINISTER
Third Defendant

AND:

ANO PALA, CLERK OF PARLIAMENT
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Kapi CJ., Hinchliffe J., Batari J.
1st, 2nd, 9th July 2004

PRACTICE AND PROCEDURE – Supreme Court of Justice – Interim Order to prevent prejudice – Jurisdiction of the Supreme Court – Particular circumstances involving application to restrain the Speaker from performing his duties – Pending the determination of originating Summons under s 18(1) of the Constitution.

Counsel:

A. Jerewai for the First Plaintiff

P. Korowi for the Second Plaintiff

J. Nonggor for the First Defendant

J. Yagi for the Second Defendant

L. Henao with S. Singin for the Third Defendant

S. Reid for the Fourth Defendant

T. Sirae for the Fifth Defendant

9th July 2004

BY THE COURT: This is an application by the Hon. Bill Skate M.P. (Applicant) to restrain the Hon. Jeffrey Nape M.P. (First Defendant), the present Speaker of the National Parliament from performing his duties as Speaker until the substantive action in this matter is tried and determined by the Supreme Court.

The circumstances leading to this application are these. The Applicant has been the Speaker of the National Parliament since the general elections in 2002. At the relevant time, he was acting as Governor-General under s 95(2) of the Constitution during the period the office of the Governor-General was vacant. During his absence, the First Defendant who was the Deputy Speaker, acted as Speaker of the National Parliament.

On or about the 26th May 2004, the Applicant gave notice that he would step down as Governor-General and instead resume his office as the Speaker of the National Parliament and preside on 27th May to elect the new Governor-General. However, the Applicant decided not to resume duty as Speaker after receiving further legal advice.

The National Parliament resumed its sittings on 27th May 2004 with the First Defendant presiding as the Acting Speaker and the Parliament nominated the new Governor-General.

On 28th May, 2004 Parliament resumed sittings and elected the First Defendant as the new Speaker of the National Parliament.

The First Defendant was sworn in as the Speaker following his election. Upon his swearing in as the Speaker, he became the Acting Governor-General under s 95(2) of the Constitution.

The Applicant filed originating summons on 4th June 2004 in the Supreme Court challenging his removal and the subsequent election of the First Defendant as Speaker. The originating summons was amended on 23rd June 2004. The amended summons seeks the following orders:

"(a) That the notice of motion given and moved by the Second Defendant in the session of Parliament on 28th May 2004 for the removal of the First Plaintiff as Speaker of the Parliament was and still is ultra vires the Constitution and thus invalid, null and void. ...

(b) That the resolution carried in favour of the notice of motion as aforesaid and the resultant removal of the First Plaintiff as Speaker on the 28th was and still is ultra vires the Constitution and thus invalid, null and void. ...

(c) That the actions as set out in the preceding sub-paragraphs 2(a) and 2(b) hereto were in violation and breach of the Constitution, Section 59(2), and were unconstitutional, null and void. ...

(d) That the nomination of the First Defendant to be elected as Speaker of the Parliament was and still is a nullity. ...

(e) That the election of and the declaration of the First Defendant as Speaker of the Parliament on the 28th was and still is a nullity. ...

(f) That in even if the First Plaintiff was duly removed pursuant to the Constitution Section 107(3) and Section Schedule 1.10, which is denied, then the nomination, election and declaration of the First Defendant as Speaker of the Parliament was and still is a nullity for non-compliance with Parliament Standing Orders 5 and 12."

The new Governor-General was sworn in on 29th June 2004 in the presence of the Parliament and the First Defendant resumed his duties immediately as the Speaker thereafter.

The Parliament is presently sitting with the First Defendant presiding as the Speaker.

The Applicant filed notice of motion on 30th June 2004 seeking to restrain the First Defendant from further performing any of the duties as Speaker until the Supreme Court determines the originating summons. It is this motion which has come before us for determination.

Jurisdiction

Where an originating proceeding is pending before the Supreme Court, the Court has power to make interim orders under O 3 r 2 (b) of the Supreme Court Rules. We will return to consider the jurisdiction of the Court under this provision.

There are various proceedings which may come before the Supreme Court. They are:

1. An appeal to the Supreme Court (s 6 of the Supreme Court Act)
2. A Judicial Review by the Supreme Court (s 155 (2) (b) of the Constitution)
3. An originating process (s 18 (1) of the Constitution)
4. Points of law reserved for decision by the Supreme Court (s 15 and s 21 of the Supreme Court Act)
5. Point of law for the opinion of the Supreme Court (s 26 of the Supreme Court Act)
6. Reference for the opinion of the Supreme Court on a constitutional law (s 18 (2) of the Constitution)
7. Reference for the opinion of the Supreme Court on a constitutional law (s 19 of the Constitution)
   

Each of these proceedings is different in nature and may require different considerations in respect of interim orders in accordance with the applicable law.

It is not necessary to discuss all these proceedings for the present purposes. We should make reference to s 5(1)(b) of the Supreme Court Act with respect to an appeal because it is expressed in exactly the same terms as O 3 r (2) (b) of the Supreme Court Rules. Section 5(1)(b) provides:

"5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court –

. . . . .

(b) an interim order to prevent prejudice to the claims of the parties

. . . . .

may be made by a Judge."

However, counsel did not refer us to any relevant case on this provision.

Section 6 (1) (b) of the Supreme Court Act 1975 was expressed in the same terms as s 5(1)(b) of the Supreme Court Act. Dr Nonggor referred us to Norah Mairi v Alkan Talolo & Others [1976] PNGLR 59. That case involved a reservation of a point of law for decision by the Supreme Court under then s 5 of the Supreme Court Act 1975. Frost CJ there considered a motion for interlocutory orders pending the consideration of points of law reserved. The Chief Justice made reference to the then s 6 (1) (b) of the Supreme Court Act 1975. He does not say so in terms but he appears to have adopted the terms of s 6 by way of analogy as well as the principles of common law laid down in the case, American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396. He must have adopted these principles by way of developing the underlying law when he stated:

"But it is significant that the power conferred upon the Supreme Court makes no reference in terms to that established form of proceeding. By analogy, however, I would hold that the principles upon which interlocutory injunctions are granted are application as a useful guide for the exercise of the judge’s power to make interim orders, although those principles are not to be applied strictly. For example, the Act does not import the necessity, in my opinion, for the judge to require in every case an undertaking as to damages.

The rules laid down by Lord Diplock in American Cyanamid Co. v. Ethicon Ltd. (3) are that the court must first be satisfied that there is a serious question to be tried, and should then go on and consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. As in that type of case the basis of the statutory jurisdiction to make interim orders is, in my opinion, discretionary, so that the further principles upon which the balance of convenience may be determined referred to by the Court of Appeal in Fellowes & Son v. Fisher (4) may also be adverted to under s. 6(1) (b)."

We find that he was able to do this because there was no provision either in the Supreme Court Act or the Rules in respect of interim orders pending a reservation of law. This is good law so far as the law as it stood at that time in respect of interim orders pending the determination of law reserved for decision by the Supreme Court. The case before us is different.

We consider that so far as interim orders pending an originating process under s 18 (1) of the Constitution is concerned, the law is as set out in O 3 r (2) (b):

"ORDER 3 – PROCEDURE

DIVISION 1 – COMMENCEMENT AND CONTINUANCE OF PROCEEDINGS

. . . . .

2. Where any proceedings under Rule (1) are pending before the Court –

. . . . .

(b) an interim order to prevent prejudice to the claims of the parties.

. . . . .

may be made by a Judge."

So far as this Court derives its power from the Constitution and statutes, its powers are determined by those laws. Where an originating process is pending before the Supreme Court under s 18 (1) of the Constitution, O 3 r 2 (b) determines the powers of the Supreme Court. The Court cannot in the face of expressed provision, develop the jurisdiction of the Court by way of judicial act as part of the underlying law (see Schedule 2.3 and 2.4 of the Constitution). To do this would be to amend legislation by judicial act. It follows from this reasoning that scope of the power of the Court is determined by O 3 r 2 (b) of the Supreme Court Rules.

The provision is expressed in simple and unambiguous terms. Interim order may be made "to prevent prejudice to the claim of the parties". On the plain reading of these words, counsel for the First and Second Plaintiffs concede that there is no prejudice to the Plaintiffs.

Counsel for the Plaintiffs sought to argue that we should interpret the provision to include considerations of public importance such as the First Defendant may perform his functions in an unlawful manner and therefore we should restrain him. He submits that such unlawful exercise of power would prejudice the interests of the nation generally. We find that this is stretching the meaning of the plain words used in the provision. The provision is expressed in clear terms and defines the scope of its application. If the Parliament intended considerations of public importance to be a relevant consideration it would have expressed a wider criteria for making interim orders.

Moreover, the allegation that the First Defendant may commit unlawful acts is speculative and has no basis. We would reject the submissions by counsel for the Plaintiffs.

Counsel for the Plaintiffs sought to rely on s 155 (4) of the Constitution:

"155. The National Judicial System

. . . . .

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

. . . . . ."

Counsel for the Plaintiffs rely on the latter part of the provision:

" . . . . and such other orders as are necessary to do justice in the circumstances of a particular case."

This provision has been interpreted to apply to remedial orders in respect of primary rights in particular circumstances of a case. It is not intended to cover every situation. If this was the case, s 155 (4) would override specific provisions of the law. In Avia Aihi v The State [1981] PNGLR 81 the Court held that s 155 (4) of the Constitution could not override the provision of the Supreme Court Act on the 40 days period in which to appeal against the decision of the National Court. The specific provision dealing with interim orders pending determination of an originating process under s 18 (1) of the Constitution is expressly provided for under O 3 r 2 (b) of the Supreme Court Rules. Section 155 (4) of the Constitution can have no application to the interpretation of O 3 r 2 (b) of the Rules. Whether or not interim order should be made in any case is determined by the words "prejudice to the claims of the parties" and not on any general notion of justice under s 155(4) of the Constitution. We reject the submission based on s 155(4).

Whilst counsel for the Plaintiffs concede that there is no prejudice to the Plaintiffs if the First Defendant is not restrained from performing his duties, on the other hand counsel for the Defendants submit that there would be prejudice to the First Defendant if the Speaker is restrained. They submit that if the First Defendant is found to have been elected unlawfully, his action would still be valid by virtue of his position as the Deputy Speaker of the National Parliament. This they submit would not affect any duties he may perform because as the Deputy Speaker he may act as Speaker of the National Parliament. We agree that if the First Defendant’s election is held to be unlawful, his position as Deputy Speaker would entitle the First Defendant to act as the Speaker.

Having come to this conclusion, it is not necessary to consider the application of the common law principles adopted in Norah Mairi v Alkan Talolo & Others (supra). Even if we considered these principles applicable, the Applicant may find some difficulty in establishing that there is a serious question to be tried. We merely point out that the substantive action raises the question whether the issues raised by the action fall within the province of Standing Orders and therefore non-justiciable. We do not express a view on this issue as counsel for the Plaintiffs did not rely on these principles as the basis for the application to restrain the First Defendant.

In the end result we find that the Plaintiffs failed to satisfy us that they would be prejudiced if the Speaker is not restrained. We would dismiss the motion with costs to the Defendants.
__________________________________________________________________
Lawyers for the First Plaintiff: Jerewai Lawyers
Lawyers for the Second Plaintiff: Korowi Lawyers
Lawyers for the First Defendant: Nonggor & Associates Lawyers
Lawyers for the Second Defendant: Yagi Lawyers
Lawyers for the Third Defendant: Henao’s Lawyers
Lawyers for the Fourth Defendant: Melanesian Legal Group
Lawyers for the Fifth Defendant: Nonggor & Associates Lawyers